No. 12384 

IN THE SUPREME COURT OF THE STATE OF MONTkIU 

1973 

DUANE OLSON, 

Claimant and Appellant, 

PIP,NIOII~I'S INC. , Employer, 

FEDERATED MUTUTAL KC1RDIdARE & 

IMPLEMENT INSWANCE CBMPAM', 

Defendant and Respondent. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert Kell er, Judge presiding. 

Counsel of Record: 

For Appellant : 

McGarvey, Morrison and Hedman, Kalispell, Montana, 

James D. Moore argued, Kalispell, Montana. 

For Respondent : 

Korn, Warden, Walterskirchen and Christiansen, 

Kalispel.l, Montana. 

Meritt N. Warden argued, Kalispell, Montana. 

Submitted: April- 24, 1973 

Decided : MR( 15 1973 

Filed : MAY 1.5 :973 
Yr. ?ustice Gene B. Dafy delivered the Opinion CIE the Court. 

This appeal is from a decision of the district court of 

the eleventh judicial district, Flathead County, affirming an 

.~rder af the Industrial Accident Board denying benefits to 

plaintiff Duane Olson. 

On January 23, 1962, Olson in an industrial accident sustained 

injuries which impeded his movement and ability to assume certain 

~ositions. A claim was filed by Olson and accepted by the Industrial Accident Board under Plan 2 of the Workmen's compensation 

Act5 carried by his employer Manion's Inc,, a car dealership and 

garage in Kalispell. kt that time temporary total disability 

compensation was paid for a period of 9 and 4/7ths weeks. In 

1-967 the Industrial Accident Board on rehearing determined that 

3lson had suffered permanent partial disability from 5% of the 

back to 20% of the body as a whole, Later that year, a subsequent 

application for rehearing was denied by the Board and Olson appealed the ~oard's order to the district court. 

After several continuances, the district court on July 5, 

1972, ruled against Olson, adopting the ~oard's findings of fact 

and conclusions of law which denied admissibi.lity of certain evidence offered by Olson on the ground ic was without legal effect. 

The additional evidence offered by Olson and refused by the 

Soard and the district court was: (1) At the time Olson sustained 

the cornpensable injury in 1962 he was earning $2.50 per hour but 

the same job at Manion's paid $4,60 per hour in 1972. (2j ~lson's 

present job, which pays $3.80 per hour, is substitute employment 

because he is physically unable to perform the job he held prior 

Lo i.njury, 

On appeal the sole issue is whether the Industrial Accidcnt 

SoC*rd and the district court erred in refusing to admit and consider the offered evidence of impairment of earning capacity. 
Section 92-703, R. C.N. 1947, establishes the amount of 

compensation to be paid in cases of permanent partial disability. 

It provides for a fixed percentage (subject to a stated maximum): 

It* * * of the difference between the wages received 

at the time of the injury and the wages that such 

injured employee is able to earn thereafter 9: ik i?". 

(Emphasis added) 

Olson relies on cases decided by this Court applying section 

IS 92-703, in which the terms loss of earning capacityt' and "loss 

of ability to earn in the open markett' were used: Shaffer v, 

Midland Empire Packing Co., 127 Mont. 211, 259 P.2d 340; Mahlum 

v. Broeder, 147 Mont. 386, 412 P.2d 572. We also cites section 

92-838, R.C.M. 1947, which states: 

I I Idhenever this act or any part or section thereof 

is interpreted by a court it shall be liberally 

construed by such court. !I' 

It is fundamental to the issue of this case to keep in mind 

that the workmen's compensation system is not based on common law 

tort liability concepts, but rather depends upon the particular 

statutes which the legislature enacts to create and administer 

the system. 2 arson's workmen's Compensation Law 5 57.10, pp.2,3 

states : 

It It has been stressed repeatedly that the distinctive feature of the compensation system, by contrast 

with tort liabil-ity i.s that its awards (apart from 

medical benefits) are made not for physical injury as 

such, but for 'disability' produced by such injury, 

The central problem, then, becomes that of analyzing 

the unique and rather complex legal concept which, by 

years of compensation legislation, decision, and prac- 1 tice, has been built up around the term compensable 

disability', " 

hrhat constitutes a "compensable disability" is not a static 

concept, particularly in the instance of permanent partial disability, Section 92-830, R.C.M, 1947, empowers the Board at 

any time after an award is made, to review, increase or diminish 

that award. Possible bases for review include: changes in the 

job market affecting the availability of jobs which the disabled 

can perform; changes in tecl~nolagy or method in a particular job 

field so as to preclude a disabled person from performing; or, 
a determination that subsequent wages earned were based on consideration of sympathy or relationship. None of these situations 

apply in the instant case. Essentially, Olson is contending that 

he has a compensable disability based on his inability to do his 

old job, 

99 C,J.S. workmen's Compensation 5 295, p. 1031, states: 

1 I Earning power in same or other employment. It has 

been held under, apart from, or without reference 

to, statutes so providing, that the test of an injured employee's right to compensation is his inability by reason of the injury to work and earn 

wages 'n the employment at which he was engaged when 

injured, so that the earning capacity remaining to 

the employee in other callings cannot be considered. 

r ow ever, it is otherwise under statutes which impose 

no such limitation, or where the compensation is 

measured by the loss of ability to earn in any suitable employment or in the sane-or any other employ- ment $? ;'c *. 

11 The fast that a claimant might have been earning 

more had he been able to resume, and been promoted 

in, the employment he was engaged in when injured 

does not affect the determination. 'Idhere the average 

weekly wages which a claimant is able to earn are not 

limited to those he could earn in the same employment 

but include the whole monetary result of a reasonable 

use of all his powers, mental and physical, whether 

working for himself or for others and whether or not 

his earnings are called wages in common speech, no 

compensation can be had where talents previously 

undiscovered produce an earning capacity greater than 

that enjoyed prior to the injury." (Emphasis added). 

In Montanaf s Workman's Compensation Act we find no limitation 

of consideration to a disabled's earning ability in the same employment, or the same type of employment he was engaged in when 

injured. Dosen v, East Butte Copper Min. Co., 78 Mont, 579, 254 

P. 880; McXinzie v, Sandon, 141 Mont. 540, 380 P.2d 580. 

The New Hampshire court in Desrosiers v, Dionne Bros. Furniture, Inc., 98 N.H. 424, 101 A.2d 775, 778, decided under a 

similar statutory provision an analagous fact situation, and 

stated: 

11 In some jurisdictions earning capacity refers only 

to the employee's capacity to earn in the employment 

or trade in which he was working at the time of the 

accident so that for compensation purposes the earning 

capacity remaining to him in other callings is not 

considered. * * Section 23 of our act imposes no such 

limitation nor has it been so interpreted. * 2 
I I The test of compensable disability under our 

statute is not the employee's ability or disability because of his injury to do hi.s old job. 

Nor is it what the claimant could have earned 

but for his injury in the employment or trade 

in which he was working at the time of the acci.- 

dent. * * It is the difference between 'his 

average weekly wage before the injury and the 

average weekly wage he is able to earn thereafter' 

with his injury in suitable work under normal 

employment conditions, 11 

We hold that the test of compensable disability under the 

Montana workmen's Compensation Act is "the difference between 

the wages received at the time of the injury and the wages that 

such injured employee is able to earn thereafter" in any suitable 

field of employment or profession he subsequently enters under 

normal conditions, whether or not his earnings in that field of 

employment or profession are comronly called "wages". 

Olsonls contention thzt this rule makes no provision for 

"inflation" or "parity" is correct. He makes a meritorioils argument supporting the desirabil-ity and practicality of such a provision, and we take judicial notice of the fact that prevailing 

wage scales have risen in the period between 1962 and 1972. However, 

it is neither the function nor prerogative of this Court to rewrite 

the workmen's Compensation Act to include such.a provision. That 

is the function of the legisl.ature, 

The courts of this state have followed the directive set forth 

in section 92-838, R.C.M. 1947, in liberally construing the provisions of the Act, particularly in the interpretation of the terms 

I I in the course of" and "arising out of". Rut we see no room for 

11 interpretation of the words wages received at the time of injury. 

As this Court said in ?font. Assn. of Tobacco and Candy Distributors 

v. State Board of Equalization, 156 Mont. 108, 114, 476 P.2d 775: 

"b+%ere the Language of a statute is plain, unambiguous, direct, and certain, the statute 

speaks for itself and there is nothing left for 

the court to construe. 11 

The judgment of the distr 

- - 
hief Justice 

il / 

cociate Justice. 

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