### No. 13287 IN

### THE SUPREME COURT OF THE STATE OF 

### MONTANA

RICHARD 

### L. McALEAR, Claimant and Appellant,

ARTHUR G. 

### McKEE 

### AND COMPANY, EMPLOYER, and GENERAL ACCIDENT FIRE AM) LIFE ASSURANCE CORPORATION, Respondentsand Insurers

Appeal from: Workers' Compensation Court-Silver Bow County Honorable William 

### E. Hunt, Judge presiding. Counsel 

### of Record: ForAppellant: 

### Allen L. 

### McAlear argued, Bozeman, Montana For Respondent

### : Henningsen, Purcell and Genzberger, Butte,

Montana James E. 

### Purcell argued, Butte, Montana

Submitted: October 13, 1976 Decided: -- 

# DEC

# 34 -- 

## 1976

:? p Q" 

### Filed: l,j

## Ebc u

### 0

## ?,27E.Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This 

### is an appeal from the Workers' Compensation Court wherein defendant insurer was ordered topay plaintiff, Richard L. McAlear, $614.40 partial disability. The facts 

### are: On October 21, 1974, while employed as a carpenter by defendant McKee, McAlear suffered a broken elbow. It 

### was not disputed that the injury arose out of and inthe scope of his employment. Neither 

### are themedical reports which 

### stateMcAlear suffered a 15% permanent loss of extension in that elbow 

### as a result of this injury questioned. Immediately after the injury McAlear 

### was examined by Dr. Ellisof Anaconda, Montana, and thereafter referred toDr. Whitfield of Dillon, Montana and Dr. Losee of Ennis, Montana. From October 21, 1974,to January 20, 1975,McAlear was physically incapable of working and received $137 per week 

### temporary total disability from defendant insurer. On January 20, 1975, Dr. Losee released McAlear toreturn towork and McAlear advised defendant insurer of this

### release. Atthat 

### timetemporary total disabilitybenefits 

### were discontinued. McAlear then began to seek employment, listing his name with threeunion locals. However, no employment was available and he remained unemployed until June 1, 1975. During the period from hisrelease by Dr. Losee, January 20, 1975, untilMay 2, 1975, McAlear continued to see Dr. Whitfield, receiving 

### a written release from him on May 

### 2, 1975. On April 23, 1975, defendant insurer offered a partial disability award of $1,394.40 toMcAlear for the conceded permanent injury to his elbow. The basis of that award was stated tobe that an American Medical Association guide toevaluating injuries interpreted 15%loss of extension toelbow equivalent to 8-1/3% loss of the arm; that loss of an arm entitlesone to 280 weeks of

### benefits under the Workers' Compensation Laws; therefore 8-1/3% of 280 weeks (23.24weeks) at a rate of $60per week equals $1,394.40. Defendant insurer enclosed $780with this offer to

, 

### bring the benefits current to April 21, 1975, and advised McAlear that if such a final settlement was agreeable the remaining $614.40

' 

### would be paid. McAlear rejected this offer and filed a claim with the Workers' Compensation Court seeking an extension of the total temporary disability from January 20, 1975, to May 2, 1975, and partial disability beginning May 2, 1975, for 2/3 of his wage loss at a maximum rate of $60per week for 280 weeks. The Workers' Compensation Court's final determination

was in accord with defendant insurer's offer ordering the remaining $614.40 paid to McAlear. Two issues are presented for our review: 1) Whether the Workers' Compensation Court erred in refusing to extend the temporary total disability from January 20, 1975, to May 2, 1975? 2) 

### Whether the Workers' Compensation Court erred in its partial disability award? This being one of the first appeals from the Workers' Compensation Court we refer to Skrukrud 

### v. Gallatin Laundry Co., Inc., decided by this Court on December 

## , 1976, Mont

# . -I 

### - P.2d

## -' - St.Rep. 

## ,wherein we stated: 

### " 

## * * * The law as it applied to judicial review of Workmen's Compensation Division decisions prior to July 1, 1975 is well summarized in Miller v. City of Billings, Mont. 

## , 555 P.2d 747, 749, 33 

## st. Rep. 984, 986: "'Thefindings and decision of the Workmen's Compensation Division are presumed to be correct and if supported by credible evidence must be affirmed. Section 92-822,R.C.M. 1947

(since repealed);Birnie v. United States Gypsum Co., 134 Mont. 39, 

### 44, 328 P.2d 133; Hurlbut v. Vollstedt Kerr Co., Mont. 538 P.2d344, 347, 32 St.Rep. 752, 755. The district courtmust affirm the Division order if the evidence does not clearly preponderate against 

### its findings. Becktold v. Ind. Acc. Bd., 137 Mont. 119, 125, 350 P.2d 383; Stordahlv. Rush Implement Co., 148 Mont. 13, 417 P.2d 95; 3 Larson's Workmen's Compensation Law, S 80.20. Section 92-834, R.C.M. 1947 (ineffect in 1966, but since repealed), provided the districtcourt, may upon good cause shown admit additional evidence. Section 92-835, R.C.M. 1947 ( i n e f f e c t in 1966, but sincerepealed), provided that if this additional evidence 

### is substantial, the districtcourtmay be justified inreversing the Division even though the evidence adduced before the Division clearly preponderates in favor of 

### its order. Murphy v. Industrial Accident Board, 93 Mont. 

### 1, 16 P.2d 705; Hurlbut v. Vollstedt Kerr Co., supra. "'Where the appeal tothe district court is heard

only on the Division's certified record or when the districtcourt permits additional evidence tobe introduced that 

### is not important or adds nothing new tothe 

### case, the court is bound by the 

### same ruleof appeal which applies where the appeal 

### is heard only on the certified record and the Division 

### is entitled toa presumption the case was decided correctly. Kelly v. West Coast Construction Co., 106 Mont. 463, 78 P.2d 1078; McAndrews v. Schwartz, 164 Mont. 402, 523 P.2d 1379; Erhart v. Great Western Sugar Co., Mont. 546 P.2d 1055, 33 St.Rep. 302.' "See also: Kimball v. Continental OilCo., Mont

# . I 550 P.2d 912, 33 St.Rep. 517. "Under the law as 

### it now exists, thisCourt directlyreviews the decision of the workers' court, section 92-852(2), R.C.M. 1947. The workers' court proceedings areadministrative innature and quasi-judicial, sections 92-852 (1)and 82A-1016, R.C.M. 1947. The appropriate scope of this Court's review should be no different than 

### it was under former 

### lawas expressed inthe above cited cases; that 

### is, workers' court decisions

### willnot be overturned if there 

### is substantial evidence to support 

### its findings and conclusions." Weturn now tothe firstissue. The statuteswhich govern

are section 92-701.1, R.C.M. 1947, which states: 

### " 

## * * 

## * Total temporary disabilitybenefits shall be paid for the duration of theworker's temporary disability." and section 92-439, R.C.M. 1947, which defines temporary total disability

### as: 

### " 

# * * * a condition resulting from an injuryasdefined inthis act that results intotal loss of wages and existsuntil the injured workman 

### is as farrestored 

### as the permanent character of the injuries 

### willpermit."

-- - (~mphasis added.) Therefore, temporary total disability ceases when theworkman's physical condition 

### is

### as far restored as the permanent character of the injuries 

### willpermit. When the claimant has reached this stage inhis healing process temporary total disabilityceases, and partial disabilitybegins if there 

### ispermanent partial 

### impairment. The record shows that Dr. Losee released McAlear 

### as of January 20, 1975. Furthermore McAlear himself called and informed defendant insurer that he 

### was released toreturn towork on January 20, 1975. Dr. Whitfield, inwritten correspondence, stated that McAlear might have been able toreturn towork inJanuary but that an official written release

### was not signed by Dr. Whitfield until May 2, 1975. McAlear further testified that he 

### was seeking work through three union locals from January 20, 1975, the date of Dr. Losee's 

### release, until June 1, 1975, when he obtained 

### employment, and that the only reason for hisunemployment during thisperiod was the unavailability of any employment. Considering this evidence and the 

### lawgoverning temporary total disability, 

### wewillnot reverse the holding of the Workers' Compensation Court on this issue, since

### we failto find any denial of plaintiff's substantial rights as specified in section 82-4216, R.C.M. 1947. Next, 

### we are asked toreview the Workers' Compensation Court's partial disability award. In the beginning, 

### we note that there 

### are two distinct types of partial disabilitybenefits which 

### a claimant may seek, such being the situation on the date of McAlear's injury. A claimant may elect a disabilitybenefit under section 92-703.1,R.C.M. 1947, or an indemnity benefit under section 92-709, R.C.M. 1947. The distinction between these two benefits 

### is that section 92-703.1 bases the benefit upon actual lossof earning capacity resulting from the injury, whereas section 92-709 awards compensation regardless of earnings tocompensate for possible loss of earning capacity inthe future. Jones v. Glac. General Assurance Co., 145Mont. 326, 400 P.2d 888. Applying this distinction tothe case athand, the result 

### is that McAlear 

### was entitled to

### elect one of two awards, depending upon the record established before theWorkers' Compensation Court

# . 1) McAlear was entitled toproceed under section 92-709 whereby the Workers' Compensation Court could award, 

### as compensation for the partial loss of use of his arm, the full amount allowable under section 92-709 that would result if the arm had been permanently lost, or a proportionately 

### less amount. Obie 

### v. Obie Signs, Inc.,143 Mont. 

### 1, 386 P.2d 68. Defendant insurer made 

### its offer pursuant tothis approach and based upon themedical reports of McAlear's doctors that he sustained a 15%permanent lossof extension in his elbow, offered the following evidence. An American Medical Association guide toevaluating injuries stated such

a loss of extension inthe elbow was equivalent to 8-1/3% loss of the arm. Therefore, the proportionate amount due 

### was calculated tobe $1,394.40 [280 weeks (100%loss of arm) x 8-1/3% (actual loss of use i n t h i scase) x $60 per week (themaximum weekly rate allowable at the time of McAlear's injury)]. 2) The alternatebenefit available

### was under section 92-703.1 which would allowMcAlear a maximum of $60 per week for themaximum number of weeks under section 92-709 for the loss of

an arm (280 weeks). However, tobe eligible for such benefits,McAlear 

### was required to show actual loss of earning capacity. The 

### test todetermine loss of earning capacity is that a claimant must show the inability toobtain employment due tothe injuries. Shaffer v. Midland Empire Pack. Co., 127 Mont. 211, 259 P.2d

McAlear failed tofulfill thisburden of proof. The testimony 

### was uncontroverted that the solereason for McAlearls unemployment after January 20, 1975,was that no employment was available. There 

### was no showing by McAlear that the reduction of his earnings after gaining employment, ascompared tohis earnings prior tohis injury, was due tohisphysical impairment. Nor 

### was he, atany 

### time, refused employment or forced toreject any offered employment because of hisphysical impairment from the date of his initialrelease, January 20, 1975, until the 

### time of his hearing before theWorkers' Compensation Court. We find no grounds under section 82-4216, R.C.M. 1947, which would permit reversal of the finaldecision of theWorkers' Compensation Court. The Workers' Compensation Court awarded McAlear benefits inaccord with thedefendant insurer's offer under section 92-709, R.C.M. 1947, instead of disallowing any benefits atallforMcAlearls failuretoput forth any evidence entitlinghim to compensation under section 92-703.1, R.C. M. 1947. McAlearls contention is correct that a claimant can 

### elect toproceed under section 92-703.1 or section 92-709 when seeking partial disabilitybenefits. However, 

### we do not believe that the Workers' Compensation Court should be restrained from making an award supported by the evidencewhen the claimant has made an incorrect election inlight of the evidence presented. The judgment is affirmed.P Chief Justice Weconcur:

Judge, sitting 

### in place of 

### Mr. JusticeWesley Castles.