[1975] 92-703.1, RCM Hale v. Royal Logging, 1999 MT 302 Even though logger returned to work after 1976 back injury and surgery, he suffered a loss of capacity to perform as well before the injury and a loss of the ability to compete and earn in the open market, entitling him to permanent partial disability benefits under section 92-703.1, RCM (1975). The test under this statute is not whether there has been a loss of earnings or income caused by the injury, but rather whether claimant has lost earning capacity, the ability to earn on the open market. Under this rule, postinjury earnings are but one item of evidence to be considered.

[1975] 92-703.1, RCM Hale v. Royal Logging [12/1/98] 1998 MTWCC 86 Claimant did not prove entitlement to permanent partial disability benefits under section 92-703.1, RCM (1975) where he testified he worked in pain, but worked smarter to keep up, and did not quantify any amount of lost earning capacity. [Note: WCC reversed on this determination in Hale v. Royal Logging, 1999 MT 302.]