                              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




  -
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
