No. 87-229 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

SHELBY KUENNING, 

Claimant and Appellant, 

-vsBIG SKY OF MONTANA, 

Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ugrin, Alexander, Zadick & Slovak; J. David Slovak, 

Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Norman C. Peterson, Asst. Atty. General, Helena 

Submitted on Briefs: Jan. 28, 1988 

Decided: March 1, 1988 

Filed: MA,R I - 1988 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Claimant Kuenning appeals the May 21, 1987, decision of 

the Workers' Compensation Court. The decision denied 

Kuenning's petition for additional permanent partial disability benefits. We affirm. 

Kuenning presents two issues for our review: 

1. Did the court abuse its discretion in concluding 

that Kuenning had failed to prove an actual loss of earning 

capacity as required by 5 39-71-703, MCA (1985), for partial 

disability benefits? 

2. Does substantial evidence support the court's 

decision? 

Kuenning is thirty-eight years old. He has a college 

degree in television production. Since 1973, Kuenning has 

worked as a carpenter during the summer and fall months. In 

late 1982, Kuenning began working as a ski patrolman for Rig 

Sky of Montana (Big Sky) during the winter months. 

While working for Big Sky on April 25, 1983, Kuenning 

injured his right knee when his snowmobile rolled on him. 

After completing an exercise program to restore strength to 

the knee, Kuenning returned to work as a ski patrolman for 

the 1983-1984 season. In September 1984, exploratory surgery 

on the right knee revealed a partial tear of the anterior 

cruciate ligament and spontaneous healing of a cartilage 

tear. However, no surgical repair was made on the knee. 

Kuenning resumed ski patrolling for the 1984-1985 season. 

On January 22, 1985, Kuenning tore the medial collateral ligament in his left knee while skiing. The ligament was 

surgically reattached with a staple. Kuenning has returned 

t.o work as a ski patrolman with no subsequent injuries. Both 
knee injuries have reached maximum healing. The parties 

agree that both knee injuries occurred in the course and 

scope of Kuenningls employment with Big Sky. 

Big Sky was enrolled under the State Compensation 

Insurance Fund. Big Sky accepted liability and paid medical 

benefits, temporary total disability benefits and an 

indemnity. 

On July 17, 1986, Kuenning petitioned for additional 

permanent partial disability benefits under $ 39-71-703(1), 

(1985) MCA, which states: "Weekly compensation benefits for 

injury producing partial disability shall be 66-213% of the 

actual diminution in the worker's earning capacity measured 

in dollars . . ." (Emphasis added. ) we note that 

5 39-71-703, MCA (1985), was extensively amended by the 1987 

Legislature. We will limit our opinion to the 1985 statute. 

After trial on November 24, 1986, the Workers1 Compensation Court ruled that Kuenning was not entitled to any 

permanent partial disability benefits beyond those already 

paid by Big Sky. The court noted that Kuenning had not 

presented any probative evidence of lost earning capacity as 

a carpenter and ski patrolman. The court stated: "Even if 

the Court were to accept the unsubstantiated testimony of the 

claimant as to his loss of earnings as a carpenter, claimant 

still has not met his burden of proof." 

More importantly, the court noted that Kuenning had not 

presented any evidence of his earning capacity in the open 

labor market. The court stated: "Claimant is an educated, 

physically fit, and relatively young man with obvious capabilities. Claimant cannot justify his entitlement to permanent partial disability simply by his limiting, personal 

preference for a particular field of employment." 
The Workers' Compensation Court concluded: 

While claimant has not met his burden as 

to a 703 case, this does not preclude 

the possibility that claimant may be 

able, in the future, to demonstrate a 

loss of earning capacity. Claimant may 

also, if not now then in the future, be 

able to demonstrate disability sufficient to carry a 705 case. . . . 

Issue 1. Loss of Earning Capacity 

Kuenning contends that the two knee injuries have 

significantly reduced his earning capacity because he now 

works in pain. Kuenning asserts that he cannot work efficiently as a roofing and framing carpenter and must limit 

himself to "finish" carpentry. Kuenning also asserts that 

his ability to perform his duties as a ski patrolman have 

been "slightly" impaired and his stamina has decreased. 

On review of this issue, we note the general rule that 

the claimant bears the burden of establishing a right to 

compensation. Gierke v. Billings Gazette (Mont. 1986) , 730 

P.2d 1143, 1148, 43 St.Rep. 2322, 2329. In order to prevail 

under § 39-71-703, MCA (1985), a claimant must show an actual 

diminution in present earning capacity and such a loss must 

be measured on the open labor market. Dunn v. Champion 

International Corp. (Mont. 1986), 720 P.2d 1186, 1191, 43 

St.Rep. 1124, 1129. 

A claimant's earning capacity consists of the market 

demand for labor and claimant's ability to supply such labor. 

This ability must be defined by the claimant's age, education, background, work experience and qualifications. Holton 

v. F. H. Stolze Land & Lumber Co. (1981), 195 Mont. 263, 266, 
637 P.2d 10, 12. Simply put, the more labor skills a 

claimant possesses, the larger his labor market. 

Kuenning's skills gave him solid ability to earn in the 

open labor market. He has Cardio-Pulmonary Resuscitation and 

Emergency Medical Technician certifications. He has one 

college degree and is one quarter away from having two additional college degrees in photography and English literature. 

However, throughout these proceedings Kuenning made no 

attempt to quantify his earning capacity on the open market. 

He ignored repeated requests by the State Compensation Fund 

to document his loss of earning capacity. Instead, Kuenning 

continually restricted his focus to ski patrol and carpentry. 

Within this limited market, Kuenning's primary evidence 

consisted merely of his unsubstantiated testimony about 

decreased efficiency. 

We note that Kuenning retained his ski patrol job. 

Furthermore, Kuenning presented no objective evidence that he 

lost any carpentry jobs for which he had applied. His own 

testimony undercuts his contention of lost earning capacity: 

Q. So you haven't lost any carpentry 

employment because of your knee injuries; is that correct? 

A. Actual employment, no. 

Kuenning's only support came from the deposition of his 

expert, a rehabilitation counselor. However, the counselor 

restricted his evaluation to carpentry and ski patrol. The 

counselor concluded that Kuenning works at an 80 percent 

post-injury efficiency. 

The counselor's testimony was effectively rebutted by 

Big Sky's expert, a vocational evaluation coordinator. The 

coordinator looked at the open labor market and placed 
Kuenning in a much better position than the average rehabilitation client. The coordinator found numerous occupational 

categories in which Kuenning would have transferable skills, 

especially in the areas of television and radio communications. These categories were matched to employers in the 

Bozeman area. The coordinator testified that Kuenning, with 

his educational background, was "almost overqualified" to 

work as a ski patrolman and carpenter. The coordinator 

concluded that Kuenning had many job opportunities and had 

not suffered any earning loss. 

In summary, we note that the purpose of workers' compensation is to protect the worker against economic loss. 

Hafer v. Anaconda Aluminum Company (Mont. 1984), 684 P.2d 

1114, 1116, 41 St.Rep. 1403, 1405. However, we will not 

allow the compensation fund to subsidize a claimant's pursuit. 

of specialized employment when other work is available. 

Section 39-71-703, MCA (1985), tailors compensation to the 

actual damage a claimant suffers to his earning capacity. 

Ruenning's evidence of loss of earning capacity in ski patrol 

and carpentry is marginal at best. His evidence of loss in 

the open market is nil. We hold that the Workers' Compensation Court properly concluded that Kuenning did not meet his 

burden of proof under S 39-71-703, MCA (1985). 

Issue 2. Substantial Evidence. 

The evidence before the court consisted largely of oral 

testimony by Kuenning and deposition testimony by two rehabilitation experts and two orthopedic surgeons. Kuenning 

contends that the evidence does not support the decision of 

the Workers' Compensation Court. 
On appellate review, we will defer to the Workers' 

Compensation Court's judgment as to the weight and credibility of conflicting evidence. Nelson v. ASARCO, Inc. (Mont. 

1987), 739 P.2d 943, 945, 44 St.Rep. 1074, 1077. Our review 

is confined to determining whether substantial evid-ence 

supports the findings. Shupert v. Anaconda ~luminum Co. 

(Mont. 1985), 696 P.2d 436, 439, 42 St.Rep. 277, 281. 

The primary evidence was the medical testimony. 

Kuenning's treating physician, Dr. Frank Humberger, assigned 

a 5 percent impairment of the whole man for the right knee 

injury and a 6 percent impairment of the whole man for the 

left knee injury. Dr. Humberger testified that any instabil-- 

ity was mild and that exercise had compensated for the injuries. Dr. Humberger further stated that ~uenning's condition 

does not prevent him from returning to work in both of his 

usual occupations without any limitations or restrictions. 

Dr. Humberger testified: 

Q. Given your evaluations of Mr. 

Kuenning, for both his right and left 

knees, would you find that there would 

be any medical reason why Mr. Kuenning, 

if he chose to, could not do that [roofing] type of work? 

A. I see none. 

Dr. Humberger's opinion was supported by Dr. Lowell 

Anderson, who examined Kuenning's left knee. Regarding 

Kuenning's physical ability, Dr. Anderson testified: "I did 

not put any restrictions on his activity because he had 

already stated that he was back to full activity and he was 

tolerating this quite well." 

The lower court al-so based its decision on Kuenning's 

oral testimony. Kuenning admitted that he had not lost any 
carpentry jobs in the Bozeman area due to his injuries. 

Kuenning testified he continued to work as a ski patrolman 

with no income loss, medical restrictions or job modification. In his own words, his performance as a ski patrolman 

has only been "slightly" affected by the knee injuries. 

Kuenning's claim for an increase in permanent partial 

disability must be supported "by a preponderance of medical 

evidence." Section 39-71-116 (12), MCA (1985). When the 

medical testimony and Kuenning's testimony are combined with 

Kuenning's failure to prove loss of earnings on the open 

market, Kuenning's claim fails. We hold that the evidence 

supports the decision of the Workers' Compensation Court. 

Affirmed.