No. 95-252 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

STEVEN K. BURGLUND,

Petitioner andAppellant,
v. LIBERTY MUTUALFIRE INSURANCECOMPANY,

APPEAL FROM: TheWorkers' Compensation Court

The Honorable Mike McCarter, Judge presiding.

COUNSELOFRECORD:

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 onBriefs: August 15, 1996 Decided: November 21, 1996Justice 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 onApril 10, 1995, and from the order denying his petition for anewtrial filed onMay1, 1995. Liberty Mutual Northwest Insurance Company andUnited Parcel Service (UPS) filed
across-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 bythe Workers' Compensation Court
asanindemnity benefits award. Weaffirm the court onboth issues raised onappeal. The issues onappeal are as follows: 1. Did the Workers' Compensation Court err in denying permanent partial disability (PPD)benefits to Burglund pursuant to 539-71-703, 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 100weeks of PPDbenefits, representing
atwenty percent disability? FACTS Burglund was born on April 22, 1955, and is presently forty-one years old. Hegraduated from high school andattended an electronics institute in the early 1970s. He then installed security equipment for ayear ortwo andworked asaparts clerk at several auto supply stores. Burglund has been employed by UPSas apackage car driver since 1980. His employment duties consist of

2picking up and delivering UPSpackages, and sorting and loading

packages at the Kalispell UPSCenter. 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 upto seventy pounds; however, the average package weighs only fifteen to twenty-five pounds. OnFebruary 14, 1984, Burglund suffered an industrial injury arising out of and in the course of his employment with UPSwhenhe fell off aplatform and injured his back. Hereturned to work as afull-time package car driver onMarch 12, 1984. Hecontinued to suffer back pain and was examined by Dr. Henry Gary, a neurosurgeon, onFebruary 16, 1988. Dr. Gary diagnosed Burglund as having aherniated disc at the LS-Sl level. Between February 1988and February 1991 his back and leg pain increased. On February 18, 1991, Dr. Gary performed a lumbar laminotomy andforamenotomy at the LS-Sl vertebral level. Burglund
wasoff work until June 1, 1991, at which time hereturned to work
as afull-time package car driver. Both of his doctors released him to return to work without any restrictions. OnJuly 16, 1992, Dr. Gary wrote aletter in response to an inquiry from Burglund's attorney regarding his impairment and medical restrictions. Hestated that Burglund would have aten percent permanent partial impairment rating andneeded to have some restrictions in any type of work as to the amount of lifting he could do. Theletter said that reasonable limits would include not lifting anything over twenty to twenty-five pounds with any

3frequency 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, asthe fifty pound limit was less than the seventy pounds hewas required to lift for his position with UPS. Liberty attempted topay PPDbenefits, but Burglund refused them on the basis that hehadat all times been physically able to perform his job duties. OnNovember 24, 1992, Burglund underwent aphysical capacities evaluation to further define his physical restrictions. During this evaluation he reported feeling no pain and demonstrated no pain behaviors. Theexaminer therefore concluded that Burglund was physically able to work as aUPSpackage car driver. Dr. Gary reviewed this evaluation andconcluded that Burglund would beable to perform his job without any restrictions. Asaresult, Burglund
wasallowed to return to work onJanuary 5, 1993, asaUPSpackage
car driver. In 1993, Burglund filed aclaim seeking PPDbenefits pursuant to 539-71-703, 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 apetition for amendment to the court's findings andconclusions or alternatively for anewtrial. 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 besubmitted to the court for decision. OnApril 10, 1995, the Workers' Compensation

4Court filed amended findings of fact, conclusions of law, and

judgment and awarded Burglund PPDbenefits for aperiod 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 anewtrial and for anamendment to the findings and conclusions, which the court denied. Heappeals 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 5539-71-705 through -708, MCA (1983), for payment to Burglund of 100weeks of PPDbenefits. 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), 270Mont. 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), 272Mont. 386, 390, 901P.2d 76, 79. The parties entered into astipulation 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

55539-71-705 through -708, MCA (1983). Adisability award under

539-71-703, 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), 251Mont. 96, 98, 822 P.2d 105, 107. Burglund argues that the Workers' Compensation Court erroneously interpreted the law in finding that hesuffered noloss of earning capacity and concluding, therefore, that he was not entitled to benefits under 539-71-703, MCA(1983). Heargues that the Workers' Compensation Court failed to determine whether his ability to earn in the open labor market hadbeen diminished byhis 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 aclaimant's ability to earn in the open labor market has been diminished by awork-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

6education, previous health, number of productive years remaining,

and degree of physical or mental impairment. Reeverts v. Sears (1994), 266Mont. 509, 514, 881P.2d 620, 623. Under 539-71-703, MCA (1983), aclaimant does not have to prove that his job is in jeopardy or that there is alikelihood 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 hadphysical restrictions from his 1984 injury which would diminish his earning capacity onthe open labor market. Inorder to address Burglund's assertion, wemust first address the findings uponwhich the court based its conclusion that hewasnot entitled to benefits under 539-71-703, MCA(1983). At trial, Burglund claimed significant andprolonged physical restrictions. The Workers' Compensation Court did not find his testimony credible andit 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 amedical history form andstated that hedid not have anydisease, illness, or defect which might result in adisability or incapacity. In addition, Burglund's numerous recreational activities, including nordic ski patrol, white water

7rafting, sailboat racing, andhunting, indicate that heremains 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" andnot in the context of anopen labor market asset 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 heclaimed, areview of Burglund's contention would besuperfluous.

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 andthat 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 beaneutral factor. TheWorkers' Compensation Court

8therefore concluded Burglund suffered noactual 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 lawwhenit determined that Burglund suffered no loss of earning capacity under 539-71-703, MCA(1983), and that it properly denied PPDbenefits 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 andwill not beoverturned absent a showing of manifest abuse of discretion. Fjelstad v. State Dep't of Highways (1994), 267Mont. 211, 220, 883P.2d 106, 111; Stanhope
v. Lawrence (1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228. TheWorkers' 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 areasonable probability of
adifferent result, especially concerning the findings involving his credibility. Heclaims 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 onwhat the lower court viewed asacentral issue of this case, whether hecould continue working indefinitely in his current position, wasamanifest abuse of discretion that compels reversal of the lower court's decision.

9TheWorkers' Compensation Court stated that it cannot goback

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. Weconclude that the Workers' Compensation Court did not abuse its discretion in soholding. ISSUE 2 Did the Workers' Compensation Court err in determining that Liberty is liable under 5539-71-705 through -708, MCA(1983), for payment to Burglund of 100weeks of PPDbenefits, 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 andUPSassert that the triggering event for anaward of indemnity benefits is aphysical restriction arising from aninjury that hasor mayadversely affect aperson's ability to work in the future. They argue that because Burglund has nophysical restrictions onhis work orrecreational activities that asamatter of law heis 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 anon-scheduled injury, such as the back injury found in this case, the maximum number of weeks of benefits is 500weeks. Section 39-71-706, MCA (1983).

10To 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 anddisability, actual wage loss, and loss of future earning capacity. Carroll v. Wells Fargo Armored Serv. Corp. &CNA(1990), 245Mont. 495, 499, 802P.2d 618, 621 (citing Holton v. F.H. Stoltze Land andLumber Co. (1981), 195 Mont. 263, 266, 637 P.2d 10, 12). Aswehave 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 apresent physical restriction on his work; however, this does not mean that he will not suffer a possible loss of future earning capacity asaresult of his injury. One-half of the twenty percent disability award is represented by the impairment award, which is strictly amedical 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 anadditional ten percent does not, as amatter of law, require that Burglund becurrently physically restricted in either his employment or his recreational activities. It is anaward 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

11position with UPS and therefore suffer future possible loss of

earning capacity. Wetherefore 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 100weeks of permanent partial disability benefits, representing a twenty percent disability. Weaffirm both issues raised onappeal.

Justice
Weconcur:

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