NO. 95-226 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

THOMAS BROTHERS, 

Plaintiff and Appellant, 

v. 

CARGILL, INC., 

Employer, 

and 

STATE OF MONTANA, DEPARTMENT OF 

LABOR AND INDUSTRY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Liberty, 

The Honorable John Warner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John E. Seidlitz, Jr., Attorney at Law, 

Great Falls, Montana 

For Respondent: 

Claren J. Neal, Legal Counsel, Montana Department 

of Labor and Industry, Helena, Montana 

Filed: 

Submitted on Briefs: October 19, 1995 

Decided: April 16, 1996 

I 

Clerk 
Justice James C. Nelson delivered the Opinion of the Court. 

Thomas Brothers (Brothers) petitioned the District Court for 

the Twelfth Judicial District, Liberty County, to review the 

decision of the Board of Labor Appeals denying Brothers' claim for 

unemployment insurance benefits. The District Court affirmed the 

Board's decision and Brothers appeals. We reverse and remand. 

The sole issue presented for review is: 

Did the District Court err in affirming the Board's decision 

denying Brothers' claim for unemployment insurance benefits? 

Background Facts 

Cargill, Inc. (Cargill) manufactures livestock feeds. 

Brothers worked for Cargill as a Millman III for ten years. The 

Millman III position involves substantial physical activity 

including lifting bags of feed weighing 50 pounds or more. 

Brothers began experiencing back problems in 1989. He had back 

surgery in February or March of 1991. Following this surgery, he 

did light duty work during the month of April. 

In January 1992, Brothers could not get the company forklift 

started due to the cold weather. Brothers climbed a shelf to grab 

a 50-pound bag of grain. AS Brothers grabbed the bag, it knocked 

him to the ground causing injury to his back. Brothers reported 

the injury to a co-worker, however, he failed to file a workers' 

compensation report. Brothers did seek medical attention and 

treatment for his back injury. 

Because Cargill considered Brothers to be a valued employee, 

Brothers was allowed to perform light duty work in a modified job 

2 
position for the next several months. On April 30, 1993, Brothers 

left work to have back surgery. 

On November 3, 1993, Brothers' doctor released Brothers to 

return to his former position with the prior restrictions for light 

duty work for another six months while his back healed. When 

Brothers contacted Cargill, he was informed that no light duty or 

sedentary work was available. The Millman III position was 

available but Brothers could not perform all of the required duties 

of this position because of his back condition. 

Brothers applied for unemployment benefits on November 7, 

1993. A deputy examiner of the Department of Labor and Industry 

denied benefits on the grounds that Brothers left work for medical 

reasons and could not return to his previous job without 

restrictions. Brothers appealed and after a telephone hearing 

wherein both parties testified, an appeals referee found that 

because Brothers was not released to his regular work his claim 

should be denied. Brothers appealed to the Board of Labor Appeals. 

However, after hearing testimony and considering the case, the 

Board adopted the findings of the appeals referee. 

Brothers then filed a Petition for Judicial Review with the 

District Court. On April 17, 1995, the District Court issued an 

Order affirming the decision of the Board. Brothers now appeals 

the District Court's Order. 

Discussion 

Did the District Court err in affirming the Board's 

decision denying Brothers' claim for unemployment 

insurance benefits? 

3 
A district court's review of a decision of the Board is not 

governed by the Montana Administrative Procedure Act. Schneeman v. 

State Dept. of Labor & Ind. (1993), 257 Mont. 254, 257, 848 P.2d 

504, 506 (citing City of Billings v. State Bd. of Labor Appeals 

(19831, 204 Mont. 38, 663 P.2d 1167). Instead, a district court's 

review is limited by 5 39-51-2410(5), MCA, which provides: 

In any judicial proceeding under 39-51-2406 through 39- 

51-2410, the findings of the board as to the facts, if 

supported by evidence and in the absence of fraud, shall 

be conclusive and the jurisdiction of said court shall be 

confined to questions of law. 

Under 5 39-51-2410(5), MCA, a district court may not balance 

conflicting evidence in support of and in opposition to the Board's 

findings, determine which is the more substantial evidence, or 

consider where the preponderance of the evidence lies; to do so 

would substitute the district court's view of the evidence for that 

of the Board, nullifying the conclusive nature of the Board's 

findings. Stine v. Western Federal Sav. Bank (19941, 266 Mont. 83, 

86, 879 P.2d 53, 55 (citing Reynolds v. Pacific Telecom, Inc. 

(1993), 259 Mont. 309, 314, 856 P.2d 1365, 1368). 

This Court's review of a district court's determination in 

unemployment compensation cases is governed by the same standard. 

Section 39-51-2410(6), MCA, provides: 

An appeal may be taken from the decision of the district 

court to the supreme court of Montana in the same manner, 

but not inconsistent with the provisions of this chapter, 

as is provided in civil cases. 

Here, the issue involves an interpretation of the law, rather 

than a dispute over the facts. In the case before us, the appeals 

referee and the Board denied Brothers' claim for unemployment 

4 
benefits on the grounds that Brothers was not released to his 

regular or comparable work and, consequently, he had not complied 

with the provisions of 5 3%51-2302(2), MCA, Under this statute, 

an employee is not disqualified from unemployment benefits if he 

meets four conditions: he left his employment because of personal 

illness or injury upon the advice of a licensed and practicing 

physician; he recovers from the illness or injury and his recovery 

is certified by a licensed and practicing physician; he returns to 

his employer and offers his services; and his regular or comparable 

suitable work is not available. 

After review, the District Court affirmed the denial of 

Brothers' claim and determined that 

Cargill's initial decision to temporarily modify 

claimant's job for a limited time did not, as a matter of 

la!?, have the effect of converting the regular millman 

job into a light duty millman job. As a consequence, 

when claimant was released from his back surgery with a 

light duty restriction, he was not released to his 

regular work. 

Brothers contends that because his job was modified by his 

employer to light duty work and because he performed the light duty 

work for the nine months prior to his surgery, the light duty work 

became his "regular work." Additionally, he argues that his 

physician did release him to perform his "regular work," the same 

light duty work he was doing prior to his surgery. 

Thus the determinative question here is what is meant by the 

phrases "regular work" and "comparable suitable work." These 

phrases, however, are not statutorily defined. The interpretation 

and application of a statute to a particular set of circumstances 

5 
are matters of law. Denial of App. for Iss. of Beer/Wine Lit. 

(1994), 267 Mont. 298, 301, 883 P.2d 833, 835. An administrative 

agency's conclusions of law are reviewed by district courts and 

this Court to determine whether those conclusions are correct, 

Denial of App., 883 P.2d at 835 (citing GBN, Inc. v. Montana Dept. 

of Revenue (1991), 249 Mont. 261, 264, 815 P.2d 595, 597; Steer, 

Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 

P.2d 601, 603). 

We stated in Gulbrandson v. Carey (1995), 272 Mont. 494, 500, 

901 P.2d 573, 577, that: 

Our function in construing and applying statutes is 

to effectuate the legislature's intent. United States v. 

Brooks (1995), 890 P.2d 759, 761, 52 St. Rep. 113, 114. 

To determine legislative intent, we first look to the 

plain meaning of the words used in the statute. 

Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d 

509, 511. If the legislature's intent can be determined 

by the plain language of the words used, we may not go 

further and apply other means of interpretation. Prairie 

County Co-op State Grazing District v. Kalfell Ranch, 

Inc. (1994), 269 Mont. 117, 124-125, 887 P.2d 241, 246. 

It is only when the intent cannot be determined from the 

language of the statute that we will examine legislative 

history. Matter of Kalfell Ranch, Inc., 887 P.2d at 246. 

In the case before us and absent statutory definitions for the 

phrases "regular work" or "comparable suitable work," we conclude 

that the plain meaning of the words used by the legislature 

controls. "Regular" means normal, typical or natural. Webster's 

Ninth New Collegiate Dictionary 992 (1986). "Suitable" means 

matching, fit or able. Webster's Ninth New Collegiate Dictionary 

1180 (1986). "Comparable" means equivalent or similar. Webster's 

Ninth New Collegiate Dictionary 267 (1986). Thus an employee's 

regular work is that which he does normally, typically or 

6 
naturally. Comparable suitable work is equivalent or similar work 

with matching duties. 

For the nine months prior to his surgery, Brothers was not 

performing the work of a Millman III. He was working in a position 

created for him by his employer. Regardless of what the job 

description says, the employer chooses what the employee actually 

does. Work is specific to the employee, not to the job 

description. If the employer chooses duties different than those 

set forth in the job description, whether for the convenience of 

the employer or the employee, and the employee performs those 

duties, that work with those duties is what the employee does 

“normally, typically and naturally." That modified position, thus, 

constitutes the employee's regular work, absent some agreement, 

direction or evidence that the modified duties are merely temporary 

under the facts and circumstances of the case at issue. Obviously, 

the longer the employee performs his duties as modified by his 

employer, the more likely it will follow that the modified position 

has become the employee's regular work. The same conclusion will 

obtain if the time during which the employee is to perform his 

modified duties is left open-ended by the employer. 

Here the factual record does not support a legal conclusion 

that Cargill's modifications of Brothers' job duties were 

temporary. In point of fact, Brothers performed his duties as 

modified by Cargill for nine months, and it appears that Brothers 

could have continued performing those same modified duties 

indefinitely. Thus, it follows, that Brothers' modified duties 
were his regular work. TO conclude otherwise would allow an 

employer to defeat an employee's claim for unemployment benefits by 

the simple expedient of directing the employee to perform duties 

different from those in his job description and then claiming that 

the employee was not engaged in his "regular work." There is 

nothing in § 39-51-2302, MCA, that leads inescapably to the 

conclusion that the legislature intended "regular work" and 

"comparable suitable work " to be synonymous with "job description." 

Accordingly, we hold that the Board and the District Court 

erred in concluding that the work Brothers performed prior to his 

back surgery was not his regular work. Thus, Brothers' claim for 

unemployment benefits should not have been denied since he meets 

the requirements of § 39-51-2302(2), MCA. Brothers left his 

employment because of his back injury and upon the advice of his 

doctor; he recovered from the back injury and his recovery was 

certified by his doctor; he returned to Cargill and offered his 

services; and his regular work or comparable suitable work was not 

available. 

Therefore, we reverse the decision of the District Court and 

we remand for further proceedings 

We Concur: 

Chief Justice 

Justice Charles E. Erdmann dissenting. 

I respectfully dissent. Under the facts of this case, I 

cannot agree that the temporary light-duty position created by 

Cargill was somehow converted into Brothers' regular employment. 

The ironic result of this decision is that a company that created 

a temporary job to accommodate a valued employee is now responsible 

for unemployment benefits which it would not have been responsible 

for if the company had not created the temporary job. 

Brothers' position as a Millman III involved heavy physical 

activity and on a usual day he would stack fifteen tons of feed. 

Beginning in 1989, Brothers started to experience back problems and 

in 1991 he had back surgery. Following his return to work, he was 

given a temporary light-duty position for about a month, after 

which he returned to his regular job. In January 1992 Brothers 

injured his back again, and at the end of August 1992 his doctor 

restricted him to light duty. Since Brothers was a valued 

employee, Cargill again created a temporary job for him which 

deleted the heavy lifting normally required of a Millman III 

position. Brothers' co-workers assumed the lifting duties that 

Brothers had previously performed. By having co-workers assume 

Brothers' lifting duties, job production suffered and Cargill was 

concerned with safety issues involving the co-workers. During the 

period of time that Brothers was on light duty, Cargill offered him 

a permanent office position which only entailed light duty, but 

Brothers preferred to remain in the mill and refused the position. 

10 
Brothers worked under the light-duty restrictions until 

April 30, 1993, when he left to have a second surgery on his back. 

On November 4, 1993, Brothers' doctor released him for work, but 

with light-duty restrictions. Brothers contacted Cargill and was 

informed that his Millman III position was available, but that 

there was no position available if he was restricted to light work. 

The Department of Labor referee found that Brothers had not 

been released to his regular or comparable work, and therefore, was 

not eligible for benefits under § 39-51-2302(2), MCA. This 

determination was appealed to the Board of Labor Appeals, and 

following a hearing on March 4, 1994, the Board upheld and adopted 

the referee's decision. Brothers appealed to the District Court 

and the administrative determinations were upheld. 

Section 39-51-2302(2), MCA, provides that an employee may not 

be disqualified from benefits if: the employee leaves work because 

of a personal injury upon his doctor's advice and not because of 

misconduct; the employee recovers from the illness or injury and 

his recovery is certified by his doctor; the employee returns to 

his employer and offers to go back to work; and the employee's 

regular or comparable suitable work is not available. Here, 

Brothers complied with the first and third conditions but has 

failed to meet the second and fourth conditions. 

There is no dispute that Brothers' doctor did not release him 

to his Millman III position in November 1993. Further, there is no 

dispute that Brothers' Millman III position was available at that 

time and that he could not perform the physical duties of the 

11 
position. The majority, however, avoids this analysis by 

determining that the temporary light-duty job that Cargill created 

for Brothers between September 1992 and April 1993 had become his 

"regular or comparable suitable work." The majority holds that 

Brothers had been released to his permanent light-duty position and 

that the position was no longer available. 

The majority does not try to argue that the light-duty 

position was comparable to Brothers' regular position, as it 

clearly was not. On a normal day in his regular job, Brothers 

would stack fifteen tons of feed. In his light-duty job he did no 

lifting at all and, according to his supervisor, was able to do 

just a fraction of his normal duties. Instead, the majority 

determined that since Cargill allowed Brothers to work at the 

light-duty job for nine (actually eight) months, that position was 

converted into his regular work, absent some evidence that the 

modified duties were merely temporary. 

In fact, there was evidence that the modified position was 

temporary and there was no evidence that it was ever intended to be 

a permanent position for Brothers. Before his May 1993 surgery, 

Cargill told Brothers that he would need to take a "full range 

mobility test" after his surgery in order to return to work. The 

transcript of Brothers' supervisor's testimony at the referee 

hearing clearly indicates that the light-duty position was not 

considered Brothers' regular employment. 

QUESTION: . . . Prior to Tom having his surgery in May 

of 1993, was the light duty position that he was working 

in a regular position? 
WICKUM: No it wasn't. 

QUESTION: What position did he take then prior to the 

surgery? What was he working as? 

WICKUM: We modified the job so he could stay on, collect 

wages, lift, or do anything but lifting. We had other 

operators out there do all of the lifting, but we 

modified his job. We were hoping that things would get 

better, but they just progressively got worse. But it 

was a modified position and it put a lot of stress and 

work load on the other employees. 

While Cargill had modified Brothers' position to allow him to 

continue to work even though he could not perform the duties of his 

regular job, the evidence is clear that the modified position was 

never converted to a new permanent light-duty position. The 

referee discussed the reasons why Cargill did not continue with the 

modified position: 

The employer has chosen not to provide light duty 

employment to the claimant as he had in the past due to 

the hardship that it caused on the mill and the other 

workers, feeling that it was a safety concern as the 

claimant's co-workers would need to do his heavy lifting 

for him, leaving the employer vulnerable to other 

injuries and a decrease in production that they had 

experienced during the claimant's former period of light 

duty work. 

The referee's decision was adopted by the Board of Labor 

Appeals. Under the standard of 5 39-51-2410(5), MCA, the factual 

findings of the Board of Labor Appeals, "if supported by evidence 

and in the absence of fraud, shall be conclusive." This Court 

discussed this standard in Stine v. Western Federal Savings Bank 

(1994), 266 Mont. 83, 86, 879 P.2d 53, 55 as follows: 

Under § 39-51-2410(5), MCA, a district court is not 

permitted to balance conflicting evidence in support of 

and in opposition to the Board's findings, determine 

which is the more substantial evidence, or consider where 

13 
the preponderance of the evidence lies; to do so would 

substitute the district court's view of the evidence for 

that of the Board, effectively nullifying the conclusive 

character of the Board's findings. Reynolds [v. Pacijic Telecom, 

Inc. (1993), 259 Mont. 309, 3141, 856 P.2d [1365] at 1368. 

The District Court correctly applied this standard and 

affirmed the Board's decision. This Court is held to the same 

standard as is the district court when reviewing a decision of the 

Board of Labor Appeals. Zimmer-Jackson v. Dept. of Labor (1988), 

231 Mont. 357, 360, 752 P.2d 1095, 1098. The majority's opinion 

ignores the administrative factual finding and improperly reaches 

its own factual finding. The majority speculates that since 

Brothers performed his modified duties for nine months (actually 

eight months) 'I it appears that Brothers could have continued 

performing those same modified duties indefinitely." This factual 

finding by the majority is in direct conflict with Brothers' 

supervisor's unchallenged testimony that Brothers was informed 

prior to his surgery that he would need to take a full range 

mobility test after his surgery. It is also in conflict with 

Cargill's concerns, as found by the referee, that the modified 

position was causing production and safety problems. 

The effect of this decision is to place employers, when faced 

with a similar situation, in a "Catch 22" position. If the 

employer makes an accommodation for an injured employee and 

modifies the job requirements for a period of time, the employee 

can now argue that the modified position has been converted into 

regular employment. While this decision may well have 

ramifications beyond the context of unemployment compensatipn, it 

14 
inserts into the unemployment system the elements of health 

insurance and/or workers' compensation coverage. Brothers had not 

physically recovered from his back injury to the degree he could 

return to the position of Millman III. Despite the fact that 

Brothers was physically unable to work at his regular job, the 

majority has found him eligible for unemployment benefits. 

I would affirm the District Court. 

2TzG= 

Justice 

Justice Karla M. Gray joins in the foregoing dissenting opinion. 

15 
Chief Justice J. A. Turnage dissenting: 

I join the dissenting opinion of Justice Erdmann. 

The result of the majority opinion will effect a disservice to 

working men and women in Montana who have the misfortune of 

suffering an on-the-job injury, preventing them, for a limited 

time, from performing regular employment but allowing performance 

of lighter employment for a reasonable period. 

An employer who has concern for his employees and is willing 

to create a light-duty job for them, out of concern for the 

employees' welfare, is now faced with perhaps unintended but 

nevertheless serious legal consequences because of an effort to 

voluntarily benefit an employee. 

16