                                No. 89-555
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990



ANITA M. CONN,
                 Claimant and Respondent,
         -VS-

QUALITY INN, Employer,
       and
STATE COMPENSATION INSURANCE FUND,
                 Defendant and Appellant.




APPEAL FROM:     Workers' Compensation Court, The Honorable Timothy
                 Reardon, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Laurence Hubbard, State Comp. Ins. Fund, Helena, Montana
         For Respondent:
                 Julio K. Morales, Missoula, Montana


                                             -   -   -




                                    Submitted on Briefs: Jan. 25, 1990
                                     Decided:            February 22, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     The Montana     Department of Labor and    Industry, Workers1
Compensation Division, ruled that the statute of limitations barred
respondent Anita M.    Connts compensation claim.    The Workers1
Compensation Court reversed that decision, and her employer,
Quality Inn, and its insurer, the State Compensation Insurance
Fund, now appeal.    We affirm.
     The appellants raise the single issue of whether the Workers1
Compensation Court erred in holding that the claimant was entitled
to an extension of the statute of limitations under         39-71-
601(2), MCA   (1985), because she did not become aware of her
disability until she actually lost wages.
     Anita Conn suffered two injuries during her employment as a
maid at the Quality Inn in Missoula, Montana.     Sometime between
January and March of 1986, she tripped over a vacuum cleaner cord
injuring her back and hip.    On June 22, 1987, she tripped over a
bedspread injuring the same area.   Neither injury caused Conn to
miss work, but she suffered sporadic pain which increased following
the second injury.
     Shortly after the second injury, Conn sought medical help.
Her condition initially responded to treatment, but in the summer
of 1988, her work load escalated, and the pain returned with
greater severity. Although she was taking medication, Connls pain
continued to increase and eventually began to interfere with her
job performance.     In early November of 1988, Conn quit work on her
doctor's advice.
     On November 4, 1988, Conn filed a workers1 compensation claim
for the second accident, and on December 21 she filed for the first
accident.       Because Conn had not filed within the twelve-month
statute of limitations, she requested a waiver under 9 39-71-
601(2),   MCA    (1985), alleging that she was not aware of her
disability until her doctor advised her to quit work. The Division
disallowed the waiver reasoning that Conn knew that she was injured
and that the injury affected her job performance prior to the
running of the statute of limitations. The Workers1 Compensation
Court reversed the Division's determination holding that 'Idis-
ability,'' as referred to in the waiver provision, requires a loss
of earnings occasioned by the injury.
     We begin by setting out the applicable law.       The reviewing
court may reverse an agency's conclusions of law when they are an
abuse of discretion.       An abuse of discretion results when an
agency's interpretation of the law is clearly contrary to the
legislative intent.     Swan Corp. v. Department of Revenue (Mont.
1988), 755 P.2d 1388, 1390, 45 St.Rep. 998, 1000.         This Court
applies a de novo standard in reviewing the Workers1 Compensation
Court's interpretation of the law.      Wear v. Buttrey Foods Inc.
(Mont. 1988), 764 P.2d 139, 140, 45 St.Rep. 2063, 2064.     We agree
with the Workers1 Compensation Court that the present issue is the
proper definition of I1disabilityI1 used in
                                   as            §   39-71-601(2), MCA
(1985), a purely legal question.
     This case falls under the 1985 workers1 compensation statutes.
See Act approved April 14, 1987, ch. 464, 3 72(2), 1987 Mont. Laws
1092, 1129 (the 1987 revision of the workers' compensation statutes
applies to injuries occurring after June 30, 1987).       In the 1985
statute of   limitations   for workers'    compensation    claims the
legislature provided that:
          (1) In case of personal injury or death, all
          claims shall be forever barred unless pre-
          sented in writing to the employer, the in-
          surer, or the division, as the case may be,
          within 12 months from the date of the happen-
          ing of the accident, either by the claimant or
          someone legally authorized to act for him in
          his behalf.
          (2) The division may, upon a reasonable show-
          ing by the claimant of lack of knowledqe of
          disability, waive the time requirement up to
          an additional 24 months.
Section 39-71-601, MCA (1985) (emphasis added).
     The present question is, what did the legislature intend when
it used the term lldisabilityll 5
                              in          39-71-601(2), MCA    (1985)?
Legislative intent it determined by first looking to the plain
meaning of the statutes. Thiel v. Taurus Drilling Ltd. (1985), 218
Mont. 201, 205, 710 P.2d 33, 35.   The Workers' Compensation Court
appropriately looked to the legislature's statutory definition of
"disability."
          A worker is disabled when his ability to
          enqaqe in gainful employment is diminished as
          a result of impairment   ....   Disability is
          not a purely medical condition. Disability
          may be temporary total, permanent total, or
          permanent partial as defined in 39-71-116.
Section 39-71-121, MCA (1985) (emphasis added).
          "Temporary total disabilityff
                                      means a condition
          resulting from an injury as defined in this
          chapter that results in total loss of waqes
          ....
Section 39-17-116(19), MCA (1985) (emphasis added).
          "Permanent total disabilityff
                                      means a condition
          resulting from injury as defined in this
          chapter that results in loss of actual earn-
          inqs or earninq capability  ....
Section 39-71-116(13), MCA (1985) (emphasis added).
          "Permanent partial disability" means a condi-
          tion resulting from injury as defined in this
          chapter that results in the actual loss of
          earninqs or earninq capability  ..   ..
Section 39-71-116(12), MCA (1985) (emphasis added).       The plain
language of the statutes leaves no doubt that a disability occurs
only when the claimant suffers a loss in the ability to engage in
gainful employment. The definitive indicator of a loss in ability
is a loss in wages, present or future.
     Conn had no such loss until she quit work on her doctor's
advice. She knew that she had been injured on the job and that the
injuries affected her ability to work, but she continued to work
and earn undiminished wages.   She had no indication that she could
not continue to work, though with some inconvenience, until her
doctor advised her to quit in November of 1988. We agree with the
Workers1 Compensation Court that she had no knowledge of her
disability until that time and, therefore, is entitled to the
twenty-four month extension under 5 39-71-601(2), MCA (1985).
     The appellants argue that the Workerst Compensation Court
erred by not applying the three-part test adopted by this Court in
Bowerman v. Employment Security Commission, but we disagree.     In
Bowerman, we held that in workerst compensation cases of latent
injury, the statute of limitations in 5 39-71-601, MCA (1985) "does
not begin to run until the claimant, as a reasonable man, should
recognize the   (1) nature,   (2) seriousness and    (3) probable,
compensable character of his latent injury."   Bowerman (1983), 207
Mont. 314, 319, 673 P.2d 476, 479 (enumeration added).    The issue
presented to the Workerst Compensation Court involved only the last
element of the Bowerman test, the compensable nature of the injury.
See Dodd v. Champion Intertl. Corp. (Mont. 1989), 779 P.2d 901,
905, 46 St.Rep. 1649, 1654. The court correctly decided that issue
according to the plain meaning of the statute.    We will not hold
the Workerst Compensation Court in error for failing to ritualisti-
cally recite the elements of Bowerman.
     The respondent asks this Court to award attorney fees and costs
as authorized by 5 39-71-611, MCA (1985), and a twenty percent
increase in benefits as authorized by 5 39-71-2907, MCA (1985)    .
This request is premature and is denied.   Both statutes require a
finding that the claim is compensable.    But see Dodd, 779 P.2d at

905, 46 St.Rep. at 1654.   We hold only that the claim is not barred
by the statute of limitations and make no determination as to

whether Conn suffered a compensable injury.
     Affirmed.




We concur:




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