No. 92-104 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

PERRY HOFFERBER, 

claimant and Appellant, 

-vsPLAGO MINING, INC., 

Employer, 

and 

INDUSTRIAL INDEMNITY COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Andrew J. Utick, Utick & Grosfield, Helena, Montana 

For Respondent: 

Thomas A. Marra, Marra, Wenz, Johnson & Hopkins, 

P.C., Great Falls, Montana 

Filed: 

Submitted on ~riefs: August 6, 1992 

~~~id~d: February 25, 1993 
~ustice Fred J. Weber delivered the Opinion of the Court. 

Claimant, Perry Hofferber, appeals from a judgment in the 

Workers' Compensation Court, State of Montana, Helena, Montana 

denying him temporary total disability benefits. 

The sole issue for our review is whether the Workers' 

compensation Court erred in refusing to grant Hofferber temporary 

total disability benefits for the period between February 14, 1991, 

when his doctor advised him that his knee required further surgery, 

and January 14, 1992, the date of his most recent knee surgery. 

On October 13, 1980, Perry Hofferber (Hofferber) suffered an 

industrial injury to his right knee arising out of and in the 

course of his employment with Plago Mining, Inc., in Lewis and 

Clark County, Montana. Plago Mining, Inc. was insured by 

Industrial Indemnity Company (Industrial), the defendant in this 

case. 

Industrial accepted liability for Hofferber's initial injury 

and paid benefits from the time of the injury through April 8, 

1981. Dr. Carpenter, a Helena orthopedic surgeon, performed 

surgery on January 7, 1981, to remove a popliteal cyst from 

Hofferber's right knee. On April 8, 1981, Dr. Carpenter released 

Hofferber to return to work, as he felt Hofferber had reached a 

medically stable condition and had attained maximum healing at that 

time . 

From April 1981 to July 1985, Hofferber worked as a selfemployed carpenter. Although he had continued to have problems 

with his knee, as a self-employed carpenter, he could take breaks 

2 
and days off if necessary because of the pain. On July 24, 1985, 

Hofferber began seeing Dr. Humberger in Bozeman. Dr. Humberger 

performed arthroscopic surgery on the right knee on September 12, 

1985. Dr. Humbergerls opinion was that the problems Hofferber 

experienced which resulted in the second surgery in 1985 were a 

direct result of the original 1980 injury. 

Hofferber began attending Montana State University in Bozeman 

in the fall of 1985 and continued to do so through the time of the 

trial. In the fall of 1990, he again began to experience problems 

with his right knee. Because Dr. Humberger was then out of the 

country, his office referred Hofferber to Dr. Lowell Anderson, who 

examined him in February of 1991. After performing some diagnostic 

tests, Dr. Anderson recommended further arthroscopic surgery. 

Hofferber did not have surgery at that time. He continued to 

attend MSU. Dr. Anderson testified that the surgery would have 

kept Hofferber from attending school for only one or two days. 

Hofferber finally had the knee surgery performed in January 1992, 

after the Workers' Compensation Courtls December 6, 1991 decision 

entitling Hofferber to medical benefits based on the original 1980 

injury. 

Hofferber received temporary total disability benefits from 

the date of his injury in October 1980 until he reached maximum 

healing in April 1981. An April 1, 1991 decision of the Workers1 

Compensation Court awarded him temporary total disability benefits 

for the period of time between September 12, 1985 and May 12, 1986, 

the period of recovery from the second surgery. The Workers1 
Compensation Court's December 6, 1991 judgment entitles Hofferber 

to receive temporary total disability benefits for the period of 

time from the date of the January 1992 surgery until the date of 

maximum healing following that surgery. 

Did the Workers' Compensation Court err in refusing to grant 

Hofferber temporary total disability benefits retroactively from 

the date he was advised to have a third surgery to the actual date 

of the surgery? 

Hofferber contends that he should receive temporary total 

disability benefits not only for the time from the third surgery to 

maximum healing, but also retroactively from the date of that 

surgery, January 14, 1992, back to February 14, 1991, the date Dr. 

Anderson first recommended the surgery. He contends that he meets 

the definition of temporary total disability as of February 14, 

1991 until he reaches the end of his healing period following 

surgery. The applicable statute in effect at the time of 

Hofferber's injury reads as follows: 

"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. 

Section 39-71-116(19), MCA (1983). 

This statute requires two things: (1) that the injury result 

in total wage loss, and (2) that the injured worker is not as far 

restored as the permanent character of his injuries permits. 

Clearly, as the Workers' Compensation Court found, Hofferber's 

4 
condition was not "as far restored as the permanent character of 

the injuries" would permit at the time he sought medical treatment 

in February of 1991. This second factor is not relevant to our 

discussion here. 

Hofferber contends that he meets the first prong of the 

statutory definition merely by earning no wages from February 14, 

1991 to the time of trial before the Workers' Compensation Court. 

Industrial contends that Hofferber, not the insurer, must prove 

that he suffered a total loss of wages and that he was unable to 

work. Hofferber, on the other hand, argues that the surgery had to 

be postponed until after the trial because the insurer refused to 

pay medical expenses and, therefore, that he had to wait until the 

Workers' Compensation Court ruled on the issue. He claims that the 

doctors refused to treat him without cash payment in advance and 

that he could not afford to pay for the surgical procedures in 

advance. 

Hofferber cites Linton v. City of Great Falls (1988), 230 

Mont. 122, 749 P.2d 55, to support his argument that he need not 

show a loss of earning capacity, as opposed to loss of wages, in 

order to receive temporary total disability benefits based on 5 39- 

71-116(19), MCA. In Linton, we held that a claimant whose injury 

caused him to actually lose wages because of his inability to 

return to work could receive such benefits. Linton, 749 P.2d at 

61. Such is not the case here. Despite Hofferberls argument that 

he was not working in February 1991, he presented insufficient 

medical or other evidence to establish that he was unable to work. 
His choice not to work was purely voluntary because he decided 

instead to continue his college education. Under these 

circumstances, 39-71-116(19), MCA, requires the claimant to prove 

by a preponderance of the evidence that he is unable to work. 

When a claimant is voluntarily out of the job market attending 

college, it is not sufficient to show that he earned no wages. 

Thus, the Workers' Compensation Court's denial of temporary total 

disability benefits based upon Homme v. Rauenhorst Corp. (1987), 

227 Mont. 495, 740 P.2d 1110, is not error. The claimant in Homme 

sought temporary total disability benefits following his healing 

period and restoration to a condition "as far as the permanent 

character of his injury" would permit. Throughout the applicable 

time period, he attended college. We concluded that he could not 

receive benefits while he was in college being retrained because he 

"had a normal labor market" in which to search for a job, even 

though he could not work at the same job that he had prior to his 

injury. Homme, 740 P.2d at 1114. In this case, Hofferber did not 

meet the statutory requirements because he attended college and 

failed to prove that he was unable to work or that his training was 

part of a rehabilitation program. 

We conclude that the Workers' Compensation Court did not err 

when it refused to allow retroactive temporary total disability 

benefits from February 14, 1991 to January 14, 1992. 

We affirm. 
We Concur: 

-- 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the opinion of the majority. 

When Perry Hofferber could no longer tolerate the pain and 

impairment in his knee, he saw Dr. Lowell M. Anderson on 

February 14, 1991. Dr. Anderson observed significant discomfort 

and swelling, limited range of motion, pain with movement to the 

knee, and a recent increase in claimant's symptoms. We formed the 

opinion that a large popliteal cyst had formed on the posterior 

side of claimantls knee and that the cyst had resulted from 

internal irregularity in the knee joint. 

Doctor Anderson recommendedthat claimant undergo arthroscopic 

surgery to treat the problems he had diagnosed and suggested that 

he return to Dr. Frank Humberger who had previously performed 

arthroscopic surgery on the claimant in 1985. Everyone agrees that 

at that point claimant's healing period had not ended. 

The problem for claimant was that defendant still had not paid 

for the 1985 surgery (even though it was subsequently ordered to do 

so by the Workers' Compensation Court); claimant had been put on a 

pay-as-you-go basis by Dr. Humbergerls office manager; and claimant 

was unable to afford the surgery. 

In fact, claimantf s outstanding bill for Humberger s services 

in relation to the 1985 surgery had been turned over to a 

collection agency and was not paid by defendant until the Workers1 

Compensation Court entered judgment in April 1991 requiring 

defendant to pay that bill. 
Claimant had to file another petition in the Workers' 

Compensation Court to compel defendant to accept responsibility for 

this surgical procedure. 

It was the decision of the Workers' Compensation Court in this 

case that claimant would be entitled to temporary total disability 

benefits following surgery until he reached the end of his healing 

period, but not before surgery, even though surgery was delayed due 

solely to the conduct of defendant. This Court has affirmed that 

judgment. However, the arbitrary point selected for the beginning 

of temporary total disability status makes no sense. 

The testimony in this case was that claimant would be unable 

to attend classes for at least two days following the arthroscopic 

surgery. However, the testimony from claimant's previous trial, 

which was made part of the record in this case, was that his 

healing period would last for six months to a year from the date of 

this kind of surgery. Certainly, neither the trial court nor the 

majority contend that during that entire six to twelve months 

claimant would be less able to work than he was in February 1991 

when his need for surgery was determined. 

I also disagree that the medical evidence was insufficient to 

establish that claimant was unable to return to his former 

occupation as a carpenter. And according to this Court's previous 

decision in Linton v. City of Great Fall! (1988), 230 Mont. 122, 749 P.2d 

55, it was not necessary for claimant to establish that he had no 

earning capacity in order to qualify for temporary total disability 

benefits. 
In Linton, the claimant also failed to demonstrate a total loss 

of wages and presented no evidence to demonstrate that he was 

completely unable to perform any kind of gainful employment. In 

fact, the undisputed evidence was that there were jobs he could 

perform, even though his healing period had not ended. On appeal, 

that claimant contended that: the trial court had erred by requiring 

him to show a total loss of earning capacity in order to qualify 

for temporary total disability benefits under 5 39-73-116(19), MCA. 

We agreed and reversed the trial court's judgment for the reason 

that there was substantial evidence to show that claimant could not 

return to his former occupation. We held that: 

The trial court concluded that the claimant must 

demonstrate an inability to "perform other jobs" before 

being entitled to temporary total benefits and awarded 

claimant permanent partial disability benefits under 

§ 39-71-116(12), MCA (1983). 

We cannot agree. The applicable statute is 

5 39-71-116(19), MCA (1983), which defines temporary 

total disability. 

Claimant is suffering from a condition resulting 

from an injury that has resulted in the total loss of his 

wages and, as the evidence shows, he is not yet as far 

restored as the permanent character of the injuries will 

permit. Linton cannot work because of the inability to 

tolerate the pain that accompanies the use of his injured 

shoulder. . . . 

As the facts are before this Court, the award of 

permanent partial benefits to claimant is in error as a 

matter of law. Temporary total benefits should be 

reinstated as of the date of Linton's termination from 

work. 

Linton, 749 P.2d at 61. 
The only requirements established in Limm to qualify for 

temporary total disability benefits are that the worker was unable 

to return to his former occupation and that his healing period had 

not ended. with this decision, we now add an additional element so 

that the emphasis in determination of temporary total disability is 

no longer the claimant's physical condition or health, but rather 

what he is capable of earning. This decision wif 1 force injured 

workers to obtain employment before they are physically ready to do 

so, in many cases aggravating their condition and creating more 

significant long-term consequences than would be necessary if they 

were allowed to heal adequately before returning to the work force. 

The majority affirmed the Workers' Compensation Court's denial 

of temporary total benefits based upon our decision in Hornrne v. 

Rauenhorst Corporation (l987), 227 Mont. 495, 740 P.2d 1110. However, 

there is nothing about Hornme which is similar to the facts in this 

case. unlike the claimant in this case, Homme had reached maximum 

healing. He did qualify for retraining at the expense of the 

Department of Social and ~ehabilitation Services. However, the 

counselor from that agency testified that even without retraining 

he would qualify for some forms of employment. There was 

undisputed testimony that his healing period had ended, and that he 

had a normal labor market. In this case, the undisputed testimony 

is just the opposite. It is conceded that by February 14, 1991, it 

had been medically established that this claimant's healing period 

had not ended. It can be logically deduced from the examining 
physician's description of his physical condition that he could not 

perform the types of physical labor he had performed in the past 

without further aggravating his condition and there was no evidence 

offered by defendant to establish that claimant had any residual or 

normal labor market other than the occupations he had previously 

performed . 

There are sound reasons for placing greater emphasis on a 

worker's physical condition than his earning capacity when 

analyzing temporary total disability, as opposed to permanent total 

disability. While it may be true that after the healing period has 

ended it is important for workers to test their capacity and 

endurance and perform to the greatest extent possible, just the 

opposite is true during a worker's healing period. 

It is important that employees who have been injured and whose 

healing period has not ended be allowed to fully recover from their 

injury before pursuing employment, regardless of whether they are 

technically capable of performing some limited activities which 

could constitute gainful employment. 

The historical purpose of treating temporary total disability 

benefits differently from permanent disability benefits, has been 

that workers should be given every opportunity to obtain adequate 

treatment and heal to the fullest extent without competition from 

economic pressures. With the increased emphasis that this opinion 

places on earning capacity, rather than the degree to which a 

worker has physically healed, that worthy purpose has been 

jeopardized. 
Had the claimant gone from the doctor's office on February 14 

to the surgical suite on February 15, 1991, neither the trial court 

nor the majority would have any difficulty concluding that he was 

temporarily totally disabled from that point in time, with or 

without evidence of his job market. Neither would the majority 

have any difficulty concluding that claimant's disability status 

should continue for the six to twelve months of healing following 

that surgical procedure. However, the reality of the situation is 

that within two days of that surgical procedure, his physical 

condition would, in all probability, have been better than the 

physical condition in which he found himself from February 14, 

1991, to January 14, 1992, when he was finally financially able to 

have the surgery performed. The only reason that the surgery was 

postponed was because he was financially unable to pay for it. The 

only reason he was unable to pay for it was because of the 

insurer's unwillingness to accept responsibility until it had been 

ordered to in a second trial court decision over the very same knee 

injury. 

This decision arbitrarily and unreasonably penalizes claimant 

for defendant's misconduct. 

For these reasons, I dissent. I would reverse the judgment of 

the Workers' Compensation Court and award claimant temporary total 

disability benefits retroactive to February 14, 1991. 
February 25, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Andrew J. Utick 

UTICK & GROSFIELD 

P.O. Box 512 

Helena, MT59624-0512 

THOMAS A. MARRA 

Attorney at Law 

P.O. Box 1525 

Great Falls, MT 59403-1525 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA