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, 

Respondents and Insurers 

Appeal from: Workers' Compensation Court-Silver Bow County 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant : 

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 E bc 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 to pay 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 in the scope of his 

employment. Neither are the medical reports which state McAlear 

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. Ellis of Anaconda, Montana, and thereafter referred to Dr. 

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 to return to work and McAlear 

advised defendant insurer of this release. At that time temporary total disability benefits were discontinued. 

McAlear then began to seek employment, listing his name 

with three union locals. However, no employment was available 

and he remained unemployed until June 1, 1975. 

During the period from his release by Dr. Losee, January 

20, 1975, until May 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 to McAlear for the conceded permanent 

injury to his elbow. The basis of that award was stated to be 

that an American Medical Association guide to evaluating injuries 

interpreted 15% loss of extension to elbow equivalent to 8-1/3% 

loss of the arm; that loss of an arm entitles one to 280 weeks of 
benefits under the Workers' Compensation Laws; therefore 8-1/3% 

of 280 weeks (23.24 weeks) at a rate of $60 per week equals 

$1,394.40. Defendant insurer enclosed $780 with 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 $60 per 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: 

"'The findings 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.2d 
344, 347, 32 St.Rep. 752, 755. The district 

court must 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; Stordahl v. 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 (in effect in 1966, 

but since repealed), provided the district court, 

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 since repealed), provided that if 

this additional evidence is substantial, the 

district court may be justified in reversing 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 to the district court is heard 

only on the Division's certified record or when 

the district court permits additional evidence 

to be introduced that is not important or adds 

nothing new to the case, the court is bound by 

the same rule of appeal which applies where the 

appeal is heard only on the certified record and 

the Division is entitled to a 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 Oil Co., Mont . I 

550 P.2d 912, 33 St.Rep. 517. 

"Under the law as it now exists, this Court 

directly reviews the decision of the workers' 

court, section 92-852(2), R.C.M. 1947. The workers' 

court proceedings are administrative in nature 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 law as expressed in the above cited cases; 

that is, workers' court decisions will not be overturned if there is substantial evidence to support 

its findings and conclusions." 

We turn now to the first issue. The statutes which govern 

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

" * * * Total temporary disability benefits shall 

be paid for the duration of the worker's temporary 

disability." 

and section 92-439, R.C.M. 1947, which defines temporary total 

disability as: 

" * * * a condition resulting from an injury 
as defined in this act that results in total 

loss of wages and exists until the injured 

workman is as far restored as the permanent 

character of the injuries will permit." -- - 

(~mphasis added.) 

Therefore, temporary total disability ceases when the workman's 

physical condition is as far restored as the permanent character 

of the injuries will permit. When the claimant has reached this 

stage in his healing process temporary total disability ceases, 

and partial disability begins if there is permanent 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 to return to work on January 20, 1975. Dr. Whitfield, in written correspondence, stated 

that McAlear might have been able to return to work in January 

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 his unemployment during 

this period was the unavailability of any employment. 

Considering this evidence and the law governing temporary 

total disability, we will not reverse the holding of the Workers' 

Compensation Court on this issue, since we fail to find any denial 

of plaintiff's substantial rights as specified in section 82-4216, 

R.C.M. 1947. 

Next, we are asked to review the Workers' Compensation 

Court's partial disability award. 

In the beginning, we note that there are two distinct 

types of partial disability benefits which a claimant may seek, 

such being the situation on the date of McAlear's injury. A 

claimant may elect a disability benefit 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 loss of earning 

capacity resulting from the injury, whereas section 92-709 

awards compensation regardless of earnings to compensate for 

possible loss of earning capacity in the future. Jones v. Glac. 

General Assurance Co., 145 Mont. 326, 400 P.2d 888. 

Applying this distinction to the case at hand, the result 

is that McAlear was entitled to elect one of two awards, depending upon the record established before the Workers' Compensation 

Court . 

1) McAlear was entitled to proceed 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 to this approach and based upon the medical reports 

of McAlear's doctors that he sustained a 15% permanent loss of 

extension in his elbow, offered the following evidence. An American 

Medical Association guide to evaluating injuries stated such 

a loss of extension in the elbow was equivalent to 8-1/3% loss of 

the arm. Therefore, the proportionate amount due was calculated 

to be $1,394.40 [280 weeks (100% loss of arm) x 8-1/3% (actual 

loss of use i n t h i s case) x $60 per week (the maximum weekly 

rate allowable at the time of McAlear's injury)]. 

2) The alternate benefit available was under section 

92-703.1 which would allow McAlear a maximum of $60 per week for 

the maximum number of weeks under section 92-709 for the loss of 

an arm (280 weeks). However, to be eligible for such benefits, 
McAlear was required to show actual loss of earning capacity. 

The test to determine loss of earning capacity is that a claimant 

must show the inability to obtain employment due to the injuries. 

Shaffer v. Midland Empire Pack. Co., 127 Mont. 211, 259 P.2d 

McAlear failed to fulfill this burden of proof. The 

testimony was uncontroverted that the sole reason 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, as compared to his 

earnings prior to his injury, was due to his physical impairment. 

Nor was he, at any time, refused employment or forced to reject 

any offered employment because of his physical impairment from 

the date of his initial release, January 20, 1975, until the time 

of his hearing before the Workers' Compensation Court. 

We find no grounds under section 82-4216, R.C.M. 1947, 

which would permit reversal of the final decision of the Workers' 

Compensation Court. The Workers' Compensation Court awarded 

McAlear benefits in accord with the defendant insurer's offer 

under section 92-709, R.C.M. 1947, instead of disallowing any 

benefits at all for McAlearls failure to put forth any evidence 

entitling him to compensation under section 92-703.1, R.C. M. 

1947. 

McAlearls contention is correct that a claimant can elect 

to proceed under section 92-703.1 or section 92-709 when seeking 

partial disability benefits. However, we do not believe that the 

Workers' Compensation Court should be restrained from making an 

award supported by the evidence when the claimant has made an 

incorrect election in light of the evidence presented. 

The judgment is affirmed. 
P 

Chief Justice 

We concur: 

Judge, sitting in place of Mr. 

Justice Wesley Castles.