No. 90-542 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

DARRELL D. RAFFETY, Claimant and Appellant,-vsKANTA PRODUCTS, INC., Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent.

APPEAL FROM: The Workersf Compensation Court, The Honorable ~imothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Greg J. Skakles;Johnson, Skakles & Kebe,Anaconda, Montana For Respondent: Thomas E. Martello; Hughes, Kellner, Sullivan & Alke, Helena, Montana

Submitted on Briefs: October 10, 1991 SJ;';

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,.. Decided: October 29, 1991 ~i 5.)

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,"....& -''=3*JRS q-;:. ''.7 ;:!- .,j<-;;..;-f-[.*;*;A <JusticeWilliam 

### E. Hunt, Sr., delivered the opinion of the Court. Claimant Darrell 

### D. Raffety appeals from a judgment of the Workers' Compensation Court issued onOctober 10, 1990, which found that he was only entitled to 140 weeks of permanent partial disability benefits for injury to one eye, instead of 500weeks as claimant argued. We affirm. The sole issuepresented for review by theparties iswhether theWorkers' Compensation Court erred in limiting claimant's award of permanent partial disability benefits for injury to one eye to 140 weeks. On October 17, 1983, claimant suffered an injury arising out of and in the course of his employment. Claimantwas struck in the right eye by a nail while he was nailing sheetmetal to a storage shed, resulting in loss of vision in the eye. At the time of claimant's injury,his employer was insured under Plan I11 of the Workers8CompensationAct. A claim for compensationwas filedwith insurer, the State Fund, which accepted liability for the injury. Insurer, in addition to paying medical and temporary total disabilitybenefits,paid 140weeks ofpermanent partial disability benefits at the rate of $138.50 per week. On August 31, 1989, claimant petitioned the Workers' Compensation Court for permanent partial disability benefits in

excess of the 140 weeks paid by the insurer. This petition was filed after the insurer refused to entertain a petition for benefits in excess of 140 weeks. Claimant contended he wasentitled to 500weeks of benefits, minus the 140weeks previously paid by the insurer. Inasmuch as the dispute between the parties involved a question of law only, the matter was submitted to the Workersr compensation Court on an agreed statement of facts and briefs by the parties. On October 10, 1990, the Workersf Compensation Court issued its decision holding that the statutes governing permanent partial disability benefits were clear and unambiguous and limited the claimant to 140weeks of benefits. It is from this judgment that claimant appeals. Bothparties stipulated that thepresent dispute involvedonly a question of law. In reviewing conclusions of law, this Court will not apply the substantial credible evidence standard used in reviewing factual findings of the Workersr Compensation Court. Concerning this Courtrs review of conclusions of law by the Workersr compensation Court we recently stated: !'In such a case, the appropriate standard of review is simply whether the lower courtrsinterpretation of the law is correct. We are not bound by the lower court's conclusion and remain free to reach our own.I1 Schaubv. Vita Rich Dairy (1989),236Mont. 389, 391, 770 P.2d 522, 523. Additionally, concerningour review of conclusions of law, we have stated: The reasoning for simply determining if the courtrs conclusionsare correct is thatno discretion is involved when a tribunal arrives at a conclusion of law--the tribunal either correctly or incorrectlyappliesthe law. For that reason, this Court concludes that our standard of review relating to conclusions of law, whether the conclusions aremade by an agency,workersrcompensationcourt, or trial court, is whether the tribunal's interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245Mont. 470, 474-75, 803 P.2d 601, 603. The instant case deals with a conclusion of law, and therefore, upon review we will simply determine whether the conclusion was or was not correct. At issue in this case is the Workerst Compensation Court's interpretation of 55 39-71-703 and -705 MCA, (1983), concerning compensation for injuries causing partial disability. Section 39-71-703,MCA, hasundergone significant modification in virtually every legislative session since 1983, and 5 39-71-705, MCA, has been repealed. However, it is well-settled that the law existing at the time of the injury governs. Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328, 331. claimant's injury occurred in 1983. Section 39-71-703, MCA (1983), reads as follows: (1) Weekly compensation benefits for injury producing partial disability shall be 66 2/3% of the actual diminution in the worker's earning capacitymeasured in dollars, subject to a maximum weekly compensation of one-half the state's average weekly wage.

(2) The compensation shallbe paid during the period of disability,not exceeding, however, 500 weeks incasesof partial disability. However, compensation for partial disabilitv resultins from the loss of or injury to any member shall not be payable fora sreaternumber ofweeks than is specified in 39-71-705 for the loss of the member. [Emphasisadded.] Section 39-71-705,MCA (1983), contains a schedule of injuries to various members of thebody and a corresponding maximum duration of compensation available for each such injury and reads, inpart, as follows:(1) In addition to temporary total disability benefits allowed in this chapter, indemnity benefits for loss of a member shall be paid at the weekly rate provided in 39-71-703 and shall be paid for the following periods:



# . . . . Total blindness of one eye

# .............140weeks 

# . . . . Claimant points out that at the time of injury § 39-71-104, MCA (1983), mandated that the Workerrs Compensation Act be liberally interpreted. We construed this section to require that when a statute in theAct Itisopen tomore than one interpretation, one favorable to the employee and the other against him, we must give it the construction most favorable to the injured workman



### .... Geary v. Anaconda Copper Mining Co. (1947), 120 Mont. 485, 489, 188 P.2d 185, 186. The claimant contends that the statutes in question may be interpreted as allowing for 500 weeks of permanent partial disability benefits for the loss of an eye. We disagree. The Workersr Compensation Court was correct in determining that the statutes inquestionare clear andunambiguous on this point. Section 39-71-703, MCA, providesthatcompensation forpartial disability "shallnot be payable for a greater number ofweeks than is specified in 39-71-705 

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# ." Section 705 unambiguously sets the maximum period for permanent partial benefits for loss of an eye at 140weeks. The decision of the WorkersrCompensation Court that the statute clearly precludes compensation in excess of 140 weeks for the loss of an eye is correct. Additionally, the

### interpretationof the statuteby theWorkersfCompensation Court is inaccordancewith theexisting case lawconstruingthesestatutes. In a casevery similarto thepresent controversy, this Courtheld that for the loss ofvision to one eye an injuredworker is limited to 140weeks of permanent partial disabilitybenefits. Johnsonv. IndustrialAccident Board (1971), 157Mont. 221, 483 P.2d 918. 

### In Johnson, as here, the injured worker alleged he was entitled to 

### 500 weeks of permanent partial benefits. The Court in Johnson held that the legislative intent was clear that an injured worker

was limited to the maximum number of weeks of benefits as was indicated by the statutory schedule of injuries. This Court has consistently held that an individual with a scheduled injury is limited to thebenefits set out in the schedule. Walter v. Public Auction Yards (1979), 181Mont. 109, 592 P.2d 497. As we explained inMcDanold v. B.N. 

### Transport,Inc. (1984),208 Mont. 470, 477, 679

The 500-week limit is simply a statutorymaximum period for such compensation. The Legislature has further limited this

### period of disabilityto thenumber of benefit weeks for the comparable schedule injury under sections 39-71-705-708, MCA,but onlywhen the injury is specifically listed in the schedule. Claimant presents two arguments in support of his contention that the above-mentioned cases were decided incorrectly by this Court. First, claimant argues that our laterdecisions concerning this issue are inconsistent with our prior opinion in Spieth v. Stuart (1956), 130Mont. 216, 299 P.2d 106. In Spieth,we upheldthe award of 500 weeks ofpermanent partial disability benefits for

a scheduled injury. The insurer argued that the injured worker should be limited to 37 weeks asprovided in the schedule. Spieth is not persuasive authority for claimant in the present case in that the statute in effect at the time of Spieth is dramatically different than the statutebefore us now. The statute interpreted in Spieth limited scheduled injuries to a particular dollar amount of compensation, but did not limit the scheduled injuries as to duration of compensation, as does the statute in question here. Had the last sentence of 5 39-71-703(2), MCA (1983),been in effect at the time of Spieth, the opposite resultwould havebeen reached. Claimant's second argument in support of his contention that this Court has misinterpreted 55 39-71-703 and -705, MCA, in the past is, in essence, an argument that the sections, as enacted, were neither fair nor wise. Further, claimant points out that other jurisdictions have not relied exclusively on such injury schedules for determining the duration of compensation benefits. Claimant argues forcefully that the statutes should have provided

an option for injuredworkers to receive compensation for permanent partial disability based on impairment of earning capacity. It is argued that this would result in a fairer determination of the appropriate duration of compensation benefits than would relying on an arbitrary scheduleof injuriesand theircorrespondingbenefits. Claimant's policy argument may or may not be correct, but in any event, this Court will not substitute its judgment for that of thelegislature. The legislature adopted the statutes and they are clear and unambiguous. [I]t is theprovince of courts to construe and apply the law as they find it and to maintain its integrity as it has been written by a coordinate branch of the state government. When the terms of the statute are plain, unambiguous,direct and certain, it speaks for itself and there is no room for construction. Bay v. Department ofAdministration (1984), 212 Mont. 258,265, 688

ina ally, claimant argues that an eye is not generally understood to be a "memberff and therefore the second sentence of § 39-71-703(2), MCA (1983), does not apply. Regardless of the various conflicting definitions of what constitutes a gfmember,ll it is obvious that loss of an eye is a scheduled injury as set out in 5 39-71-705,MCA (1983). The decision of the Workers' Compensation Court is affirmed.

Justice We concur: I 

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,Y I I I\ 

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