No. 95-532

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

JOHN SMART,

Appellant,

v.

THE MONTANA HISTORICAL SOCIETY,

Employer,

and STATE COMPENSATION

MUTUAL INSURANCE FUND,

Respondent

APPEAL FROM: Workers' Compensation Court

State of Montana

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Linda M. Deola, Reynolds, Mot1 & Sherwood, Helena,

Montana

For Respondent:

Daniel J. Whyte, State Compensation Insurance Fund,

Helena, Montana

Submitted on Briefs: February 8, 1996

Decided: June 21, 1996

Filed:

@!l.erk
Justice James C. Nelson delivered the Opinion of the Court.

John Smart (Smart) appeals a decision of the Workers'

Compensation Court finding that Smart is not entitled to permanent

total disability benefits under 5 39-72-701(l), MCA (199X), and

limiting his benefits to a maximum award of $10,000 pursuant to 5

39-72-405, MCA (1991). We affirm.

The sole issue presented for review is:

Did the Workers' Compensation Court err in finding that Smart

is not entitled to permanent total disability benefits under the

Montana Occupational Disease Act?

Factual and Procedural Background

Smart filed a claim on October 29, 1992, for an injury arising

out of and in the course of his employment with the Montana

Historical Society. Smart had been employed by the Montana

Historical Society as an archival photographer for 11 years. As a

result of overexposure to toxic chemicals used in the photography

process, Smart experienced nausea, headaches, chronic respiratory

irritation, disorientation, memory loss, and depression. At the

time of his injury, Smart was earning $16 per hour, plus benefits.

Smart's claim was accepted pursuant to the Montana

Occupational Disease Act (MODA), set forth at Title 39, Chapter 72,

Montana Code Annotated. The examining physician determined that

Smart suffered from an occupational disease, but that the effects

were not permanent so long as Smart did not continue his work in

the darkroom.
The State Compensation Insurance Fund (the State Fund) paid

Smart temporary total disability benefits. When Smart reached

maximum medical improvement, the State Fund offered him $10,000,

the maximum amount of benefits allowed under 5 39-72-405, MCA

(1991). Smart rejected the.offer claiming that he is permanently

totally disabled and is therefore entitled to benefits in excess of

$10,000.

The State Fund, through Independent Rehabilitation Providers

of Montana, performed an employability assessment on Smart to

determine whether other employment was available according to his

education and experience. The assessment determined that there

were a number of positions available to Smart, all of which paid

considerably less than the $16 per hour he had been making

previously.

On July 22, 1994, Smart filed a Motion for Summary Judgment

with the Workers' Compensation Court claiming that the $10,000

limit in the MODA does not apply in his situation as he is

permanently totally disabled. The court denied Smart's motion and

certified the matter as final for purposes of appeal to the Montana

Supreme Court. Smart filed an appeal with this Court on October

25, 1994. We dismissed the appeal, without prejudice, on April 20,

1995, holding that the appeal was premature as the Workers'

Compensation Court failed to decide the necessary substantive

issues of claimant's benefits.

On May 1, 1995, Smart and the State Fund filed a joint Motion

for Reconsideration before this Court. We denied this motion on

3
May 9, 1995. on October 31, 1995, the workers' Compensation Court

issued a Decision and Final Judgment wherein the court ruled that

Smart was not entitled to permanent total disability benefits under

5 39-72-701(l), MCA (1991), and was limited to a maximum award of

$10,000 pursuant to 5 39-72-405, MCA (1991). Smart now appeals the

Decision and Final Judgment of the Workers' Compensation Court.

Discussion

Did the Workers' Compensation Court err in finding that Smart

is not entitled to permanent total disability benefits under the

Montana Occupational Disease Act?

The Workers' Compensation Court determined that, even though

Smart cannot return to his former work, he is physically able to

perform other available work for which he is qualified, thus he is

not permanently totally disabled and not entitled to benefits under

§ 39-72-701(l), MCA (1991). The court found that compensation for

Smart's injury is limited under the MODA, specifically by § 39-72

405, MCA (1991), to an award of up to $10,000.

We employ two standards of review for Workers' Compensation

Court decisions: we review the court's findings of fact to

determine if they are supported by substantial credible evidence,

and we review the court's conclusions of law to determine if they

are correct. Turjan v. Valiey View Estates (1995), 272 Mont. 386,

390, 901 P.2d 76, 79 (citing Caekaert v. State Comp. Mut. Ins. Fund

(1994), 268 Mont. 105, 110, 885 P.2d 495, 498). There are no

contested facts in the case before us, only questions of statutory

interpretation.
Smart argues that the Workers' Compensation Court erred in its

interpretation of the MODA as it pertains to his injury. He

maintains that § 39-72-405, MCA (1991), refers to a nondisabling

occupational disease and that only when an individual has such a

nondisabling occupational disease may compensation be limited to

$10,000. Section 39-72-405, MCA (1991), provides, in part:

(2) When any employee in employment on or after

January 1, 1959, because he has an occupational disease

incurred in and caused by such employment which is not

yet disabling, is discharged or transferred from the

employment in which he is engaged or when he ceases his

employment and it is in fact, as determined by the

medical panel, inadvisable for him on account of a

nondisabling occupational disease to continue in

employment and he suffers wage loss by reason of the

discharge, transfer, or cessation, the department may

allow compensation on account thereof as it considers

just, not exceeding $10,000.

Smart contends that this does not apply to him as his injury fits

the definition of "disablingq' found at § 39-72-102, MCA (1991),

which provides, in part:

(4) "Disablement" means the event of becoming

physically incapacitated by reason of an occupational

disease from performing work in the worker's job pool.

Smart argues that his "job pool" is photography and since he

cannot return to work in that field, he is disabled under this

definition. Smart does not claim that he is physically unable to

perform other types of work. He agrees with the State Fund and the

Workers' Compensation Court that he is only unable to perform

photography work.

The State Fund, on the other hand, argues that the terms "not

yet disabling" and "nondisabling" in 5 39-72-405, MCA (19911, mean

that a person can have an occupational disease that prevents them

5
from returning to their time of injury employment but does not

prevent them from returning to other employment. As the State Fund

points out, the "not yet disabling" language in 5 39-72-405, MCA,

(1991), also takes into consideration the likelihood that an

injured worker may become totally disabled at some time in the

future, allowing for a change in status to permit payment of

permanent total disability benefits.

The State Fund contends, and we agree, that, only when a

person is unable to physically perform any employment are they

entitled to either temporary total disability benefits or permanent

total disability benefits under the MODA. Smart does not fit

within the definition of permanent total disability found in § 39-

71-116 (16), MCA, and made applicable to the MODA by § 39-72-701,

MCA, because Smart is physically able to perform other types of

employment. Section 39-71-116(16), MCA, provides in part:

(16) "Permanent total disability" means a condition

resulting from injury as defined in this chapter, after

a worker reaches maximum healing, in which a worker has

no reasonable prospect of physically performing regular

employment. Regular employment means work on a recurring

basis performed for remuneration in a trade, business,

profession, or other occupation in this state.

Contrary to Smart's contention that his "job pool" includes

only jobs in the field of photography, the State Fund argues that

Smart's 'Ijob pool" includes'all jobs that he is physically capable

of performing and that he is qualified for based on his age,

education and experience. The phrase "worker's job pool" is not

defined within the MODA, nor is it defined within the Workers'

Compensation Act. In attempting to determine the meaning of this

6

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phrase, the Workers' Compensation Court, in its order denying

Smart's Motion for Summary Judgment, looked to the plain meaning of

the statute, but found that, on its face, the term has no plain,

commonly understood meaning. The court found that the phrase is

ambiguous and resorted to looking at the legislative history of the

statute to determine the legislature's intent.

The only definition of "worker's job pool" that the Workers'

Compensation Court was able to find was in a portion of the

Workers' Compensation Act that was repealed by the Montana

Legislature in 1991. This statute provided, in part:

(a) "Worker's job pool" means those jobs typically

available for which a worker is qualified, consistent

with the worker's age, education, vocational experience

and aptitude and compatible with the worker's physical

capacities and limitations as the result of the worker's

injury. Lack of immediate job openings is not a factor

to be considered.

(b) A worker's job pool may be either local or

statewide, as follows:

(i) a local job is one either in a central city

that has within its ecdnomically integrated geographical

area a population of less than 50,000 or in a city with

a population of more than 50,000 as determined by the

division; or

(ii) a statewide job is one anywhere in the state of

Montana.

Section 39-71-1011(7), MCA (1987) (Repealed).

In its denial of Smart's Motion for Summary Judgment, the

Workers' Compensation Court adopted this definition of "worker's

job pool." Smart contends that the court erred in applying this

definition as the definition had been repealed in 1991. He argues

that the MODA should be applied in a manner most favorable to the

injured worker. In support of this proposition, Smart relies on §

7
39-72-104, MCA (1985) (Repealed) (requiring liberal construction in

the interpretation of any part of this chapter).

Ordinarily, legislative intent can be gleaned from the plain

meaning of the statute. Holly Sugar v. Department of Revenue

(1992), 252 Mont. 407, 412, 830 P.2d 76, 79.

If the language is clear and unambiguous, no further

interpretation is required, and we will resort to

legislative history only if legislative intent cannot be

determined from the plain wording of the statute.

Clarke v. Massey (19951, 271 Mont. 412, 416, 897 P.2d 1085, 1088

(citing Love11 v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 273,

285, 860 P.2d 95, 99). .

The term "worker's job pool" was inserted into both the

Workers Compensation Act and the MODA during the 1987 Montana

legislative session. In addition, the 1987 Legislature added the

definition of "worker's job pool" to the Workers' Compensation Act.

We agree with the State Fund and the Workers' Compensation Court

that the legislature intended that the same definition apply to

both acts since the legislature did not construct a different

definition of "worker's job pool" for the MODA.

In 1991, the Montana Legislature adopted new standards for

rehabilitation in the Workers' Compensation Act, repealing the

standards set forth in 1989. Along with the elimination of the

term "worker's job pool" in the Workers' Compensation Act, the 1991

Legislature repealed the definition of that term found in the

Workers' Compensation Act, but did not eliminate the term from the

MODA. Repeal of the definition of "worker's job pool" from the

Workers' Compensation Act does not mean that any other definition

8
was ever intended for this term by the legislature. It is

reasonable, as the State Fund and the Workers' Compensation Court

surmised, that the definition would remain the same.

Since the legislature's intention in using the phrase

"worker's job pool" cannot be determined from the plain meaning of

that phrase, we find no error in the Workers' Compensation Court

resorting to legislative history and adopting the definition of

this phrase set out at § 39-71-1011(7), MCA (1987) (Repealed). In

addition, we do not find persuasive Smart's contention that the

MODA should be applied in a manner most favorable to the injured

worker as the statute Smart cites for this proposition was repealed

by the 1987 Montana Legislature at the same time the phrase

"worker's job pool" was inserted into the MODA and the Workers'

Compensation Act.

Accordingly, we hold that the Workers' Compensation Court was

correct in concluding that Smart is not entitled to permanent total

disability benefits under the MODA since he is physically able to

perform other types of employment.

Affirmed.

We Concur:
,,

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Linda M. Deola, Esq.

Reynolds, Mot1 & Sherwood

401 No.’ Last Chance Gulch

Helena, MT 59601

Daniel J. Whyte

State Compensation Ins. Fund

P.O. Box 4759

Helena, MT 59604-4759

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY: mr

Deputy