BURGLUND v LIBERTY MUTUAL FIRE INS
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No. 95-252 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 STEVEN K. BURGLUND, Petitioner and Appellant, v. LIBERTY APPEAL MUTUAL FIRE FROM: INSURANCE COMPANY, The Workers' The Honorable Compensation Court Mike McCarter, Judge presiding. COUNSEL OF RECORD: For Appellant: Darrell Kalispell, For S. Worm, Ogle Montana & Worm, Respondent: Senior Attorney, Larry W. Jones, Liberty Mutual Fire Insurance Co., Missoula, Montana Submitted on Briefs: Decided: Filed: August 15, November 1996 21, 1996 Justice Charles Steven E. Erdmann K. Burglund conclusions of Compensation Court his for petition Northwest of law, and the from amended findings of fact, and the order denying Liberty Mutual 1995, filed from on May 1, amended 1995. Parcel Workers' Service is (UPS) of fact, findings The cross-appeal conclusions limited granted award. We affirm the to filed the twenty Compensation by the Workers' benefits Court. the court's award the by and United of the of entered Company disability opinion 10, a new trial as an indemnity the judgment on April and judgment. percent raised appeals law, Insurance a cross-appeal delivered Court court on both issues on appeal. The issues 1. Did permanent the 2. for payment the is for under to Burglund percent of his err 1984 industrial Court §§ 39-71-705 100 weeks denying pursuant to injury? err through of in to Burglund Compensation Workers' liable Court (PPD) benefits MCA (1983), Liberty as follows: Compensation disability Did that are Workers' partial 5 39-71-703, a twenty on appeal in determining -708, PPD benefits, MCA (1983), representing disability? FACTS Burglund forty-one years electronics security several a package was born old. auto car April 22, He graduated institute equipment on in for the a year supply stores. driver since from early 1955, high and school 1970s. is and attended He then or two and worked as a parts Burglund has been employed employment duties 1980. His 2 presently an installed clerk at by UPS as consist of picking up and packages at duties delivering the Kalispell involve the transferring weighs weigh only arising fell feet to to 14, the a platform neurosurgeon, Between Burglund course until the to On July 16, inquiry from medical 18, June permanent work Dr. any type said over that twenty Henry to Gary, a Burglund as back time of and leg performed a level. his pain lumbar Burglund he returned a letter to work doctors in regarding that impairment of as He continued vertebral which wrote He stated The letter anything Gary work released restrictions. attorney partial Gary Both any to diagnosed 1991 his Dr. driver. without 1992, at UPS when he level. 1991, 1991, car Burglund's in LS-Sl Gary at the LS-Sl 1, restrictions. percent Dr. 1988 and February package return 1988. injury He returned 16, as a full-time lifting with Dr. February work do. back. by and foramenotomy could his employment examined laminotomy restrictions of his was at package an industrial and disc and The average 1984. On February to suffered 12, pain belt trucks. the on March increased. him delivery driver a herniated was off a conveyer however, loading "sort-and-load" on February back car and pounds. and injured package suffer twenty-five off the pounds; 1984, of and in a full-time having several fifteen out off packages seventy sorting Burglund's of up to On February and UPS Center. lifting them packages UPS packages, work reasonable to 3 Burglund rating as to his response impairment would and needed the amount limits twenty-five have to have of would pounds lifting to an and a ten some he include not with any frequency and not infrequent basis. account of seventy pounds Liberty In attempted the basis his job lifting this anything the of as the letter, fall fifty he was required that over 1992, for his to pay PPD benefits, but evaluation to 24, 1992, further Burglund define underwent his he reported feeling pain behaviors. The examiner therefore physically able reviewed this to perform to work evaluation his was allowed job to UPS. refused them able perform to on as without return restrictions. no pain and concluded a UPS package and concluded that During demonstrated Burglund was driver. Dr. Gary Burglund would As a result, on January 5, no that car any restrictions. to work capacities 1993, be able Burglund as a UPS package driver. In 1993, Burglund 5 39-71-703, (1983). February court's trial of 9, judgment stipulation for seeking and 55 39-71-705 court and Liberty judgment filed March clarifying decision. its the On April of 19, 1995. January for or fact, amendment alternatively of 1995. -708, findings its on for of 10, 4 the issues 1995, the to of parties be submitted Workers' MCA fact, On to the a new trial. conclusions Thereafter, scope pursuant through a petition findings 1, PPD benefits issued and conclusions withdrew on a claim the law, 1995, findings court filed MCA (1983), After conclusions court the with a physical physical evaluation The on than position been physically this to an off laid was less Burglund on duties. On November car was limit lift times pounds Burglund pound to he had at all fifty law, and filed to a the Compensation Court filed judgment weeks amended and at for PPD benefits rate which his paid conclusions of cross-appeal court and law and evidence in the decision that MCA (1983), the benefits 1984 the is under liable to industrial This Burglund of evidence. 404, pursuant will fact if 892 of Valley v. Estates View law The parties PPD they P.2d conclusions Workers' uphold Wunderlich 408, § 39-71-703, the of order and a credible Court's through of and filed Compensation 100 weeks a fact UPS have 55 39-71-705 of -708, PPD benefits. 1 Court err § 39-71-703, to the are in denying MCA (1983), for MCA Court a (1983), by Mut. PPD his review if they a stipulation to determine loss of and 5 an credible (1995), the 390, court's Turjan 901 P.2d which capacity indemnity 270 Mont. trial correct. Burglund's earning on Co. are 386, Court's substantial Cas. 272 Mont. into Compensation We determine entered both supported 566. (1995), on Workers' Lumbermens 563, Compensation benefits to filed injury? Court findings Workers' Compensation Burglund percent substantial is Workers' from and not 100 findings Liberty ISSUE Did the findings there to ten amended the payment to and of Burglund He appeals to support Liberty for Liberty. law, a period the an amendment from of for less denied. that record by judgment. alleging conclusions $138.50, and for the petition fact, of already a new trial conclusions, denying Burglund weekly award petition of awarded the impairment findings 76, v. 79. authorized the entitlement to basis under basis under 55 39-71-705 through 5 39-71-703, MCA (1983), capacity under for -708, resulting possible Stuker of the 96, interpreted of that capacity the to benefits ability to earn work-related in the producing disability is condition after in the worker's defined in the MCA (1983), labor market taking is into Convalescent include whether has Center the no loss that of earnings relevant all relevant 662/3 ability injured worker's 6 his age, factors. weekly of the actual be paid for Permanent MCA this as chapter "a that capability." under to earn We § 39-71-703, in the injury Sedlack 749 an partial (1983), a work-related 273, by his that shall factors. 230 Mont. whether percent in not that provides inquiry (1988), was He argues relevant or earning by he had been diminished as defined diminished all he suffered 39-71-116(12), a claimant's been account of the that Court disability. injury loss held § 107. determine capacity partial from actual previously amount by to (19831, v. Compensation account earning permanent resulting into MCA 105, MCA (1983). market taking Stuker that failed benefit future. the therefore, Court open labor benefits diminution factors the finding earning compensation 822 P.2d 5 39-71-703, 39-71-703, compensation have in in of awards Workers' concluding, under injury Section injury law Compensation Workers' results and 98, the the in loss under an indemnity MCA (1983), 251 Mont. erroneously entitled -708, award actual whereas capacity argues earning injury, A disability on the earning (1991), Burglund based through loss Ranch is from §§ 39-71-705 MCA (1983). P.2d occupation, v. 1085. skills open after Bigfork These and education, previous and of degree health, physical 266 Mont. (1994), MCA (1983), or 509, or that because of injury an disability 464, The not based on its based At restrictions. The credible physical presented at trial in recreational is in employment partial Co. that (1990), which market. address Burglund MCA (19831, concerning was whether would he diminish In order to address findings the he was not upon which entitled to benefits he that Burglund activities, incapacity. In including and his form or defect ski have the testimony without and stated which patrol, his a work-related Burglund's addition, find not to work from nordic 7 evidence history physical not did returned resulting illness, did Burglund The a medical any disease, Court that claimed. completed or and prolonged Compensation determined showed Burglund a disability conclusion significant restriction have job Aluminum 1984 injury his claimed and it physician-imposed not his disputes that Workers' restrictions he did 5 39-71-703, permanent Falls Sears MCA (1983). testimony injury. for § 39-71-703, first conclusion Burglund trial, present open labor we must 5 39-71-703, losing Court's factual on the its that of under from assertion, court under of restrictions Burglund's prove v. Columbia benefits capacity Under v. 433. resolution earning the to to eligible Compensation entitled had physical his 795 P.2d Workers' 623. have be remaining, Reeverts 620, a likelihood Taylor years impairment. not to benefits. 243 Mont. was is productive 881 P.2d does there of mental 514, a claimant jeopardy number might that result numerous white water rafting, sailboat excellent physical judgment for did supported by analyzing the court when the issue witnesses the 749 Sedlack, that in the P.Zd from context at court his the type work he has education noted court injury has that not Burglund's interfere with the to court his relevant loss of forth fact that the Burglund did a review factors earning and stated obsolete, his to of achieved. As to that in his position and by his not disability employment. Burglund's at 8 the time court not age was and that level history, The does his education the work The Workers' factor. It subjects require injury. its although previous Burglund's diminished does in capacity. technical master chosen be a neutral by labor he claimed, is pain erred as set market that has been is normal found performance that he a "pre-injury the intelligence of that be superfluous. certification demonstrates Court the education electronics certain record. given Burglund's Burglund's the claimed the However, evaluated considered he restrictions would to Compensation of in to finding specifically Court of given in its relates restrictions evidence 1088. substitute The court's of an open labor physical determination 566. context the The weight the Workers' contention Burglund's at physical the Compensation suffer the credible asserts in or 892 P.2d claim Workers' trial substantial and not he remains not have his market" not will the not Burglund that Court Wunderlich, Burglund indicate This of of evidence. and hunting, condition. that credibility in racing, of the of his stated significantly considered Compensation by Court therefore concluded injury he and is physically reaches Court Burglund to under Burglund also The discretion the no appeals a new v. (1990), 241 Mont. his result, working at especially credibility He claims UPS at reevaluated. to admit of this current reversal Burglund evidence case, of the court's his the court abuse decision. to viewed working of Stanhope at performance evidence of probability of involving him and to stop that restrictions refusing Dep't testimony job trial a 1228. forced continue 9 1226, 1984 injury that he could State discovered physical lower absent findings his the sound 111; the after to 106, a reasonable months was a manifest lower in concerning asserts on what whether position, as a new the Burglund's newly the for v. 787 P.2d found raises that seventeen trial PPD benefits within 883 P.2d 471, that condition credibility. under be overturned restricted argues physical a different determined motion Fjelstad Court physically Burglund current 468, Compensation not 220, 211, his is discretion. 267 Mont. his trial of (1994), unbelievable. of and will abuse he was until capacity denied his Workers' law when it properly judge of Highways that job the earning denial grant manifest trial it the to trial The Workers' of his that the loss and that of Lawrence determine from section. decision of showing this We wage loss performing interpreted MCA (1983), Burglund trial. correctly no actual to continue age. suffered 5 39-71-703, suffered able retirement Compensation that Burglund his should reopen be the record as a central issue indefinitely discretion that in his compels The Workers' and retry a Compensation developments. stated simply because there court matter Court held, The jurisdiction to consider § 39-71-2909, petition. MCA, We conclude abuse its that that discretion in changes Burglund's the the Workers' Liberty is liable payment to twenty under percent event from ability to work injury, number of of indemnity that the of of to a new file Court did not determining -708, that MCA (1983), PPD benefits, for representing as weeks the of benefits are benefits available commonly a is They on his he is work not are based injury benefits is a physical a person's because Burglund activities indemnity benefits. of a non-scheduled the case found in this 10 as restriction schedule In 500 weeks. to triggering affect that to upon the (1983). the or recreational entitled MCA (1983). back argue under referred that has or may adversely future. law benefits § 39-71-705, such have under is in and UPS assert restrictions Indemnity in err through MCA (1983), Liberty in as a matter forth -708, an injury has no physical that does disability Compensation disability partial an award arising in his Court 100 weeks benefits." for it 2 55 39-71-705 of through "indemnity subsequent disability? Permanent §§ 39-71-705 that go back so holding. Compensation Burglund cannot been remedy Workers' ISSUE Did it have however, subsequent and that of case, Section injuries the set maximum 39-71-706, MCA To determine through -708, loss, of Serv. the for "possible" Burglund work; possible loss One-half of the of 245 Mont. 495, v. 499, Land and Lumber As we have is of earning future to for Wells Co. rather a present physical restriction not that will disability award strictly a medical is medical but determination did not appeal rating, the other than an additional ten court medical percent not, an The restricted or recreational activities. It future possible sufficient evidence conclusion that in Burglund loss the of record could earning 11 supports be forced ten of in law, either an award to There is capacity. which possibly is ten court's as a matter physically compensate the additional be currently his by Workers' Given Burglund employment injury. the impairment. does his a determination. issue. awarded 107. represented before this at suffer of is than on his not as a result factors injured 822 P.2d percent 195 stated, capacity, he 618, (1981), the have which Fargo 802 P.2d indemnify Stuker, mean wage previously capacity Court percent his Carroll benefits does this that actual earning impairment require capacity. 12). claimant's and disability, twenty percent of the capacity. award, Compensation 10, §§ 39-71-705 consider future the attacked pain under earning this impairment UPS of claim must Stoltze loss may not however, award F.H. indemnity loss court earning 637 P.2d of "actual" the & CNA (1990), v. 266, purpose worker future Holton 263, benefit experience, Corp. (citing Mont. any work and loss Armored indemnity MCA (1983), education, age, 621 an the to court's quit his position with earning UPS and capacity. We therefore err in therefore determine concluding that Liberty -708, MCA (1983), for payment partial disability suffer the Workers' is liable to Burglund future Compensation under of 100 weeks disability. We affirm both issues raised on appeal. Justice We concur: 12 Court §§ 39-71-705 representing benefits, possible a loss of did not through of permanent twenty percent
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