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Burgland v. Liberty Mutual Fire Ins. Co.11/21/1996
tions. 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 § 39-71-703, MCA (1983), and §§ 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 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 §§ 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 §§ 39-71-705 through -708, MCA (1983). A disability award under § 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 § 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 (1983), provides that weekly compensation benefits in the amount of 66-2/3 percent of the actual diminution in the worker's earning capacity shall be paid for an injury producing permanent partial disability. Permanent partial disabilit
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