No. 12384 INTHE SUPREME COURT OF THE STATE OF MONTkIU 1973

DUANE OLSON, Claimant and Appellant,

PIP,NIOII~I'SINC.

## , Employer, FEDERATED MUTUTAL KC1RDIdARE & IMPLEMENT INSWANCE CBMPAM', Defendant and Respondent.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Keller, 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(

### 151973 Filed:

### MAY1.5:973Yr. ?usticeGene B. Dafy delivered the Opinion 

### CIEthe 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 injurieswhich impeded his movement and ability to assume certain ~ositions.A claim was filed by Olson and accepted by the IndustrialAccident Board under Plan 2 of theWorkmen'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.lityof certain evidence offered by Olson on the ground 

### icwas 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 atManion's paid 

### $4,60 per hour in 

### 1972. (2j ~lson's present job, which pays 

### $3.80 per hour, is substitute employment because he isphysically unable to perform the job he held prior Lo i.njury, On appeal the sole issue iswhether 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 tobe paid in cases of permanent partial disability. It provides for a fixed percentage (subject to a statedmaximum):

It* 

# ** of the differencebetween the wages received atthe time of the injury and thewages 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 abilityto 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:
IIIdhenever this act or any part or section thereof isinterpreted by a court it shallbe liberally construed by such court. !I' It 

### is fundamental to the issue of this case tokeep in mind that the workmen's compensation system isnot based on common law tort liabilityconcepts, but rather depends upon the particular statuteswhich the legislature enacts tocreate and administer the system. 

### 2 

### arson's workmen's Compensation Law 

### 5 57.10, pp.2,3 states:
It

It has been stressedrepeatedly that the distinctive feature of the compensation system, by contrast with tort liabil-ityi.s that 

### its awards (apart from medical benefits) are made not forphysical 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" 

### isnot a static concept, particularly in the instance of permanent partial disability, Section 92-830, 

### R.C.M, 1947, empowers the Board at any timeafter an award ismade, 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 ormethod in a particular job field so as topreclude 

### a disabled person from performing; or,a determination that subsequent wages earned were based on consideration of sympathy orrelationship. None of these situations apply in the instant case. Essentially, Olson iscontending that he has a compensable disabilitybased on his inability todo his oldjob, 99 C,J.S. workmen's Compensation 

### 5 295, p. 1031, states:
1IEarning power in same or other employment. It has been held under, apart from, orwithout reference to, statutes so providing, that the test of an injured employee's right tocompensation 

### ishis inabilityby reason of the injury towork and earn wages

### 'n the employment atwhich he was engaged when injured, so that the earning capacity remaining to the employee inother callings cannot be considered. 

## r ow ever, it isotherwise under statuteswhich impose no such limitation, orwhere the compensation is measured by the loss of abilitytoearn inany suitable employment or in the sane-orany other employ- ment $? ;'c

# *.

11

The fast that a claimant might have been earning more had hebeen able toresume, and been promoted in, the employment he was engaged inwhen 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 allhis powers, mental and physical, whether working forhimself or for others and whether ornot his earnings are called wages incommon 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 Montanafs 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 inwhen injured. Dosen v, East Butte Copper Min. Co., 78 Mont, 579, 254 P. 880; McXinzie 

### v, Sandon, 141Mont. 540, 380 P.2d 580. The New Hampshire court in Desrosiers v, Dionne Bros. Furniture, Inc., 98 N.H. 

### 424, 101A.2d 775, 778, decided under a similar statutory provision an analagous fact situation, and stated:

11In some jurisdictions earning capacity refers only to the employee's capacity to earn in the employment or trade inwhich he was working atthe time of the accident so that for compensation purposes the earning capacity remaining tohim in other callings 

### isnot considered. 

# ** Section 

### 23 of our act imposes no such limitation nor has itbeen so interpreted. 

# * 2II The test of compensable disability under our statute isnot the employee's ability or disabilitybecause of his injury todo hi.s old job. Nor isitwhat the claimant could have earned but forhis injury inthe employment or trade inwhich he was working atthe time of the acci.- dent. 

# * 

# * It isthe differencebetween 'his average weekly wage before the injury and the average weekly wage he isable to earn thereafter' with his injury in suitablework under normal employment conditions,11 We hold that the test of compensable disabilityunder the Montana workmen's Compensation Act is "the differencebetween the wages received atthe 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 ornot his earnings in that field of employment or profession are comronly called "wages". Olsonls contention thzt this rulemakes no provision for "inflation" or "parity" iscorrect. He makes a meritorioils argument supporting the desirabil-ityand practicality of such a provision, and we takejudicial notice of the fact that prevailing wage scales have risen 

### in the period between 1962 and 1972. However, it isneither the function nor prerogative of this Court torewrite the workmen's Compensation Act toinclude such.aprovision. That isthe function of the legisl.ature, The courts of this statehave 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
IIin 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. StateBoard of Equalization, 156Mont. 108, 

### 114, 476 P.2d 775: "b+%erethe Language of a statute is plain, unambiguous, direct, and certain, the statute speaks for itself and there isnothing left for the court to construe.11 The judgment of the distr



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# -hief Justice



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cociate 

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