Carroll v. Wells Fargo Armored Service Corp. , 245 Mont. 495 ( 1990 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
LAINE P. CARROLL,
Claimant and Respondent,
WELLS FARGO ARMORED SERVICE
CORPORATION,
Employer,
and
CNA INSURANCE COMPANY,
Defendant and Appellant.
APPEAL FROM: The Workerst compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones; Garlington, Lohn & Robinson,
Missoula, Montana
For Respondent:
Erik B. Thueson, Thueson Law office, Helena, Montana
Submitted on Briefs: November 1, 1990
~ecided: December 11, 1990
Filed: 5
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the Workers' Compensation Court of the
State of Montana. We affirm.
The issues presented by appellant are:
1. Whether the Workers' Compensation Court exceeded its
jurisdiction on remand by increasing claimant's disability award
under 8 8 39-71-705, -708, MCA (1985), from 35% to 60%.
2. Whether the Workers' Compensation Court failed to follow
this Court's instructions on remand when it failed to assign a
disability percentage to each of the disability factors it
considered.
3. Whether there is substantial evidence to support the lower
court's disability award.
On June 25, 1987, claimant, Laine P. Carroll, filed his
Petition for Hearing in the lower court in which he alleged the
appellants, Wells Fargo Armored Services Corporation and CNA
Insurance Company, owed certain benefits in excess of those
offered. Following a hearing, the lower court, on October 28,
1988, filed its order in which it entitled claimant to a 35%
permanent partial disability award. Claimant appealed the Workers'
Compensation Court's final decision. In Carroll v. Wells Fargo
(1989), 240 Mont. 151, 783 P.2d 387, we reversed in part, affirmed
in part and remanded this case to the Workers' Compensation Court.
Our particular instructions on remand governing the permanent
partial disability award, which this appeal focuses on, were as
follows:
Because the court only discussed the
claimant's actual wage loss and failed to
discuss any of the other criteria, we hold
that the court's decision is not supported by
substantial evidence.
A review of the cases decided under § § 39-71-
705, -708, MCA (1985), reveal in all some
discussion of the necessary factors.
We vacate the Workers' Compensation Court's
award under § § 39-71-705, -708, MCA (1985),
and remand to the Workerst Compensation Court
for a redetermination of benefits consistent
with the requirements of 8 8 39-71-705, -708,
MCA (1985).
Carroll at 154-55, 783 P.2d at 390.
On remand, after the parties submitted briefs, the Workerst
Compensation Court held claimant was entitled to a 60% disability
award. From the lower court's order on remand, appellant takes
this appeal. No additional facts were admitted in the record on
remand and so a complete discussion of all material facts can be
found in Carroll at 153, 783 P.2d at 389.
The first issue is whether the court exceeded its jurisdiction
on remand by increasing Carroll's disability award from 35% to 60%.
Appellant argues that our holding in Carroll was intended to
require the court, on remand, to only discuss the factors it
previously considered in determining the prior 35% disability
award. Appellant further argues that our holding in Carroll was
not meant to allow the court to redetermine the disability award
based on this new discussion. In Carroll at 154-55, 783 P.2d at
390, we held that the court's 35% disability award was not
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supported by substantial evidence and remanded the cause to the
Workerst Compensation Court for a redetermination of benefits
consistent with the requirements of 5 5 39-71-705, -708, MCA (1985).
On remand the court followed these instructions, redetermined
claimantts benefits and calculated a 60% disability award.
Appellant has misinterpreted our plain and unambiguous holding
in Carroll. Our instructions to the Workers' Compensation Court,
without a doubt, was to redetermine benefits consistent with the
cases decided under 5 5 39-71-705, -708, MCA (1985) which require
a discussion of certain necessary factors. The Workers'
Compensation Court properly followed our instructions on remand and
we, therefore, hold that the court did not exceed its jurisdiction
on remand by increasing Carrolltsdisability award from 35% to 60%.
Next, we must determine whether the court failed to follow
instructions on remand by not assigning a disability percentage to
each disability factor it considered when making the disability
award.
Appellant argues that we instructed the lower court on remand
to quantify in percentages the weight given to each permanent
partial disability factor and include a discussion of how each
specific percentage was reached. Appellant contends that it would
be impossible for this Court to give a meaningful review of the
lower courtts permanent partial disability award without such
quantification. We disagree.
Appellant would have us believe that workers' compensation law
is a particular system or branch of physics, complete with forces
analogous to friction, gravity and momentum, statutory laws like
those of Newton and ~rchimedes,all interwoven in a calculus mesh
of case law. To be sure, workers' compensation law is a social
science which necessarily includes human factors and to break
workers' compensation law down into separate percentages would
simply deny this fact. Once again, our instructions on remand were
plain and unambiguous leaving no room whatsoever for appellant's
erroneous interpretation.
After reading our instructions on remand, the Workers1
Compensation Court entered its order and gave its rationale for
refusing to reduce its disability award to numbers.
We have intentionally avoided trying to
quantify in percentages the considerations
given to the above permanent partial
disability factors. The reasons for not doing
so are that there is no precedent, either in
statute or case law as to how such
quantification might be done and secondly,
assessing mathematical precision to the
individual characteristics of each injured
worker would inevitably provide llwindfalls'tto
some and punitively low awards to others.
While formulas, per se, have a certain
attraction of simplicity and speed, they
negate the flexibility of dealing with each
case as a person, not a mathematical
component. To be sure, it is something of an
inexact science, but is nonetheless more in
keeping with the "earning capacity''
considerations of the statutes. We do not
think it inappropriate to consider certain
mathematical considerations that might apply
in terms of dollars per hour wages, pre- and
post-injury, or percent of labor market pre-
and post-injury, but we decline to make such
numbers absolute for the reasons noted.
We hold that the Workers' Compensation Court did not fail to
follow our instructions on remand.
The last issue is whether the court's 60% disability award is
supported by substantial evidence. In determining claimant's
disability under 8 8 39-71-705, -708, MCA (1985), the court must
consider the claimant's age, education, work experience, pain and
disability, actual wage loss, and loss of future earning capacity.
Holton v. F. H. Stoltze Land and Lumber Co. (1981), 195 Mont. 263,
266, 637 P.2d 10, 12. The record shows that the court properly
considered and discussed all the required factors in determining
claimant's 60% disability award under 8 8 39-71-705, -708, MCA
(1985).
It is well established that permanent partial disability
benefits under 8 8 39-71-705, -708, MCA (1985), indemnify the
claimant for possible loss of future earning capacity. McDanold
v. B.N. Transport, Inc. (1984), 208 Mont. 470, 476, 679 P.2d 1188,
1191. The court, in its Order on Remand, discussed all the
required disability factors and it was apparent from this
discussion that the court properly regarded claimant's "earning
capacity impairment1' as the primary concern in calculating the
permanent partial disability award under 8 8 39-71-705, -708, MCA
(1985).
In its Order on Remand, the court analyzed actual wage loss.
The court stated that although claimant's actual wage loss was
approximately 35% "his likely wage loss is more than 35 percent.I1
The court also considered how claimant's limited work experience
might adversely impact his future earning capacity:
At the time oS the injury, claimant was
earning $5.35 per hour and the entry-level pay
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for the light-duty jobs [which] he is now
capable of earning [is] the minimum wage of
$3.80 to $4.50 per hour. This Court concludes
that with his work experience limited to heavy
labor jobs he can no longer perform, his
possible future earning capacity will be
decreased substantially.
The court also noted that the economic impact of one's
injuries can be reduced by one's learning skills and education.
ttUnfortunately,
the claimant has a limited education and learning
skills ... It which translates to an adverse impact on his future
earning capacity. The court next analyzed how age was pertinent
to possible future loss of earning capacity:
[Tlhe longer the person is on the labor market
the more economic losses he will suffer, all
other factors being equal. However, a younger
individual who can be retrained or has
transferable skills will be able to ameliorate
some of his post-injury earning losses in the
long run through additional training.
The court concluded that claimant's future loss of earning capacity
would substantially increase for his remaining 35 years of expected
employment. The court based this conclusion on the fact that
claimant was approximately thirty years old with limited
transferable skills.
As for pain and disability, the court noted how these factors
would affect claimant's future loss of earning capacity:
[A] man who is injured has limited physical
abilities and will have a harder time
competing than an uninjured individual. He
may have difficulty in retaining employment in
bad times, or in getting new employment, if he
has an occasion to change jobs.
The court then considered the facts that (1) claimant's injury was
to his low back; (2) this injury caused claimant continual pain;
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(3) this pain removed him from employment in heavy to medium-labor
positions; (4) claimant cannot lift more than twenty-five pounds;
(5) he cannot remain in any one position for any appreciable length
of time; and (6) must avoid twisting, bending and repetitive
lifting activities. Based on these facts and considerations the
court concluded that "claimant's continuing pain will make his
future loss of earning capacity substantial."
The record shows that the court separately considered and
discussed each disability factor in making its disability award.
The court discussed how each factor, as a function of the facts
specific to claimant's situation, impacted claimant's earning
capacity. The court, based on this discussion, concluded that each
and every disability factor had an overall negative impact on
claimant's future loss of earning capacity and awarded claimant a
60% disability rating. We find no error. We hold that substantial
evidence supports the court's 60% permanent partial disability
award.
The last matter concerns attorney's fees. In Carroll at 157,
783 P.2d at 391, we remanded this cause to the lower court for a
proper determination of claimant's attorney's fees under 5 39-71-
611, MCA (1985), after finding that appellant denied claimant
compensation. However, appellant filed its notice of appeal to
this Court before the lower court on remand ruled on costs and
appropriate attorney's fees. As such, we again remand to the
Workers' Compensation Court for a determination of costs and
attorney's fees, including those incurred on appeal, in accordance
with this opinion and its prior companion opinion.
The Workers1 Compensation Court in all other respects is
affirmed.
CdPM..
Justice
We concur:
?f Justice / / '
Justice Fred J. Weber specially concurs as follows:
I can understand the confusion on the part of the appellants
in this case. In rereading Carroll v. Wells Fargo (1989), 240
Mont. 151, 783 P.2d 387, the basic question appeared to be whether
or not there was an appropriate justification for the 35% permanent
partial disability award. There was nothing to indicate at that
time that such award might not be high enough. The concern
expressed was whether or not all of the appropriate factors had
been considered. It was not unreasonable for the appellants to
assume that the issue was whether or not the 35% was properly
justified.
As pointed out in the majority opinion, the Workers'
Compensation Court reviewed all of the appropriate factors and then
awarded an increased 60% permanent partial disability award. Under
these circumstances, our power of review is quite limited. I
therefore accept the affirming of the 60% award.
However, I believe the Workerst Compensation Court failed to
properly consider the fundamental issue before it. When studying
the two opinions, it is not possible to determine why the original
award was 35% and the next 60%, all on the same facts. If the
Workerst Compensation Court failed to consider certain factors and
as a result concluded that an increase was appropriate, it should
have so stated. As it is, it is in some degree contradictory to
go through the same factors which previously should have been
considered, and come out with an entirely different award without
any explanation of the reason for the distinction. I would have
preferred a remand to the Workers' Compensation Court for an
explanation of the distinctions between the two awards.