                                           No.   91-484 and 91-575

             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                     1992


WAYNE V. KELLY,
             Petitioner and Appellant,


STATE COMPENSATION MUTUAL
INSURANCE FUND/BELT PUBLIC SCHOOLS,
             Defendant, Employer and Respondent.




APPEAL FROM:                         On Appeal from the Workers1 Compensation Court
                                     The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                                     Antonia P. Marra, Bell   &   Marra, Great Falls, Montana
             For Respondent:

                               ..-.William 0
                                   .
                                            .    Bronson, James, Gray    &   McCafferty, Great
                                 ;'Falls';.Montana
                                 . . ..




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                                                       Submitted on Briefs:        May 7, 1992
                                                                       Decided:   August 13, 1992
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Justice John Conway Harrison delivered the Opinion of the Court.

       Claimant and appellant, Wayne V. Kelly (Kelly), appeals from
two judgments of the Workersf compensation Court which ruled in
favor of the insurer, State compensation Mutual Insurance Fund (the
State Fund)   .   We affirm.
                                  FACTS

       Kelly suffered three injuries arising out of and in the course
of his employment while working as a bus driver for the Belt School.
District.     Kelly injured his neck on May 14, 1986; his back on
November 11, 1986; and his neck again on November 21, 1987. At the
time of Kelly's injuries, his employer was insured under Plan 111
of the Workers' Compensation Act.
       In addition to driving the Belt Public School bus, Kelly
participated in various concurrent employment situations.        He was
a vendor/stocker      for Frito-Lay and Nabisco food companies, a
theater projectionist and manager, a bagger/carry-out at Malmstrom
Air Force Base Commissary, and a self-employed wood cutter.        As a
result of his May 1986 injury, Kelly was unable to work ten weeks
during the summer of 1986.        Kelly lost no time from work as a
result of the November of 1986 injury.        Kelly failed to return to
any of his occupations following the November 21, 1987, injury.
       As a result of the 1987 injury, Kelly received temporary total
disability benefits from November of 1987 until early June of 1990
when    his   benefits    were   terminated   because   the   Vocational
Rehabilitation Specialist designated by the State Fund determined
that Kelly could obtain alternative employment.
                                    2
       The Workers1 Compensation Court     found Kelly permanently
partially disabled as a result of the November 1987 injury.          Kelly
receives impairment benefits, retroactive to September 1988, for
his thirty-five percent impairment rating.          Kelly also receives
wage supplements in addition to his impairment award.        The Social
Security Administration also determined that Kelly was eligible for
social security disability benefits.
                          PROCEDURAL HISTORY
       This case is before us on consolidated appeals.      First, as a
result of Kelly's November 21, 1987, injury, the State Fund
designated     a   rehabilitation   provider   to     evaluate   Kelly's
rehabilitation options pursuant to 5 39-71-1012, MCA (1987).           The
provider determined that the appropriate option for Kelly was to
"return to a related occupation suited to the claimant's education
and marketable skills.     Section 39-71-1012 (c), MCA (1987)    .   Kelly
contested this determination and the Department of Labor and
Industry (the Department) designated a rehabilitation panel to
review the provider's recommendation. The panel issued a report in
accord with the provider's initial determination.        The Department
held    a   hearing, at   Kelly's request, to review the panells
determination.     On December 28, 1990, the Department entered its
Findings of Fact, Conclusions of Law, and Order concurring in the
panel's findings.     Kelly appealed the Department's order to the
Workersr Compensation Court which affirmed the Department's Order
on September 12, 1991.    Kelly appeals that decision to this Court.
       Second, Kelly filed a separate petition for a hearing before
the Workers1 Compensation Court to resolve disputes related to his
1986   injuries.   c his petition also referenced matters concerning
the 1987 injury. The court held the hearing on March 1, 1991, and
issued its Findings of Fact, Conclusions of Law, and Order on
September 12, 1991, denying all of the relief Kelly requested. The
Workers1 Compensation Court ruled: that Kelly         is permanently
partially disabled; that Kelly reached maximum healing after the
May of 1986 injury but prior to the November of 1987 injury; that
the State Fund is not reqired to pay permanent partial disability
benefits to Kelly for the 1986 injuries; that Kelly is not entitled
to any lump sums; that Kelly is not entitled to an impairment award
for the 1986 injuries; and that Kelly is not entitled to a penalty
or attorney fees.     Kelly appeals that decision to this Court.
                                ISSUES

       Kelly presents several issues for our review which w e rephrase
as follows:
       1.   Whether substantial credible evidence supported the
Workers' compensation Court's finding that Kelly reached maximum
healing after the May 1986 injury but prior to the November of 1987
injury.
       2.   Whether   substantial credible evidence     supports the
Workers1 Compensation Court's findings that Refly is permanently
partially disabled, rather than permanently totally disabled, as a
result of the 1987 injury and that 5 39-7l-lU12(c), MCA (l987), was
the appropriate rehabilitation option for Kelly.
       3.   Whether the Workersf Compensation Court erred in denying
Kelly's request for the court to assess penalties and award Kelly
attorney fees?
                         STANDARD OF REVIEW
     This Court has set forth the appropriate standard of review in
appeals from the Workers1 Compensation Court.              This Court's
function is not to reweigh the evidence.         our function is to
determine if the Workersf Compensation Court's findings of fact and
conclusions of law are supported by substantial credible evidence
in the record.   We will uphold the Workers1 Compensation Court's
decision if substantial credible evidence supports it.          Nelson v.
Semitool, I n c . (1992), - Mont   .-    ,    8 2 9 P.2d   1, 3 .

                                   I.

     Whether substantial credible evidence supported the Workers7
Compensation Court's finding that Kelly reached maximum healing
a f t e r the May 1986 injury but prior to the November of 1987 injury.
     The underlying question in this appeal is whether KellylsMay
1986 or his 1987 injury proximately caused his current disability.
Both the State Fund and Kelly agree that Kelly suffered injuries to
the cervical area of his spine on two separate occasions.             The
parties disagree as to which injury caused his present disability.
The State Fund maintains, and the Workers1 Compensation Court
agreed, that Kelly reached maximum healing after the May 1986
injury but prior to the November 1987 injury, rendering the
November 1987 injury the cause of Kelly's present disability.
Kelly contends that the 1987 injury merely aggravated his May of
1986 injury, rendering the May 1986 injury the cause of his present
disability. If the lower court determined that the May 1986 injury
proximately caused the current disability, Kelly would be entitled
to more benefits than if the court determined that the 1987 injury
proximately caused his current disability.      Lee v. Group W Cable
TCI of Montana (1990), 245 Mont. 292, 295, 800 P.2d 702, 704.
     The evidence in this case supports the Workersv Compensation
Court's decision that Kelly reached maximum healing after the May
1986 injury, but prior to the 1987 injury, rendering the law in
effect in 1987 applicable.       Kelly missed only ten weeks of work
following the May 1986 injury. He returned to work at all but one
of his concurrent employment situations until the 1987 injury,
nearly one and one-half years later when he discontinued all
employment.
     Kelly contends that the lower court's finding that he reached
maximum healing before the 1987 injury was not supported by
substantial credible evidence. We disagree. The rule in Belton v.
Carlson Transport (1983), 202 Mont. 384, 385-86, 658 P.2d 405, 406,
controls this situation even though Belton dealt primarily with the
issue of which insurance carrier is at risk when a worker suffers
more than one compensable work-related injury.        Belton's maximum
healing rule can be applied in cases such as the one at bar to
determine which injury proximately caused the claimant's current
disability.   Lee, 245 Mont. at 296, 800 P.2d at 705.
     The   lower   court   was   presented   with   medical   testimony
supporting its decision that Kelly reached maximum healing prior to
the 1987 injury.
     Maximum healing means that following a cornpensable injury
     a claimant has reached a point constituting the end of a
     healing period. It does not mean the person is free of
     symptoms such as pain or o b j e c t i v e s i g n s .
Stangler v . Anderson Mayers (l987), 229 Mont. 251, 255, 746 P.2d
99, 101, citing Belton   v. Carlson Transport (19831, 202 Mont. 384,
658 P.2d 405.    The record before us includes testimony from Dr.
Verson Kirk and Dr. William Labunetz.      After a follow-up visit in
August 1987, Dr. Kirk reported that Kelly was functioning well and
had been stable for approximately one year.          Additionally, Dr.
Labunetz, who began treating Kelly in September 1987, reported that
Kelly was not disabled from driving the Belt Public School bus at
that time, approximately two months prior to the November 1987
injury which prevented Kelly from participating in any of his
employment situations.
      The Workerst Compensation Court found that the doctors?
testimony indicated that Kelly reached maximum healing following
the May 1986 injury. Although Kelly missed work for approximately
ten weeks after the May 1986 injury, he eventually returned to all
of   his   occupations with    one exception; he     discontinued   his
employment with Nabisco.       Kelly indicated that he continued to
experience pain while he engaged in his employment. However, Kelly
also testified that the 1987 injury was far worse than the May 1986
injury. Based on the foregoing, we hold that substantial credible
evidence exists to conclude that Kelly reached maximum healing
prior   to the   1987    injury.    Therefore, Kelly's      1987 injury
proximately    caused   his   present   disability   and   the Workers'
Compensation Court did not err in so holding.
                                   7
    Whether substantial credible evidence supports the Workers'
Compensation Court's findings that Kelly is permanently partially
disabled, rather than permanently totally disabled, as a result of
the 1987 injury and that           39-71-1012(c), MCA (1987), was the
appropriate rehabilitation option for Kelly.
     Kelly contends that the evidence supports a           finding of
permanent     total   disability    rather   than   permanent   partial
disability.     Section 39-71-116(15), MCA (1987), defines permanent
total disability as:
     [A] condition resulting from injury as defined in this
     chapter, after a worker reaches maximum healing, in which
     a worker is unable to return to work in the worker's job
     pool after exhausting all options s t forth in 39-71-
                                          e:
     1012.
In order to qualify as permanently totally disabl.ed, Kelly was
required to show that after exhausting all options in 5 39-71-1012,
MCA (1987), that he remained unable to return to work in his job
pool.     Kelly failed to meet this burden.
        Section 39-71-1012, MCA (1987), sets forth the appropriate
rehabilitation options:
        Rehabilitation goal and options.      (1)   The goal of
        rehabilitation services is to return a disabled worker to
        work, with a minimum of retraining, as soon as possible
        after an injury occurs.
        (2) The first appropriate option among the following
        must be chosen for the worker:

        (a) return to the same position;
        (b) return to a modified position;
        (c) return to a related occupation suited to the
            claimant's education and marketable skills;
     (d) on-the-job training;

     ( e ) short-term retraining program (less than 24 months) ;

     (f)   long-term retraining program (48 months maximum) ; or
     (g) self-employment.
     (3) Whenever possible, employment in a worker's local
     job pool must be considered and selected prior to
     consideration of employment in a worker's statewide job
     pool.
Section 39-71-1012, MCA (1987). A workerls job pool includes jobs
available for which a worker is qualified, consistent with the
worker's age, education, vocational experience and aptitude, and

physical limitations.     Section 39-71-1011(7)(a), MCA (1987).
     After Kelly's 1987 injury, he failed to return to any of his
prior employment situations.       Since the explicit goal of the
Workers1 Compensation Act      in 1987 was to return workers to
employment situations with minimal retraining,     §   39-71-1012, MCA

(1987),   the State Fund designated a rehabilitation specialist to
evaluate Kelly. The specialist determined that option (c) under 5
39-71-1012, MCA (l987), was the appropriate option.        option (c)
states that Kelly should return to a related occupation suited to
his education and marketable skills. This decision was affirmed by
the appointed rehabilitation panel, the Department of Labor and
Industry, and the Workerst Compensation Court.         Kelly maintains
this decision was error as he is unable to return to work due to
pain and inability to perform tasks for more than a couple of hours
at a time.
     In the     instant   case, Kelly's   doctors, therapists,     the
rehabilitation specialist, and a Rehabilitation Panel determined
                                   9
that Kelly could engage in light duty work. Based upon Kelly's age
education,    experience,       aptitude,      physical    capabilities       and
limitations, various job position descriptions were selected as
those that Kelly could perform.         This list included positions as a
central office operator, a bookkeeper 11, a receptionist and a
clerk/typist.         Kelly's    own    physician    reviewed        these    job
descriptions and approved them all except for the clerk/typist
position, indicating that Kelly should have brief breaks from
sitting if performing this job.          We note that Kelly took a typing
test at Job Service and during a five minute time span typed fifty
words-per-minute with two errors.
     Further, the record reflects that due to discrepancies in
Kelly's    reported    restrictions      and    limitations,     two       private
investigators    monitored       Kelly's      activities.       The        private
investigators observed and video-taped Kelly involved in various
activities including: driving a car, bending, stooping, unloading
wood,     operating    a   tractor,     and    pushing     a   car    by     hand.
Additionally, the private investigators indicated that Kelly made
numerous trips on rough unkept mountain roads driving a flatbed
truck loaded with wood.      These trips sometimes lasted over several
hours which Kelly successfully accomplished.              After reviewing the
record, we find that substantial credible evidence supports the
court's findings.
                                       111.

     Whether the Workers' Compensation Court erred in denying
Kelly's request for the court to assess penalties and award Kelly
attorney fees?
    Kelly asserts that t h e lower court erred i n r e f u s i n g t o impose
a penalty on the insurer and in failing to award his costs and
attorney fees.    Kelly argues that the State Fund's adjustment of
his claims was unreasonable.        Kelly argues that the State Fund
acted unreasonably in failing to disburse Kelly's impairment award
immediately after he was given an impairment rating in 1988.
However, Kelly failed to present evidence that the State Fund
unreasonably refused to pay the impairment award.
     Additionally, Kelly contends that the Workers' Compensation
Court erred in refusing to award his costs and attorney fees.             In
some cases, if the claimant is successful against the insurer, the
claimant is allowed costs and attorney fees.          Sections 39-71-611
and -612, MCA (1987)    .    As Kelly was unsuccessful below and on
appeal, he is not entitled to costs and attorney fees. Substantial
credible evidence exists supporting the lower court's denial of
penalties, costs, and attorney fees. Therefore, we cannot overturn
its decision.    Affirmed.


We Concur:


       Chief Justice




         Justices       /    /
