No. 12977 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

JERRY 

### L, DeLEARY

# , Claimant and Respondent,



### -vs

# - ANACONDA ALUMINUM COMPANY, Employer and Defendant and Appellant,

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert C. Sykes, Judge presiding. Counsel of Record: ForAppellant

### : Warden, Walterskirchen and Christiansen, Kalispell,

Montana Merritt N. Warden argued, Kaltspell, Montana For Respondent: Robert W. Gabriel argued, Great Falls, Montana

Filed:

## 8CT

## 25

### 1975 Submitted: September 

### 8, 1975 Decided: 

# Qcr 2st

### 1975

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This appeal is taken from a judgment entered in the district court, Flathead County. The Anaconda Aluminum Company (hereinafter referred toas employer) takes issuewith the district court's award of benefits toclaimant JerryL. DeLeary. The injury involved occurred on August 26, 1971, when claimant, employed by Anaconda Aluminum Company atitsreduction works at Columbia Falls, Montana, slipped on a catwalk which resulted inmolten aluminum enteringhis left shoe, severely burning his lower left leg. Claimant was treated immediately by

a local physician and laterby 

### a plastic surgery specialist from Spokane, Washington. The specialist performed two operations to eradicate scars and alleviate scar contraction, one inFebruary 1972, the second inDecember 1972. Claimant chose not toreturn tohis former employment and

sonotified the employer on May 

### 5, 1972. Severalmonths prior to that notice claimant obtained employment ata filling stationwhere he began toearn approximately 

### $600 per month. He remained there until September 1973, when he entered into a program as an apprenticemechanic earning about $500 per month. Allparties agreed that throughout this period claimant experienced at least a substantial degree of pain and discomfort from the injuries and that his leg tired easilywhen he stood upon it for any length of time. The employer paid temporary total disabilitybenefits from the date of the accident tothe date that itwas notified of claimant's intention not toreturn. Employer was not aware claimant had gone towork on anotherjob inMarch 1972. Ata hearing held inPlay 1974before a hearing examiner of theworkmen's Compensation Division to determinewhether any additional compensation was warranted, medical testimony from three physicians was taken. A MLssoula orthopedist gave a rating of 20%impairment of the lower extremity; a ECalispell orthopedist rated the impairment at 15%of the legbelow the knee. The plastic surgery specialist from Spokane testified and rated the impairment

as that which would be equal to a below the knee amputation. However, the record shows that the out of statephysician based his opinion on the current practice in the stateof Washington, which admittedly does not employ the same system used inthe stateof Montana. The Division hearing resulted inan award of an additional 60 weeks ata rate of $50 per week, less the sum deemed overpaid during thehealing period, which the examiner thought was limited to 26 weeks under section 92-709, R.C.M. 1947. Claimant petitioned for a rehearing before the Division. On September 13, 1974, following rehearing, an amended order was issued which slightlymodified the prior order. Claimant was deemed entitled to temporary partial benefits and permanent partial benefits which amounted to $2359.28, approximately $20 more than the first order. Additionally the modified order dekted that part of the first order which provided for a set-off from the amount paid during the healing period in excess of the 26 week limitation, holding that this limitation applied only to the "loss of a member" under the statute. From this order of September 13, 1974, claimant appealed to the district court. We note here that no further evidence was taken or allot~ed atthe rehearing since the parties stipulated rehearing could be had on thebasis of the record before the division. The districtcourt considered additional evidence submitted a t i t shearing, but took under advisement the employer's objection to the submission of this evidence. The court, in its findings of fact and conclusions of law, sustained the employer's objection and based its decision on the record made before the ~orlunen's Compensation Division.

### Specifically, the district court granted claimant the following compensation: I)Workmen's Compensation benefits pursuant to section 92-706, R.C.M. 

### 1947. 2) Temporary partial disabilitybenefits pursuant to section 92-703, R.C.M. 

### 1947, for a total of 31and 6/7weeks atthe rate of $23.07 less per week than what claimant earned atthe time of injury. 3) Temporary totalbenefits pursuant to section 92-709, R.C.M. 

### 1947, for injuries to the lower leftextremity for a total of 150weeks amounting to $7,500 less the 2%discount provided forby section 92-715, R.C.M. 

### 1947, less the sum of $1,900 already awarded and paid toclaimant. The underlying issue iswhether the district court may award a statutorybenefit for functional impairment in addition to a loss ofearning capacity. On 

### appeal the employer places two issuesbefore this Court. First, this Court isasked whether the district court erred by failing tocorrect the Division regarding its 

### deletion of that part of the hearing examiner's order dealing with the payments made in excess of the 26 week statutory limitation. At 

### the time of the district court hearing the employer, for the first time, raised the issue of the temporary partial award of $459.28 under section 92-703, R.

### C.PI. 1947. The district court refused toconsider or rule on this matter, due toclaimant's timely objection pointing out the employer's failure tocross appeal from the ~ivision's order regarding this issue. See: Rule 29(d), 1i.R.App.Civ.P. and section 92-829, R.C.M. 

### 1947. We find no reason todisturb this ruling on appeal.Second, the employer contends the district court acted improperly, in that its actionswere beyond the scope of review statutorily imposed upon a district court which functions atthe appellate level. We agree. This Court on numerous occasions has ruled conclusively disposing of this question. The function of the districtcourt in appeals from theWorkmen's Compensation Division is toexamine the Division's findings of fact and conclusions of law. These findings and conclusions arepresumed to be correct and arenot reversible if supported by credible evidence. Under section 92-834, R.C.M. 1947, the districtcourt must determine:
"Jc +: 

# * whether ornot, theboard regularly pursued itsauthority and whether or not the findings of the board ought tobe sustained, and whether ornot such findings arereasonable under allthe circumstances of the case. 11 See: Hurlbut v. Vollstedt Kerr Company, Mont

# . , 538 P.2d 344, 32 St.Rep. 752, 755; Birnie v. U.S. Gypsum Co., 134Mont. 39, 328 P.2d 133. Th.e district court's findings of fact, conclusions of law and judgment in the instant matter present an unusual situation. No reference ismade tothe findings of fact and award made by theblorkmen's Compensation Division. Thus itmakes no attempt tocorrect errors in law or findings of fact based on insufficient credibleevidence. The result 

### is a completely new setof findings of fact and conclusions of law which totally ignore the proceedings taken atthe administrative level. This actionby the district court seems apparently tobe based on two assumptions: 1) That the Division failed to consider claimant's functional impairment in terms of the disability, thereby depriving him of an award based on his future earning capacity; and 2) That under the authority of Jones v. Claridge, 145 Mont. 326, 400 P.2d 888, claimant was entitled to an award which, atleast inpart, takes that factor intoconsideration. Thus thedistrict court, in effect, exercised itsassumed discretion in

an area where the Division admittedly refused to act. In Jones this Court in the spirit of liberal construction

I1 and under a given setof circumstances" held that an award for loss of prospective future earnings resulting from permanent partial disabilitymay be proper under section 92-709, R.C.M. 1947. However, an examination of what those circumstances might be, or their applicability to this particular case, isa determinationwe need not make. Section 92-834, R.C.M. 1947, allows the district court to amend, modify, or reverse the actions of theworkmen's Compensation Division only if it finds those actions unsupported by credible evidence orunreasonable under allthe circumstances of the case. Here, the district court modified the ~ivision's order

on one hand, while specificallyadopting contrary findings and conclusions on the other. Thus the district court'sjudgment was inconsistent and legally improper in the context of the statute in that after awarding the statutory benefit for functional impairment it granted an additional amount for loss of earning capacitynot authorized by statute. Here, the facts do not support the conclusions of law of the district court. The judgment of the district court 

### isreversed. The order of the~orkmen's Compensation Division upon rehearing is reinstated.

I , I I

i 

# 1

### Justices