Smart v. Montana Historical Society , 53 State Rptr. 554 ( 1996 )

No. 95-532
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
JOHN SMART,
Appellant,
v.
THE MONTANA HISTORICAL SOCIETY,
Employer,
and STATE COMPENSATION
MUTUAL INSURANCE FUND,
Respondent
APPEAL FROM: Workers' Compensation Court
State of Montana
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Linda M. Deola, Reynolds, Mot1 & Sherwood, Helena,
Montana
For Respondent:
Daniel J. Whyte, State Compensation Insurance Fund,
Helena, Montana
Submitted on Briefs: February 8, 1996
Decided: June 21, 1996
Filed:
@!l.erk
Justice James C. Nelson delivered the Opinion of the Court.
John Smart (Smart) appeals a decision of the Workers'
Compensation Court finding that Smart is not entitled to permanent
total disability benefits under 5 39-72-701(l), MCA (199X), and
limiting his benefits to a maximum award of $10,000 pursuant to 5
39-72-405, MCA (1991). We affirm.
The sole issue presented for review is:
Did the Workers' Compensation Court err in finding that Smart
is not entitled to permanent total disability benefits under the
Montana Occupational Disease Act?
Factual and Procedural Background
Smart filed a claim on October 29, 1992, for an injury arising
out of and in the course of his employment with the Montana
Historical Society. Smart had been employed by the Montana
Historical Society as an archival photographer for 11 years. As a
result of overexposure to toxic chemicals used in the photography
process, Smart experienced nausea, headaches, chronic respiratory
irritation, disorientation, memory loss, and depression. At the
time of his injury, Smart was earning $16 per hour, plus benefits.
Smart's claim was accepted pursuant to the Montana
Occupational Disease Act (MODA), set forth at Title 39, Chapter 72,
Montana Code Annotated. The examining physician determined that
Smart suffered from an occupational disease, but that the effects
were not permanent so long as Smart did not continue his work in
the darkroom.
The State Compensation Insurance Fund (the State Fund) paid
Smart temporary total disability benefits. When Smart reached
maximum medical improvement, the State Fund offered him $10,000,
the maximum amount of benefits allowed under 5 39-72-405, MCA
(1991). Smart rejected the.offer claiming that he is permanently
totally disabled and is therefore entitled to benefits in excess of
$10,000.
The State Fund, through Independent Rehabilitation Providers
of Montana, performed an employability assessment on Smart to
determine whether other employment was available according to his
education and experience. The assessment determined that there
were a number of positions available to Smart, all of which paid
considerably less than the $16 per hour he had been making
previously.
On July 22, 1994, Smart filed a Motion for Summary Judgment
with the Workers' Compensation Court claiming that the $10,000
limit in the MODA does not apply in his situation as he is
permanently totally disabled. The court denied Smart's motion and
certified the matter as final for purposes of appeal to the Montana
Supreme Court. Smart filed an appeal with this Court on October
25, 1994. We dismissed the appeal, without prejudice, on April 20,
1995, holding that the appeal was premature as the Workers'
Compensation Court failed to decide the necessary substantive
issues of claimant's benefits.
On May 1, 1995, Smart and the State Fund filed a joint Motion
for Reconsideration before this Court. We denied this motion on
3
May 9, 1995. on October 31, 1995, the workers' Compensation Court
issued a Decision and Final Judgment wherein the court ruled that
Smart was not entitled to permanent total disability benefits under
5 39-72-701(l), MCA (1991), and was limited to a maximum award of
$10,000 pursuant to 5 39-72-405, MCA (1991). Smart now appeals the
Decision and Final Judgment of the Workers' Compensation Court.
Discussion
Did the Workers' Compensation Court err in finding that Smart
is not entitled to permanent total disability benefits under the
Montana Occupational Disease Act?
The Workers' Compensation Court determined that, even though
Smart cannot return to his former work, he is physically able to
perform other available work for which he is qualified, thus he is
not permanently totally disabled and not entitled to benefits under
§ 39-72-701(l), MCA (1991). The court found that compensation for
Smart's injury is limited under the MODA, specifically by § 39-72
405, MCA (1991), to an award of up to $10,000.
We employ two standards of review for Workers' Compensation
Court decisions: we review the court's findings of fact to
determine if they are supported by substantial credible evidence,
and we review the court's conclusions of law to determine if they
are correct. Turjan v. Valiey View Estates (1995), 272 Mont. 386,
390, 901 P.2d 76, 79 (citing Caekaert v. State Comp. Mut. Ins. Fund
(1994), 268 Mont. 105, 110, 885 P.2d 495, 498). There are no
contested facts in the case before us, only questions of statutory
interpretation.
Smart argues that the Workers' Compensation Court erred in its
interpretation of the MODA as it pertains to his injury. He
maintains that § 39-72-405, MCA (1991), refers to a nondisabling
occupational disease and that only when an individual has such a
nondisabling occupational disease may compensation be limited to
$10,000. Section 39-72-405, MCA (1991), provides, in part:
(2) When any employee in employment on or after
January 1, 1959, because he has an occupational disease
incurred in and caused by such employment which is not
yet disabling, is discharged or transferred from the
employment in which he is engaged or when he ceases his
employment and it is in fact, as determined by the
medical panel, inadvisable for him on account of a
nondisabling occupational disease to continue in
employment and he suffers wage loss by reason of the
discharge, transfer, or cessation, the department may
allow compensation on account thereof as it considers
just, not exceeding $10,000.
Smart contends that this does not apply to him as his injury fits
the definition of "disablingq' found at § 39-72-102, MCA (1991),
which provides, in part:
(4) "Disablement" means the event of becoming
physically incapacitated by reason of an occupational
disease from performing work in the worker's job pool.
Smart argues that his "job pool" is photography and since he
cannot return to work in that field, he is disabled under this
definition. Smart does not claim that he is physically unable to
perform other types of work. He agrees with the State Fund and the
Workers' Compensation Court that he is only unable to perform
photography work.
The State Fund, on the other hand, argues that the terms "not
yet disabling" and "nondisabling" in 5 39-72-405, MCA (19911, mean
that a person can have an occupational disease that prevents them
5
from returning to their time of injury employment but does not
prevent them from returning to other employment. As the State Fund
points out, the "not yet disabling" language in 5 39-72-405, MCA,
(1991), also takes into consideration the likelihood that an
injured worker may become totally disabled at some time in the
future, allowing for a change in status to permit payment of
permanent total disability benefits.
The State Fund contends, and we agree, that, only when a
person is unable to physically perform any employment are they
entitled to either temporary total disability benefits or permanent
total disability benefits under the MODA. Smart does not fit
within the definition of permanent total disability found in § 39-
71-116 (16), MCA, and made applicable to the MODA by § 39-72-701,
MCA, because Smart is physically able to perform other types of
employment. Section 39-71-116(16), MCA, provides in part:
(16) "Permanent total disability" means a condition
resulting from injury as defined in this chapter, after
a worker reaches maximum healing, in which a worker has
no reasonable prospect of physically performing regular
employment. Regular employment means work on a recurring
basis performed for remuneration in a trade, business,
profession, or other occupation in this state.
Contrary to Smart's contention that his "job pool" includes
only jobs in the field of photography, the State Fund argues that
Smart's 'Ijob pool" includes'all jobs that he is physically capable
of performing and that he is qualified for based on his age,
education and experience. The phrase "worker's job pool" is not
defined within the MODA, nor is it defined within the Workers'
Compensation Act. In attempting to determine the meaning of this
6
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phrase, the Workers' Compensation Court, in its order denying
Smart's Motion for Summary Judgment, looked to the plain meaning of
the statute, but found that, on its face, the term has no plain,
commonly understood meaning. The court found that the phrase is
ambiguous and resorted to looking at the legislative history of the
statute to determine the legislature's intent.
The only definition of "worker's job pool" that the Workers'
Compensation Court was able to find was in a portion of the
Workers' Compensation Act that was repealed by the Montana
Legislature in 1991. This statute provided, in part:
(a) "Worker's job pool" means those jobs typically
available for which a worker is qualified, consistent
with the worker's age, education, vocational experience
and aptitude and compatible with the worker's physical
capacities and limitations as the result of the worker's
injury. Lack of immediate job openings is not a factor
to be considered.
(b) A worker's job pool may be either local or
statewide, as follows:
(i) a local job is one either in a central city
that has within its ecdnomically integrated geographical
area a population of less than 50,000 or in a city with
a population of more than 50,000 as determined by the
division; or
(ii) a statewide job is one anywhere in the state of
Montana.
Section 39-71-1011(7), MCA (1987) (Repealed).
In its denial of Smart's Motion for Summary Judgment, the
Workers' Compensation Court adopted this definition of "worker's
job pool." Smart contends that the court erred in applying this
definition as the definition had been repealed in 1991. He argues
that the MODA should be applied in a manner most favorable to the
injured worker. In support of this proposition, Smart relies on §
7
39-72-104, MCA (1985) (Repealed) (requiring liberal construction in
the interpretation of any part of this chapter).
Ordinarily, legislative intent can be gleaned from the plain
meaning of the statute. Holly Sugar v. Department of Revenue
(1992), 252 Mont. 407, 412, 830 P.2d 76, 79.
If the language is clear and unambiguous, no further
interpretation is required, and we will resort to
legislative history only if legislative intent cannot be
determined from the plain wording of the statute.
Clarke v. Massey (19951, 271 Mont. 412, 416, 897 P.2d 1085, 1088
(citing Love11 v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 273,
285, 860 P.2d 95, 99). .
The term "worker's job pool" was inserted into both the
Workers Compensation Act and the MODA during the 1987 Montana
legislative session. In addition, the 1987 Legislature added the
definition of "worker's job pool" to the Workers' Compensation Act.
We agree with the State Fund and the Workers' Compensation Court
that the legislature intended that the same definition apply to
both acts since the legislature did not construct a different
definition of "worker's job pool" for the MODA.
In 1991, the Montana Legislature adopted new standards for
rehabilitation in the Workers' Compensation Act, repealing the
standards set forth in 1989. Along with the elimination of the
term "worker's job pool" in the Workers' Compensation Act, the 1991
Legislature repealed the definition of that term found in the
Workers' Compensation Act, but did not eliminate the term from the
MODA. Repeal of the definition of "worker's job pool" from the
Workers' Compensation Act does not mean that any other definition
8
was ever intended for this term by the legislature. It is
reasonable, as the State Fund and the Workers' Compensation Court
surmised, that the definition would remain the same.
Since the legislature's intention in using the phrase
"worker's job pool" cannot be determined from the plain meaning of
that phrase, we find no error in the Workers' Compensation Court
resorting to legislative history and adopting the definition of
this phrase set out at § 39-71-1011(7), MCA (1987) (Repealed). In
addition, we do not find persuasive Smart's contention that the
MODA should be applied in a manner most favorable to the injured
worker as the statute Smart cites for this proposition was repealed
by the 1987 Montana Legislature at the same time the phrase
"worker's job pool" was inserted into the MODA and the Workers'
Compensation Act.
Accordingly, we hold that the Workers' Compensation Court was
correct in concluding that Smart is not entitled to permanent total
disability benefits under the MODA since he is physically able to
perform other types of employment.
Affirmed.
We Concur:
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Linda M. Deola, Esq.
Reynolds, Mot1 & Sherwood
401 No.’ Last Chance Gulch
Helena, MT 59601
Daniel J. Whyte
State Compensation Ins. Fund
P.O. Box 4759
Helena, MT 59604-4759
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: mr
Deputy