No. 89-377 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JAMES A. QUINN, JR*, 

Claimant and Respondent, 

-VSBUILDERS TRANSPORT, INC., 

Employer, 

and 

EBI/ORION GROUP, INC., 

Defendant and Appellant. 

APPEAL FROM: The Workers' compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly M. Wills; ~arlington, Lohn & ~obinson, iss sou la, 

Montana 

For Respondent : 

K.urt M. Jackson; Hoyt & Blewett, Great Falls, Montana 

Filed: 

submitted on ~riefs: Nov. 2, 1989 

Decided: December 8, 1989 

D 
Justice ~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 

$143 per week with a lump sum advancement. We affirm. 

The following iss-ues are raised on appeal: 

1. Whether the Workers' compensation Co.urt based its 

finding that claimant was incapable of maintaining fulltime 

employment on substantial credible evidence. 

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. Quinn worked as a dispatcher for 15 months 

but was terminated on ~pril 18, 1986, due to chronic back 

pain. 

~uinn attended a pain clinics in Missoula, Montana, and 

Portland, Oregon. The Portland pain center released a 

discharge summary on September 25, 1987, which stated that 

Quinn would be unable to return to his former employment as a 

truck driver. 

Defendants paid Quinn temporary total disability 

benefits and certain medical benefits until February 19, 
1988. It then 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 ~pril 11, 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 

disability benefits at $143 per 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. ~uinn was 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 judgment or for an order granting a new trial 

based on erroneous findings. On June 13, 1989, the court 

ordered that the motion 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 correctly note that decisions of the Workers' 

Compensation Court must be based on substantial credible 

evidence. Snyder v. San ~rancisco Feed and Grain (Mont. 

1987), 748 P.2d 924, 929, 44 St.Rep. 2216, 2224. This 
Court'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 Jones v. St. Regis Paper Company 

(1981), 196 Mont. 138, 639 P.2d 1140; and Little v. 

Structural Systems (1980), 188 Mont. 482, 614 P.2d 516. 

Here, the court found that ~uinn reached medical 

stability in Febr.uary of 1985 at which time he returned to 

work for Builders Transport as a truck dispatcher. He worked 

as a dispatcher for 15 months but was terminated d.ue to 

complications associated with chronic back pain. 

The medical evidence supports the concl.usion that Quinn 

suffered a herniated disc in his lower back which resulted in 

chronic pain. Quinn was initially treated for the injury by 

an orthopedic surgeon who concluded that ~uinn did not 

require surgery. He was 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 

pain medication for his back. 

The court considered Quinn's physical impairment as 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 been 
primarily in the trucking business, including 15 months 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 low back pain. The court 

also noted that Quinn attempted to return to fulltime 

employment as a dispatcher but was 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 examiner who found that Quinn's 

pre-injury earning capacity was $8.53 per hour for 45 hours 

per week and that his post-injury earning capacity was $6.55 

per hour for a maximum of 20 hours per week. Based on his 

loss of earning capacity, Quinn was awarded $143 per week for 

500 weeks pursuant to 5 39-71-703, MCA. Defendants argue 

that the court ignored evidence that Quinn's earning capacity 

ranged from $6.25 to $11.45 per hour as a dispatcher and from 

$7.50 to $9.36 as a clerical worker and, thus, inflated the 

sum due Quinn. We disagree. 

Loss of earning capacity has been defined as, "a loss of 

ability to earn in the open labor market." 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 of 
work. 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 factors and emphasized the fact that although Quinn was 

actively seeking employment, he was unsuccessful because of 

his physical limitations due to chronic back pain. The court 

properly calculated Quinn's post-injury earning capacity. 

Affirmed.