Beck v. Flathead County

749 P.2d 527, 230 Mont. 294, 45 State Rptr. 215, 1988 Mont. LEXIS 43
CourtMontana Supreme Court
DecidedFebruary 10, 1988
Docket87-262
StatusPublished
Cited by8 cases

This text of 749 P.2d 527 (Beck v. Flathead County) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beck v. Flathead County, 749 P.2d 527, 230 Mont. 294, 45 State Rptr. 215, 1988 Mont. LEXIS 43 (Mo. 1988).

Opinions

MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Claimant Josephine M. Beck appeals the Workers’ Compensation Court order denying her claim for permanent partial disability benefits for loss of actual earning capacity under Section 39-71-703, MCA (1985). We vacate the judgment and remand the matter to the Workers’ Compensation Court.

Because we are reversing, we limit our review to the following issue:

Is the claimant required to prove an actual wage loss or merely a reduced earning capacity before she qualifies for permanent partial disability benefits under Section 39-71-703, MCA (1985)?

Claimant Josephine M. Beck is a forty-three-year-old mother of four adult children. Claimant Beck is currently employed by the Flathead County Nursing Home as a nurse’s aide. Claimant’s duties as a nurse’s aide include feeding, bathing, and changing patients and assisting patients in and out of bed. Claimant has been employed as a nurse’s aide for approximately ten years. Previously, she was employed as a waitress, a sales clerk, an anodizer and a plywood-plant laborer.

On April 14, 1984, claimant Beck injured her neck, shoulder and arm when a patient, whom she was changing, grabbed her neck and “jerked.” In September 1984, Beck underwent back surgery, during which her sixth and seventh cervical vertebrae were fused. Immediately following claimant’s injury, defendant accepted liability and paid benefits of $126.61 per week for 105 weeks. On January 22, 1986, defendant denied Beck’s claim that she sustained a permanent [296]*296physical impairment and a permanent reduction in earning capacity. On March 4, 1986, Beck offered to settle for $50,010.95 for future “whole person” permanent partial disability benefits.

At the time of her injury on April 11, 1984, Beck was earning $4.76 per hour. Claimant returned to work on February 4,1985. Currently, Beck earns $5.56 per hour. Following hearing on May 21, 1986, the hearings examiner found that Beck was not entitled to permanent partial disability benefits under Section 39-71-703, MCA (1985), since she was earning more after her injury. On June 22, 1987, the Workers’ Compensation Court adopted the hearings examiner’s proposed findings of fact and conclusions of law.

We note the issue discussed below is identical to the issue discussed in Sedlack v. Bigfork Convalescent Center, [1988] [230 Mont. 273,] 749 P.2d 1085, [45 St. Rep. 199].

Issue

Is the claimant required to prove an actual wage loss or merely a reduced earning capacity before she qualifies for permanent partial disability benefits under Section 39-71-703, MCA (1985)?1

Claimant contends that the hearings examiner and the Workers’ Compensation Court incorrectly applied Section 39-71-703, MCA (1985), which provides:

“Weekly compensation benefits for injury-producing partial disability shall be 66% of the actual diminution in the worker’s earning capacity measured in dollars subject to a maximum weekly compensation of one-half of the average weekly wage.” [Emphasis added.]

Section 39-71-116(12), MCA, defines permanent partial disability:

“(12) ‘Permanent Partial Disability’ means a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capacity less than total that exists after the injured worker is as far restored as the permanent character of the injuries will permit . . . .” [Emphasis added.]

Previously, we defined impairment of earning capacity in a personal injury context as “the permanent diminution of the ability to earn money in the future.” Thomas v. Whiteside (1966), 148 Mont. 394, 397, 421 P.2d 449, 451. Pre-injury and post-injury wages are but one factor to consider when determining earning capacity. Earning capacity also includes age, occupational skills, education, previous health, remaining number of productive years and degree of physical or mental impairment. Thomas, 421 P.2d at 451.

The correct test for loss of earning capacity is whether the in[297]*297jury has caused “a loss of ability to earn on the open labor market.” Shaffer v. Midland Empire Packing Co. (1953), 127 Mont. 211, 213-214, 259 P.2d 340, 342; Fermo v. Superline Products (1978), 175 Mont. 345, 348, 574 P.2d 251, 253; Hafer v. Anaconda Aluminum Co. (1982), 198 Mont. 105, 109, 643 P.2d 1192, 1195, appeal after remand, 684 P.2d 1114, 41 St.Rep. 1403; Dunn v. Champion International Corp. (Mont. 1986), [222 Mont. 142,] 720 P.2d 1186, 1189, 43 St.Rep. 1124, 1128. An injured worker who earns more after his injury may be eligible for workers’ compensation benefits if he shows a reduced earning capacity. Fermo, 574 P.2d at 254; Hafer, 643 P.2d at 1195-1196.

In Fermo, claimant was earning more after his injury. However, claimant was suffering great pain that detracted from the speed and efficiency of his work. Claimant was forced to compete against younger and healthier persons for the available work. 574 P.2d at 253. Claimant Fermo also showed loss of capacity to perform his work and a loss of ability to compete in the labor market. Therefore, we affirmed claimant’s workers’ compensation award under Section 92-703.1, R.C.M. 1947 (later Section 39-71-703(1), MCA).

In a fashion similar to Fermo, claimant has attempted to show that although she currently earns more, she has a reduced earning capacity. Claimant Beck cites her persistent muscle spasms, numbness, and soreness in her shoulder, back and neck. Beck also testified that her condition grows worse by the end of each working day and that she occasionally misses work due to injury-related headaches. Beck’s treating physician corroborated the above-mentioned testimony. Additionally, Norman Johnson, a vocational rehabilitative specialist, testified that the percentage of the Flathead Valley job market for which Beck qualifies has been greatly reduced. Judy Mumford, also a vocational rehabilitative specialist, stated that due to her injury claimant Beck would probably not be able to continue working indefinitely as a nurse’s aide. In the event that claimant was forced to compete in the job market, Mumford testified that claimant’s earning capacity would be reduced to minimum wage.

Respondents contend that the Workers’ Compensation Court properly denied appellant’s claim based on her election of remedies. Claimant Beck earned more following her injury. Therefore, respondents contend that she failed to present substantial credible evidence of lost earning capacity. As a result, respondents claim that Beck’s remedy is limited to indemnity benefits under Sections 39-71-705 through -708, MCA (1985).2

[298]*298We held in McDanold v. B.N. Transport (Mont.

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Beck v. Flathead County
749 P.2d 527 (Montana Supreme Court, 1988)

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Bluebook (online)
749 P.2d 527, 230 Mont. 294, 45 State Rptr. 215, 1988 Mont. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beck-v-flathead-county-mont-1988.