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Burgland v. Liberty Mutual Fire Ins. Co.11/21/1996
red by the court to be a neutral factor. The Workers' Compensation Court 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 § 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.
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 §§ 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).
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 "possi
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