NO. 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, 1991 
Justice John Conway Harrison delivered the Opinion of the Court. 

Claimant Allen Stuker (Stuker) appeals from an order and judgment 

of the Montana Workers' Compensation Court. The Workers' Compensation 

Court adopted the findings of fact and conclusions of law of the 

hearings examiner who deemed Stuker "partially permanently 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 the Workers' Compensation Court 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. He worked 

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 special military driver's license. He remained 

in the Army until 1976 and then returned to Havre. He worked a series 

of short term, often part 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 

seasonal work including roofing houses and helping on his relatives' 

ranches. The roofing operation began in 1980 when he submitted roofing 

bids to general contractors. In addition to roofing, Stuker began 

working for his uncle on the Stuker Ranch each year during March and 

2 
April, beginning in 1983. 

In March 1986 while working for his uncle on the Stuker Ranch, 

Stuker began to experience pain in his right shoulder after lifting 

hay bales but continuedworking anyway. In earlyApri1, 1986, while 

lifting an irrigation tarp, Stuker felt instant pain in the biceps 

muscle region of his right arm. Stukerthoughthe had hyperextended 

his arm: he treated it with a heating pad, and continued to work until 

April 17, 1986, the end of calving season. Stuker saw Dr. Kelly in 

late April about the injury: Dr. Kelly consulted with Dr. Luettjohann 

who diagnosed Stuker's problem as a torn biceps muscle. Stuker 

continued to see Dr. Luettjohann in 1986. A subsequent visit in 1987 

and exploratory surgery inJanuary 1987, revealedthatstuker sustained 

a ruptured biceps muscle. 

In February 1987, Stuker worked for two different uncles 

performing ranchingduties. Dr. Luettjohannhad advisedhimhe could 

returntoworkdepending onhis comfort level. Accordingly, heworked 

for the Stuker Ranch in March and April 1987 doing the night check 

on cattle. Here he monitored the cattle herd and assisted with the 

birthing of calves. Later he worked for his uncle Ira Hammond for 

three or fourweeks doing dry farming. Stukerplowed fields, planted 

grain and drove a truck and tractor. In both 1988 and 1989 Stuker 

againworked for Ira Hammond fromJanuaryto May. Stuker also engaged 

in softball and fishing activities throughout 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 choose between 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 

could pursue a loss of earning capacity disability award under § 39-71- 

703, MCA (1985), orhecouldpursue an 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, 171 Mont. 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 compensation under the indemnitv alternative, where injury 

is less than total loss of a scheduled member, or where the injury 

4 
is a 'whole man in jury 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% disability percentage. 

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), 236 Mont. 141, 145, 768 P.2d 

1380, 1383; citing Flake v. Aetna (1977), 175 Mont. 127, 129, 572 

P.2d 907, 909. Thecourtspecificallyaddressedeachofthese factors 

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 consideration ofthe actual wage loss, 

work experience, education, age, pain, and the 12 percent 

impairment rating of the whole person assigned by his 

treating physician. 

Accordingly, thehearings examiner addressed Stuker's past work 

history and indicated that his pre-injury work record was extremely 

5 
limited. This factmade it more difficult to establish the impairment 

of Stuker's earning capacity andwas adequately discussed. The court 

correctly refused to speculate what Stuker's wages would have been 

hadhe actively soughtemployment, especiallywhenthe record indicates 

that Stuker's work efforts were minimal. Stuker's post-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 considered Dr. 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 labor market." 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 Itis not 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' CompensationCourtifthereis substantialcredibleevidence 

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 . 

Af f inned. 

We concur: / 

7 
December 6, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by 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, MT 59403-2885 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA