                                 No. 86-343
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987


MICHAEL HOMME I
                  Claimant and Appellant,
       -vs-
RAUENHORST CORPORATION,      Employer,
       and

CONTINENTAL CASUALTY COMPANY,
                  Defendant and Respondent.


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

COUNSEL OF RECORD:
       For Appellant:
                  Kelleher Law Office; Robert C. Kelleher, Billings,
                  Montana
       For Respondent:
                  Garlington, Lohn & Robinson; Bradley J. Luck,
                  Missoula, Montana


                                    Submitted on Briefs: March 12, 1987
                                      Decided:   July 28, 1987
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     The Workers' Compensation Court found claimant to be
permanently partially disabled and not entitled to temporary
total disability benefits while he was being retrained.
Claimant appealed. We affirm.
     The determinative issue is whether the Workers' Compen-
sation Court erred in deciding claimant was not entitled to
be paid continued temporary total disability benefits under
S 39-71-116(19), MCA, while he was in college being
retrained.
     Claimant was employed as a construction laborer by
Rauenhorst Corporation when a 3/8" drill fell approximately
85 feet from a building and landed in the middle of his back,
fracturing a vertebra in the thoracic area of his back.
Rauenhorst's insurer, Continental Casualty Company, accepted
liability and paid medical benefits and temporary total
disability benefits.    Claimant is now receiving permanent
partial benefits, but would like to begin receiving temporary
total benefits again while he is being retrained.
     Six days after the accident, claimant went to a hospital
emergency room, where x-rays were taken. After this initial
examination claimant was seen several times by Dr. Richard A.
Nelson, a neurologist. Dr. Nelson last physically examined
claimant on July 31, 1984.      Dr. Nelson diagnosed central
injuries to the vertebra and/or to the disk, a fracture of
the spinous process at T-10, and a small bony density that
was thought to be causing a slight encroachment upon the
thecal sac.     The thecal sac consists of strong fibrous
sheaths which enclose the canal of the vertebra column. Dr.
Nelson also said there was some innervation of the stomach
muscles which would lead to some lifting restrictions.
     Of central importance to this case, Dr. Nelson stated in
his deposition that the claimant had reached maximum healing
with regard to the tissues which had been fractured and that
he had no argument with a three percent impairment rating
being assigned to claimant.     However, Dr. Nelson did not
believe claimant should go back to his old job as a laborer
because of the possibility of reinjuring his back.        Dr.
Nelson also recommended that a nuclear magnetic resonance
(NMR) be done to determine if claimant could be helped by
surgery. The NMR would have had to be performed somewhere
outside of Montana.
     Claimant also saw Dr. Henry H. Gary, a neurosurgeon,
and Dr. Robert A. Sterling, an orthopedist, on February 11,
1986, almost a year and a half after Dr. Nelson's last exami-
nation. Dr. Gary and Dr. Sterling found that claimant suf-
fered from a fracture of the spinous process, but did not
believe the encroachment upon the thecal sac was causing
claimant any pain.   Neither Dr. Gary nor Dr. Sterling gave
any credence to Dr. Nelson's innervation theory.     Both Dr.
Gary and Dr. Sterling agreed that claimant had reached full
recovery as far as maximum healing was concerned and neither
recommended further treatment.
     The Workers' Compensation Court found that:

    Given the differing medical opinions reached by Dr.
    Nelson on the one hand and by Drs. Gary and Ster-
    ling on the other, it is not surprising to find
    that there is also a degree of disagreement as to
    whether claimant has reached maximum healing.
This issue of whether claimant had reached maximum healing is
central to whether he is entitled to temporary total disabil-
ity benefits.
     Dr. Nelson declined to issue an impairment rating.
However, Dr. Gary and Dr. Sterling concluded that claimant
had reached maximum healing.      Dr. Nelson listed several
restrictions on claimant's physical activities, including no
climbing, only intermittent carrying of light weights, and
limited walking.    In contrast, Dr. Gary and Dr. Sterling
released claimant to return to his previous employment with-
out restriction.
     Because of his back problems, claimant contacted the
Social and Rehabilitation Services (SRS) whose services are
offered to anyone with a vocational handicap. The SRS spon-
sored claimant and agreed to pay claimant's tuition of $323
per quarter to attend Eastern Montana College as long as
claimant maintains a 2.0 GPA.    Claimant's counselor at SRS
testified Mr. Homrne would have also been suitable for
on-the-job training and would currently qualify for some
positions which would not require any retraining.
     Based upon the above outlined medical evidence, injury,
and vocational potential, the Workers' Compensation Court
concluded that the claimant was not entitled to temporary
total disability benefits under 5 39-71-116 (19), MCA, while
he was in college. Claimant appealed.
     The issue is whether the Workers' Compensation Court
erred in deciding claimant was not entitled to be paid con-
tinued    temporary   total    disability   benefits   under
5 39-71-116(19), MCA, while he was in college being
retrained.
     The standard of review we will use in this case is well
settled:

    The function of this Court is to determine whether
    there is substantial evidence to support the find-
    ings and conclusions of the Workers' Compensation
    Court  . . .   This Court will not substitute its
    judgment for that of the trial court as to the
    weight of the evidence on questions of fact  . . .
    Where there is substantial evidence to support the
     findings of the Workers ' Compensation Court, this
     Court will not overturn the decision ...
Tocco v. City of Great Falls (Mont. 1986), 714 P.2d 160, 163,
43 St.Rep. 310, 314, citing Bond v. St.       egis Paper Co.
(1977), 174 Mont. 417, 419, 571 P.2d 372, 373.
     Claimant was injured on June 22, 1984. On that date,
the definition of temporary total disability found at
$ 39-71-116 (19), MCA (1983), provided:


    "Temporary total disability" means a condition
    resulting from an injury as defined in this chapter
    that results in total loss of wages and exists
    until the injured worker is as far restored as the
    permanent character of the injuries will permit.
    Disability shall be supported by a preponderance of
    medical evidence.
Although $ 39-71-116(19), MCA (1983), was amended effective
October 1, 1985, we will not consider the amended statute
since this Court has held that the statute in effect on the
date of claimant's injury controls.      Buckman v. Montana
Deaconess Hospital (Mont. 1986), 730 P.2d 380, 43 St.Rep.
2216.   Because amended $ 39-71-116(19), MCA, provides that
"[a] worker shall be paid temporary total disability benefits
during a reasonable period of retraining", we emphasize that
this holding does not apply to cases determined under the
statute as amended in 1985.
     We will first discuss the implicit determination by the
Workers' Compensation Court that the claimant was not enti-
tled to permanent total disability benefits while attending
college. The Court considered the two-factor test contained
in Metzger v. CKernetron Corporation (Mont. 1984), 687 P.2d
1033, 41 St.Rep. 1788, and concluded that the claimant had
"failed to carry his burden of proving [that] he is so voca-
tionally disabled because of his injury that he has no rea-
sonable prospect of finding employment in his normal labor
market."   The two-factor Metzger test requires claimant to
introduce substantial credible evidence of:     (1) the jobs
which constitute his normal labor market; and (2) a complete
inability to perform the duties associated with those jobs
because of his work-related injury. The court concluded that
the claimant had failed to introduce substantial credible
evidence showing that he was unable to perform the duties
associated with his employment because of his work-related
injury. We will discuss the evidence in more detail later,
but conclude that the substantial credible evidence supports
the holding of the Workers' Compensation Court that claimant
had a normal labor market, even absent retraining. We affirm
the conclusion of the court that claimant was not entitled to
permanent total disability benefits.
     In order for claimant to receive temporary total dis-
ability benefits under the 1983 statute he must prove that
his injury has resulted in a "total loss of wages" and his
condition still exists because he is not "as far restored as
the permanent character of the injuries will permit. " Sec-
                              .
tion 39-71-116 (19), MCA (1983)
     Therefore, we will view the Workers1 Compensation Court
findings of fact, conclusions of law, and judgment with an
eye towards determining whether:      (1) Mr. Homme1s injury
resulted in his total loss of wages; and (2) whether his
injury is as far restored as the permanent character of the
injury will permit.    Taking the second question first, the
lower court determined that:

     Claimant has reached maximum healing, and is "as
     far restored as the permanent character of the
     injury will permit."   Medically, claimant does not
     satisfy the statutory requirements for being tempo-
     rarily totally disabled.
     This conclusion was reached after a careful discussion
by the Workers' Compensation Court of the medical testimony
by Dr. Nelson, Dr. Gary, and Dr. Sterling. In essence, the
court concluded that the medical evidence "undeniably weighs
against Dr. Nelson's innervation theory."      Regarding the
healing of the fracture of the spinous process, both Dr. Gary
and Dr. Sterling found that Mr. H o m e had reached maximum
healing. Dr. Nelson declined to issue an impairment rating.
The Workers' Compensation Court's conclusion that Mr. H o m e
had reached maximum healing is supported by substantial
evidence. Therefore, we affirm that conclusion.
     Turning to the question of whether Mr. Homme's injury
has resulted in his total loss of wages, the lower court
summarized the two vocational consultants' testimony:

     ...  both of the vocational consultants who testi-
    fied opined that claimant did have a normal labor
    market, even absent training.
It is clear from the Workers' Compensation Court's conclu-
sions that Mr. Home's injury has not resulted in his total
loss of wages. Indeed, if Mr. H o m e has had a normal labor
market available to him since at least February 20, 1986, as
the court found, then his injury has certainly not by neces-
sity resulted in his total loss of wages.
     Claimant also argues that the court was obligated to
comment on testimony offered by five witnesses called by the
claimant regarding his inability to work. In support of this
argument, claimant cites a section from Professor Larson's
treatise on Workers' Compensation law which states that a
decision may be reversed as arbitrary and unsupported if
uncontradicted evidence is not followed. In this case, the
Workers' Compensation Court had deposition testimony from
medical doctors, as well as testimony from two vocational
rehabilitation experts, who concluded claimant was presently
able to work. Since the testimony of the five witnesses does
not qualify as uncontradicted evidence, the court's failure
to comment on each witnesses' testimony is not reversible
error.
     We affirm the Workers' Compensation Court's conclusion
that Mr. H o m e is not entitled to temporary total disability
benefits, but only the permanent partial benefits which he is
receiving. Based upon our decision as stated above, we also
affirm the court's denial of the 20 percent penalty and
attorney fees and costs.



We Concur:   /
             ,




         Justices
Mr. Justice William E. Hunt, Sr., dissenting:


     I dissent.
     I do not see how the majority can hold that the Workers'
Compensation Judge is correct in finding that the claimant
"failed to carry his burden of proving [that] he is so
vocationally disabled because of his injury that he has no
reasonable prospect of finding employment in his normal labor
market in view of his present vocational retraining program."
He is either able to work and does not need to be retrained,
or he cannot work and needs to be retrained. If it is the
latter then he is entitled to total compensation whether it
is temporary or permanent.
     The evidence is that he cannot return to his job
involving hard physical labor and needs to be retrained.
That finding puts him within the meaning of the definition
of temporary total disability found at S 39-71-116(19), MCA
(1983), provided:
     "Temporary total disability" means a condition
     resulting from an injury as defined in this chapter
     that results in total loss of wages and exists
     until the injured worker is as far restored as the
     permanent character of the injuries will permit.
     Disability shall be supported by a preponderance of
     medical evidence.
     The majority seems to hold that the for the worker
anything is possible and it is up to him to prove what he
cannot do. There was testimony by experts that he could get
a position in the banking business. The evidence shows the
claimant to be an intelligent responsible person who may well
have an aptitude for the banking business but how he would
prove his capability one way or the other in that line
without training is not clear from the evidence. Perhaps a
claimant whose background is construction labor can move
right into the banking business, but it will take a better
record than the one before us to prove that. I would reverse
the Workers' Compensation Court.




Mr. Justice John C. Sheehy:
     I concur in the dissent of Mr. Justice Hunt.



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