No. 95-252 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STEVEN K. BURGLUND, 

Petitioner and Appellant, 

v. 

LIBERTY MUTUAL FIRE INSURANCE COMPANY, 

APPEAL FROM: The Workers' Compensation Court 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Darrell S. Worm, Ogle & Worm, 

Kalispell, Montana 

For Respondent: 

Larry W. Jones, Senior Attorney, 

Liberty Mutual Fire Insurance Co., 

Missoula, Montana 

Filed: 

Submitted on Briefs: August 15, 1996 

Decided: November 21, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Steven K. Burglund appeals from the amended findings of fact, 

conclusions of law, and judgment entered by the Workers' 

Compensation Court on April 10, 1995, and from the order denying 

his petition for a new trial filed on May 1, 1995. Liberty Mutual 

Northwest Insurance Company and United Parcel Service (UPS) filed 

a cross-appeal of the court's amended findings of fact, conclusions 

of law, and judgment. The cross-appeal is limited to the twenty 

percent disability award granted by the Workers' Compensation Court 

as an indemnity benefits award. We affirm the court on both issues 

raised on appeal. 

The issues on appeal are as follows: 

1. Did the Workers' Compensation Court err in denying 

permanent partial disability (PPD) benefits to Burglund pursuant to 

5 39-71-703, MCA (1983), for his 1984 industrial injury? 

2. Did the Workers' Compensation Court err in determining 

that Liberty is liable under §§ 39-71-705 through -708, MCA (1983), 

for payment to Burglund of 100 weeks of PPD benefits, representing 

a twenty percent disability? 

FACTS 

Burglund was born on April 22, 1955, and is presently 

forty-one years old. He graduated from high school and attended an 

electronics institute in the early 1970s. He then installed 

security equipment for a year or two and worked as a parts clerk at 

several auto supply stores. Burglund has been employed by UPS as 

a package car driver since 1980. His employment duties consist of 

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picking up and delivering UPS packages, and sorting and loading 

packages at the Kalispell UPS Center. Burglund's "sort-and-load" 

duties involve the lifting of packages off a conveyer belt and 

transferring them several feet to the delivery trucks. The 

packages weigh up to seventy pounds; however, the average package 

weighs only fifteen to twenty-five pounds. 

On February 14, 1984, Burglund suffered an industrial injury 

arising out of and in the course of his employment with UPS when he 

fell off a platform and injured his back. He returned to work as 

a full-time package car driver on March 12, 1984. He continued to 

suffer back pain and was examined by Dr. Henry Gary, a 

neurosurgeon, on February 16, 1988. Dr. Gary diagnosed Burglund as 

having a herniated disc at the LS-Sl level. 

Between February 1988 and February 1991 his back and leg pain 

increased. On February 18, 1991, Dr. Gary performed a lumbar 

laminotomy and foramenotomy at the LS-Sl vertebral level. Burglund 

was off work until June 1, 1991, at which time he returned to work 

as a full-time package car driver. Both of his doctors released 

him to return to work without any restrictions. 

On July 16, 1992, Dr. Gary wrote a letter in response to an 

inquiry from Burglund's attorney regarding his impairment and 

medical restrictions. He stated that Burglund would have a ten 

percent permanent partial impairment rating and needed to have some 

restrictions in any type of work as to the amount of lifting he 

could do. The letter said that reasonable limits would include not 

lifting anything over twenty to twenty-five pounds with any 

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frequency and not lifting anything over fifty pounds on an 

infrequent basis. In the fall of 1992, Burglund was laid off on 

account of this letter, as the fifty pound limit was less than the 

seventy pounds he was required to lift for his position with UPS. 

Liberty attempted to pay PPD benefits, but Burglund refused them on 

the basis that he had at all times been physically able to perform 

his job duties. 

On November 24, 1992, Burglund underwent a physical capacities 

evaluation to further define his physical restrictions. During 

this evaluation he reported feeling no pain and demonstrated no 

pain behaviors. The examiner therefore concluded that Burglund was 

physically able to work as a UPS package car driver. Dr. Gary 

reviewed this evaluation and concluded that Burglund would be able 

to perform his job without any restrictions. As a result, Burglund 

was allowed to return to work on January 5, 1993, as a UPS package 

car driver. 

In 1993, Burglund filed a claim seeking PPD benefits pursuant 

to 5 39-71-703, MCA (1983), and 55 39-71-705 through -708, MCA 

(1983). After trial the court issued its findings of fact, 

conclusions of law, and judgment on January 19, 1995. On 

February 9, 1995, Liberty filed a petition for amendment to the 

court's findings and conclusions or alternatively for a new trial. 

The court withdrew its findings of fact, conclusions of law, and 

judgment on March 1, 1995. Thereafter, the parties filed a 

stipulation clarifying the scope of issues to be submitted to the 

court for decision. On April 10, 1995, the Workers' Compensation 

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Court filed amended findings of fact, conclusions of law, and 

judgment and awarded Burglund PPD benefits for a period of 100 

weeks at the weekly rate of $138.50, less the ten percent 

impairment award already paid by Liberty. Burglund filed a 

petition for a new trial and for an amendment to the findings and 

conclusions, which the court denied. He appeals from the order 

denying his petition and from the amended findings of fact and 

conclusions of law and judgment. Liberty and UPS have filed a 

cross-appeal alleging that there is not substantial credible 

evidence in the record to support the Workers' Compensation Court's 

decision that Liberty is liable under 55 39-71-705 through -708, 

MCA (1983), for payment to Burglund of 100 weeks of PPD benefits. 

ISSUE 1 

Did the Workers' Compensation Court err in denying PPD 

benefits to Burglund pursuant to § 39-71-703, MCA (1983), for his 

1984 industrial injury? 

This Court will uphold the Workers' Compensation Court's 

findings of fact if they are supported by substantial credible 

evidence. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 

404, 408, 892 P.2d 563, 566. We review the trial court's 

conclusions of law to determine if they are correct. Turjan v. 

Valley View Estates (1995), 272 Mont. 386, 390, 901 P.2d 76, 79. 

The parties entered into a stipulation which authorized the 

Workers' Compensation Court to determine Burglund's entitlement to 

PPD benefits on both a loss of earning capacity basis under 

§ 39-71-703, MCA (1983), and on an indemnity basis under 

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55 39-71-705 through -708, MCA (1983). A disability award under 

5 39-71-703, MCA (1983), is based on the actual loss of earning 

capacity resulting from the injury, whereas an indemnity benefit 

under §§ 39-71-705 through -708, MCA (1983), awards compensation 

for possible loss of earning capacity in the future. Stuker v. 

Stuker Ranch (1991), 251 Mont. 96, 98, 822 P.2d 105, 107. 

Burglund argues that the Workers' Compensation Court 

erroneously interpreted the law in finding that he suffered no loss 

of earning capacity and concluding, therefore, that he was not 

entitled to benefits under 5 39-71-703, MCA (1983). He argues that 

the Workers' Compensation Court failed to determine whether his 

ability to earn in the open labor market had been diminished by his 

work-related injury after taking into account all relevant factors. 

Section 39-71-703, MCA (19831, provides that weekly 

compensation benefits in the amount of 662/3 percent of the actual 

diminution in the worker's earning capacity shall be paid for an 

injury producing permanent partial disability. Permanent partial 

disability is defined by § 39-71-116(12), MCA (1983), as "a 

condition resulting from injury as defined in this chapter that 

results in the actual loss of earnings or earning capability." We 

have previously held that the relevant inquiry under § 39-71-703, 

MCA (1983), is whether a claimant's ability to earn in the open 

labor market has been diminished by a work-related injury after 

taking into account all relevant factors. Sedlack v. Bigfork 

Convalescent Center (1988), 230 Mont. 273, 749 P.2d 1085. These 

factors include the injured worker's age, occupation, skills and 

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education, previous health, number of productive years remaining, 

and degree of physical or mental impairment. Reeverts v. Sears 

(1994), 266 Mont. 509, 514, 881 P.2d 620, 623. Under 5 39-71-703, 

MCA (1983), a claimant does not have to prove that his job is in 

jeopardy or that there is a likelihood of losing present employment 

because of an injury to be eligible for permanent partial 

disability benefits. Taylor v. Columbia Falls Aluminum Co. (1990), 

243 Mont. 464, 795 P.2d 433. 

The Workers' Compensation Court's conclusion that Burglund 

was not entitled to benefits under § 39-71-703, MCA (19831, was 

based on its resolution of factual disputes concerning whether he 

had physical restrictions from his 1984 injury which would diminish 

his earning capacity on the open labor market. In order to address 

Burglund's assertion, we must first address the findings upon which 

the court based its conclusion that he was not entitled to benefits 

under 5 39-71-703, MCA (1983). 

At trial, Burglund claimed significant and prolonged physical 

restrictions. The Workers' Compensation Court did not find his 

testimony credible and it determined that Burglund did not have the 

physical restrictions he claimed. The evidence and testimony 

presented at trial showed that Burglund returned to work without a 

physician-imposed restriction resulting from his work-related 

injury. Burglund completed a medical history form and stated that 

he did not have any disease, illness, or defect which might result 

in a disability or incapacity. In addition, Burglund's numerous 

recreational activities, including nordic ski patrol, white water 

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rafting, sailboat racing, and hunting, indicate that he remains in 

excellent physical condition. This Court will not substitute its 

judgment for that of the trial court when the issue relates to the 

credibility of the witnesses or the weight given to certain 

evidence. Wunderlich, 892 P.2d at 566. The court's finding that 

Burglund did not have the physical restrictions he claimed is 

supported by substantial credible evidence in the record. 

Burglund asserts that the Workers' Compensation Court erred by 

analyzing his claim in the context of a "pre-injury normal labor 

market" and not in the context of an open labor market as set forth 

in Sedlack, 749 P.Zd at 1088. However, given the fact that the 

Workers' Compensation Court specifically found that Burglund did 

not suffer from the physical restrictions he claimed, a review of 

Burglund's contention would be superfluous. 

The court evaluated the relevant factors in its 

determination of Burglund's loss of earning capacity. It 

considered Burglund's education and stated that although his 

electronics certification is obsolete, his previous education 

demonstrates his intelligence to master technical subjects and that 

the type of work he has chosen does not require the level of 

education he has achieved. As to Burglund's work history, the 

court noted that performance in his position at the time of his 

injury has not been diminished by his injury. The court stated 

that Burglund's pain and disability does not significantly 

interfere with his employment. Burglund's age was considered by 

the court to be a neutral factor. The Workers' Compensation Court 

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therefore concluded Burglund suffered no actual wage loss from his 

injury and is physically able to continue performing his job until 

he reaches retirement age. We determine that the Workers' 

Compensation Court correctly interpreted the law when it determined 

that Burglund suffered no loss of earning capacity under 

5 39-71-703, MCA (1983), and that it properly denied PPD benefits 

to Burglund under this section. 

Burglund also appeals the denial of his motion for a new 

trial. The decision to grant a new trial is within the sound 

discretion of the trial judge and will not be overturned absent a 

showing of manifest abuse of discretion. Fjelstad v. State Dep't 

of Highways (1994), 267 Mont. 211, 220, 883 P.2d 106, 111; Stanhope 

v. Lawrence (1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228. 

The Workers' Compensation Court found Burglund's testimony at 

trial that he was physically restricted in his job performance 

unbelievable. Burglund argues that newly discovered evidence of 

his current physical condition raises a reasonable probability of 

a different result, especially concerning the findings involving 

his credibility. He claims that the 1984 injury forced him to stop 

working at UPS seventeen months after the trial and that his 

credibility at trial as to his physical restrictions should be 

reevaluated. Burglund asserts that refusing to reopen the record 

to admit evidence on what the lower court viewed as a central issue 

of this case, whether he could continue working indefinitely in his 

current position, was a manifest abuse of discretion that compels 

reversal of the lower court's decision. 

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The Workers' Compensation Court stated that it cannot go back 

and retry a matter simply because there have been subsequent 

developments. The court held, however, that it does have 

jurisdiction to consider subsequent changes in his disability under 

§ 39-71-2909, MCA, and that Burglund's remedy is to file a new 

petition. We conclude that the Workers' Compensation Court did not 

abuse its discretion in so holding. 

ISSUE 2 

Did the Workers' Compensation Court err in determining that 

Liberty is liable under 55 39-71-705 through -708, MCA (1983), for 

payment to Burglund of 100 weeks of PPD benefits, representing a 

twenty percent disability? 

Permanent partial disability benefits available under 

§§ 39-71-705 through -708, MCA (1983), are commonly referred to as 

"indemnity benefits." Liberty and UPS assert that the triggering 

event for an award of indemnity benefits is a physical restriction 

arising from an injury that has or may adversely affect a person's 

ability to work in the future. They argue that because Burglund 

has no physical restrictions on his work or recreational activities 

that as a matter of law he is not entitled to indemnity benefits. 

Indemnity benefits are based upon the schedule of injuries set 

forth in § 39-71-705, MCA (1983). In the case of a non-scheduled 

injury, such as the back injury found in this case, the maximum 

number of weeks of benefits is 500 weeks. Section 39-71-706, MCA 

(1983). 

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To determine an indemnity benefit claim under §§ 39-71-705 

through -708, MCA (1983), the court must consider the claimant's 

age, education, work experience, pain and disability, actual wage 

loss, and loss of future earning capacity. Carroll v. Wells Fargo 

Armored Serv. Corp. & CNA (1990), 245 Mont. 495, 499, 802 P.2d 618, 

621 (citing Holton v. F.H. Stoltze Land and Lumber Co. (1981), 195 

Mont. 263, 266, 637 P.2d 10, 12). As we have previously stated, 

the purpose of indemnity benefits is to indemnify the injured 

worker for "possible" loss of future earning capacity, rather than 

any "actual" loss of earning capacity. Stuker, 822 P.2d at 107. 

Burglund may not have a present physical restriction on his 

work; however, this does not mean that he will not suffer a 

possible loss of future earning capacity as a result of his injury. 

One-half of the twenty percent disability award is represented by 

the impairment award, which is strictly a medical determination. 

UPS attacked this medical determination before the Workers' 

Compensation Court but did not appeal this issue. Given the ten 

percent impairment rating, the court awarded an additional ten 

percent for factors other than medical impairment. The court's 

award of an additional ten percent does not, as a matter of law, 

require that Burglund be currently physically restricted in either 

his employment or his recreational activities. It is an award to 

compensate future possible loss of earning capacity. There is 

sufficient evidence in the record which supports the court's 

conclusion that Burglund could possibly be forced to quit his 

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position with UPS and therefore suffer future possible loss of 

earning capacity. 

We therefore determine the Workers' Compensation Court did not 

err in concluding that Liberty is liable under §§ 39-71-705 through 

-708, MCA (1983), for payment to Burglund of 100 weeks of permanent 

partial disability benefits, representing a twenty percent 

disability. 

We affirm both issues raised on appeal. 

Justice 

We concur: 

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