NO. 94-035

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

THEODORE RUSSETTE, JR.,

Claimant and Appellant,

V .

CHIPPEWA CREE HOUSING AUTHORITY,

Employer,

and

STATE COMPENSATION INSURANCE FUND,

Insurer and Respondent.

APPEAL FROM: The Workers' Compensation Court

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Cameron Ferguson, Hartelius, Ferguson

& Baker, Great Falls, Montana

For Respondent:

Daniel J. Whyte, State Compensation

Insurance Fund, Helena, Montana

Filed:

Submitted on Briefs: April 14, 1994

Decided: May 16, 1994

Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.

Claimant Theodore Russette, Jr., filed a petition in the

Workers ' Compensation Court in which he claimed the right to

additional permanent partial disability benefits pursuant to

5 39-71-703, MCA (1991). Based on stipulated facts and

5 39-71-710, MCA (1987), the Workers' Compensation Court concluded

that claimant's entitlement to disability benefits, other than for

physical impairment, terminated when he began receiving social

security retirement benefits. Accordingly, judgment was entered

for defendant State Compensation Insurance Fund. Claimant appeals

the judgment of the Workers' Compensation Court. We reverse.

The issue on appeal is whether an injured worker's right to

partial disability benefits pursuant to 5 39-71-703, MCA (1991),

terminates when a claimant is considered retired pursuant to

5 39-71-710, MCA (1987).

This case was submitted to the Workers ' Compensation Court on

the following stipulated facts:

Russette was injured during the course of his employment with

the Chippewa Cree Housing Authority on September 26, 1991. The

State Fund insured his employer against workers' compensation

claims and accepted liability for the accident and his injuries.

Russette received total disability benefits until his healing

period ended on October 13, 1992. At that time, he was given a

physical impairment rating of 17 percent, and he was awarded

partial disability benefits at the rate of $168 per week. His

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partial disability benefits were commenced on October 13, 1992, and

continued for 59.5 weeks.

There is no indication in the record of Russette's 62nd

birthday. However, it occurred prior to October 13, 1992, and on

that birthday he elected to receive social security retirement

benefits. Because he elected to receive retirement benefits, the

State Fund took the position that he was not entitled to partial

disability benefits beyond those to which he was entitled as a

result of his physical impairment. The Workers' Compensation Court

agreed.

The relevant facts are not in dispute. This case presents

only an issue of law. We review the Workers' Compensation Court's

conclusions of law to determine if they are correct. Love11 v. State

Fund (1993), 260 Mont. 279, 284, 860 P.2d 95, 98.

DISCUSSION

Prior to 1987, partial disability benefits were awarded

pursuant to § 39-71-703, MCA (1975), for impairment to a worker's

earning capacity. Indemnity benefits for physical impairment were

paid pursuant to §§ 39-71-705 through -708, MCA (1975).

Prior to 1987, § 39-71-710, MCA (1981), simply provided that

when a claimant began receiving social security retirement

benefits, he or she would be considered retired and no longer

entitled to benefits for total disability. However, that section

expressly did not apply to partial disability benefits.

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In 1987, both § 39-71-703, MCA (1975), and § 39-71-710, MCA

(1981) t were amended. As amended, Section 703 provided for two

types of partial disability benefits denominated as "impairment

awards" and "wage supplements.*' Section 39-71-703, MCA (1987).

The impairment award was based strictly on the degree of a person's

physical impairment and could be paid biweekly or in a lump sum.

Wage supplement awards were based upon the difference between what

the worker earned at the time of his or her injury, and what the

worker was qualified to earn according to that worker's "job pooll'

following the injury. At the same time, 5 39-'71-710, MCA (1981),

was amended to provide that when a claimant began receiving social

security retirement benefits the insurer was no longer liable for

the payment of "wage supplement, permanent total disability, and

rehabilitation compensation benefits."

The amended Section 710 provided that "the insurer remains

liable for temporary total disability benefits, any impairment

award, and medical benefits." Section 39-71-710, MCA (1987).

In 1991, Section 703 was again amended to eliminate the notion

of "impairment awards" versus "wage supplement benefits." Section

39-71-703, MCA (1991). Instead, the concepts were merged and the

degree of an injured worker's physical impairment simply became one

factor to consider when arriving at the duration for permanent

partial disability benefits. Other factors would include a

claimant's age, education, wage loss, work history, and physical

restrictions.

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HOWeVer, Section 710 was not amended in 1991. Therefore, as

it existed on the date of Russette's injury, it did not provide for

termination of partial disability benefits upon the receipt of

social security benefits, and did provide that after retirement a

claimant would continue to be entitled to an impairment award,

among other benefits which are not relevant to the issue in this

case.

The State Fund contends that it was the Legislature's

intention when it amended Section 710 in 1987 to terminate those

types of benefits awarded for future loss of earning power when a

person retired or became eligible for full retirement benefits. It

contends that it is clear from the 1987 amendment to Section 710

that the only kind of benefits the Legislature intended to continue

beyond retirement age are those benefits such as medical benefits,

indemnity benefits, and temporary total disability benefits which

have as their purpose a claimant's physical restoration. The State

Fund's argument continues that it was a mere legislative oversight

that Section 710 was not amended in 1991 so that its language

continued to track the amended language in Section 703. It is the

State Fund's position that this Court should, by interpretation,

accomplish what the Legislature did not by construing Section 710

in a way that requires termination of Russette's partial disability

benefits, other than those related to physical impairment, on the

date when Russette began receiving social security retirement

benefits.

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The Workers' Compensation Court agreed with the State Fund's

position. It concluded that the Legislature's failure to amend

Section 710 in 1991 was an obvious oversight. In response to

Russette's argument that disability benefits should not be

terminated when their termination was not expressly provided for by

statute, the Workers' Compensation Court stated that:

This is not a perfect world, and this court must assume

the burden of determining whether the 1991 Montana

Legislature intended to extend the revised permanent

partial disability benefit to retired claimants.

On that basis, the Workers 1 Compensation Court went on to conclude,

without any apparent reference to legislative history, that it was

not the Legislature's intent to allow retired claimants to receive

partial disability benefits.

However, we conclude that by its decision the Workers'

Compensation Court amended the termination of benefits statute

which the Legislature either failed or declined to amend. In this

process, the trial court erred by doing what we have previously

held cannot be done. In Lester v. J & S havestment company (1976) , 171

Mont. 149, 153, 557 P.2d 299, 301, we stated that "[i]n construing

a statute, courts cannot insert what has been omitted. That is the

responsibility of the legislature."

In State% Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903,

we repeated our admonition that:

In construing a statute, it is our function as an

appellate court to ascertain and declare what in terms or

in substance is contained in a statute and not insert

what has been omitted. Dunphy v. Anaconda (1968) , 151 Mont.

76, 438 P.2d 660.

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Neither can we, as easily as the Workers' Compensation Court,

ascertain the Legislature'e intention in 1991. Prior to 1991,

"wage supplement" benefits which were related to actual wage loss

were terminated when an injured worker retired under the terms of

Section 710. However, indemnity benefits based on physical

impairment were continued. After 1991, there are no longer any

"wage supplement" benefits, and partial disability benefits include

physical impairment as their foundation. Actual wage loss is only

one of several additional factors to be considered in determining

the duration for which partial disability benefits are awarded. To

sort out what was or was not the Legislature's intention under

these circumstances would require sheer speculation on the part of

the Court and is one reason for leaving the amendment of

Section 710 to the Legislature.

For these reasons, we conclude that § 39-71-710, MCA (1987),

does not provide for the termination of Russette's partial

disability benefits which were awarded pursuant to 5 39-71-703, MCA

(1991), when he retired. Based on this conclusion, we reverse the

judgment of the Workers ' Compensation Court and remand for further

proceedings consistent with this opinion and a determination of the

duration over which Russette is entitled to permanent partial

disability benefits.

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We concur:

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May 16, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Cameron Ferguson

HARTELIUS, FERGUSON & BAKER, P.C.

P. 0. Box 1629

Great Falls, MT 59403

Daniel J. Whyte

STATE COMPENSATION MUTUAL INSURANCE FUND

P. 0. Box 4759

Helena, MT 596044759

ED SMITH

CLERK OF THE SUPREME COURT