                             NO.    91-192

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1991



ALLEN STUKER,
           Claimant and Appellant,
    V.

STUKER RANCH,
           Employer and Respondent,              BE'c    6 sg
                                                            sy
     and
STATE COMPENSATION MUTUAL
INSURANCE FUND,
           Insurer and Respondent.



APPEAL FROM:    Worker's Compensation Court,
                The Honorable Timothy W. Reardon, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Donald R.    Marble:      Marble Law Office, Chester,
                Montana
           For Respondent:
                Darcy M. Crum; James, Gray        &   Mccafferty, Great
                Falls, Montana


                              Submitted on Briefs: October       24,   1991
                                              Decided:   December 6, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

     Claimant Allen Stuker (Stuker) appeals from an order and judgment
of the Montana Workers' Compensation Court. The Workers' Compensation
Court adopted the findings of fact and conclusions of law of the
hearings examiner who deemed Stuker "partially permanently disabled"
due to a torn biceps muscle. The court awarded Stuker $122.74 per
week for 75 weeks under 5 5 39-71-705 through -708, MCA (1985), along
with attorney's fees.   We affirm.
     We restate the issues presented by the claimant into a single
issue: whether the Workers' Compensation Court erred in its findings
of fact and conclusions of law.
     Stuker is a thirty-six-year-old male who graduated from Havre
High School in 1972 and did not pursue additional schooling. He worked
short term jobs before entering the Army including in a bakery as
a helper, and in a department store as a custodian. In the Army he
drove a truck with a special military driver's license. He remained
in the Army until 1976 and then returned to Havre. He worked a series
of short term, often part time jobs including: driving a grain truck,
serving customers as a clerk in a grocery store and filling orders
for a company that distributed products such as potato chips.      He
also worked as a tire repairman for approximately ten months before
being laid off.   Stuker then became involved in various types of
seasonal work including roofing houses and helping on his relatives'
ranches. The roofing operation began in 1980 when he submitted roofing
bids to general contractors. In addition to roofing, Stuker began
working for his uncle on the Stuker Ranch each year during March and
                                  2
A p r i l , b e g i n n i n g i n 1983.
        I n March 1986 w h i l e working f o r h i s u n c l e on t h e S t u k e r Ranch,

S t u k e r began t o e x p e r i e n c e p a i n i n h i s r i g h t s h o u l d e r a f t e r l i f t i n g

hay b a l e s b u t c o n t i n u e d w o r k i n g anyway.           I n e a r l y A p r i 1 , 1986, w h i l e

l i f t i n g an i r r i g a t i o n t a r p , Stuker f e l t i n s t a n t pain i n the biceps

muscle r e g i o n o f h i s r i g h t a r m .         S t u k e r t h o u g h t h e had h y p e r e x t e n d e d

h i s arm: h e t r e a t e d it w i t h a h e a t i n g pad, and c o n t i n u e d t o work u n t i l

A p r i l 1 7 , 1986, t h e end of c a l v i n g s e a s o n .              Stuker s a w D r . Kelly i n

l a t e A p r i l about t h e injury: D r . Kelly consulted w i t h D r . Luettjohann
who d i a g n o s e d S t u k e r ' s problem a s a t o r n b i c e p s muscle.                           Stuker

c o n t i n u e d t o see D r . L u e t t j o h a n n i n 1 9 8 6 . A s u b s e q u e n t v i s i t i n 1987

and e x p l o r a t o r y s u r g e r y i n J a n u a r y 1987, r e v e a l e d t h a t s t u k e r s u s t a i n e d

a r u p t u r e d biceps muscle.

         I n February           1987,       S t u k e r worked         f o r two d i f f e r e n t u n c l e s

performing r a n c h i n g d u t i e s .         D r . Luettjohannhad advisedhimhe could

r e t u r n t o w o r k d e p e n d i n g o n h i s comfort level. Accordingly, heworked

f o r t h e S t u k e r Ranch i n March and A p r i l 1987 d o i n g t h e n i g h t check

on c a t t l e .    H e r e h e m o n i t o r e d t h e c a t t l e h e r d and a s s i s t e d w i t h t h e

b i r t h i n g of c a l v e s .     L a t e r h e worked f o r h i s u n c l e I r a Hammond f o r

t h r e e o r fourweeks doing d r y farming. Stukerplowed f i e l d s , p l a n t e d

g r a i n and d r o v e a t r u c k and t r a c t o r .            I n b o t h 1988 and 1989 S t u k e r

a g a i n w o r k e d f o r I r a Hammond f r o m J a n u a r y t o May. S t u k e r a l s o engaged

i n s o f t b a l l and f i s h i n g a c t i v i t i e s t h r o u g h o u t t h e y e a r s .    Stuker did

n o t a p p l y f o r any j o b s o t h e r t h a n farm j o b s w i t h h i s r e l a t i v e s .               He

s t a t e d t h a t h e p r e f e r r e d t o work f o r h i s r e l a t i v e s .                The r e c o r d

i n d i c a t e s t h e f o l l o w i n g income r e p o r t e d on S t u k e r ' s t a x r e t u r n s :


                                                         3
     Year        Income from Roofinq            Total income
     1980             $337.00                   $1.376.00
     1981             $378.00                   $ .404.00
     1982             none                      none
     1983             $860.00                   $1,511.00
     1984             $737.00                   $1,683.00
     1985             $441.00                   $1,373.00

Stuker claims that as a result of the injury, he cannot lift more
than twenty pounds on a consistent basis, and that he experiences
headaches and numbness in his arm and fingers.
     AWorkers' Compensation claimant can choose between two different
types of awards. Walker v. Johnson (1978), 180 Mont. 405, 411, 591
P.2d 181, 184.    According to the statutory scheme of 1985, Stuker
could pursue a loss of earning capacity disability award under   §   39-71-

703, MCA (1985), orhecouldpursue an indemnityawardunder § § 39-71-

705 through -708.    A disability award is based on the "actual loss
of earning capacity resulting from the injury" whereas an indemnity
benefit awards compensation for "possible loss of earning capacity
in the future."     McAlear v. McKee (1976), 171 Mont. 462, 467, 558
P.2d 1134, 1137; citing Jones v. Glac. General Assurance Co. (1965),
145 Mont. 326, 400 P.2d 888.    An indemnity benefit is "compensation
regardless of earnings to compensate for possible loss of earning
capacity in the future." McAlear, 171 Mont. at 467, 558 P.2d at 1137;
citing Jones, 145 Mont. 326, 400 P.2d 888.
     Stuker elected to pursue an indemnity award under    §§   39-71-705

through-708, MCA (1985). Section 39-71-706, MCA (1985), "[plrovides
for applying the percentage of disability in determining the number
of weeks of compensation under the indemnitv alternative, where injury
is less than total loss of a scheduled member, or where the injury

                                   4
is a 'whole man         injury not scheduled.              McDanold v. B. N. Transport,
Inc. (1984), 208 Mont. 470, 478, 679 P.2d 1188, 1192.                                This means
that the permanent partial disability percentage is multiplied by
the 500 week maximum to arrive at the number of weeks of payments.
In the case at bar, the court arrived at a 15% disability percentage.
Stuker elected to proceed under              §§   39-71-705 through -708, MCA (1985),

and since Stuker's injury is not among those specifically listed in
5 39-71-705, MCA (1985), which imposes durational limitations, the
correct calculation is as follows: 15% x 500 = 75 weeks. In the case
at bar, the Workers' Compensation Court used the proper method to
calculate the duration of Mr. Stuker's award.
       The record indicates that in arriving at the 15% disability
percentage the court considered the testimony of the experts, the
claimant's ''age, education, work experience, pain and disability,
actual wage loss, and the loss of future earning capacity." Hartman
v. National Union Fire Insurance (1989), 236 Mont. 141, 145, 768 P.2d
1380, 1383; citing Flake              v. Aetna (1977), 175 Mont. 127,                    129, 572

P.2d 907, 909. T h e c o u r t s p e c i f i c a l l y a d d r e s s e d e a c h o f t h e s e factors
as evidenced by its own statement in its Findings of Fact and
Conclusions of Law:
       In calculating a permanent partial disability award under
       Section 39-71-705 through -708, MCA, this Court has
       considered the following factors in determining the
       claimant's loss of earning capacity under that section.
       These factors include consideration ofthe actual wage loss,
       work experience, education, age, pain, and the 12 percent
       impairment rating of the whole person assigned by his
       treating physician.
       Accordingly, thehearings examiner addressed Stuker's past work
history and indicated that his pre-injury work record was extremely
                                                  5
limited. This factmade it more difficult to establish the impairment
of Stuker's earning capacity andwas adequately discussed. The court
correctly refused to speculate what Stuker's wages would have been
hadhe actively soughtemployment,especiallywhenthe record indicates
that Stuker's work efforts were minimal. Stuker's post-injury earning
capacity indicates that he will earn more than he did in any of the
five years prior to his injury.
        The court also considered Dr. Luettjohann's 12% impairment rating
to the whole man based on the injury to Stuker's right arm and the
pain involved when exceeding his lifting capacity.                                              The court
acknowledged that Stuker cannot perform heavy labor but has                                          'I[   f 3 ive
approved occupations he can perform in his labor market." The court
stated that exceeding Stuker's lifting capacity will cause him to
experience pain which lasts thirty minutes or less. In total, the
court made a finding that Stuker Itisnot suffering from such pain
or disability that would reduce his earnings in the occupations
approved as being within his physical capacity." Finally, the court
notes that Stuker is a young man of thirty-six and can obtain
additional training by his own choice.
        On appeal, we will not overturn the findings of fact of the
Workers' C o m p e n s a t i o n C o u r t i f t h e r e i s s u b s t a n t i a l c r e d i b l e e v i d e n c e
to support them in the record.                              Grenz v. Fire and Casualty of
Connecticut (Mont. 1991), - P.2d                             -,      -,       48 St.Rep. 967, 969;

citing Kraft v. Flathead Valley Labor & Contr. (1990), 243 Mont. 363,
365,      792    P.2d      1094,       1095.         The Workers' Compensation Court's
conclusions of law will be upheld if the tribunal's interpretation

                                                        6
of the law is correct. Grenz, __ P.2d at    -,   48 St.Rep. at 969;
citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474,
803 P.2d 601, 603. Clearly in the case at bar, the court supported
its findings of fact with substantial credible evidence and it made
correct conclusions of law. Therefore, wewill not disturb the court's
ruling   .
     Af finned.




We concur:        /




                                  7
                                        December 6 , 1991

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Donald R. Marble
MARBLE LAW OFFICE
P.O. Box 649
Chester, MT 59522

Darcy M. Crum
James, Gray & McCafferty
P.O. Box 2885
Great Falls, MT 59403-2885

                                                    ED SMITH
                                                    CLERK OF THE SUPREME COURT
                                                    STATE OF MONTANA
