Combs v. Wagar Logging

784 P.2d 928, 240 Mont. 453, 47 State Rptr. 23, 1990 Mont. LEXIS 2
Montana Supreme Court·Decided January 5, 1990·No. No. 89-264·Published

Opinions

JUSTICE WEBER

delivered the Opinion of the Court.

[454] This appeal arises from an order by the Workers’ Compensation Court of the State of Montana. Claimant appeals. We affirm.

The sole issue on appeal is whether the Workers’ Compensation Court’s findings of fact regarding claimant’s loss of earning capacity are supported by substantial credible evidence.

Mr. Roscoe Combs suffered a compensable industrial injury on July 7, 1986, while working as a knot bumper for Wagar Logging. A log struck him, injuring’ his back. Mr. Combs received temporary total disability benefits from July 7, 1986, through August 29, 1988, when benefits were reduced to permanent partial based on a six percent impairment rating. Claimant elected to calculate permanent partial disability benefits on an actual loss of earning capacity, pursuant to § 39-71-703, MCA (1985).

The Workers’ Compensation Court determined that Mr. Combs was entitled to 500 weeks of permanent partial disability benefits at the rate of $34.68 per week, pursuant to § 39-71-703, MCA (1985), which states in pertinent part:

“Compensation for injuries causing partial disability. (1) 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 the state’s average weekly wage.”

The Workers’ Compensation Court found that Mr. Combs’ post-injury earning capacity was $3.34 per hour. Comparing this to his preinjury earning capacity of $4.65 per hour, the court determined he had a loss of earning capacity of $1.30 per hour, or $52.00 per week. The court then found that Mr. Combs was entitled to % of that loss, or $34.68 per week.

On appeal, Mr. Combs contends that the Workers’ Compensation Court erred in its findings regarding his earning capacity. He claims his pre-injury earning capacity was $16.55 per hour, and that the court’s finding that his pre-injury earning capacity was $4.65 per hour is not supported by substantial credible evidence.

This Court’s standard of review is to determine whether substantial credible evidence supports the findings of the Workers’ Compensation Court. Sharkey v. Atlantic Richfield Co. (1989), [238 Mont. 159,] 777 P.2d 870, 872, 46 St.Rep. 1169, 1171.

The documented evidence of Mr. Combs’ work history includes only three brief jobs in the three years prior to this injury. In 1983 Mr. Combs worked for Doug Henry as a knot bumper, earning $400 total for the year. In 1984 Mr. Combs worked as a construction la[455] borer for Hugh Louden, earning a total of $638.48. He worked approximately 50 hours for Mr. Louden; thus his hourly wage was about $12.96. In May 1986 Mr. Combs began working for Wagar Logging. He was injured on July 7, 1986. He had worked 414 hours and had earned $1925.00; thus his average hourly wage was $4.65. The Workers’ Compensation Court found that Mr. Combs’ work history prior to 1983 had not been documented or presented in a consistent manner and could not be considered by the court. The court determined the amount of $4.65 to be Mr. Combs’ pre-injury earning capacity.

Claimant contends the court should have determined his pre-injury earning capacity to be $16.55. He bases this assertion on deposition testimony from Mr. Hugh Louden, a previous employer. Mr. Louden testified that in 1984 Mr. Combs worked for him as a laborer in government construction jobs which paid wages of $12.69 per hour, according to Davis-Bacon scale. Claimant asserts that in the current market these wages would amount to $16.55 per hour, assuming Mr. Combs was at the top of the scale.

Claimant also relies on testimony from Mr. Charles Schloss, a vocational rehabilitation expert, who testified that in his opinion Mr. Combs could have been trained to be a sawyer. He testified that as a construction worker, Mr. Combs would not reach his maximum earning capacity until age 30. Claimant contends that had he not been injured he would have eventually earned $8.00 per hour as an experienced knot bumper. Additionally, Mr. Combs asserts that had he not been injured he would have been promoted to sawyer, or skidder operator, earning a possible $13.75 per hour.

We have previously stated the following standards in determining earning capacity:

“Impairment of earning capacity has been defined as ‘the permanent diminution of the ability to earn money in the future.’ Additionally, we have stated that earning capacity is not only determined by a comparison of pre-injury and post-injury wages but also by age, occupational skills, education, previous health, remaining number of productive years and degree of physical or mental impairment.” (Citations omitted.)

Hurley v. Dupuis (1988), [233 Mont. 242,] 759 P.2d 996, 998-99, 45 St.Rep. 1457, 1461.

In Hurley, this Court faced a similar issue. In that case the Workers’ Compensation Court calculated pre-injury earning capacity at [456] $12.44 per hour, which was an amount claimant earned working one or two weeks on a part time basis. This Court reversed, stating:

“Here, although Hurley was thirty years old at the time of filing this claim, he has no real occupational skills; he dropped out of school in the tenth grade and obtained a G.E.D. Due to his back injury he is basically removed from any manual labor employment. The most important fact is that he never maintained a job for an extended period of time so that he could establish higher earnings.
“Granted, McIntosh testified that in the Denver area, current labor market earnings for concrete workers ranged up to $517.20 per week which translates to approximately $13.00 per hour in a 40-hour work week. However, due to Hurley’s previous work history it is extremely unlikely that he would be able to obtain one of these jobs or remain employed.”

Hurley, 759 P.2d at 999.

In Hurley we also noted that the claimant had not been able to verify his claimed previous employment with either a W-2 or income tax return.

Although in the present case Mr. Combs attempts to distinguish Hurley, we conclude that the facts are analogous and the same rationale applies. Mr. Combs is 25 years old, single, and has a ninth grade education. Because he is dyslexic, his ability to read is minimal. He is an unskilled laborer. Since dropping out of school, Mr. Combs has worked at various construction jobs, logging jobs, and other jobs requiring manual labor. His work history demonstrates an inability to stay at one job for more than a few weeks or months. Mr. Combs has filed no tax returns since 1977, and he has been unable to document most of his past wages.

Free access — add to your briefcase to read the full text and ask questions with AI

Combs v. Wagar Logging, 784 P.2d 928, 240 Mont. 453, 47 State Rptr. 23, 1990 Mont. LEXIS 2 (Mo. 1990).

784 P.2d 928 (Combs v. Wagar Logging) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Hurley v. Dupuis
759 P.2d 996 (Montana Supreme Court, 1988)
Beck v. Flathead County
749 P.2d 527 (Montana Supreme Court, 1988)
Sharkey v. Atlantic Richfield Co.
777 P.2d 870 (Montana Supreme Court, 1989)