IN THE SUPREME COURT OF THE STATE OF MONTANA 

LAINE P. CARROLL, 

Claimant and Respondent, 

WELLS FARGO ARMORED SERVICE 

CORPORATION, 

Employer, 

and 

CNA INSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workerst compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry W. Jones; Garlington, Lohn & Robinson, 

Missoula, Montana 

For Respondent: 

Erik B. Thueson, Thueson Law office, Helena, Montana 

Filed: 

Submitted on Briefs: November 1, 1990 

~ecided: December 11, 1990 5 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Workers' Compensation Court of the 

State of Montana. We affirm. 

The issues presented 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 the Workers' 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 is substantial evidence to support the 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% 

permanent partial disability award. Claimant appealed the Workers' 

Compensation Court's final decision. In Carroll v. Wells Fargo 

(1989), 240 Mont. 151, 783 P.2d 387, we reversed in part, affirmed 

in part and remanded this case to the Workers' Compensation Court. 

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 cases decided 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 Workerst Compensation 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 claimant was entitled to a 60% disability 

award. From the lower court's order on remand, appellant takes 

this appeal. No additional facts were 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 is whether the court exceeded its jurisdiction 

on remand by increasing Carroll's disability award 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 

3 
supported by substantial evidence and remanded the cause to the 

Workerst Compensation Court for a redetermination of benefits 

consistent with the requirements of 55 39-71-705, -708, MCA (1985). 

On remand the court followed these instructions, redetermined 

claimantts benefits and calculated a 60% disability award. 

Appellant has misinterpreted our plain and unambiguous holding 

in Carroll. Our instructions to the Workers' 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' 

Compensation Court properly followed our instructions on remand and 

we, therefore, hold that the court did not exceed its jurisdiction 

on remand by increasing Carrollts disability award from 35% to 60%. 

Next, we must determine whether the court failed to follow 

instructions on remand by not assigning a disability percentage 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 percentage was reached. Appellant contends that it would 

be impossible for this Court to give a meaningful review of the 

lower courtts permanent partial disability award without such 

quantification. We disagree. 

Appellant would have us believe that workers' compensation law 

is a particular system or branch of physics, complete with forces 
analogous to friction, gravity and momentum, statutory laws like 

those of Newton and ~rchimedes, all interwoven in a calculus mesh 

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 

simply deny this fact. Once again, our instructions on remand were 

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 

worker would inevitably provide 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 is whether 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, actual wage loss, and loss of future earning capacity. 

Holton v. F. H. Stoltze Land and Lumber Co. (1981), 195 Mont. 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), 208 Mont. 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 is more than 35 percent.I1 

The court also considered how claimant's limited work experience 

might adversely impact his future earning capacity: 

At the time oS the injury, claimant was 

earning $5.35 per hour and the entry-level pay 

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for 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 

that with his work experience limited to heavy 

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 on his future 

earning capacity. The court next analyzed how age was pertinent 

to possible future loss of earning capacity: 

[Tlhe longer the person is on the labor market 

the more economic losses he will suffer, all 

other factors being equal. However, a younger 

individual who can be retrained or has 

transferable skills will be able to ameliorate 

some of his post-injury earning losses in the 

long run through additional training. 

The court concluded that claimant's future loss of earning capacity 

would substantially increase for his remaining 35 years of expected 

employment. The court based this conclusion on the fact that 

claimant was approximately thirty years old with limited 

transferable skills. 

As for pain and disability, the court noted 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 in retaining employment in 

bad times, or in getting new employment, if he 

has an occasion to change jobs. 

The court then considered the facts that (1) claimant's injury was 

to his low back; (2) this injury caused claimant continual pain; 

7 
(3) this pain removed him from employment in heavy to medium-labor 

positions; (4) claimant cannot lift more than twenty-five pounds; 

(5) he cannot remain in any one position for any 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 this discussion, concluded that each 

and every disability factor had an overall negative impact on 

claimant's future loss of earning capacity and awarded claimant a 

60% disability rating. We find no error. We hold that substantial 

evidence supports the court's 60% permanent partial disability 

award. 

The last matter 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, including those incurred on appeal, in accordance 
with this opinion and its prior companion opinion. 

The Workers1 Compensation Court in all other respects is 

affirmed. 

CdPM.. 

Justice 

We concur: 

?f Justice // ' 
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, the basic question appeared to be whether 

or not there was an appropriate justification for the 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 Court reviewed all of the appropriate factors and then 

awarded an increased 60% permanent partial disability award. Under 

these circumstances, our power of review is quite limited. I 

therefore accept the affirming of the 60% award. 

However, I believe the Workerst Compensation Court failed to 

properly consider the fundamental issue before it. When studying 

the two opinions, it is not possible to determine why the original 

award was 35% and the next 60%, all on the same facts. If the 

Workerst Compensation 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 have 
preferred a remand to the Workers' Compensation Court for an 

explanation of the distinctions between the two awards.