                                NO.    91-184

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1991



JESSALIN DILLING,
                    Claimant and Appellant,
    V.

BUTTREY FOODS,
                    Employer/Defendant and Respondent.



APPEAL FROM:         Workers’ Compensation court,
                     The Honorable Timothy W. Reardon, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                     Richard J. Martin; Alexander, Baucus    &   Linnell,
                     P.C., Great Falls, Montana
          For Respondent:
                     Thomas A. Marra; Marra, Wenz, Johnson   &   Hopkins,
                     P.C., Great Falls, Montana
           _I   1




                                  Submitted on briefs: August 1, 1991
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Claimant and appellant, Jessalin Dilling, appeals an adverse
ruling of the Workers' Compensation Court denying her additional
wage supplement benefits pursuant to   §   39-71-703, MCA (1987).
     We reverse.
     Claimant raises one issue on appeal which we restate as
follows:
     Whether the Workers' Compensation Court erred when it included
a modified position in claimant's job pool when determining
claimant's post-injury earning capacity.
     On July 1, 1987, claimant suffered an industrial injury
arising out of her employment with Buttrey Foods, a self-insurer.
While working as a grocery checker, claimant reached across the
counter to pick up two watermelons and injured her back.      At the
time of the injury, she was earning $6.95 per hour and was a
part-time   employee working   approximately    20   hours per week.
Claimant continued to work for an additional three weeks after the
accident.
     On August 16, 1987, she received a leave of absence for six
months, but as a result of financial pressures, she returned to
work on October 10, 1987. On October 24, 1987, she ceased working
as a grocery clerk because of the physical demands of the job.
     Defendant accepted liability for claimant's injury and paid
temporary total disability benefits in the amount of $116 for the
period of August 16, 1987, until claimant returned to work in

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July 1988 as a camera bar clerk. Defendant had modified the camera
bar clerk position after being approached to do so by Gerry Loch,
a rehabilitation counselor, who suggested that the position be
modified to accommodate claimant's limitations.                 Claimant was to
avoid much of the lifting requirements and was allowed to work
fewer hours per week than normally required for the position.                 She
worked 25 hours per week, earning $6.95 per hour, which was the
same wage as her pre-injury wage.              However, it was a higher wage
than normally paid to a camera bar clerk.
     On May 13, 1989, claimant voluntarily left defendant's employ
to pursue a self-employment venture with her husband.                     She had
asked defendant for another leave of absence, but was refused and
her position was unilaterally terminated by the defendant.                  After
seven weeks, the self-employment venture proved unsuccessful and
was abandoned. In June 1989, she applied for a job with defendant,
who refused to hire her.
     Claimant   then    worked    as       a    flag   person   for   a   highway
construction company in May 1990.              She earned $11.95 per hour for
approximately two months.        Because of the seasonal nature of the
work, it was not considered ''typically available,'' and was not used
by the Workers' Compensation Court to calculate whether she was
entitled to wage supplement benefits.
     On September      3,   1987, Dr. Thompson diagnosed claimant's
condition as a musculoligamentous sprain of the mid-back.                      On
January 11, 1988, Dr. Isackson, an orthopedic surgeon, released

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claimant to return to work and advised her to avoid overhead
lifting and bending. The doctor concluded claimant could return to
work at defendant's store in a position other than as a grocery
store clerk.     No impairment rating was assigned to claimant.
        On   April   28,   1988,    Dr.   See,   a   physical   medicine    and
rehabilitation specialist, concluded that claimant had reached
maximum healing and a medically stable condition. Although Dr. See
did not assign claimant an impairment rating, he did recommend 'chat
claimant pursue a different occupation because he did not believe
she could continue as a grocery store clerk.
        Dan Schara, a vocational counselor, testified that claimant's
work history suggested she had light to medium employment.                 As a
result of her        injury, she was          limited to   light duty work.
Therefore, she suffered a labor market loss of 46 to 5 1 percent.
Mr.     Schara also listed several post-injury jobs as possible
employment opportunities.           All of these earned between $4.25 and
$5.00    per hour.    Ms. Loch concluded that claimant had a residual
job capacity in several areas. These j o b s paid from $3.35 to $4.95
per hour.
        On March 1, 1991, the hearing examiner issued his findings of
fact and conclusions of law and proposed judgment which the
Workers' Compensation Court adopted.              The Workers' Compensation
Court concluded that claimant was not entitled to wage supplement
benefits pursuant to       §   39-71-703, MCA (1987), primarily because the

court included the modified camera bar clerk's position within

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claimant's job pool.        Because her wage at the time of her injury
was $6.95 per hour, and her job pool wage was the same, she was not
entitled to wage supplement benefits.                The court also denied
claimant's entitlement to a penalty under 5 39-71-2907, MCA (1987),
and attorney fees and costs.           It is from this order that claimant
appeals.
       Because claimant's injury occurred on the date the 1987
legislative amendments went into effect, the 1987 statutes apply to
this case. Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d
328, 331.

       This Court will not overturn a Workers' Compensation Court's
finding of facts if they are supported by substantial, credible
evidence. Sharkey v. Atlantic Richfield Co. (1989), 238 Mont. 159,
163, 777 P.2d 870, 872.       If the question on appeal is a question of
law,    our   only   task    is   to    determine    whether     the   Workers'
Compensation    Court's      interpretation     of   the   law    is   correct.
Wassberg v. Anaconda Copper Co. (1985), 215 Mont. 309, 314, 679
P.2d 909, 912.       The resolution of this dispute rests upon an
interpretation of the law because the facts are not in dispute.
       The Workers' Compensation Court correctly concluded that
claimant was not entitled to an impairment award because none of
her treating physicians had assigned her an impairment rating.
Thus, she was entitled only to wage supplement benefits.                    The
Workers' Compensation Court concluded that claimant's job as a
camera bar clerk was within her job pool because she was qualified,

                                         5
the position was "typically available," and it was consistent with
her age, education, vocational experience, and aptitude.                We
disagree.
      In order to receive wage supplement benefits, 5 39-71-703, MCA
(1987), provides:
      (1) The benefits available for permanent partial
      disability are impairment awards and wage supplements.
      A worker who has reached maximum healing and is not
      eligible for permanent total disability benefits but who
      has a medically determined physical restriction as a
      result of a work-related injury may be eligible for an
      impairment award and wage supplement benefits as follows:
      ....
      (b) The following procedure must be followed for a wage
      supplement:
      (i) A worker must be compensated in weekly benefits equal
      to 6 6 2 / 3 % of the difference between the worker's actual
      wages received at the time of the injury and the wages
      the worker is qualified to earn in the worker's job pool,
      subject to a maximum compensation rate of one-half the
      state's average weekly wage at the time of injury.
The   legislature defined    "worker   s    job pool"    as     "those jobs
typically available for which the worker is qualified             . . . .   I'



Section 39-71-1011(7)(a), MCA (1987). The worker's qualifications
must be consistent with the worker's age, education, vocational
experience, and aptitude, and the job must be compatible with the
worker's    physical   capabilities        and   limitations.       Section
39-71-1011(7)(a), MCA (1987). The statutes do not discuss whether
modified employment should be included in a workers' job pool.
      We adopt the Workers' Compensation Court's definition of what
constitutes jobs that are "typically available."


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     [Tlhere is labor market documentation of positions, not
     necessarily openings, for which an injured worker has
     marketable skills and access to within his or her job
     pool.   The mere existence of the positions are not
     enough, however, if there are positions for which the
     claimant has the skills and physical capabilities to
     perform, those positions are typically available.
Roby v. A . Basil Canavan   (1990),   W.C.C. No. 785.
     The Workers' Compensation Court must analyze a claimant's
physical ability to perform the job, and claimant's ability to
compete for the job, in order to conclude that any job is
"typically available. I t
     The record indicates that claimant was not qualified to
perform the camera bar clerk position unless certain modifications
were implemented.     This "modified" job cannot accurately reflect
claimant's post-injury earning capacity because it would not be a
"typically available" job to her.         The position should not be
included in her job pool because the only employer providing the
modified position is the defendant.
     Wages paid an injured employee out of sympathy, or in
     consideration of his long service with the employer,
     clearly do not reflect his actual earning capacity, and,
     for purposes of determining permanent disability are to
     be discounted accordingly.    The same is true if the
     injured man's friends help him, or if he manages to
     continue only by delegating his more onerous tasks to a
     helper, or if the work for which claimant is paid is
     'made work' or sheltered work. [Emphasis added.]
Larson's Workers' Compensation Desk Edition, Section 57.34   (1989).

     In addition, the record reflects that part of the wages
claimant received from the defendant were gratuitous in nature.
Claimant testified that the wage she received as a camera bar clerk

                                      7
was higher than that normally paid to a camera bar clerk without
modifications.      Her testimony was corroborated with evidence
provided by Gerry Loch which shows that the usual compensation
received for a camera bar clerk ranged from $ 3.36 to $6.03 per
hour as a part-time position, to $3.76 to $6.25 per hour as a
full-time position.      Because of the modification of the camera bar
clerk position and the inflated wage paid to claimant, the Workers'
Compensation Court should not have included the modified camera bar
clerk position in claimant's job pool.
     This    case   is   reversed   and   remanded   for   the   Workers'
Compensation Court to determine claimant's wage supplement benefits
based upon the difference between claimant's actual wages received
at the time of the injury, and the wages claimant is qualified to
earn in her job pool, excluding the modified camera bar clerk
position.
     Reversed and remanded.



We concur:




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