No. 86-343 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MICHAEL HOMME I 

Claimant and Appellant, 

-vsRAUENHORST CORPORATION, Employer, 

and 

CONTINENTAL CASUALTY COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelleher Law Office; Robert C. Kelleher, Billings, 

Montana 

For Respondent: 

Garlington, Lohn & Robinson; Bradley J. Luck, 

Missoula, Montana 

Submitted on Briefs: March 12, 1987 

Decided: July 28, 1987 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The Workers' Compensation Court found claimant to be 

permanently partially disabled and not entitled to temporary 

total disability benefits while he was being retrained. 

Claimant appealed. We affirm. 

The determinative issue is whether the Workers' Compensation Court erred in deciding claimant was not entitled to 

be paid continued temporary total disability benefits under 

S 39-71-116(19), MCA, while he was in college being 

retrained. 

Claimant was employed as a construction laborer by 

Rauenhorst Corporation when a 3/8" drill fell approximately 

85 feet from a building and landed in the middle of his back, 

fracturing a vertebra in the thoracic area of his back. 

Rauenhorst's insurer, Continental Casualty Company, accepted 

liability and paid medical benefits and temporary total 

disability benefits. Claimant is now receiving permanent 

partial benefits, but would like to begin receiving temporary 

total benefits again while he is being retrained. 

Six days after the accident, claimant went to a hospital 

emergency room, where x-rays were taken. After this initial 

examination claimant was seen several times by Dr. Richard A. 

Nelson, a neurologist. Dr. Nelson last physically examined 

claimant on July 31, 1984. Dr. Nelson diagnosed central 

injuries to the vertebra and/or to the disk, a fracture of 

the spinous process at T-10, and a small bony density that 

was thought to be causing a slight encroachment upon the 

thecal sac. The thecal sac consists of strong fibrous 

sheaths which enclose the canal of the vertebra column. Dr. 

Nelson also said there was some innervation of the stomach 

muscles which would lead to some lifting restrictions. 
Of central importance to this case, Dr. Nelson stated in 

his deposition that the claimant had reached maximum healing 

with regard to the tissues which had been fractured and that 

he had no argument with a three percent impairment rating 

being assigned to claimant. However, Dr. Nelson did not 

believe claimant should go back to his old job as a laborer 

because of the possibility of reinjuring his back. Dr. 

Nelson also recommended that a nuclear magnetic resonance 

(NMR) be done to determine if claimant could be helped by 

surgery. The NMR would have had to be performed somewhere 

outside of Montana. 

Claimant also saw Dr. Henry H. Gary, a neurosurgeon, 

and Dr. Robert A. Sterling, an orthopedist, on February 11, 

1986, almost a year and a half after Dr. Nelson's last examination. Dr. Gary and Dr. Sterling found that claimant suffered from a fracture of the spinous process, but did not 

believe the encroachment upon the thecal sac was causing 

claimant any pain. Neither Dr. Gary nor Dr. Sterling gave 

any credence to Dr. Nelson's innervation theory. Both Dr. 

Gary and Dr. Sterling agreed that claimant had reached full 

recovery as far as maximum healing was concerned and neither 

recommended further treatment. 

The Workers' Compensation Court found that: 

Given the differing medical opinions reached by Dr. 

Nelson on the one hand and by Drs. Gary and Sterling on the other, it is not surprising to find 

that there is also a degree of disagreement as to 

whether claimant has reached maximum healing. 

This issue of whether claimant had reached maximum healing is 

central to whether he is entitled to temporary total disability benefits. 

Dr. Nelson declined to issue an impairment rating. 

However, Dr. Gary and Dr. Sterling concluded that claimant 
had reached maximum healing. Dr. Nelson listed several 

restrictions on claimant's physical activities, including no 

climbing, only intermittent carrying of light weights, and 

limited walking. In contrast, Dr. Gary and Dr. Sterling 

released claimant to return to his previous employment without restriction. 

Because of his back problems, claimant contacted the 

Social and Rehabilitation Services (SRS) whose services are 

offered to anyone with a vocational handicap. The SRS sponsored claimant and agreed to pay claimant's tuition of $323 

per quarter to attend Eastern Montana College as long as 

claimant maintains a 2.0 GPA. Claimant's counselor at SRS 

testified Mr. Homrne would have also been suitable for 

on-the-job training and would currently qualify for some 

positions which would not require any retraining. 

Based upon the above outlined medical evidence, injury, 

and vocational potential, the Workers' Compensation Court 

concluded that the claimant was not entitled to temporary 

total disability benefits under 5 39-71-116 (19), MCA, while 

he was in college. Claimant appealed. 

The issue is whether the Workers' Compensation Court 

erred in deciding claimant was not entitled to be paid continued temporary total disability benefits under 

5 39-71-116(19), MCA, while he was in college being 

retrained. 

The standard of review we will use in this case is well 

settled: 

The function of this Court is to determine whether 

there is substantial evidence to support the findings and conclusions of the Workers' Compensation 

Court . . . This Court will not substitute its 

judgment for that of the trial court as to the 

weight of the evidence on questions of fact . . . Where there is substantial evidence to support the 
findings of the Workers ' Compensation Court, this 

Court will not overturn the decision . . . 

Tocco v. City of Great Falls (Mont. 1986), 714 P.2d 160, 163, 

43 St.Rep. 310, 314, citing Bond v. St. egis Paper Co. 

(1977), 174 Mont. 417, 419, 571 P.2d 372, 373. 

Claimant was injured on June 22, 1984. On that date, 

the definition of temporary total disability found at 

$ 39-71-116 (19), MCA (1983), provided: 

"Temporary total disability" means a condition 

resulting from an injury as defined in this chapter 

that results in total loss of wages and exists 

until the injured worker is as far restored as the 

permanent character of the injuries will permit. 

Disability shall be supported by a preponderance of 

medical evidence. 

Although $ 39-71-116(19), MCA (1983), was amended effective 

October 1, 1985, we will not consider the amended statute 

since this Court has held that the statute in effect on the 

date of claimant's in jury controls. Buckman v. Montana 

Deaconess Hospital (Mont. 1986), 730 P.2d 380, 43 St.Rep. 

2216. Because amended $ 39-71-116(19), MCA, provides that 

"[a] worker shall be paid temporary total disability benefits 

during a reasonable period of retraining", we emphasize that 

this holding does not apply to cases determined under the 

statute as amended in 1985. 

We will first discuss the implicit determination by the 

Workers' Compensation Court that the claimant was not entitled to permanent total disability benefits while attending 

college. The Court considered the two-factor test contained 

in Metzger v. CKernetron Corporation (Mont. 1984), 687 P.2d 

1033, 41 St.Rep. 1788, and concluded that the claimant had 

"failed to carry his burden of proving [that] he is so vocationally disabled because of his injury that he has no reasonable prospect of finding employment in his normal labor 
market." The two-factor Metzger test requires claimant to 

introduce substantial credible evidence of: (1) the jobs 

which constitute his normal labor market; and (2) a complete 

inability to perform the duties associated with those jobs 

because of his work-related injury. The court concluded that 

the claimant had failed to introduce substantial credible 

evidence showing that he was unable to perform the duties 

associated with his employment because of his work-related 

injury. We will discuss the evidence in more detail later, 

but conclude that the substantial credible evidence supports 

the holding of the Workers' Compensation Court that claimant 

had a normal labor market, even absent retraining. We affirm 

the conclusion of the court that claimant was not entitled to 

permanent total disability benefits. 

In order for claimant to receive temporary total disability benefits under the 1983 statute he must prove that 

his injury has resulted in a "total loss of wages" and his 

condition still exists because he is not "as far restored as 

the permanent character of the injuries will permit. " Section 39-71-116 (19) , MCA (1983) . Therefore, we will view the Workers1 Compensation Court 

findings of fact, conclusions of law, and judgment with an 

eye towards determining whether: (1) Mr. Homme1s injury 

resulted in his total loss of wages; and (2) whether his 

injury is as far restored as the permanent character of the 

injury will permit. Taking the second question first, the 

lower court determined that: 

Claimant has reached maximum healing, and is "as 

far restored as the permanent character of the 

injury will permit." Medically, claimant does not 

satisfy the statutory requirements for being temporarily totally disabled. 
This conclusion was reached after a careful discussion 

by the Workers' Compensation Court of the medical testimony 

by Dr. Nelson, Dr. Gary, and Dr. Sterling. In essence, the 

court concluded that the medical evidence "undeniably weighs 

against Dr. Nelson's innervation theory." Regarding the 

healing of the fracture of the spinous process, both Dr. Gary 

and Dr. Sterling found that Mr. Home had reached maximum 

healing. Dr. Nelson declined to issue an impairment rating. 

The Workers' Compensation Court's conclusion that Mr. Home 

had reached maximum healing is supported by substantial 

evidence. Therefore, we affirm that conclusion. 

Turning to the question of whether Mr. Homme's injury 

has resulted in his total loss of wages, the lower court 

summarized the two vocational consultants' testimony: 

. . . both of the vocational consultants who testified opined that claimant did have a normal labor 

market, even absent training. 

It is clear from the Workers' Compensation Court's conclusions that Mr. Home's injury has not resulted in his total 

loss of wages. Indeed, if Mr. Home has had a normal labor 

market available to him since at least February 20, 1986, as 

the court found, then his injury has certainly not by necessity resulted in his total loss of wages. 

Claimant also argues that the court was obligated to 

comment on testimony offered by five witnesses called by the 

claimant regarding his inability to work. In support of this 

argument, claimant cites a section from Professor Larson's 

treatise on Workers' Compensation law which states that a 

decision may be reversed as arbitrary and unsupported if 

uncontradicted evidence is not followed. In this case, the 

Workers' Compensation Court had deposition testimony from 

medical doctors, as well as testimony from two vocational 
rehabilitation experts, who concluded claimant was presently 

able to work. Since the testimony of the five witnesses does 

not qualify as uncontradicted evidence, the court's failure 

to comment on each witnesses' testimony is not reversible 

error. 

We affirm the Workers' Compensation Court's conclusion 

that Mr. Home is not entitled to temporary total disability 

benefits, but only the permanent partial benefits which he is 

receiving. Based upon our decision as stated above, we also 

affirm the court's denial of the 20 percent penalty and 

attorney fees and costs. 

We Concur: ,/ 

Justices 
Mr. Justice William E. Hunt, Sr., dissenting: 

I dissent. 

I do not see how the majority can hold that the Workers' 

Compensation Judge is correct in finding that the claimant 

"failed to carry his burden of proving [that] he is so 

vocationally disabled because of his injury that he has no 

reasonable prospect of finding employment in his normal labor 

market in view of his present vocational retraining program." 

He is either able to work and does not need to be retrained, 

or he cannot work and needs to be retrained. If it is the 

latter then he is entitled to total compensation whether it 

is temporary or permanent. 

The evidence is that he cannot return to his job 

involving hard physical labor and needs to be retrained. 

That finding puts him within the meaning of the definition 

of temporary total disability found at S 39-71-116(19), MCA 

(1983), provided: 

"Temporary total disability" means a condition 

resulting from an injury as defined in this chapter 

that results in total loss of wages and exists 

until the injured worker is as far restored as the 

permanent character of the injuries will permit. 

Disability shall be supported by a preponderance of 

medical evidence. 

The majority seems to hold that the for the worker 

anything is possible and it is up to him to prove what he 

cannot do. There was testimony by experts that he could get 

a position in the banking business. The evidence shows the 

claimant to be an intelligent responsible person who may well 

have an aptitude for the banking business but how he would 

prove his capability one way or the other in that line 

without training is not clear from the evidence. Perhaps a 

claimant whose background is construction labor can move 
right into the banking business, but it will take a better 

record than the one before us to prove that. I would reverse 

the Workers' Compensation Court. 

Mr. Justice John C. Sheehy: 

I concur in the dissent of Mr. Justice Hunt. 

Justice < 

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