N O. 91

-192 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

ALLEN STUKER, Claimant and Appellant,
V. STUKER RANCH, Employer and Respondent, 

# BE'c 6 ssgy and STATE COMPENSATION MUTUAL INSURANCE FUND, Insurer and Respondent.

APPEAL FROM: Worker's Compensation Court, The Honorable Timothy W. Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Donald R. Marble: Marble Law Office, Chester, Montana For Respondent: Darcy M. Crum; James, Gray & Mccafferty, Great Falls, Montana

Filed: Submitted on Briefs: October 24, 1991 Decided: December 6, 1991Justice John Conway Harrison delivered the Opinion of the Court. ClaimantAllen Stuker (Stuker)appeals froman order and judgment of theMontanaWorkers' CompensationCourt. TheWorkers' Compensation Court adopted the findings of fact and conclusions of law 

### of the hearings examinerwhodeemed Stuker "partiallypermanently disabled" due to a torn biceps muscle. The court awarded Stuker $122.74 per week for 75 weeks under 55 39-71-705 through -708, MCA (1985), along with attorney's fees. We affirm. We restate the issues presented by the claimant into a single issue: whether theWorkers' CompensationCourt erred in its findings of fact and conclusions of law. Stuker 

### is a thirty

-six

-year-old male who graduated from Havre High School in 1972 and did not pursue additional schooling. Heworked short term jobs before entering the Army including in a bakery as a helper, and in a department store as a custodian. In the Army he drove a truck with a specialmilitary driver's license. He remained in theArmy until 1976 and then returned to Havre. Heworked a series of short term, oftenpart time jobs including: driving a grain truck, serving customers as a clerk in a grocery store and filling orders for a company that distributed products such as potato chips. He also worked as a tire repairman for approximately ten months before being laid off. Stuker then became involved in various types of seasonalwork includingroofing houses and helping onhis relatives' ranches. The roofing operationbegan in 1980whenhe submittedroofing bids to general contractors. In addition to roofing, Stuker began working for his uncle on the Stuker Ranch each year during March and 2April, beginning in 1983. InMarch 1986 whileworking for hisuncle on the Stuker Ranch, Stuker began toexperience pain in his right shoulder after lifting hay bales but continuedworking anyway. InearlyApri1, 1986, while lifting an irrigation tarp, Stuker felt instant pain in the biceps muscle region of his right arm. Stukerthoughthe had hyperextended hisarm: he treated it witha heatingpad, and continuedtowork until April 17, 1986, the end of calving season. Stuker saw Dr. Kelly in lateApril abouttheinjury: Dr. Kelly consultedwithDr. Luettjohann who diagnosed Stuker's problem as a torn biceps muscle. Stuker continued tosee Dr. Luettjohann in 1986. A subsequent visit in 1987 and exploratory surgery inJanuary 1987, revealedthatstukersustained
a ruptured biceps muscle. In February 1987, Stuker worked for two different uncles performing ranchingduties. Dr. Luettjohannhad advisedhimhe could returntoworkdependingonhiscomfort level. Accordingly, heworked for the Stuker Ranch 

### in March and April 1987 doing the night check
on cattle. Here he monitored the cattleherd and assisted with the birthing of calves. Later he worked for his uncle Ira Hammond for threeorfourweeks doingdry farming. Stukerplowed fields, planted grain and drove a truck and tractor. In both 1988 and 1989 Stuker againworked forIraHammond fromJanuarytoMay. Stukeralsoengaged insoftball and fishingactivitiesthroughout the years. Stuker did not apply for any jobs other than farm jobs with his relatives. He stated that he preferred to work for his relatives. The record indicates the following income reported on Stuker's tax returns:
3

### Year Income from Roofinq 1980 $337.00 1981 1982 1983 1984 1985 $378.00 $860.00 $737.00 $441.00 none Total income $1.376.00 $ .404.00 $1,511.00 $1,683.00 $1,373.00 none

Stuker claims that as a result of the injury, he cannot lift more than twenty pounds on a consistent basis, and that he experiences headaches and numbness in his arm and fingers. AWorkers' Compensation claimant can choosebetween two different types of awards. Walker 

### v. Johnson (1978), 180 Mont. 405, 411, 591 P.2d 181, 184. According to the statutory scheme of 1985, Stuker couldpursue a loss of earning capacitydisability award under § 39-71- 703, MCA (1985),orhecouldpursuean indemnityawardunder §§ 39-71- 705 through -708. A disability award is based on the "actual loss of earning capacity resulting from the injury" whereas an indemnity benefit awards compensation for "possible loss of earning capacity in the future. " McAlear v. McKee (1976), 171 Mont. 462, 467, 558 P.2d 1134, 1137; citing Jones v. Glac. General Assurance Co. (1965), 145 Mont. 326, 400 P.2d 888. 

### An indemnity benefit is "compensation regardless of earnings to compensate for possible 

### loss of earning capacity in the future." McAlear, 171Mont. at 467, 558 P.2d at 1137; citing Jones, 145 Mont. 326, 400 P.2d 888. Stuker elected to pursue an indemnity award under §§ 39-71-705 through-708,MCA (1985). Section 39-71-706,MCA (1985), "[plrovides for applying the percentage of disability in determining the number of weeks of compensationunder the indemnitv alternative,where injury is less than total loss of a scheduled member, or where the injury

4is a 'whole

### man injury not scheduled. McDanold v. 

### B.N. Transport, Inc. (1984), 208 Mont. 470, 478, 679 P.2d 1188, 1192. This means that the permanent partial disability percentage is multiplied by the 500 week maximum to arrive at the number of weeks of payments. In the case at bar, the court arrived at a 15% disabilitypercentage. Stuker elected to proceed under §§ 39

-71

-705 through

-708,MCA (1985), and since Stuker's injury is not among those specifically listed in 5 39-71-705, MCA (1985), which imposes durational limitations, the correct calculation is as follows: 15% x 500 = 75 weeks. In the case at bar, the Workers' Compensation Court used the proper method to calculate the duration of Mr. Stuker's award. The record indicates that in arriving at the 15% disability percentage the court considered the testimony of the experts, the claimant's ''age, education, work experience, pain and disability, actual wage loss, and the loss of future earning capacity. " Hartman


### v. National Union Fire Insurance (1989), 236Mont. 141, 145, 768 P.2d 1380, 1383; citing Flake 

### v. Aetna (1977), 175 Mont. 127, 129, 572 P.2d 907,909. Thecourtspecificallyaddressedeachofthesefactors
as evidenced by its own statement in its Findings of Fact and Conclusions of Law: In calculating a permanent partial disability award under Section 39-71-705 through

-708, MCA, this Court has considered the following factors in determining the claimant's loss of earning capacity under that section. These factors include considerationoftheactualwage loss, work experience, education, age, pain, and the 12 percent impairment rating of the whole person assigned by his treating physician. Accordingly, thehearingsexaminer addressed Stuker'spast work history and indicated that his pre-injury work record was extremely 5limited. This factmade itmore difficultto establish the impairment of Stuker's earning capacity andwasadequately discussed. The court correctly refused to speculate what Stuker's wages would have been hadheactively soughtemployment,especiallywhentherecord indicates that Stuker'swork efforts were minimal. Stuker'spost-injury earning capacity indicates that he will earn more than he did in any of the five years prior to his injury. The court also consideredDr. Luettjohann's 12% impairment rating to the whole man based on the injury to Stuker's right arm and the pain involved when exceeding his lifting capacity. The court acknowledged that Stuker cannot perform heavy labor but has 'I[f

### 3 ive approved occupations he can perform in his labormarket. " The court stated that exceeding Stuker's lifting capacity will cause him to experience pain which lasts thirty minutes or less. In total, the court made a finding that Stuker Itisnot suffering from such pain
or disability that would reduce his earnings in the occupations approved as being within his physical capacity. " Finally, the court notes that Stuker is a young man of thirty-six and can obtain additional training by his own choice. On appeal, we will not overturn the findings of fact of the Workers' CompensationCourtifthereissubstantialcredibleevidence to support them in the record. Grenz v. Fire and Casualty of Connecticut (Mont. 1991), -P.2d 

## -, 

## -, 48 St.Rep. 967, 969; citing Kraft

### v. Flathead Valley Labor & Contr. (1990), 243 Mont. 363, 365, 792 P.2d 1094, 1095. The Workers' Compensation Court's conclusions of law will be upheld if the tribunal's interpretation

6

### of the 

### law 

### is correct. Grenz,
__ P.2d at 

## -, 48 St.Rep. at 969; citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. Clearly 

### in the case at bar, the court supported its findings of fact with substantial credible evidence and it made correct conclusions of law. Therefore,wewill not disturb the court's ruling

# . Affinned.

We concur: 

## /

7December 

### 6, 1991 CERTIFICATE OFSERVICE I hereby certify that the following order was sentby United States mail, prepaid, to the following named:
Donald R. Marble MARBLE LAW OFFICE P.O. Box 649 Chester, MT 59522 Darcy M. Crum James, Gray &McCafferty P.O. Box 2885 Great Falls, MT59403

-2885 ED SMITH CLERK OFTHE SUPREME COURT STATEOFMONTANA