No. 89-530 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

THOMAS TAYLOR, 

Petitioner and Respondent, 

COLUMBIA FALLS ALUMINUM COMPANY, 

Employer, 

and 

NATIONAL UNION FIRE INSURANCE, 

Defendant and Appellant. 

APPEAL FROM: Workerst Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bradley J. Luck; ~arlington, Lohn & ~obinson; 

Missoula, Montana 

For Respondent: 

John H. Bothe; Bothe & Lauridsen, P.C. ; Columbia 

Falls, Montana 

Submitted on Briefs: May 16, 1990 

Decided: July 12, 1990 

Filed: 
Justice R. C. McDonough delivered the Opinion of the Court. 

Defendant, National Union Fire Insurance Company (Appellant), 

appeals the judgment of the Workers' Compensation Court awarding 

Thomas Taylor 500 weeks of permanent partial disability benefits 

under 5 39-71-703, MCA (1985) , at the maximum biweekly compensation 

rate. We affirm. 

The sole issue on appeal is: 

Whether the Workers' compensation Court erred in awarding 

permanent partial disability benefits to the claimant under 5 39- 

71-703, MCA (1985). 

At the time of trial, claimant Thomas Taylor was 44 years old, 

married, with four children. Mr. Taylor graduated from high school 

in Livingston, Montana in 1962, and attended part of one year of 

college at Montana State University. In 1964, Mr. Taylor enlisted 

in the Marine Corps, where he served until 1968. Following his 

enlistment, Mr. Taylor began working for the Columbia Falls 

Aluminum Company. He has worked at the aluminum plant 

continuously, except for approximately eight months in 1973, when 

he worked as a skidder operator and on the green chain at a plywood 

plant. 

On June 23, 1987, Mr. Taylor was driving a hot metal truck at 

the plant when the truck fell sideways and he was injured. As a 

result of this accident, Mr. Taylor experienced severe headaches 

and dizziness. He was placed in a neck collar and transported to 

the emergency room at a local hospital, treated and released. The 

examining doctor determined that Mr. Taylor had suffered a neck 
sprain. 

The next day Mr. Taylor went to his family doctor, who after 

initial treatment, referred him to Dr. John V. Stephens for 

conduction studies. Eventually, Dr. Stephens diagnosed post 

cervical thoracic sprain/strain, myofascial pain and muscle 

contraction headaches. As a result of this diagnosis, Mr. Taylor 

was permanently restricted to medium work, avoiding repetitive work 

above shoulder level or arms outstretched, avoiding static 

positioning of the head or continuous twisting of his head or neck. 

When he returned to work, Mr. Taylor was initially assigned 

to a light duty position. After five weeks at this job assignment 

he returned to the hot metal truck driving position. After three 

days the symptoms relating to his injury returned and he went back 

to see Dr. Stephens. Following examination, Dr. Stephens told Mr. 

Taylor that he could (1) quit work, (2) try to go back to light 

duty, or (3) bid out of his present job and get into a less 

strenuous position. He was successful in bidding into a position 

as a casting laborer, which is far less strenuous than driving the 

hot metal truck. 

Following this job change, Mr. Taylor has not missed any work 

as a result of his injury, but the change has limited Mr. Taylor's 

advancement opportunities. Other employees in the casting 

department have more seniority than Mr. Taylor. This is not the 

case in other departments where, due to his injury, he is no longer 

able to work. As a result of this factor and the limited number 

of jobs in the casting department Mr. Taylor is necessarily limited 
in advancement. 

Following the accident, appellant accepted liability and Mr. 

Taylor was reimbursed for his medical bills and for the time he 

was out of work. A dispute arose concerning the extent of his 

permanent partial disability entitlement. Trial was held and the 

Hearing Examiner issued his Findings of Fact, Conclusions of Law 

and Proposed Judgment. The Workersv Compensation Judge issued his 

order accepting the Hearing Examiner's recommendations. The 

judgment awarded Mr. Taylor 500 weeks of permanent partial 

disability benefits under 5 39-71-703, MCA (1985), at the maximum 

biweekly compensation rate. This appeal followed. 

Section 39-71-703(1), MCA, as it read before the 1987 

amendments controls the outcome of this case. The injury occurred 

on June 23, 1987, before the effective date of the amendments. See 

Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 

P.2d 380. That section provided: 

39-71-703. Compensation for injuries causingpartial 

disability. (1) Weekly compensation benefits for injury 

producing partial disability shall be 66 2/3% of the 

actual diminution in the worker's earning capacity 

measured in dollars, subject to a maximum weekly 

compensation of one-half the state's average weekly wage. 

The appellant argues that the language of this statute was 

intended to compensate the injured worker for actual loss of 

earning capacity, while 5 39-71-705 to 708, MCA, was to compensate 

injured workers for possible future loss to earning capacity. 

According to their argument, Mr. Taylor can show no real loss in 

earning capacity and therefore the decision of the Workerst 

compensation Court granting him maximum benefits under 5 39-71- 
703, MCA, is not supported by substantial evidence. 

We disagree with this contention. In a recent case, Sedlack 

v. ~igfork Convalescent Center (1988), 230 Mont. 273, 749 P.2d 

1085, we were faced with this same argument. In Sedlack, we fully 

described the history and policy of cases decided under § 39-71- 

703, MCA. Therefore, we need not fully address appellantsf 

argument here. However, it does bear repeating that the correct 

test for loss of earning capacity is whether the industrial 

accident caused "a loss of ability to earn in the open labor 

market.If Sedlack, 749 P.2d at 1088. Given this standard, we need 

only review the ruling of the Workers' Compensation Court to 

determine if it correctly found that Mr. Taylor suffered Ifan actual 

loss of earning capacity." 

The lower court found that following his return to work, Mr. 

Taylor earned essentially the same wage as before his injury. 

However, it also found that his chances for advancement were 

curtailed due to job restrictions placed upon him as a result of 

the accident. The court found that Mr. Taylor lost access to a 

number of jobs outside of the aluminum plant. It based this 

conclusion upon the testimony of John Addington, a vocational 

rehabilitation consultant who was retained by the appellant. 

According to this testimony, Mr. Taylor suffered a loss of labor 

market access in Flathead County of 38.5%. The court further found 

that if the aluminum plant were to close, Mr. Taylorfs ability to 

compete for other jobs would be diminished and he would suffer a 

wage loss. 
Using this testimony as a basis, the court found that Mr. 

Taylor was severely limited in his ability to compete for and 

perform jobs outside of the aluminum plant in the Kalispell area. 

Most of the jobs that he could perform do not require training and 

are lower paying jobs. The only transferable skill position which 

Mr. Taylor could readily perform was identified as sub-assembler, 

which at entry level pays near minimum wage. 

The lower court determined the average wage in occupations now 

available to Mr. Taylor outside the plant approximated $4.00 per 

hour. It then determined that Mr. Taylor suffered a wage capacity 

loss of $6.87 per hour, which was derived by subtracting his postinjury earning capacity of $4.00/hour from his pre-injury wage of 

$10.87/hour. It then determined that Mr. Taylor was entitled to 

weekly benefits of $149.50, the maximum recoverable under 5 39- 

71-703, MCA (1985) . 

The benefits awarded in this case and the findings of fact 

upon which they are based are supported by substantial evidence. 

Findings of the Workers1 Compensation Court will not be overturned 

if there is substantial evidence to support them. Steffes v. 93 

Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450. 

Furthermore, the lower court did not err in its conclusions 

of law. The court found that Mr. Taylor, as a result of his 

accident, suffered I1a loss of ability to earn in the open labor 

market. l1 The open labor market necessarily includes jobs found 

within the Columbia Falls Aluminum Plant, as well as within the 

Flathead County area. Based upon this finding, the court concluded 
that Mr. Taylor incurred an actual diminution in his earning 

capacity. This conclusion is in accordance with the plain language 

of 5 39-71-703, MCA (1985), and with case law promulgated by this 

Court. The judgment is therefore affirmed. 

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Justice