                                No. 87-455

                IN THE SUPREME COURT OF THE STATE OF MONTANA




ABIGAIL WILSON HOUTCHENS,
                 Claimant and Appellant,
         -vs-
STATE OF MONTANA, EMPLOYMENT SECURITY
DIVISION, Employer,
       and
STATE COMPENSATION INSURANCE FUND,
                 Defendant and Respondent.


APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
              Reardon, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 McChesney, Grenfell   &   Ogg; H. L. McChesney, Missoula,
                 Montana
         For Respondent:
                 Oliver H. Goe, Helena, Montana


                                    Submitted on Briefs:    April 21, 1988
                                       Decided:      May 17, 1988
     MAY 1 ? 1988
Filed.



                                                    .-
                                   Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
      Claimant Abigail Wilson Houtchens appeals from a July
14, 1987, decision of the Workers' Compensation Court finding
that Houtchens is not totally disabled and is not entitled to
total disability benefits. We affirm.
      Appellant Houtchens raises two issues for our review.
We have restated the issues as follows:
      1. Does substantial credible evidence support the
Workers' Compensation Court's finding that claimant failed to
prove an actual loss of earning capacity pursuant to
§ 39-71-703, MCA (1985)?
      2. Did the Workers' Compensation Court err when it
failed to award claimant indemnity benefits pursuant to
§§ 39-71-705 through -708, MCA (1985)?
      Claimant and appellant Abigail Houtchens is thirty-six
years old and the mother of two children. Claimant graduated
from high school and has since earned 54 college credits.
Previously, claimant was employed as a waitress, day-care
operator, real estate agent, retail store manager, telephone
operator, office manager, substitute teacher and as an opera-
tor of a school photography business.
      At the time of her injury, claimant was employed by the
State of Montana, Employment Security Division at the
Missoula Job Service.    Houtchens began her employment with
the Missoula Job Service in October 1984.        Claimant was
employed primarily as a switchboard operator with related
receptionist and light clerical duties.      Houtchens worked
five days a week, eight hours a day, and was paid $4.67 per
hour. The parties agree that claimant suffered a compensable
injury on November 1, 1984.
      Prior to her employment at the Missoula Job Service, in
April 1984, claimant suffered an injury while cross-country
skiing.   Following her injury claimant Houtchens developed
acute myofascial syndrome and suffered from tightness in her
neck and shoulder muscles.     Claimant was treated by Dr.
Donald R. Nevin in April 1984. Dr. Nevin testified by depo-
sition that claimant suffered "a muscular condition charac-
terized by tenderness with muscle spasm, localized areas of
pain called trigger points and frequently referred pain: that
is, pain which radiates beyond         the area of muscle
inflammation."
      On November 30, 1984, claimant was examined by a second
physician, Steven G. Powell. Dr. Powell noted that claimant
su"ffered from neck and shoulder pain. Dr. Powell concurred
with Dr. Nevin's diagnosis that Houtchens suffered from
myofascial syndrome which was aggravated by employment relat-
ed stress.     Dr. Powell's continued treatment of claimant
revealed that on January 20, 1986, she was suffering from
"non-specific chronic neck pain [with a] normal neurologic
examination."
      Following her November 1, 1984, injury, claimant con-
tinued to be treated by Dr. Nevin. Dr. Nevin prescribed that
claimant undergo physical therapy. Dr. Nevin also prescribed
various drugs including pain killers and anti-inflammatories.
Dr. Nevin testified that the mechanical requirements of
claimant's employment, coupled with her employment and domes-
tic stress, aggravated her injury.     As a result, in June
1985, Dr. Nevin advised claimant Houtchens to discontinue her
employment. On or about June 13, 1985, claimant voluntarily
left her employment with the Missoula Job Service.
      Claimant was then referred to Dr. Steven F. Johnson for
a neurological opinion. At that time, claimant was suffering
from pain and stiffness in her back.       Claimant was also
suffering from mental depression.      Dr. Johnson diagnosed
claimant's condition as cervical syndrome, ruling out a nerve
impingement syndrome.  Johnson recommended that      claimant
utilize a jackson cervical pillow and continue       physical
therapy.
       The State Compensation Insurance Fund paid   temporary
total disability compensation of $124.67 per week   beginning
August 9, 1985, and continuing through July 1986.   In Decem-
ber 1986, claimant received a lump sum based on a   5 percent
permanent partial impairment rating determined by   a medical
panel.
      On October 23, 1985, Dr. Nevin again examined claimant
and found her condition had improved with better flexibility
and a greater range of motion.     Nevin noted that claimant
"still has bad days where her upper back and neck muscles are
tight and uncomfortable." However, claimant was not experi-
encing headaches, had not needed physical therapy since June
1985 and was enrolled in an aerobics class. Dr. Nevin for-
warded a certificate of condition to the State Compensation
Insurance Fund (State Fund) stating that claimant could
return to work provided she could "avoid prolonged sitting,
working over a desk, typewriter, etc."
      On May 12, 1986, claimant Houtchens was admitted to St.
Patrick Hospital for evaluation by a medical panel composed
of the following physicians: Steven F. Johnson, M.D., Neurol-
ogist; David P. Jacobson, M.D., Orthopedist; Stanley G.
Moisey, Psychiatrist; and William J. Norman, M.D., Neurolo-
gist.   In its May 23, 1986, evaluation, the panel reported
that claimant suffered from a slight narrowing of a cervical
disc space between C-5 and C-6. The panel found that claim-
ant suffered a 5 percent whole person impairment. No surgi-
cal treatment was recommended nor was further study of
claimant's injury. Additionally, the panel found that claim-
ant suffered a psychiatric "adjustment disorder with mixed
emotional features   . . ."     The panel also found that
claimant's psychological disorder was not related to her
injury.   Accordingly, no impairment rating was established.

                Substantial Credible Evidence
      Claimant Houtchens contends that substantial credible
evidence does not support the Workers' Compensation Court's
decision denying claimant benefits under 5 39-71-703, MCA
(1985)? 1
      Previously, we held that this Court will not substitute
its judgment for that of the Workers' Compensation Court
concerning the credibility of the witnesses or the weight
given their testimony.     Jensen v. Argonaut Insurance Co.
(1978), 178 Mont. 59, 62, 582 P.2d 1191, 1193.      Where the
Workers' Compensation Court's decision is based on conflict-
ing evidence, our function of review is confined to determin-
ing whether there is substantial credible evidence supporting
the lower court's decision.     Shupert v. Anaconda Aluminum
Company (Mont. 1985), 696 P.2d 436, 439, 42 St.Rep. 277, 281.
However, when critical evidence is entered by deposition, we
are in "as good a position" as the Workers' Compensation
Court to judge the weight given to the deposition testimony.
Shupert, 696 P.2d at 439, 42 St.Rep. at 281.
      As mentioned earlier, Houtchens brought her claim for
benefits for her alleged actual loss of earning capacity
pursuant to S 39-71-703, MCA (1985). In Kuenning v. Big Sky
of Montana (Mont. 1988), 750 P.2d 1091, 1093, 45 St.Rep. 383,
385, we stated the general rule that the claimant bears the
burden of establishing her right to compensation, citing
Gierke v. Billings Gazette (Mont. 1986), 730 P.2d 1143, 1148,



1     Section 39-71-703, MCA, was extensively amended by the
      1987 Legislature.
43 St.Rep. 2322, 2329.   In order to prevail pursuant to
§ 39-71-703, MCA (1985), a claimant must show an actual
diminution in present earning capacity and such loss must be
measured on the open labor market.        Dunn v. Champion
International Corp. (Mont. 1986), 720 P.2d 1186, 1191, 43
St.Rep. 1124, 1129.
      Respondent's  vocational   rehabilitative specialist,
David P. Balak, provided unrebutted testimony concerning
claimant's post-injury earning capacity.     Balak testified
that he utilized the Vocational Diagnostic and Assessment of
Residual Employability (vDARE-test) when evaluating claimant
Houtchens. Balak stated that he considered claimant's prior
work history, physical status, subjective complaints, mental
status and transferable skills including aptitude, intelli-
gence, and verbal communication. Balak found that a number
of "actual" jobs including real estate sales agent, retail
store manager, department manager, administrative clerk,
teachers aide, residence leasing manager and restaurant
manager, etc., were available in the Missoula area. Further,
Balak concluded that claimant could expect to earn wages
commensurate with her pre-injury wages.
      In its May 23, 1986, report, the St. Patrick's Hospital
medical panel agreed with David Balak's assessment of claim-
ant when the panel reported that claimant is able to return
to work:
           [Claimant] has reached maximum healing.
           She may return to the labor market.
           There are no particular restrictions.
           No frequent, strenuous and vigorous use
           of the cervical spine is recommended.
           Certainly her age, previous experience,
           training, general physical condition and
           education should be such that numerous
           occupations would be available to her
           .   .   a
      Claimant attempted to rebut Balak's and the medical
panel's testimony stating that she suffered occasional
flare-ups due to self-employment in her ice cream shop. We
note claimant's testimony that since December 1986 she has
worked between eight and ten hours per day in the ice cream
shop.
      A review of the record reveals that substantial credi-
ble evidence supports the decision of the Workers' Compensa-
tion Court.    Respondent offered testimony that jobs are
available (1) at similar pay levels, (2) within claimant's
physical and psychological limitations, and (3) that the
available jobs are located within claimant's geographical
area.  Claimant clearly failed to carry her burden that her
actual earning capacity has been reduced.    Accordingly, we
agree with the Workers' Compensation Court that claimant has
not suffered a loss of actual earning capacity pursuant to
5 39-71-703, MCA (1985).

                     Indemnity Benefits
      Claimant admits that she incorrectly sought benefits
under 5 39-71-703, MCA      (1985).   Nevertheless, claimant
Houtchens argues that the Workers' Compensation Court erred
when it failed to award indemnity benefits pursuant to
55 39-71-705 through -708, MCA (1985).
      In Kuenning, we held:
           While claimant has not met his burden as
           to a -703 case, this does not preclude
           the possibility that claimant may be
           able, in the future, to demonstrate a
           loss of earning capacity. Claimant may
           also, if not now then in the future, be
           able to demonstrate a       [S$ 39-71-705
           through -708, MCA (1985)l case    ..    .
        Clearly,    claimant   may,   in   the   future,   present   an
argument before the Workers' Compensation Court that she is
entitled to indemnity benefits.
        Affirmed.




We concur:
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