### IN THE SUPREME COURT OF THE STATE OF MONTANA

LAINE P. CARROLL, Claimant and Respondent,

WELLS FARGOARMORED SERVICE CORPORATION, Employer, and CNA INSURANCE COMPANY, Defendant and Appellant.

APPEAL FROM: The Workerstcompensation Court, The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Larry W. Jones; Garlington, Lohn & Robinson, Missoula,Montana For Respondent: Erik

### B. Thueson, Thueson Lawoffice,Helena,Montana

Filed: Submitted on Briefs: November 1, 1990 ~ecided:December 11, 1990

5Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from theWorkers' Compensation Court of the State of Montana. We affirm. The issuespresented by appellant are: 1. Whether the Workers' Compensation Court exceeded its jurisdiction on remand by increasing claimant's disability award under 88 39-71-705, -708,MCA (1985), from 35% to 60%. 2. Whether theWorkers' Compensation Court failed to follow this Court's instructions on remand when it failed to assign a disability percentage to each of the disability factors it considered. 3. Whether there issubstantial evidence tosupportthe lower court's disability award. On June 25, 1987, claimant, Laine 

### P. Carroll, filed his Petition for Hearing in the lower court in which he alleged the appellants, Wells Fargo Armored Services Corporation and CNA Insurance Company, owed certain benefits in excess of those offered. Following a hearing, the lower court, on October 28, 1988, filed its order in which it entitled claimant to a 35% permanentpartial disabilityaward. Claimant appealed theWorkers' Compensation Court's final decision. In Carroll v. Wells Fargo

(1989),240Mont. 151, 783 P.2d 387, we reversed in part, affirmed inpart and remanded thiscase to theWorkers' CompensationCourt. Our particular instructions on remand governing the permanent partial disability award, which this appeal focuses on, were as follows:Because the court only discussed the claimant's actual wage loss and failed to discuss any of the other criteria, we hold that the court's decision is not supported by substantial evidence.

A review of the casesdecided under §§ 39-71- 705, -708, MCA (1985), reveal in all some discussion of the necessary factors.

We vacate the Workers' Compensation Court's award under §§ 39-71-705, -708, MCA (1985), and remand to the WorkerstCompensation Court for a redetermination of benefits consistent with the requirements of 88 39-71-705, -708, MCA (1985). Carroll at 154-55, 783 P.2d at 390. On remand, after the parties submitted briefs, the Workerst Compensation Court held claimantwas entitled to a 60% disability award. From the lower court's order on remand, appellant takes this appeal. No additional factswere admitted in the record on remand and so a complete discussion of all material facts can be found in Carroll at 153, 783 P.2d at 389. The first issue iswhether thecourtexceeded its jurisdiction

on remandby increasingCarroll'sdisabilityaward from 35% to 60%. Appellant argues that our holding 

### in Carroll was intended to require the court, on remand, to only discuss the factors it previously considered in determining the prior 35% disability award. Appellant further argues that our holding in Carroll was not meant to allow the court to redetermine the disability award based on this new discussion. In Carroll at 154-55, 783 P.2d at 390, we held that the court's 35% disability award was not 3supported by substantial evidence and remanded the cause to the Workerst Compensation Court for a redetermination of benefits consistentwith therequirements of 

### 55 39-71-705, -708,MCA (1985). On remand the court followed these instructions, redetermined claimanttsbenefits and calculated a 60%disability award. Appellanthasmisinterpretedour plainandunambiguousholding in Carroll. Our instructionsto theWorkers' Compensation Court, without a doubt, was to redetermine benefits consistent with the

cases decided under 

### 55 39-71-705, -708, MCA (1985) which require a discussion of certain necessary factors. The Workers' CompensationCourt properly followedour instructions onremandand we, therefore,hold that the courtdid not exceed its jurisdiction

on remandby increasingCarrollts disabilityaward from 35% to 60%. Next, we must determine whether the court failed to follow instructionson remand by not assigning a disabilitypercentage to each disability factor it considered when making the disability award. Appellant argues that we instructed the lower court on remand to quantify in percentages the weight given to each permanent partial disability factor and include a discussion of how each specific percentagewas reached. Appellant contends that itwould be impossible for this Court to give a meaningful review of the lower courttspermanent partial disability award without such quantification. We disagree. Appellantwouldhaveusbelieve thatworkers'compensationlaw is a particular system or branch of physics, completewith forcesanalogous to friction,gravity and momentum, statutory laws like those of Newton and ~rchimedes, all interwoven in a calculusmesh of case law. To be sure, workers' compensation law is a social science which necessarily includes human factors and to break workers' compensation law down into separate percentages would simplydeny this fact. Once again,our instructions on remandwere plain and unambiguous leaving no room whatsoever for appellant's

erroneous interpretation. After reading our instructions on remand, the Workers1 Compensation Court entered its order and gave its rationale for refusing to reduce its disability award to numbers. We have intentionally avoided trying to quantify in percentages the considerations given to the above permanent partial disability factors. The reasons for not doing so are that there is no precedent, either in statute or case law as to how such quantification might be done and secondly, assessing mathematical precision to the individual characteristics of each injured workerwould inevitablyprovide llwindfalls't to some and punitively low awards to others. While formulas, per se, have a certain attraction of simplicity and speed, they negate the flexibility of dealing with each case as a person, not 

### a mathematical component. To be sure, it is something of an inexact science, but is nonetheless more in keeping with the "earning capacity'' considerations of the statutes. We do not think it inappropriate to consider certain mathematical considerations that might apply in terms of dollars per hour wages, pre- and post-injury, or percent of labor market preand post-injury, but we decline to make such numbers absolute for the reasons noted. We hold that the Workers' Compensation Court did not fail to follow our instructions on remand.The last issue iswhether the court's 60%disability award is supported by substantial evidence. In determining claimant's disability under 88 39-71-705, -708, MCA (1985), the court must consider the claimant's age, education, work experience, pain and disability, actualwage loss,and loss of future earning capacity. Holtonv. F. H. StoltzeLand and Lumber Co. (1981), 195Mont. 263, 266, 637 P.2d 10, 12. The record shows that the court properly considered and discussed all the required factors in determining claimant's 60% disability award under 88 39-71-705, -708, MCA (1985). It is well established that permanent partial disability benefits under 88 39-71-705, -708, MCA (1985), indemnify the claimant for possible loss of future earning capacity. McDanold

v. B.N. Transport, Inc. (1984), 208Mont. 470, 476, 679 P.2d 1188, 1191. The court, in its Order on Remand, discussed all the required disability factors and it was apparent from this discussion that the court properly regarded claimant's "earning capacity impairment1'as the primary concern in calculating the permanent partial disability award under 88 39-71-705, -708,MCA

(1985). In its Order on Remand, the court analyzed actual wage loss. The court stated that although claimant's actual wage loss was approximately 35% "his likely wage loss ismore than 35 percent.I1 The court also considered how claimant's limited work experience might adversely impacthis future earning capacity: At the time oS the injury, claimant was earning $5.35 per hour and the entry-level pay 6for the light-duty jobs [which] he is now capable of earning [is] the minimum wage of $3.80 to $4.50 per hour. This Court concludes thatwithhiswork experience limited toheavy labor jobs he can no longer perform, his possible future earning capacity will be decreased substantially. The court also noted that the economic impact of one's injuries can be reduced by one's learning skills and education. ttUnfortunately, the claimant has a limited education and learning skills

# . . . It which translates to an adverse impact onhis future earning capacity. The court next analyzed how age was pertinent to possible future loss of earning capacity: [Tlhe longer theperson ison the labor market the more economic losses he will suffer, all other factorsbeing equal. However, a younger individual who can be retrained or has transferable skillswill be able to ameliorate some of his post-injury earning losses in the long run through additional training. Thecourtconcludedthatclaimant's futurelossof earning capacity would substantially increase forhisremaining 35years of expected employment. The court based this conclusion on the fact that claimant was approximately thirty years old with limited transferable skills. As forpain and disability, the courtnoted how these factors would affect claimant's future loss of earning capacity: [A] man who is injured has limited physical abilities and will have a harder time competing than an uninjured individual. He may have difficulty inretaining employment in bad times, or ingetting new employment, if he has an occasion to change jobs. The court then consideredthe facts that (1)claimant's injury was to his low back; (2) this injury caused claimant continual pain; 7(3) thispain removed him from employment inheavy tomedium-labor positions; (4) claimant cannot liftmore than twenty-five pounds;

(5)he cannotremain inany oneposition forany appreciable length of time; and (6) must avoid twisting, bending and repetitive lifting activities. Based on these facts and considerations the court concluded that "claimant's continuing pain will make his future loss of earning capacity substantial." The record shows that the court separately considered and discussed each disability factor in making its disability award. The court discussed how each factor, as a function of the facts specific to claimant's situation, impacted claimant's earning capacity. The court,based on thisdiscussion, concludedthat each and every disability factor had an overall negative impact on claimant's future loss of earning capacity and awarded claimant a 60%disabilityrating. We findno error. We hold that substantial evidence supports the court's 60% permanent partial disability award. The lastmatter concerns attorney's fees. In Carroll at 157, 783 P.2d at 391,we remanded this cause to the lower court for a proper determination of claimant's attorney's fees under 5 39-71- 611, MCA (1985), after finding that appellant denied claimant compensation. However, appellant filed its notice of appeal to this Court before the lower court on remand ruled on costs and appropriate attorney's fees. As such, we again remand to the Workers' Compensation Court for a determination of costs and attorney's fees, includingthose incurred on appeal, in accordancewith this opinion and its prior companion opinion. The Workers1 Compensation Court in all other respects is affirmed.

CdPM.. Justice We concur:

?fJustice 

## // 

## 'Justice Fred J. Weber specially concurs as follows: 

### I can understand the confusion on the part of the appellants in this case. In rereading Carroll v. Wells Fargo (1989), 240 Mont. 151, 783 P.2d 387, thebasic question appeared to be whether or not there was anappropriate justification forthe 35% permanent partial disability award. There was nothing to indicate at that time that such award might not be high enough. The concern expressed was whether or not all of the appropriate factors had been considered. It was not unreasonable for the appellants to

assume that the issue was whether or not the 35% was properly justified. As pointed out in the majority opinion, the Workers' Compensation Courtreviewed all of theappropriate factorsand then awardedan increased 60%permanent partial disabilityaward. Under these circumstances, our power of review is quite limited. I therefore accept the affirming of the 60% award. However, 

### Ibelieve the WorkerstCompensation Court failed to properly consider the fundamental issue before it. When studying the two opinions, it isnot possible todeterminewhy the original award was 35% and the next 60%, all on the same facts. If the WorkerstCompensation Court failed to consider certain factors and

as a result concluded that an increase was appropriate, it should have so stated. As it is, it is in some degree contradictory to go through the same factors which previously should have been considered, and come out with an entirely different award without any explanation of the reason for the distinction. I would havepreferred a remand to the Workers' Compensation Court for an explanation of the distinctions between the two awards.