No. 87-229

IN THE SUPREMECOURTOF THE STATEOF MONTANA
1988

SHELBY KUENNING, Claimant and Appellant,-vsBIG SKYOF MONTANA, Employer, and STATE COMPENSATION INSURANCEFUND, Defendantand Respondent.

APPEAL FROM: TheWorkers' Compensation Court,TheHonorable Timothy Reardon,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Ugrin, Alexander, Zadick & Slovak;J. David Slovak, GreatFalls,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

ClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court.ClaimantKuenning appeals theMay 21, 1987, decision of the Workers' Compensation Court. The decision denied Kuenning'spetition for additionalpermanent 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 disabilitybenefits? 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 fallmonths. In late 1982, Kuenning began working as a skipatrolman for Rig Sky of Montana (Big Sky) during the wintermonths. 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 themedial collateral ligament in his left kneewhile skiing. The ligament was surgically reattached with a staple. Kuenning has returned t.owork as a ski patrolman with no subsequent injuries.Bothknee injuries have reached maximum healing. The parties agree that both knee injuries occurred in the course and scope of Kuenninglsemploymentwith 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 compensationbenefits 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 Workers1Compensation 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 theCourtwere to accept theunsubstantiated testimony of the claimant as to his loss of earnings as a carpenter, claimant still has notmet his burden ofproof." More importantly, the courtnoted thatKuenning 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 topermanent partial disability simply by his limiting, personal preference for aparticular field of employment."TheWorkers' Compensation Court concluded: While claimant has not met hisburden 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. Claimantmay 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 staminahas 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 claimantmust 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 experienceand qualifications. Holton



### v. F. H. StolzeLand & Lumber Co. (1981),195Mont. 263, 266,

### 637 P.2d 10, 12. Simply put, the more labor skills a claimant possesses, the largerhis labormarket. Kuenning's skills gave him solid ability to earn in the open labor market. He has Cardio-PulmonaryResuscitation and Emergency Medical Technician certifications. He has one college degree and isone quarter away from having two additional college degrees inphotography and English literature. However, throughout these proceedings Kuenning made no attempt to quantify his earning capacity on the openmarket. He ignored repeated requests by the State Compensation Fund to document his loss of earning capacity. Instead,Kuenning continually restricted his focus to skipatrol 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 thathe 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 depositionofhis 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 placedKuenning in amuch 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 sufferedany 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 subsidizea claimant'spursuit. 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 evidenceof lossofearning capacity in skipatrol and carpentry ismarginal at best. His evidence of loss in the openmarket is nil. We hold that the Workers' Compensation Court properly concluded that Kuenning did not meet his burden ofproof under S 39-71-703,MCA (1985).

Issue 2. SubstantialEvidence. 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 theWorkers' CompensationCourt.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 ~luminumCo. (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 leftknee 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, ifhe chose to, could not do that [roofing] type of work?

A. I seenone.

Dr. Humberger's opinion was supported by Dr. Lowell Anderson, who examined Kuenning's left knee. Regarding Kuenning's physical ability, Dr. Anderson testified: "Idid not put any restrictions on his activity because he had already stated that he was back to full activity and he was tolerating this quitewell." The lower court al-sobased its decision on Kuenning's oral testimony. Kuenning admitted that he had not lost anycarpentry 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" affectedby 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.