No. 86-327 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1987

RONALD EVELEIGH

### , Claimant andAppellant,

L.E. MYERS, CO., INC., Employer, and NATIONALUNION FIRE INSURANCECOMPANY OF PITTSBURGH, Defendant and Respondent.

APPEAJ,FROM: TheWorkers' Compensation Court,TheHonorable Timothy Reardon,Judge presiding.
COUNSELOF RECORD:
ForAppellant.: Larry R. Meyer, Stevensville,Montana
For Respondent: Garlington, Lohn & Robinson; Larry W. Jones, Missoula,Montana

Submitted onBriefs: Sept. 18, 1986 Decided: 

### January 2, 1987

Filed: t

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## -1987

jy. ClerkMr. Justice John ConwayHarrison delivered.the Opinion of the Court.This appeal arises from a judgment of the Workers' Compensation Court denying claimant disability benefits at this time. Both parties appeal. We affirm, On March 1, 1983, claimant Ronald Eveleigh suffered a work-related injury to his lower back when he accidentally drove a caterpiller tractor into a ditch. At the date of injury, Eveleigh was employed by the L.E. Myers Company, whichwasprovided workers' compensationcoverageby National Union Fire Insurance Company of Pittsburgh (bothofwhom are hereinafter referred to as L.E. Myers)

# . Shortly after the accident, Eveleigh experienced stiffness and pain in his lower back and lefthip. He first sought medical attention on April 

### 11, 1983, when he saw Dr. O.W. Baltrusch, who diagnosed lower back pain and probable muscle strain. Eveleigh was later referred to orthopedic surgeonDr. James Burton on Septemher 29, 1983, who diagnosed
a muscle and ligament strain. Dr. Burton later testified that EveLeigh had reached a medically stable condition 

### by April 11, 1983. Eveleigh was laid offby L.E. Myers onApril 29, 1983. He immediately applied for unemployment insurance benefits, stating in 

### his application that he was able and available to work and had no medical condition which prevented him from accepting immediate employment as an equipment operator. Eveleigh received unemployment benefits for five months by signing weekly a card indicating that he had no medical conditionpreventing him from accepting employment. From the time he was laid off by L.E. Myers in April, 1983, Eveleigh remained unemployed for more than fourteen months. During this time, Eveleigh remained active aroundhis small farm, constructing fences and a pole barn, installing plumbing and irrigation pipes as well as hunting and fishing. The Workers' Compensation Court found that during this fourteen month span, Eveleigh did not significantly change his life style as a result of his hack injury. Eveleigh ultimately returned to work on July 23, 1984,
as a heavy equipment operator for the Commonwealth Electric Company. After a few days with Commonwealth, Eveleigh complained of debilitating back pains which prevented him from performing heavy manual labor. He was ultimately laid off by Commonwealth on January 13, 1985, and has not worked since. After being laid off 

### by Commonwealth Electric, Eveleigh applied for and received unemploymentbenefits. In his application,Eveleigh again stated thathe had no medical condition which prevented him from acceptinq immediate employment. The court further found that Evel~j-qh had not been actively seeking employment since September 6, 1985, because hewaswinterizing hishome. In June, 1985, Eveleiqh brought this case before the Workers' Compensation Court. That court found that first, Eveleigh was not entitled to temporary total disability benefits; second, Eveleigh was not entitled to permanent partial disabilitybenefits at this time; third,Eveleighwas not entitled to a twenty percent penalty; and fourth, Eveleiqh was not entitled to an award of attorney's fees and costs.Eveleigh now appeals, arguing that he is entitled to permanent partial disability benefits, a twenty percent penalty and an award of attorney's feesand costs. Eveleigh first arques that the Workers' Compensation Court erred in its denial of his claim for permanent partialdisability benefits. Eveleigh elected to seek permanent partial disability benefits under S 39-71-703,

### MCA, for his actual loss of earning capacity. The Workers' Compensation Court, however, held that Eveleigh had failed to prove that any loss of earning capacity was due to his industrial injury. ThisCourt's function on appea.1is strictly confined to determining whether the lower court's findings of fact and conclusFons of law are supported by substantial credihle evidence. Tenderholt v. Travel Lodge ~nternational (~ont. 1985); 709 P.2d 1011, 1013, 42St.Rep. 1792, 1794-95. Where,
as in this case, conflicts exist in the evidence presented, it is the duty and function of the trial court to resolve such conflicts; we will not disturb its findings so long as they arebased on substantialevidence. Tenderholt, 703 P.2d at 1013. Our review of the record reveals considerable support for the court's findings. We find no error. We therefore affirm the District Court's denial of permanent partial disability benefits. We further deny Eveleigh's claim for a twenty percentpenalty and attorney's fees and costs. It is soordered.

We concur: 

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