                                No.   94-622

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1995




VERNON L. INGBRETSON,
          Claimant   and   Respondent,
     v.
LOUISIANA-PACIFIC     CORPORATION,
          Respondent, Insurer,
          Employer and Appellant.



APPEAL FROM:     The Workers' Compensation Court,
                 The Honorable Mike McCarter, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 Jerry Schuster, Kelso & Irwin, Coeur d'Alene, Idaho
          For Respondent:
                Jon L.      Heberling,       Attorney at   Law,   Kalispell,
                Montana
Chief Justice J. A. Turnage delivered the Opinion of the Court.

        Louisiana-Pacific       Corporation       appeals   a judgment of      the
Workers'       Compensation   Court    granting    Vernon   Ingbretson   temporary

total        disability   benefits   for   an   occupational   disease   sustained

within the course of his employment with Louisiana-Pacific.                    The
court also awarded Ingbretson costs and attorney fees and a 20

percent penalty.          We affirm.

        We restate the issues as follows:

        1.     Did the Workers' Compensation Court abuse its discretion

by deciding issues not raised in the pretrial order?

        2.      Did the court exceed its jurisdiction by deciding that

Ingbretson was wrongfully discharged from his employment and did it

then err in failing to apply the provisions of Montana's Wrongful

Discharge from Employment Act?

        3.     Did the court err in finding that Ingbretson was tempo-

rarily totally disabled within the meaning of 55 39-71-116(28) and

-701, MCA?

        4.     Did the court err in awarding costs and attorney fees to

Ingbretson pursuant to 5 39-71-611 and § 39-72-402(l), MCA?

        5.      Did the court err in assessing a 20 percent penalty

against Louisiana-Pacific pursuant to § 39-71-2907, MCA?

        Vernon Ingbretson was employed as a laborer at Louisiana-

Pacific's lumber mill in Libby, Montana.                    In 1992,     he began

noticing problems with his elbows.              In June of 1993, he gave notice

of an occupational disease to Louisiana-Pacific, which initially

denied his claim.

                                           2
     Ingbretson     continued    working   for    Louisiana-Pacific     except
during periodic layoffs when there was not enough work at the mj.11.

In August of 1993, he returned from a layoff to his regular job, or

"bid job," as a forklift operator.

     On August 4, 1993,        the Employment Relations Division of the

Montana Department of Labor & Industry entered an order determining

that Ingbretson had an occupational disease--bilateral lateral

epicondylitis.      In an effort to keep him on the job, Louisiana-

Pacific reassigned Ingbretson to a job as a stacker operator.

     On August 13, 1993, Dr. Brus examined Ingbretson.                Dr. Brus

approved Ingbretson to work as a stacker operator, based on a
description of the job as "to stand and keep in visual contact with

3 automatic stacking machines and on occasion pushing a button."
     The actual work as a stacker operator was more physically

demanding than suggested by the above job description.                While on

the stacker,     Ingbretson had the task of picking short, rotten, or

broken 2x4's off the machine.         He often fell behind, and had to

repeatedly lift the lumber.        He was told to ask for help when he

needed it, but often there was no one in view for him to ask.

     From August 16 to September 28, 1993, Ingbretson alternated

between the stacker position and a guard shack position. The guard

shack position consisted of giving directions to vehicles entering

the mill. At that time, Louisiana-Pacific did not have a full-time

day shift guard shack worker.          When     Ingbretson   was   working   the

stacker,   a secretary in the office performed the duties of the

guard   shack    worker   in    addition   to    her   secretarial     duties.


                                      3
Ingbretson worked the guard shack position when the pain in his
elbows made it impossible to perform the stacker job, usually three

days per week.       His "bid job"     remained forklift operator.

        At     Louisiana-Pacific's      request,    Dr.   Hvidston    examined
Ingbretson on September 2, 1993.             Dr. Hvidston disapproved the job

of fork lift operator for Ingbretson.            He approved a job of stacker

operator, with the following conditions:              "However Vernon relates
help for the heavier lumber is not available and this causes pain.

If he has repetitive lifting I would not approve."              Dr.   Hvidston
approved a job of security officer without limitation.

        On September 27,   1993, Ingbretson worked the stacker.        He told
his supervisor that his elbows were sore and asked to be taken off

the stacker, but he was not reassigned during that shift.               After

work,    Ingbretson took four Tylenol.          He could not sleep that night
because of pain in his elbows.           Early the next morning, he called

Louisiana-Pacific and told the night security guard that he was not

coming to    work because of his sore elbows.         However, he changed his

mind and decided to go to work.

        At work, Ingbretson told his supervisor that his elbows were

sore and that he had no sleep the night before.             He was instructed

to work at the guard shack.          After about two hours, Ingbretson went

to his truck, about twelve feet from the gate.             He took four more

Tylenol and drank a cup of coffee.            He sat in the passenger seat of

his truck, tilted the seat back, and fell asleep.                Ingbretson's

supervisor discovered him sleeping in his truck and fired him.

        The Workers' Compensation Court found that

                                         4
         [Ingbretson'sl  falling asleep at work was indirectly, if
        not directly, attributable to the policies of his
        employer. On the day prior, [he1 was forced to continue
        working on the stacker despite his pain and his request
        that he be relieved.     As a result, he had a sleepless
        night. The next morning he initially called in sick but
        thought better of it.     [Louisiana-Pacific] had on prior
        occasions pressed him to come to work despite pain and
        doctor's appointments so it could avoid reporting lost
        employee time due to an accident. The job he reported to
        on the morning of his termination was a boring and
        insignificant one, indeed a position that was filled only
        when [Ingbretsonl was unable to work on the stacker.

The court found that Ingbretson's discharge was a pretext by which

Louisiana-Pacific rid itself of a disabled employee.               It determined

that     Ingbretson       was   eligible for temporary total disability

benefits and awarded him costs and attorney fees, plus a 20 percent

penalty for unreasonable refusal to pay his claim

                                      Issue 1

         Did the Workers' Compensation Court abuse its discretion by

deciding an issue not raised in the pretrial order?
         The issue to which Louisiana-Pacific here refers was the

merits of Ingbretson's discharge,             "resulting in a conclusion that

he     was   wrongfully    terminated."       Louisiana-Pacific   argues    it   was

entitled to notice that the court was going to determine this

issue.

         The pretrial order should be liberally construed to permit any

issues at trial that are "embraced within its language."                    Nentwig

v. United Industry, Inc.          (1992), 256 Mont. 134, 139, 845          P.2d 99,

102.      In the pretrial order, Louisiana-Pacific's          first    contention

was its defense that Ingbretson was discharged for cause.                     It is

disingenuous for Louisiana-Pacific to now claim surprise that the

                                          5
merits of Ingbretson's discharge were considered by the court.
Because this issue was raised in the pretrial order, we conclude

the court did not abuse its discretion by considering it.

                                    Issue 2

     Did the court        exceed its jurisdiction by deciding that

Ingbretson was wrongfully discharged from his employment and did it

then err in not applying the provisions of Montana's Wrongful

Discharge from Employment Act?

      The    Workers' Compensation Court based its decision on 5 39-71-

701(4),     MCA.   That statute allows an employer to avoid paying

temporary total disability benefits to an injured employee who has

not reached maximum healing by providing a modified or alternative

position for the employee.      The statute provides:

     If the treating physician releases a worker to return to
     the same, a modified, or an alternative position that the
     individual is able and qualified to perform with the same
     employer at an equivalent or higher wage than the
     individual received at the time of injury, the worker is
     no longer eligible     for temporary    total disability
     benefits even though the worker has not reached maximum
     healing.    A worker requalifies for temporary total
     disability benefits if the modified or alternative
     position is no longer available for anv reason to the
     worker and the worker continues to be temporarily totally
     disabled, as defined in 39-71-116.

(Emphasis added.)

      Louisiana-Pacific    argues   that   the   decision   of   the   Workers'

Compensation Court amounts to a determination of wrongful dis-

charge, which was outside the jurisdiction of the court.                It also

contends that even if the Workers' Compensation Court had jurisdic-

tion to make such a determination, it erred by failing to apply the


                                       6
standards and procedures set forth in the Wrongful Discharge from
Employment Act,       §§ 39-2-901 through -915, MCA.

        In interpreting and applying § 39-71-701(4), MCA, the Workers'

Compensation Court concluded:

        On its face, subsection (4) requires payment of temporary
        total disability benefits to a worker released to perform
        a modified or alternative job when the alternative or
        modified position is "no longer available" to him.    The
        Court need not consider whether the "no longer available"
        language applies in cases where the worker refuses to
        work in a modified or alternative position, or he is
        terminated by the employer for deliberate misconduct
        which he knows, or should know, will result in his
        termination.   This is not such a case. Rather, it is a
        case where the employer has fired a worker, and thereby
        made the position unavailable, because of circumstances
        created by the worker's occupational disease. Moreover,
        in this case the employer's termination of claimant's
        employment was pretextual.    Under these circumstances,
        the   alternative  positions   previously   available to
        claimant have become unavailable.

Here,    it was not necessary for the court to use the Wrongful

Discharge from Employment Act to make its determination. In

reaching its decision, the court relied upon its interpretation of

the words "no longer available for any reason" in 5 39-71-701(4),

MCA.     The similarity of considerations necessary in applying that

statute to those which would be involved in a determination of

whether Ingbretson was wrongfully discharged does not mean that the

two determinations are the same.

        We note that the Workers' Compensation Court did not make a

sweeping interpretation of the phrase "no longer available for any

reason."        It interpreted the phrase only as applied to the facts of

this    case.    We conclude that the court did not exceed its jurisdic-
tion in reaching its decision,     nor was it required to apply the
provisions of the Wrongful Discharge from Employment Act.

                                Issue 3

       Did the court err in finding that Ingbretson was temporarily

totally disabled within the meaning of    §§ 39-71-116(28) and -701,

MCA?

       Louisiana-Pacific contends that the overwhelming weight of the

evidence was that Ingbretson was not temporarily totally disabled.

This contention is based upon the doctor's releases to perform a

modified stacker operator job or a security officer job.      Louisi-

ana-pacific    argues that had Ingbretson not     left his assigned

position and fallen asleep, he would still be employed in those

positions.
       A two-pronged test is used to prove temporary total disability

under § 39-71-116(28),   MCA: that the occupational disease results

in a total loss of wages,      and that the claimant has not reached

maximum medical healing.    Kramer v. EBI Companies (1994), 265 Mont.

525, 531, 878 P.2d 266, 269.    In the present case, it was undisput-

ed that Ingbretson could not return to his "bid job."      Louisiana-

Pacific has also conceded that Ingbretson had not reached maximum

medical healing at the time he was discharged, thus meeting the

second prong of the test.

       Louisiana-Pacific points out that Ingbretson was released to

perform and did perform the positions of a modified stacker

operator and guard shack security officer until he was discharged.

The issue then became whether this situation was subject to the

                                   8
exception set forth at 5 39-71-701(4), MCA, excusing payment of
temporary total disability benefits.         Did the modified alternative
jobs become "no longer available for any reason," pursuant to the

statute?

     Louisiana-Pacific     particularly     criticizes   as   unsupported   by

the evidence the finding that the guard shack job was "a boring and

insignificant     one."    While not dispositive of the case,            this

finding is supported in the evidence.        Louisiana-Pacific     management
staff testified that the job was not staffed on day shifts when

Ingbretson was not filling it.           Ingbretson testified that he did
"nothing" when he was stationed in the guard shack.

     The record establishes that, on the day before he fell asleep

at work, Ingbretson asked to be taken off the stacker position, but

the foreman did not do so.        The record further establishes that
Ingbretson's previous efforts to take time off work due to his

disability had been thwarted.      Louisiana-Pacific      worked   Ingbretson

beyond his      medical   restrictions    and caused the episode        which

triggered this lawsuit.

     We conclude that the Workers' Compensation Court did not err

in determining that Ingbretson's job was "no longer available"

under § 39-71-701(4), MCA,      and that it did not therefore err in

ruling that he was entitled to temporary total disability benefits.

                                  Issue 4

     Did the court err in awarding costs and attorney fees to

Ingbretson pursuant to 5 39-71-611 and § 39-72-402(l), MCA?




                                     9
       Our     standard of       review is    whether    substantial   credible
evidence supports the court's finding that the employer's denial of

benefits was unreasonable.           Stordalen v. Ricci's Food Farm (1993),

261    Mont.    256,    258,    862 P.2d 393,    394.      Louisiana-Pacific's
argument on this issue is dependent on its argument that Ingbretson

was not entitled to temporary total disability benefits.               In   light

of our reasoning above in ruling that the court did not err in

finding that Ingbretson was entitled to benefits, we hold that

substantial credible evidence supports the court's conclusion that

the denial of those benefits was unreasonable and Ingbretson was
also entitled to costs and attorney fees.

                                      Issue 5

       Did the court err in assessing a 20 percent penalty against
Louisiana-Pacific pursuant to 5 39-71-2907, MCA?

       There is no penalty provision in the Occupational Disease Act.

In Wunderlich v. Lumbermens Mut. Cas. Co.               (Mont. 1995), 892 P.Zd

563,   52 St.Rep.      251,    we concluded that the Workers' Compensation

Court did not have jurisdiction to assess a 5 39-71-2907, MCA,

penalty in a dispute arising under the Occupational Disease Act.

       Unlike    Wunderlich,       this is    not an    appeal from a final

determination by the Department of Labor.              It is a benefits dispute

in which it has already been established that Ingbretson suffered

from an occupational disease.

       A key element in the Wunderlich opinion is the following:

       In contrast, the Workers' Compensation Court's jurisdic-
       tion under the Occupational Disease Act is much more
       limited.    There,  the court reviews on appeal final
       determinations by the Department regarding occupational
                                         10
      disease claims. Section 39-72-612, MCA.           The review is
      statutorily circumscribedi.]

Wunderlich, 892 P.2d at 568.       Here, the Workers' Compensation Court
has direct jurisdiction which is not circumscribed by 5 39-72-612,

MCA, as was the case in Wunderlich.

      The Occupational Disease Act provides that            "practice    and

procedure prescribed in the Workers'          Compensation Act applies to
all proceedings under this chapter."           Section 39-72-402(l),    MCA.

The   penalty   statute,   5   39-71-2907,   MCA,   was not a part of the
original Workers' Compensation Act, and therefore its application

is not limited to cases under the Workers'           Compensation Act. In

this instance, we agree with the Workers' Compensation Court that

the "practice and procedure" of penalty imposition applies through

5 39-72-402(l),    MCA

      We affirm the decision of the Workers' Compensation Court in

its entirety.




We ,concur:
