No. 12977 

IN THE 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 : 

For Appellant : 

Warden, Walterskirchen and Christiansen, Kalispell, 

Montana 

Merritt N. Warden argued, Kaltspell, Montana 

For Respondent : 

Robert W. Gabriel argued, Great Falls, Montana 

Filed: 8CT 2 5 1975 

Submitted: September 8, 1975 

Decided : Qcr 2 st 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 to as employer) takes issue with the district 

court's award of benefits to claimant Jerry L. DeLeary. 

The injury involved occurred on August 26, 1971, when 

claimant, employed by Anaconda Aluminum Company at its reduction 

works at Columbia Falls, Montana, slipped on a catwalk which 

resulted in molten aluminum entering his left shoe, severely 

burning his lower left leg. Claimant was treated immediately by 

a local physician and later by a plastic surgery specialist from 

Spokane, Washington. The specialist performed two operations to 

eradicate scars and alleviate scar contraction, one in February 

1972, the second in December 1972. 

Claimant chose not to return to his former employment and 

so notified the employer on May 5, 1972. Several months prior to 

that notice claimant obtained employment at a filling station where 

he began to earn approximately $600 per month. He remained there 

until September 1973, when he entered into a program as an apprentice mechanic earning about $500 per month. All parties agreed that 

throughout this period claimant experienced at least a substantial 

degree of pain and discomfort from the injuries and that his leg 

tired easily when he stood upon it for any length of time. The 

employer paid temporary total disability benefits from the date of 

the accident to the date that it was notified of claimant's intention not to return. Employer was not aware claimant had gone 

to work on another job in March 1972. 

At a hearing held in Play 1974 before a hearing examiner 

of the workmen's Compensation Division to determine whether 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 leg below 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 state physician based his 

opinion on the current practice in the state of Washington, which 

admittedly does not employ the same system used in the state of 

Montana. 

The Division hearing resulted in an award of an additional 

60 weeks at a rate of $50 per week, less the sum deemed overpaid 

during the healing 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 slightly modified 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 at the rehearing since the parties stipulated rehearing 

could be had on the basis of the record before the division. 

The district court considered additional evidence submitted a t i t s hearing, 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 disability benefits pursuant to 

section 92-703, R.C.M. 1947, for a total of 31 and 6/7 weeks 

at the rate of $23.07 less per week than what claimant earned 

at the time of injury. 

3) Temporary total benefits pursuant to section 92-709, 

R.C.M. 1947, for injuries to the lower left extremity for a total 

of 150 weeks amounting to $7,500 less the 2% discount provided 

for by section 92-715, R.C.M. 1947, less the sum of $1,900 

already awarded and paid to claimant. 

The underlying issue is whether the district court may 

award a statutory benefit for functional impairment in addition 

to a loss ofearning capacity. 

On appeal the employer places two issues before this 

Court. 

First, this Court is asked whether the district court 

erred by failing to correct 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 to consider or rule on this 

matter, due to claimant's timely objection pointing out the 

employer's failure to cross 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 to disturb this ruling on 

appeal. 
Second, the employer contends the district court acted 

improperly, in that its actions were beyond the scope of review 

statutorily imposed upon a district court which functions at the 

appellate level. We agree. This Court on numerous occasions has 

ruled conclusively disposing of this question. The function of 

the district court in appeals from the Workmen's Compensation 

Division is to examine the Division's findings of fact and conclusions of law. These findings and conclusions are presumed to 

be correct and are not reversible if supported by credible evidence. 

Under section 92-834, R.C.M. 1947, the district court must determine : 

"Jc +: * whether or not, the board regularly pursued 

its authority and whether or not the findings of the 

board ought to be sustained, and whether or not such 

findings are reasonable under all the circumstances 

of the case. 11 

See: Hurlbut v. Vollstedt Kerr Company, Mon t . , 538 

P.2d 344, 32 St.Rep. 752, 755; Birnie v. U.S. Gypsum Co., 134 Mont. 

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 is made to the findings of fact and award made 

by the blorkmen's Compensation Division. Thus it makes no attempt 

to correct errors in law or findings of fact based on insufficient 

credible evidence. The result is a completely new set of findings 

of fact and conclusions of law which totally ignore the proceedings 

taken at the administrative level. This action by the district 

court seems apparently to be 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, 

at least in part, takes that factor into consideration. Thus the 
district court, in effect, exercised its assumed 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 set of circumstances" held that an award for 

loss of prospective future earnings resulting from permanent 

partial disability may 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, is a determination we need not make. 

Section 92-834, R.C.M. 1947, allows the district court 

to amend, modify, or reverse the actions of the workmen's Compensation Division only if it finds those actions unsupported by 

credible evidence or unreasonable under all the circumstances 

of the case. 

Here, the district court modified the ~ivision's order 

on one hand, while specifically adopting contrary findings and 

conclusions on the other. Thus the district court's judgment 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 

capacity not authorized by statute. Here, the facts do not 

support the conclusions of law of the district court. 

The judgment of the district court is reversed. The 

order of the ~orkmen's Compensation Division upon rehearing is 

reinstated. 

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Justices