NO. 95-226 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

THOMASBROTHERS,

Plaintiff andAppellant,

v. CARGILL, INC.,

Employer, and STATE OFMONTANA, DEPARTMENTOF LABORANDINDUSTRY,

Defendant and Respondent.

APPEAL FROM: District Court of the Twelfth Judicial District,

In andfor the County of Liberty, The Honorable John Warner, Judge presiding.

COUNSELOFRECORD:

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 onBriefs: October 19, 1995 Decided: April 16, 1996

I ClerkJustice 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. TheDistrict Court affirmed the Board's decision andBrothers appeals. Wereverse 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 aMillman 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. Hehad 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 dueto the cold weather. Brothers climbed ashelf to grab

a50-pound bag of grain. ASBrothers grabbed the bag, it knocked him to the ground causing injury to his back. Brothers reported the injury to aco-worker, however, he failed to file aworkers' compensation report. Brothers did seek medical attention and treatment for his back injury. Because Cargill considered Brothers to beavalued employee, Brothers was allowed to perform light duty work in amodified job 2position for the next several months. OnApril 30, 1993, Brothers

left work to have back surgery. OnNovember 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, hewas informed that nolight duty or sedentary work was available. The Millman III position was available but Brothers could not perform all ofthe required duties of this position because of his back condition. Brothers applied for unemployment benefits on November 7, 1993. Adeputy examiner of the Department of Labor and Industry denied benefits onthe 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 bedenied. Brothers appealed tothe Board of Labor Appeals. However, after hearing testimony and considering the case, the Board adopted the findings of the appeals referee. Brothers then filed aPetition for Judicial Review with the District Court. OnApril 17, 1995, the District Court issued an Order affirming the decision of the Board. Brothers nowappeals the District Court's Order. Discussion

Did the District Court err in affirming the Board's decision denying Brothers' claim for unemployment insurance benefits?

3Adistrict court's review of adecision of the Board is not

governed bythe Montana Administrative Procedure Act. Schneeman v. State Dept. of Labor &Ind. (1993), 257Mont. 254, 257, 848 P.2d 504, 506 (citing City of Billings v. State Bd. of Labor Appeals (19831, 204Mont. 38, 663P.2d 1167). Instead, adistrict court's review is limited by 539-51-2410(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 byevidence andin the absence of fraud, shall beconclusive andthe jurisdiction of said court shall be confined to questions of law. Under 539-51-2410(5), MCA, adistrict court maynot balance conflicting evidence in support ofandin 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, 266Mont. 83, 86, 879 P.2d 53, 55 (citing Reynolds v. Pacific Telecom, Inc. (1993), 259Mont. 309, 314, 856P.2d 1365, 1368). This Court's review of adistrict court's determination in unemployment compensation cases is governed by the samestandard. Section 39-51-2410(6), MCA,provides: Anappeal maybetaken from the decision of the district court tothe supreme court of Montana in the samemanner, but not inconsistent with the provisions ofthis chapter, asis provided in civil cases. Here, the issue involves aninterpretation of the law, rather than adispute over the facts. In the case before us, the appeals referee and the Board denied Brothers' claim for unemployment 4benefits on the grounds that Brothers was not released to his

regular or comparable work and, consequently, hehad not complied with the provisions of 53%51-2302(2), MCA, Under this statute,

anemployee is not disqualified from unemployment benefits if he

meets four conditions: heleft his employment because of personal illness or injury upon the advice of a licensed and practicing physician; herecovers from the illness or injury andhis recovery is certified byalicensed andpracticing physician; hereturns to his employer andoffers his services; andhis 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 alimited time did not, asamatter of la!?, have the effect of converting the regular millman job into alight duty millman job. As aconsequence, 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 andbecause heperformed 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 hewasdoing 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. Theinterpretation andapplication of astatute to aparticular set of circumstances

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

(1994), 267Mont. 298, 301, 883P.2d 833, 835. Anadministrative agency's conclusions of law are reviewed by district courts and this Court to determine whether those conclusions are correct, Denial of App., 883P.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). Westated in Gulbrandson v. Carey (1995), 272Mont. 494, 500, 901P.2d 573, 577, that:

Ourfunction in construing andapplying statutes is to effectuate the legislature's intent. United States v. Brooks (1995), 890P.2d 759, 761, 52St. 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 canbedetermined by the plain language of the words used, wemaynot go further andapply other meansof interpretation. Prairie County Co-op State Grazing District v. Kalfell Ranch, Inc. (1994), 269Mont. 117, 124-125, 887P.2d 241, 246. It is only whenthe intent cannot bedetermined from the language ofthe statute that wewill examine legislative history. Matter of Kalfell Ranch, Inc., 887P.2d at 246. Inthe case before usandabsent statutory definitions for the phrases "regular work" or "comparable suitable work," weconclude 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 NewCollegiate Dictionary 1180 (1986). "Comparable" means equivalent or similar. Webster's Ninth NewCollegiate Dictionary 267 (1986). Thus anemployee's regular work is that which he does normally, typically or 6naturally. 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 aMillman III. Hewasworking in aposition 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 andnaturally." That modified position, thus, constitutes the employee's regular work, absent some agreement, direction orevidence that the modified duties aremerely temporary under the facts andcircumstances 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 sameconclusion will obtain if the time during which the employee is to perform his modified duties is left open-ended bythe employer. Here the factual record does not support alegal 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 dutieswere his regular work. TO conclude otherwise would allow an

employer todefeat anemployee's claim for unemployment benefits by the simple expedient of directing the employee to perform duties different from those in his job description andthen 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"tobesynonymous with "job description." Accordingly, wehold that the Board and the District Court erred in concluding that the work Brothers performed prior to his back surgery wasnot his regular work. Thus, Brothers' claim for unemployment benefits should not have been denied since hemeets the requirements of §39-51-2302(2), MCA. Brothers left his employment because of his back injury andupon 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; andhis regular work or comparable suitable work wasnot available. Therefore, wereverse the decision of the District Court and

weremand for further proceedings

WeConcur:

Chief JusticeJustice 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 acompany that created

atemporary job to accommodate avalued employee is nowresponsible for unemployment benefits which it would not have been responsible for if the company had not created the temporary job. Brothers' position as aMillman III involved heavy physical activity and onausual day hewould stack fifteen tons of feed. Beginning in 1989, Brothers started toexperience back problems and in 1991 hehadback surgery. Following his return to work, hewas given atemporary light-duty position for about amonth, 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 wasonlight duty, Cargill offered him

apermanent office position which only entailed light duty, but Brothers preferred to remain in the mill andrefused the position.

10Brothers worked under the light-duty restrictions until

April 30, 1993, whenheleft to have asecond surgery onhis back. OnNovember 4, 1993, Brothers' doctor released him for work, but with light-duty restrictions. Brothers contacted Cargill andwas informed that his Millman III position was available, but that there wasnoposition available if hewasrestricted to light work. The Department of Labor referee found that Brothers had not been released to his regular or comparable work, andtherefore, was not eligible for benefits under § 39-51-2302(2), MCA. This determination was appealed to the Board of Labor Appeals, and following ahearing onMarch 4, 1994, the Board upheld andadopted the referee's decision. Brothers appealed to the District Court and the administrative determinations were upheld. Section 39-51-2302(2), MCA,provides that anemployee maynot bedisqualified from benefits if: the employee leaves work because of apersonal 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 nodispute 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 wasavailable at that time and that he could not perform the physical duties of the

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

determining that thetemporary light-duty jobthat Cargill created for Brothers between September 1992andApril 1993hadbecomehis "regular or comparable suitable work." Themajority holds that Brothers hadbeenreleased tohispermanent light-duty position and that the position wasnolonger available. The majority does not try to argue that the light-duty position was comparable to Brothers' regular position, as it clearly wasnot. Onanormal dayin his regular job, Brothers would stack fifteen tons of feed. Inhis light-duty job hedid no lifting at all and, according to his supervisor, wasable 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 someevidence that the modified duties weremerely temporary. In fact, there wasevidence that the modified position was temporary andthere wasnoevidence that it wasever intended tobe

apermanent position for Brothers. Before his May1993surgery, Cargill told Brothers that hewould need to take a"full range mobility test" after his surgery inorder to return towork. The transcript of Brothers' supervisor's testimony at the referee hearing clearly indicates that the light-duty position wasnot considered Brothers' regular employment. QUESTION:

. . .Prior toTomhaving his surgery in May of 1993, wasthe light duty position that hewasworking inaregular position?WICKUM: Noit wasn't.

QUESTION: What position did hetake then prior to the surgery? What washeworking as? WICKUM: Wemodified the job sohecould stay on, collect wages, lift, or do anything but lifting. Wehad other operators out there do all of the lifting, but we modified his job. Wewere hoping that things would get better, but they just progressively got worse. But it was amodified position and it put alot of stress and work load onthe other employees. While Cargill hadmodified Brothers' position to allow him to continue towork even though hecould 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 whyCargill did not continue with the modified position: The employer has chosen not to provide light duty employment to the claimant ashehad 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 dohis 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 539-51-2410(5), MCA, the factual findings of the Board of Labor Appeals, "if supported byevidence and in the absence of fraud, shall be conclusive." This Court discussed this standard in Stine v. Western Federal Savings Bank (1994), 266Mont. 83, 86, 879P.2d 53, 55asfollows: 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, orconsider where 13the preponderance of the evidence lies; to do sowould

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.PacijicTelecom, Inc.(1993), 259Mont. 309, 3141, 856P.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 asis the district court whenreviewing adecision of the Board of Labor Appeals. Zimmer-Jackson v. Dept. of Labor (1988), 231Mont. 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) 'Iit appears that Brothers could have continued performing those samemodified 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 wascausing production andsafety problems. Theeffect 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 aperiod of time, the employee

can nowargue 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 hadnot physically recovered from his back injury to the degree hecould return to the position of Millman III. Despite the fact that Brothers wasphysically unable to work at his regular job, the majority hasfound himeligible for unemployment benefits. Iwould affirm the District Court. 

# 2TzG=

Justice

Justice Karla M.Grayjoins inthe foregoing dissenting opinion.

15Chief Justice J. A. Turnage dissenting:

Ijoin the dissenting opinion of Justice Erdmann. Theresult ofthe majority opinion will effect adisservice 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 areasonable period. Anemployer whohas 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 anemployee.

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