No. 89-377

IN THE SUPREMECOURTOF THE STATE OFMONTANA 1989

JAMESA. QUINN, JR*, Claimant and Respondent,-VSBUILDERS TRANSPORT, INC., Employer, and EBI/ORIONGROUP, INC., Defendantand Appellant.

APPEAL FROM: TheWorkers' compensationCourt,TheHonorable Timothy Reardon,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Kelly M. Wills; ~arlington, Lohn & ~obinson, 

### iss sou la, Montana
For Respondent:
K.urtM. Jackson; Hoyt & Blewett, Great Falls,Montana

Filed: submitted on~riefs:Nov. 2, 1989 Decided: December 8, 1989

DJustice ~illiam 

### E. Hunt, Sr., delivered the Opinion of the Court.

Builders Transport and EBI/Orion Group, defendants and appellants, appeal from the findings of fact and conclusions of law and judgment of the Workers' Compensation Court which found James Quinn, Jr., claimant and respondent,permanently partially disabled and entitled to 500 weeks of benefits at $143per week with a lump sumadvancement. We affirm. The following iss-uesare raised on appeal: 

### 1. Whether the Workers' compensation Co.urtbased its finding that claimant was incapable of maintaining fulltime employment on substantial credibleevidence. 2. Whether the Workers' compensation Co-urt properly calculated claimants'post-injury earning capacity. On January 5, 1985,Quinn sustained a herniated disc in his lower back while attempting to shift the load on his truck. At the time of the accident, he was working in the

course and scope of his employment as a truck driver for Builders Transport. Q.uinn reached a medically stable condition in February of 1985. Two months after his accident, Quinn returned to Builders Transport to work as a truck dispatcher. Quinnworked as adispatcher for 15 months but was terminated on ~pril 18, 1986, due to chronic back pain.~uinn attended a pain clinics inMissoula,Montana, and Portland, Oregon. The Portland pain center released a discharge summary on September 25, 1987, which stated that Quinnwould be unable to return to his former employmentas a truck driver. Defendants paid Quinn temporary total disability benefits and certain medical benefits until February 19,1988. Itthen informed him that his benefits would be reduced to permanent partial disability benefits at $143 per week. On October 19, 1988, a trial was conducted before the Workers' compensation hearing examiner in Great Falls. The hearing examiner found that Quinn's pre-injury earning capacity was $8.53 per hour for 45 hours per week, that his post-injury earning capacity was $6.55 per hour for a maximum of 20 hours per week, and that he was incapable of fulltime employment. ~uinn was also found to be permanently partially disabled under S 39-71-703, MCA. On ~pril11, 1989, the Worlcers' compensation judge entered an order adopting the hearings examiner's findings of fact and conclusions of 

### law and entered judgment for 500 weeks of permanent partial disabilitybenefits at $143per week. The court ordered that Quinn receive a $15,553 lump sum advance on his compensation benefits and that defendants be entitled to an appropriate reduction. ~uinnwas also awarded reasonable costs and attorney fees pursuant to S 39-71-612, MCA. On ~pril 28, 1989, defendants filed a motion with the court to amend judgmentor for an order granting a new trial based on erroneous findings. On June 13, 1989, the court ordered that themotion be denied and found that the findings and conclusions were not clearly erroneous as would be required to grant the motion. From the order defendants appeal. The first issue defendants raise on appeal is whether the Workers' compensation Court based its finding that ~uinn was incapable of fulltime employment on substantial credible evidence. Defendants correctlynote that decisionsof theWorkers' Compensation Court must be based on substantial credible evidence. Snyder 

### v. San ~ranciscoFeed and Grain (Mont. 1987), 748 P.2d 924, 929, 44 St.Rep. 2216, 2224. ThisCourt's function, upon review of the Workers' Compensation Court, is to determine whether such evidence exists to support the court's findings of fact and concl~usions of law. Hartman 

### v. Staley Continental (Mont. 1989), 768 P.2d 1380, 1384, 46 St.Rep. 248, 253. However, this Court does not determine whether there is sufficient evidence to support contrary findings. Davis v. Jones (1985), 216 Mont. 300, 303, 701 P.2d 351, 353. See Jonesv. St. Regis Paper Company (1981), 196 Mont. 138, 639 P.2d 1140; and Little v. Structural Systems (1980),188 Mont. 482,614P.2d 516. Here, the court found that ~uinnreached medical stability in Febr.uaryof 1985 at which time he returned to work for Builders Transport as a truck dispatcher. Heworked

as a dispatcher for 15 months but was terminated d.ue to complicationsassociated with chronicback pain. The medical evidence supports the concl.usionthat Quinn suffered aherniated disc in his lowerback which resulted in chronic pain. Quinn was initially treated for the injury by an orthopedic surgeon who concluded that ~uinndid not require surgery. Hewas then evaluated by the

### iss so-ula pain clinic and also attended a pain center in Portland,Oregon. At the Portland center, he was diagnosed as suffering from chronic low back pain. Subsequently,~uinn was treated by a general practitioner in Spokane,washington,who prescribed a painmedication forhisback. The court consideredQuinn's physical impairmentas well

as the factors set forth in Beck v. Flathead County (Mont. 1988), 749 P.2d 527, 45 St.Rep. 215, which included age, occupational skills, education, previous health, remainina number of productive years and degree of physical or mental impairment. In its findings, the court specifically noted that ~uinn was 46 years old at the time of the trial; that his employment history for the past 22 years had beenprimarily in the trucking business, including 15months as a truck dispatcher; that he had a high school education; and that upon his release from the Portland pain center,he was diagnosed as suffering from chronic lowback pain. The court also noted that Quinn attempted to return to fulltime employment as adispatcher butwas unable to do so because of chronic back pain. The Workers' Compensation Court found, that, upon review of the evidence, Quinn's earning capacity

was reduced to that of a part-time truck dispatcher as a result of his injury. Based on the foregoing, the Workers' Compensation Court's finding that Quinn was incapable of fulltime employment was based on substantial credible evidence. Defendants also raise the issue of whether the Workers' Compensation Court properly calculated Quinn's post-injury earning capacity. On October 19, 1988, a trial was conducted by the Workers' Compensation hearing examinerwho found that Quinn's pre-injury earning capacity was $8.53 per hour for 45 hours per week and that his post-injury earning capacitywas $6.55 per hour for a maximum of 20 hours per week. Based on his loss of earning capacity,Quinnwas awarded $143per week for 500 weeks pursuant to 

### 5 39-71-703, MCA. Defendants argue that the court ignored evidence thatQuinn's earning capacity ranged from $6.25 to $11.45 per hour as adispatcherand from $7.50 to $9.36 as a clerical worker and, thus, inflated the sum due Quinn. We disagree. Loss of earning capacityhas been defined as, 

### "a loss of ability to earn in the open labormarket." Beck, 749 P.2d at 529. See also Hurley v. ~upuis(Mont. 1988), 759 P.2d 996, 45 St.Rep. 1457. Here, Quinn testified that in 1984, the last full year of his employment, he earned $14,378.27 for nine months ofwork. Based on a 45 hour work week,Quinn averaged $8.53 per hour. The figures were substantiated by Quinn's 

### 1984 W-2 form and the testimony of a vocational expert. When working

as a truck dispatcher, Quinn averaged $6.55 per hour. Nonetheless, the difference between pre-injury and post-injury wages are but one factor to consider when determining earning capacity. As discussed earlier, the factors of age, occupational skills, education, previous health, remaining number of productive years, and degree of physical or mental impairment must be considered. Beck, 749 P.2d at 529. The Workers' Compensation Court considered those factorsand emphasized the fact that although Quinnwas actively seeking employment, he was 

### unsuccessful because of his physical limitationsdue to chronicback pain. The court properly calculated Quinn's post-injury earning capacity. Affirmed.