Burglund v. Liberty Mutual Fire Ins

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