39-71-703, MCA

39-71-703, MCA

MONTANA SUPREME COURT DECISIONS

Wilkes v. Montana State Fund [02/05/08] 2008 MT 29, 341 Mont. 292, 177 P.3d 483 The WCC correctly concluded that the sole reliance on actual wage loss in § 39-71-703, MCA, in determining PPD benefits does not violate a claimant’s constitutional right to equal protection. Where the Legislature’s express public policy is that the wage-loss benefit should bear a reasonable relationship to actual wages lost as a result of work-related injury or disease, two putative classes are sufficiently distinguished by actual wage loss.

[1991, 1997] Rausch et al. v. State Compensation Insurance Fund [9/5/02] 2002 MT 203 Permanently totally disabled claimants are entitled to an impairment award for the loss of physical function of their body occasioned by a work-related injury pursuant to recognition of such awards in § 39-71-710, MCA, and § 39-71-737, MCA. The award is due upon receipt of an undisputed impairment rating.

[1983] Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996) The relevant inquiry under section 39-71-703, MCA (1983) is whether a claimant's ability to earn in the open labor market has been diminished by a work-related injury after taking into account all relevant factors, including the injured worker's age, occupation, skills and education, previous health, number of productive years remaining, and degree of physical or mental impairment. A claimant does not have to prove his job is in jeopardy or there is a likelihood of losing present employment. In this case, the WCC did not find claimant's testimony credible and determined he did not have the physical restrictions he claimed. Where substantial evidence supports that determination, the Supreme Court will not overturn the WCC's determination claimant suffered no loss of earning capacity.

[1987-1989] Murer v. State Compensation Ins. Fund, 283 Mont. 210, 942 P.2d 69 (1997)
(No. 95-542) 39-71-703(3), MCA. (1) The 1987 statutory cap on benefits applies to injuries which occurred between July 1, 1987, and June 30, 1989; (2) the 1987 temporary cap expired June 30, 1989; (3) the 1989 temporary cap applies to injuries which occurred between July 17, 1989, and June 30, 1991; (4) the 1989 temporary cap expired June 30, 1991; and (5) the 1989 temporary cap cannot be applied retroactively to injuries which occurred prior to July 17, 1989, the date on which it became effective.

WORKERS' COMPENSATION COURT DECISIONS

Davidson v. Benefis [05/30/14] 2014 MTWCC 18 Sections 39-71-703(1), -703(2), MCA, address two scenarios: Section 39-71-703(1), MCA, applies if a claimant has an actual wage loss as a result of the injury and a permanent impairment. Section 39-71-703(2), MCA, applies if a claimant has an impairment as a result of the injury but no wage loss. Petitioner did not qualify for PPD benefits under § 39-71-703(2), MCA, because her impairment was not a result of the injury. She established that she could not return to her time-of-injury job due to her injury, suffered an actual wage loss, and had a preexisting unpaid 3% permanent impairment rating. Petitioner is entitled to payment of the 3% impairment award and PPD benefits under § 39-71-703(1), MCA.

Davidson v. Benefis [05/30/14] 2014 MTWCC 17 Section 39-71-703(2), MCA, has a causation element relative to the impairment rating while § 39-71-703(1), MCA, does not. This Court cannot insert a causation element into § 39-71-703(1), MCA, pertaining to the impairment rating. Rather, the causation element which brings a claim under § 39-71-703(1), MCA, pertains to actual wage loss.

Davidson v. Benefis [05/30/14] 2014 MTWCC 17 Sections 39-71-703(1), and 39-71-703(2), MCA, address two separate situations. Section 39-71-703(1)(a), MCA, states that it applies to situations in which the claimant has an actual wage loss. Section 39-71-703(2), MCA, applies to situations in which a claimant does not experience an actual wage loss. In the present motion for summary judgment, it remains a question of fact whether Petitioner suffered an actual wage loss as a result of her injury. Therefore, the Court could not determine whether her claim for an impairment rating falls under subsection (1) or (2) of the statute.

Drake v. Montana State Fund and Hilbert v. Montana State Fund [01/19/11] 2011 MTWCC 2 The Court interpreted the reference to the “current edition” of the Guides found within § 39-71-711, MCA, to mean the Guides in effect at the time an injured worker reaches MMI since the Court found this to be the most reasonable interpretation of the term “current edition.”

Drake v. Montana State Fund and Hilbert v. Montana State Fund [01/19/11] 2011 MTWCC 2 Since an impairmentThe Court interpreted the reference to the “current edition” of the Guides found within § 39-71-711, MCA, to mean the Guides in effect at the time an injured worker reaches MMI since the Court found this to be the most reasonable interpretation of the term “current edition.” rating occurs after an injured worker reaches MMI, the Court interpreted the reference to the “latest edition . . . of the Guides” found within § 39-71-703(1), MCA, to be the latest edition in existence at the time the worker reaches MMI.

Since an impairment rating occurs after an injured worker reaches MMI, the Court interpreted the reference to the “latest edition . . . of the Guides” found within § 39-71-703(1), MCA, to be the latest edition in existence at the time the worker reaches MMI.

Carey v. American Home Assurance Co. [02/01/10] 2010 MTWCC 3 Although the Court found that the claimant's new job paid more than $2 per hour less than her time-of-injury job, the Court concluded the claimant was not entitled to PPD benefits under § 39-71-703(5)(c), MCA, because she successfully returned to her unmodified time-of-injury position at the wage she was earning prior to her industrial accident and chose not to apply for similar positions which she was admittedly qualified for after her job position was eliminated for reasons unrelated to her industrial injury.

LaFountain v. Montana State Fund [10/08/08] 2008 MTWCC 46 Although Petitioner was earning significantly higher wages at the time of his industrial injury, by law, he is only entitled to the maximum weekly PPD award as set by statute.

Markovich v. Liberty Northwest [06/14/07] 2007 MTWCC 21 Petitioner is not entitled to benefits under § 39-71-703, MCA, where although he is currently making less money per hour than he did in his time-of-injury position, extensive research and job analyses prepared by a vocational rehabilitation counselor demonstrate that Petitioner is qualified to earn a higher wage.

Mack v. Transportation Ins. Co. [05/22/07] 2007 MTWCC 16 Where Petitioner was first retired and then declared to be permanently totally disabled, the Court determined the 1987 and 1989 versions of § 39-71-703, MCA, did not render Petitioner ineligible to receive an impairment award. Since Petitioner was not eligible to receive PTD benefits due to his retirement, the prohibition set forth in Rausch does not apply.

Wilkes v. Montana State Fund [02/22/07] 2007 MTWCC 9 Petitioner contends that the wage-loss requirement that a claimant must meet to receive PPD benefits for age, education, and lifting, as set forth in § 39-71-703, MCA, violates his equal protection rights. The first prerequisite to any equal protection analysis is a showing that the classes at issue are similarly situated. The two classes at issue in this case are (1) PPD claimants; and (2) claimants who, after reaching maximum medical healing, receive an impairment rating, but return to work and do not suffer an actual wage loss. The classes are not similarly situated. One class – PPD claimants – has suffered a wage loss. The other class of claimants has not. In light of the express public policy that wage-loss benefits should bear a reasonable relationship to actual wages lost, this is a fundamental distinction in ascertaining the similarity of the classes. Section 39-71-703, MCA, is not unconstitutional to the extent it denies PPD benefits for age, education, and lifting to claimants that do not suffer a wage loss.

[1987] Paul v. Transportation Ins. Co. [10/07/04] 2004 MTWCC 69 In an asbestosis case where the claimant's impairment rating is based on the total lung capacity, and a 40% total lung capacity equates to a 50% impairment, the impairment rating for less than 40% total lung capacity should be proportionate between the 40% and the minimum percentage compatible for life. In this case, the persuasive medical evidence establishes the minimum percentage compatible with life at 30%. The claimant's capacity has varied but the worst measurement was 35%, which the Court adopts in light of the progressive nature of his disease. Since a 30% capacity is the minimum amount compatible with life, the claimant's impairment rating must be calculated based on the difference between the 40% and 30% lung capacities. Since a 40% capacity equates to a 50% impairment rating, and a 30% lung capacity is equivalent to a 100% impairment, the claimant is entitled to a 75% impairment rating and award.

[1997] Swan v. Pacific Employers Ins. Co. [9/28/04] 2004 MTWCC 68 The rule that an employer "takes his employee subject to the employee's physical condition at the time of the employment," Larson v. Cigna Ins. Co., 271 Mont. 98, 103, 894 P.2d 327, 300 (1995), applies to impairment awards. Thus, where an industrial injury aggravates a preexisting condition of the same body part, the insurer is liable for the full impairment rating without deduction for any impairment it alleges preexisted the industrial accident unless the claimant has previously received an impairment award for an industrial accident to the same part of the body, which award must be deducted. § 39-71-703, MCA (1997-2001).

[2001] Callaway v. Valor Ins. Co. [6/2/04] 2004 MTWC 46 Where the claimant’s loss of wages is based on what he is capable of earning rather than actual post-injury earnings, and neither party presents vocational evidence concerning the number of hours of work available with respect to post-injury jobs, in which the claimant had also worked for a time preinjury, the hours actually worked in the position preinjury is the best evidence of the hours available at lest where the only other evidence is anecdotal, undocumented, and unpersuasive.

[1993] Otteson v. State Fund [5/27/04] 2004 MTWCC 44 Under 1993 law, a permanently totally disabled claimant who has never been only partially disabled is not entitled to permanent partial disability benefits upon reaching social security retirement age. § 39-71-703, MCA (1993). Hunter v. Gibson Products of Billings Heights, Inc., 224 Mont. 481, 730 P.2d 1139 (1986) and Russette v. Chippewa Cree Housing Authority, 265 Mont. 90, 874 P.2d 1217 (1994), are distinguishable and inapposite.Under 1993 law, a permanently totally disabled claimant who has never been only partially disabled is not entitled to permanent partial disability benefits upon reaching social security retirement age. § 39-71-703, MCA (1993). Hunter v. Gibson Products of Billings Heights, Inc., 224 Mont. 481, 730 P.2d 1139 (1986) and Russette v. Chippewa Cree Housing Authority, 265 Mont. 90, 874 P.2d 1217 (1994), are distinguishable and inapposite.

[1999] Woodworth v. Liberty NW Ins. Co. [4/16/04] 2004 MTWCC 35 Pursuant to section 39-71-703(5)(c), MCA (1999), wage loss for purposes of permanent partial disability benefits must be determined at the time the claimant reaches maximum medical improvement. If he returns to work at that time, and the insurer offers no evidence that his actual wage upon return to work is less than he is capable of earning, wage loss should be measured by the difference between his average weekly wage at the time of his injury and his average wage for the four pay periods immediately following his reaching maximum medical improvement and return to work. See § 39-71-123(3), MCA (1999). In the event that claimant's disability thereafter increases and he suffers a further wage loss, then his benefits must be recomputed based on the additional wage loss. § 39-71-739, MCA (1979-2003).

[1987, 1989] Rausch, Fisch, Frost v. Montana State Fund [7/11/03] 2003 MTWCC 48 Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991, are not entitled to impairment awards. The 1987 and 1989 statutes differ from those construed in Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3rd 25. The 1987 and 1989 statutes expressly provide for repayment of any impairment award should a worker become permanently totally disabled. § 39-71-703(1)(a)(iv), MCA (1987-89).

[1989] Olenick v. EBI [3/10/03] 2003 MTWCC 18 Claimant, who suffered burns to his hands in a 1990 electrical explosion, is not entitled to wage supplement benefits under section 39-71-703, MCA (1989), where he failed to persuade the Court that his hand problems which he claims motivated him to retire were in fact caused by his 1990 accident and where more credible medical evidence shows that they are due to aging and repetitive use of his hands over the years, thus constituting an occupational disease.

[1997] Burnside Lund v. St. Paul's [1/14/03] 2003 MTWCC 2 Under the 1997 version of the Workers' Compensation Act, travel for medical care is reimbursed only if the travel is at the behest of the insurer, thus, travel for regular treatment is not reimbursable. § 39-71-704(1)(d), MCA (1997).

[1999] Hansen v. Valor Ins. [1/08/03] 2003 MTWCC 1 For a credit under section 39-71-703(7), MCA, the insurer must show (1) that amounts previously paid as permanent partial disability benefits were for injury "to the same part of the body" and (2) that those amounts would be duplicated by the claimed present award. Where claimant received two prior disputed liability settlements based on causation disputes between the parties, the total of the prior settlements approximated the costs of back surgery, no impairment ratings were rendered for injuries associated with prior settlements, and claimant's present impairment rating and disability is attributed to his most recent injury, an award of permanent partial disability benefits with respect to the recent injury will not duplicate amounts received by claimant in the prior settlements. Thus, insurer is not entitled to credit under subsection (7).

[1999] Cox v. Pacific Employers' Ins. [10/16/02] 2002 MTWCC 48 Awards for wage loss and labor restrictions are components of permanent partial disability benefits and cannot be made absent a wage loss.

[1991, 1997] Rausch et al. v. State Compensation Insurance Fund [9/5/02] 2002 MT 203 Permanently totally disabled claimants are entitled to an impairment award for the loss of physical function of their body occasioned by a work-related injury pursuant to recognition of such awards in §39-71-710, MCA, and §39-71-737, MCA. The award is due upon receipt of an undisputed impairment rating.

[1997-2001] Bergman v. Valor [6/03/02] 2002 MTWCC 30 A subsequent insurer liable for an injury to the same body part which was previously injured is entitled to an offset for the impairment suffered as a result of the prior injury or injuries even though the claimant settled the prior claim or claims and the settlement did not expressly allocate or consider the impairment.

[1997-2001] Bergman v. Valor [6/03/02] 2002 MTWCC 30 Where a subsequent injury does not increase the claimant's preexisting impairment or his disability, he is not entitled to an impairment award.

[1997] Beyl v. Liberty Northwest Ins. Corp. [12/21/00] 2000 MTWCC 75 Under 1997 law, a claimant who does not suffer a rateable impairment is not entitled to permanent partial disability benefits.

[1997-2001] Kapphan v. State Fund [2/17/00] 2000 MTWCC 8 Claimant entitled to wage loss benefits of 10%, not 20%, where proper calculations indicated he suffered wage loss of $1.70 per hour after injury. Court compared actual hourly earnings pre-injury (total weekly earnings divided by 60, where claimant worked 60 hour weeks) with actual post-injury hourly earnings. Court refused to find claimant's wage loss was greater where he was working 60 hours pre-injury and only 40 hours post-injury because it did not credit claimant's testimony that he could no longer work additional hours and no medical evidence suggested he was in fact limited.

[1997-2001] Masters v. Liberty Northwest Ins. Corp. [2/4/00] 2000 MTWCC 10 Where claimant was working only part-time pre-injury, the question of wage loss is determined by comparing absolute part-time wages pre- and post-injury. Court distinguished situation where claimant loses the ability to work full time as a result of the injury, which requires some adjustment in computing wages pre- and post-injury.

[1997-2001] Masters v. Liberty Northwest Ins. Corp. [1/6/00] 2000 MTWCC 1 The measure of post-injury wages by what claimant is "qualified to earn" takes into account the possibility that claimant may not return to work immediately after reaching MMI or may be underemployed. What claimant is "qualified to earn" in entry level positions is determined by her actual job opportunities, not some hypothetical highest wage, or even average wage, unless she is in fact competitive for the higher or average wage positions. In light of claimant's lack of prior experience in positions at issue, and her need for some OJT training, claimant is competitive only for the lower paying jobs in these positions, meaning she has a wage loss under 39-71-703 and is entitled to additional PPD benefits.

[1995] Jenkins v. State Fund [7/30/99] 1999 MTWCC 47 Nurses aide hurt left shoulder at work. When she returned to work in a modified position pre-MMI, she hurt her right shoulder. Undisputed facts indicated she could not return to work as a nurses aide and suffered a wage loss. While claimant was entitled to a PPD award under section 39-71-703, MCA (1995) including percentages for wage loss, restrictions, age and impairment relating to the first injury, she was not entitled to a similar award relating to the second injury where that injury did not cause her wage loss.

[1991-1994] Jones v. Reliance National Indemnity Co. [3/17/99] 1999 MTWCC 22 Claimant was not entitled to PPD benefits for time period after which he was permanently totally disabled.

[1995] McGillis v. State Fund [11/2/98] 1998 MTWCC 79 Under section 39-71-703(5)(c), MCA (1995), the wage loss factor is predicated on the difference between claimant's actual wage at the time of his injury and his actual wage he earns or is capable of earning after he reaches maximum medical healing. The subsection refers to wages generally and does not define the periods during which the wages are to be measured. Court holds that section 39-71-123(3)(a), MCA, provides some indication of the appropriate time period for considering post-injury wages under section 39-71-703(5)(c), MCA, leading the Court to look at earnings of a period not to exceed one year if earnings during the period of four paychecks does not give an appropriate indication of expected earnings. WCC finds that, over a one year period post-injury, claimant suffered a wage loss of greater than $2.00 an hour, entitling him to 20% for wage loss. While claimant did work at a relatively high wage rate for some periods post-injury, the credible evidence suggests that such work was a lucky break, not likely to be repeated, leaving claimant realistically in a much lower wage bracket.

[1995] Caplette v. Reliance National Indemnity Co. [10/1/98] 1998 MTWCC 69 Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for lost lifting capacity and wage loss only if he suffered an actual wage loss because of his injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.

[1993] Moldenhauer v. Lubermens Mutual [6/23/97] 1997 MTWCC 42 47-year old food store transportation clerk with knee injury demanded permanent partial disability benefits for loss of labor activity. Evidence showed her job included: moving banker's boxes, some weighing more than fifty pounds, approximately six to eight times a year; lifting copy paper boxes weighing over fifty pounds three or four times a year; and lifting a 100-120 pound mail cart approximately once a week, with another person. Section 39-71-703(3)(d), MCA (1993), provides an increase in permanent partial disability benefits if "a worker, at the time injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity." Section 39-71-703(6)(a), MCA (1993), in turn defines "heavy labor activity" as "the ability to lift over 50 pounds occasionally or up to 50 pounds frequently." Problematically, "occasionally" is not defined in the WCA. Considering the context in which the word is used, the WCC concluded the "occasionally" must be construed as understood by vocational professionals. While testimony on that question diverges in this and other WCC cases, the evidence in this case is that "occasional" includes activity taking between 0 and 33% of the worker's time. Because claimant lifted some items over 50 pounds, it must be concluded that she performed heavy labor pre-injury. Her demand is denied, however, where the WCC finds she also performed heavy labor after her injury.

[1975-1986] McLaughlin v. ANR [6/4/97] 1997 MTWCC 37 45-year old truck driver suffered crush injury to hand and wrist. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that he now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. Under sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder.

[1993] Church v. Travelers [5/27/97] 1997 MTWCC 31 Insurer paid PPD claimant benefits corresponding to 17.5% of 350 weeks for the labor factor under section 39-71-703, MCA (1993), representing a "split" between 15% and 20% on the theory that claimant went from the ability to do heavy lifting to an ability falling somewhere between medium and light duty. WCC held there is no statutory basis for "splitting" the labor factor portion of PPD benefits. Where claimant credibly testified he was not lifting 25 pounds or more frequently, he is entitled to PPD benefits for reduction of lifting capacity from heavy to light duty. The insurer's position was unreasonable where its statutory interpretation was without basis and its assertions at trial regarding claimant's lifting capacity were without factual support. The fact that the insurer required trial over $1,631.88 in benefits magnifies its unreasonableness.

[1993] Church v. Travelers Indemnity Company of Illinois [4/28/97] 1997 MTWCC 31 Section 39-71-703, MCA (1993) does not authorize an insurer to split the difference between 15% PPD benefits due if claimant moves from heavy to medium lifting, and 20% due if he moves from heavy to light. Although there is no statutory basis for the 17.5% paid by the insurer, WCC declines to award summary judgment where factual issues remain regarding other arguments raised by insurer and the possibility exists that the insurer has paid more than was due.

[1995] Carlson-Owens v. Liberty NW [4/28/97] 1997 MTWCC 27 Claimant without wage loss is not entitled to PPD benefits beyond impairment award under 1995 statute.

[1995] Carlson-Owens v. Liberty NW [4/28/97] 1997 MTWCC 27 Claimant without impairment established by objective medical evidence is not entitled to PPD benefits under 1995 statute.

[1993] Pollari v. Maco Workers' Copmensation Trust [12/21/94] 1994 MTWCC 115 Under section 39-71-703, MCA (1991), where claimant is working, wage loss for purposes of permanent partial disability benefits must be computed on a comparison of wages for claimant’s time-of-injury job and those for post-injury work. The comparison must be made for the same time period, because wages may rise over time. Where the wages for claimant’s post-injury work were less than her time-of-injury wages, but not more than two dollars per hour less, she was entitled to a 10% PPD award.

[1991] Gjerde v. Employers Ins. of Wausau [12/09/94] 1994 MTWCC 111 Where the insurer has agreed to a lump-sum advance of permanent partial disability benefits under 39-71-703, MCA (1991), it is not entitled to discount that advance to present value where no statutory provision authorizes such discount.

[1989] Estate of James Jacques v. Borden, Inc. [3/20/97] 1997 MTWCC 14 The 1989 WCA allows an impairment award based on a psychological condition where the claimant also suffers a concomitant physical restriction.

[1989] Major v. State Fund [11/15/96] 1996 MTWCC 70 Where sole proprietor who elected coverage declared monthly earnings at $900 for policy purposes, insurer properly refused to base wage supplement benefits on loss of post-injury earnings rather than declared wages. Section 39-71-118(2), MCA (1989), provides that "all weekly compensation benefits must be based on elected wages . . . ." Section 39-71-703(1)(b)(i), MCA (1989), which governs wage supplement benefits, states that a worker must be "compensated in weekly benefits." Under the plain language of the statutes, all weekly benefits, including wage supplement benefits, must be based on the amount elected.

[1975-1986] Miller v. Western Guaranty Fund Services [7/29/96] 1996 MTWCC 55A-1 Where claimant elected to seek PPD benefits pursuant to section 39-71-703, MCA (1983), which provides lost earning capacity benefits, and the parties agreed to assess earning capacity based on 1996 wages, the Court set the PPD rate by finding claimant's likely wage as a waitress in 1996 if not injured and subtracting her probable 1996 wage as a receptionist, the position the Court deemed most likely claimant could obtain and perform.

Gates v. Liberty Northwest Ins. Co. [11/07/95] 1995 MTWCC 94 Where the claimant is capable of working but does not return to work, to determine wage loss under section 39-71-703(c), MCA (1993), the Court looks to what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.

Certain v. PPG Industries Inc. [11/06/95] 1995 MTWCC 91 Claimant entitled to 25% award under sections 39-71-703 through 708, MCA (1985), not the 15% argued by the insurer, where he credibly testified to severe back problems limiting his physical capability, even though he is currently employed without wage loss. In ascertaining claimant’s lost earning capacity, the Court also considered claimant’s age, loss of heavy labor capacity, and eagerness to work.

[1975-1986] Burglund v. Liberty Mutual Northwest Ins. Co. [4/10/95] 1995 MTWCC 25A UPS driver is not entitled to benefits under section 39-71-703, MCA (1983) for loss of earning capacity where the performance of his present job is unaffected by his injury and the Court is persuaded he will be able to continue to perform his job duties at a satisfactory level. [Note: the WCC was affirmed by the Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996).]

Stermitz v. State Compensation Ins. Fund [01/12/95] 1995 MTWCC 1 Fish, Wildlife and Parks field technician was entitled to additional benefits under section 39-71-703, MCA (1985), an old law section, where his ability to perform his time-of-injury job has been diminished. Although he is now performing that job satisfactorily, he can no longer perform some aspects of the job and has suffered diminished capacity to compete for jobs within his usual field of employment.

Stermitz v. State Compensation Ins. Fund [01/12/95] 1995 MTWCC 1 The benefits provided under old law section 39-71-703, MCA, are for actual loss of earning capacity. Post-injury wages, while one item of evidence in determining future earning capacity, are not conclusive; rather, the measure is whether there has been a loss of ability to earn in the open labor market. The loss must be permanent, with the Court taking into consideration not only pre-injury and post-injury wages but also the claimant’s age, occupational skills, education, previous health and remaining number of productive years and degree of physical or mental impairment. While a worker may return to his time-of-injury job and earn more than before, there may still be a loss of earning capacity if the workers’ performance is impaired and his ability to compete in the open labor market is lessened. Loss of efficiency in work decreases a worker’s chances of finding employment in the open labor market and translates into a reduced earning capacity.

[1985] Stermitz v. State Compensation Ins. Fund [12/21/94] 1994 MTWCC 116 In assessing lost earning capacity under section 39-71-703, MCA (1985), an “old law” section, the Court must compare claimant’s earning capacity absent injury to present earning capacity, looking to claimant’s ability to earn in the open labor market, considering also his difficulty in performing his old job.