No. 86-327 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

RONALD EVELEIGH , 

Claimant and Appellant, 

L.E. MYERS, CO., INC., Employer, 

and 

NATIONAL UNION FIRE INSURANCE COMPANY 

OF PITTSBURGH, 

Defendant and Respondent. 

APPEAJ, FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant.: 

Larry R. Meyer, Stevensville, Montana 

For Respondent : 

Garlington, Lohn & Robinson; Larry W. Jones, 

Missoula, Montana 

Submitted on Briefs: Sept. 18, 1986 

Decided: January 2, 1987 

Filed: t ~fiN 2 - 1987 

jy. 

Clerk 
Mr. Justice John Conway Harrison 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, 

which was provided workers' compensation coverage by National 

Union Fire Insurance Company of Pittsburgh (both of whom are 

hereinafter referred to as L.E. Myers) . 

Shortly after the accident, Eveleigh experienced 

stiffness and pain in his lower back and left hip. 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 

surgeon Dr. 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 off by L.E. Myers on April 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 

condition preventing 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 around 
his 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 unemployment benefits. In 

his application, Eveleigh again stated that he 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 he was winterizing his home. 

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 disability benefits at this time; third, Eveleigh was 

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 fees and costs. 

Eveleigh first arques that the Workers' Compensation 

Court erred in its denial of his claim for permanent partial 
disability 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. 

This Court's function on appea.1 is 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, 42 St.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 are based on substantial evidence. 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 percent penalty and attorney's fees and costs. 

It is so ordered. 

We concur: w