                                 No. 8 9 - 3 7 7

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1989




JAMES A. QUINN, J R * ,
                 Claimant and Respondent,
         -VS-

BUILDERS TRANSPORT, INC.,
              Employer,
       and
EBI/ORION GROUP, INC.,
                 Defendant and Appellant.




APPEAL FROM:     The Workers' compensation Court, The Honorable
                 Timothy Reardon, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                 Kelly M. Wills; ~arlington,Lohn            &   ~obinson, iss sou la,
                 Montana
         For Respondent :
                  K.urt M. Jackson; Hoyt       &   Blewett, Great Falls, Montana



                                      submitted on ~ r i e f s : Nov. 2, 1 9 8 9
                                         Decided:        December 8 , 1 9 8 9
                                           D

Filed:
Justice ~ i l l i a mE. Hunt, Sr., delivered the Opinion of the
Court.


     Builders Transport and EBI/Orion Group, defendants and
appellants, appeal from the findings of fact and conclusions
of law and judgment of the Workers' Compensation Court which
found James Quinn, Jr., claimant and respondent, permanently
partially disabled and entitled to 500 weeks of benefits at
$143 per week with a lump sum advancement. We affirm.
     The following iss-uesare raised on appeal:
     1. Whether the Workers' compensation Co.urt based its
finding that claimant was incapable of maintaining fulltime
employment on substantial credible evidence.
     2. Whether the Workers' compensation Co-urt properly
calculated claimants' post-injury earning capacity.
     On January 5, 1985, Quinn sustained a herniated disc in
his lower back while attempting to shift the load on his
truck. At the time of the accident, he was working in the
course and scope of his employment as a truck driver for
Builders Transport. Q.uinn reached a medically       stable
condition in February of 1985.       Two months after his
accident, Quinn returned to Builders Transport to work as a
truck dispatcher. Quinn worked as a dispatcher for 15 months
but was terminated on ~ p r i l 18, 1986, due to chronic back
pain.
      ~ u i n nattended a pain clinics in Missoula, Montana, and
Portland, Oregon.        The Portland pain center released a
discharge summary on September 25, 1987, which stated that
Quinn would be unable to return to his former employment as a
truck driver.
      Defendants paid       Quinn temporary total disability
benefits and certain medical benefits until February 19,
1988. It then informed him that his benefits would be reduced
to permanent partial disability benefits at $143 per week.
     On October 19, 1988, a trial was conducted before the
Workers' compensation hearing examiner in Great Falls. The
hearing examiner found that Quinn's pre-injury earning
capacity was $8.53 per hour for 45 hours per week, that his
post-injury earning capacity was $6.55 per hour for a maximum
of 20 hours per week, and that he was incapable of fulltime
employment. ~ u i n n   was also found to be permanently partially
disabled under S 39-71-703, MCA.          On ~ p r i l 11, 1989, the
Worlcers' compensation judge entered an order adopting the
hearings examiner's findings of fact and conclusions of law
and entered judgment for 500 weeks of permanent partial
disability benefits at $143 per week. The court ordered that
Quinn receive a $15,553 lump sum advance on his compensation
benefits and that defendants be entitled to an appropriate
reduction.      ~ u i n n was also awarded reasonable costs and
attorney fees pursuant to S 39-71-612, MCA.
      On ~ p r i l28, 1989, defendants filed a motion with the
court to amend judgment or for an order granting a new trial
based on erroneous findings.         On June 13, 1989, the court
ordered that the motion be denied and found that the findings
and conclusions were not clearly erroneous as would be
required to grant the motion.          From the order defendants
appeal.
     The first issue defendants raise on appeal is whether
the Workers' compensation Court based its finding that ~ u i n n
was incapable of fulltime employment on substantial credible
evidence.
     Defendants correctly note that decisions of the Workers'
Compensation Court must be based on substantial credible
evidence.   Snyder v. San ~rancisco Feed and Grain (Mont.
1987), 748 P.2d 924, 929, 4 4 St.Rep. 2216, 2224.        This
Court's function, upon review of the Workers' Compensation
Court, is to determine whether such evidence exists to
support the court's findings of fact and concl~usionsof law.
Hartman v. Staley Continental (Mont. 1989), 768 P.2d 1380,
1384, 46 St.Rep. 248, 253.     However, this Court does not
determine whether there is sufficient evidence to support
contrary findings.    Davis v. Jones (1985), 216 Mont. 300,
303, 701 P.2d 351, 353. See Jones v. St. Regis Paper Company
(1981), 196 Mont. 138, 639 P.2d 1140; and Little v.
Structural Systems (1980), 188 Mont. 482, 614 P.2d 516.
     Here, the court found that ~ u i n n reached medical
stability in Febr.uary of 1985 at which time he returned to
work for Builders Transport as a truck dispatcher. He worked
as a dispatcher for 15 months but was terminated d.ue to
complications associated with chronic back pain.
     The medical evidence supports the concl.usion that Quinn
suffered a herniated disc in his lower back which resulted in
chronic pain. Quinn was initially treated for the injury by
an orthopedic surgeon who concluded that ~ u i n n did not
require surgery. He was then evaluated by the iss so-ula pain
clinic and also attended a pain center in Portland, Oregon.
At the Portland center, he was diagnosed as suffering from
chronic low back pain. Subsequently, ~ u i n nwas treated by a
general practitioner in Spokane, washington, who prescribed a
pain medication for his back.
     The court considered Quinn's physical impairment as well
as the factors set forth in Beck v. Flathead County (Mont.
1988), 749 P.2d 527, 45 St.Rep. 215, which included age,
occupational skills, education, previous health, remainina
number of productive years and degree of physical or mental
impairment.     In its findings, the court specifically noted
that ~ u i n nwas 46 years old at the time of the trial; that
his   employment history   for   the   past   22   years   had   been
primarily in the trucking business, including 15 months as a
truck dispatcher; that he had a high school education; and
that upon his release from the Portland pain center, he was
diagnosed as suffering from chronic low back pain. The court
also noted that Quinn attempted to return to fulltime
employment as a dispatcher but was unable to do so because of
chronic back pain.    The Workers' Compensation Court found,
that, upon review of the evidence, Quinn's earning capacity
was reduced to that of a part-time truck dispatcher as a
result of his injury. Based on the foregoing, the Workers'
Compensation Court's finding that Quinn was incapable of
fulltime employment was based on substantial credible
evidence.
     Defendants also raise the issue of whether the Workers'
Compensation Court properly calculated Quinn's post-injury
earning capacity.
     On October 19, 1988, a trial was conducted by the
Workers' Compensation hearing examiner who found that Quinn's
pre-injury earning capacity was $8.53 per hour for 45 hours
per week and that his post-injury earning capacity was $6.55
per hour for a maximum of 20 hours per week. Based on his
loss of earning capacity, Quinn was awarded $143 per week for
500 weeks pursuant to 5 39-71-703, MCA.         Defendants argue
that the court ignored evidence that Quinn's earning capacity
ranged from $6.25 to $11.45 per hour as a dispatcher and from
$7.50 to $9.36 as a clerical worker and, thus, inflated the
sum due Quinn. We disagree.
     Loss of earning capacity has been defined as, "a loss of
ability to earn in the open labor market." Beck, 749 P.2d at
529. See also Hurley v. ~ u p u i s (Mont. 1988), 759 P.2d 996,
45 St.Rep. 1457.
     Here, Quinn testified that in 1984, the last full year
of his employment, he earned $14,378.27 for nine months of
work.   Based on a 4 5 hour work week, Quinn averaged $ 8 . 5 3 per
hour.    The figures were substantiated by Quinn's 1984 W-2
form and the testimony of a vocational expert.       When working
as a truck dispatcher, Quinn averaged $ 6 . 5 5 per hour.
     Nonetheless, the difference between pre-injury and
post-injury wages are but one factor to consider when
determining earning capacity.     As discussed earlier, the
factors of age, occupational skills, education, previous
health, remaining number of productive years, and degree of
physical or mental impairment must be considered. Beck, 749
P.2d at 5 2 9 .  The Workers' Compensation Court considered
those factors and emphasized the fact that although Quinn was
actively seeking employment, he was unsuccessful because of
his physical limitations due to chronic back pain. The court
properly calculated Quinn's post-injury earning capacity.
     Affirmed.
