                                             No.      95-252
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                   1996



STEVEN K. BURGLUND,
                 Petitioner          and Appellant,
         v.
LIBERTY        MUTUAL FIRE      INSURANCE COMPANY,




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


COUNSEL OF RECORD:
                 For   Appellant:
                        Darrell        S. Worm, Ogle           & Worm,
                        Kalispell,        Montana
                 For   Respondent:
                        Larry    W. Jones,   Senior    Attorney,
                        Liberty    Mutual  Fire    Insurance     Co.,
                        Missoula,    Montana


                                              Submitted         on Briefs:   August       15,    1996
                                                                  Decided:    November          21,   1996
Filed:
Justice         Charles           E.       Erdmann              delivered              the     opinion               of        the        Court.
          Steven          K. Burglund                appeals              from        the     amended               findings                of     fact,

conclusions                 of         law,          and          judgment                  entered             by          the             Workers'
Compensation                Court          on April               10,      1995,            and      from       the         order            denying

his     petition           for         a new trial                filed          on May 1,                1995.           Liberty                Mutual

Northwest           Insurance                 Company            and United                 Parcel           Service                 (UPS)         filed

a cross-appeal                   of the         court's            amended            findings              of fact,                conclusions

of     law,     and judgment.                        The cross-appeal                          is         limited           to        the        twenty

percent         disability               award          granted            by the Workers'                     Compensation                       Court

as an indemnity                   benefits                award.           We affirm                the     court          on both               issues

raised         on appeal.

          The      issues         on appeal                 are     as follows:

          1.        Did          the       Workers'                Compensation                      Court           err             in      denying
permanent           partial             disability                (PPD) benefits                     to Burglund                     pursuant              to

5 39-71-703,               MCA (1983),                    for      his         1984        industrial                injury?

          2.        Did        the       Workers'               Compensation                   Court          err         in        determining

that      Liberty         is      liable         under           §§ 39-71-705                  through              -708,            MCA (1983),

for    payment         to Burglund                   of     100 weeks                of      PPD benefits,                      representing

a twenty           percent             disability?

                                                                    FACTS

          Burglund               was       born            on      April             22,       1955,            and            is         presently

forty-one           years         old.          He graduated                    from        high      school              and attended                     an

electronics               institute                  in      the         early            1970s.               He         then            installed

security           equipment              for     a year           or two and worked                          as a parts                    clerk          at

several         auto       supply             stores.              Burglund                has been            employed                   by UPS as

a package           car        driver           since        1980.             His     employment                   duties            consist              of


                                                                           2
picking              up and           delivering                       UPS packages,                     and          sorting             and        loading
packages              at     the       Kalispell                  UPS Center.                        Burglund's                   "sort-and-load"
duties           involve              the        lifting                of     packages                 off          a conveyer                  belt         and

transferring                   them             several                 feet            to      the         delivery                 trucks.                  The

packages              weigh         up to          seventy               pounds;               however,               the         average            package
weighs           only        fifteen             to     twenty-five                      pounds.

           On February                    14,      1984,               Burglund               suffered               an industrial                      injury
arising              out     of and in                the        course          of his             employment                   with      UPS when he

fell       off        a platform                 and injured                     his         back.               He returned                to       work        as

a full-time                  package            car         driver            on March                12,        1984.            He continued                   to

suffer               back          pain          and             was          examined                  by         Dr.           Henry           Gary,              a

neurosurgeon,                   on February                       16,        1988.           Dr.      Gary        diagnosed                Burglund              as

having           a herniated                 disc           at         the     LS-Sl           level.

           Between            February                1988 and February                               1991 his              back          and leg          pain

increased.                    On February                         18,        1991,            Dr.       Gary          performed                  a      lumbar

laminotomy                 and foramenotomy                            at the LS-Sl                   vertebral                  level.          Burglund

was off           work        until          June           1,     1991,           at        which      time          he returned                    to work

as a full-time                      package                 car        driver.                 Both         of     his       doctors             released

him       to     return         to        work        without                any        restrictions.

           On July             16,        1992,         Dr.            Gary        wrote            a letter                in     response              to      an

inquiry               from         Burglund's                     attorney                   regarding                his         impairment                  and

medical              restrictions.                          He stated                   that         Burglund               would          have          a ten

percent           permanent               partial                 impairment                  rating          and needed                  to have           some

restrictions                   in      any        type            of     work           as to          the        amount            of     lifting               he

could          do.         The letter              said           that         reasonable                   limits          would          include            not

lifting               anything              over             twenty              to          twenty-five                     pounds            with           any


                                                                                 3
frequency                 and            not            lifting                 anything                   over           fifty             pounds             on          an
infrequent                 basis.                     In     the        fall        of          1992,        Burglund                 was      laid           off          on
account             of    this            letter,              as the             fifty             pound         limit            was less              than         the
seventy             pounds              he was required                           to        lift           for     his        position              with            UPS.

Liberty             attempted                      to pay PPD benefits,                               but        Burglund              refused               them          on
the     basis            that           he had at all                          times            been physically                        able        to        perform

his     job         duties.

          On November                         24,      1992,          Burglund                  underwent               a physical                 capacities

evaluation                    to        further               define             his        physical                restrictions.                             During
this      evaluation                          he reported                      feeling               no pain               and        demonstrated                         no

pain      behaviors.                      The examiner                         therefore                   concluded                that      Burglund                was

physically                    able            to      work         as      a UPS package                           car            driver.               Dr.         Gary

reviewed             this           evaluation                     and concluded                        that        Burglund                would            be able

to perform                his           job        without            any restrictions.                                 As a result,                    Burglund
was allowed                    to       return               to work            on January                   5,     1993,            as a UPS package

car     driver.

          In 1993,                  Burglund                  filed            a claim              seeking             PPD benefits                    pursuant

to      5 39-71-703,                          MCA (1983),                       and         55 39-71-705                          through           -708,             MCA

(1983).                  After                trial            the         court                issued            its         findings                  of         fact,

conclusions                        of         law,           and         judgment                    on      January                  19,      1995.                       On

February             9,         1995,              Liberty              filed              a petition                   for         amendment                 to      the

court's             findings                  and conclusions                          or          alternatively                     for      a new trial.

The      court           withdrew                     its      findings                of          fact,          conclusions                 of         law,         and

judgment                 on         March              1,      1995.                Thereafter,                         the         parties              filed              a

stipulation                    clarifying                     the        scope             of      issues          to       be submitted                      to      the

court         for        decision.                          On April             10,        1995,           the         Workers'              Compensation


                                                                                       4
Court        filed              amended                findings                     of            fact,           conclusions                    of     law,          and

judgment             and         awarded                Burglund                     PPD benefits                          for         a period               of      100
weeks         at          the          weekly                rate              of         $138.50,                      less         the         ten         percent
impairment                 award             already                     paid             by           Liberty.                     Burglund              filed             a
petition            for         a new trial                          and for                 an amendment                      to      the      findings              and

conclusions,                    which             the            court          denied.                       He appeals                     from      the         order

denying            his      petition                    and             from         the            amended               findings               of      fact         and

conclusions                 of         law        and             judgment.                         Liberty              and        UPS have                 filed          a

cross-appeal                     alleging                        that          there                   is        not      substantial                    credible

evidence           in the              record           to support                        the           Workers'               Compensation                  Court's

decision            that          Liberty                   is        liable              under              55 39-71-705                     through              -708,
MCA (1983),                 for        payment                   to      Burglund                      of     100 weeks                of     PPD benefits.

                                                                               ISSUE               1

           Did       the          Workers'                           Compensation                           Court          err          in       denying              PPD

benefits            to     Burglund                    pursuant                 to           § 39-71-703,                      MCA (1983),                   for      his

1984       industrial                   injury?
           This           Court          will               uphold                  the           Workers'                Compensation                       Court's

findings             of         fact         if        they             are          supported                     by      substantial                   credible

evidence.                Wunderlich                    v.         Lumbermens                       Mut.          Cas.      Co.         (1995),         270 Mont.

404,        408,           892          P.2d            563,              566.                     We        review              the         trial           court's

conclusions                 of         law        to        determine                        if        they        are         correct.                Turjan          v.

Valley        View          Estates                (1995),                   272 Mont.                      386,        390,        901 P.2d             76,         79.

           The parties                   entered                      into          a stipulation                          which             authorized               the

Workers'            Compensation                        Court             to determine                            Burglund's                 entitlement                   to

PPD      benefits                 on         both                a      loss         of            earning               capacity                basis             under

§ 39-71-703,                      MCA             (1983),                    and              on            an         indemnity                basis              under


                                                                                         5
55 39-71-705                 through               -708,             MCA (1983).                        A disability                  award            under
5 39-71-703,                 MCA (1983),                        is        based          on the            actual            loss          of       earning
capacity            resulting                 from         the            injury,              whereas           an indemnity                       benefit
under        §§ 39-71-705                     through                 -708,           MCA (1983),                     awards         compensation

for       possible            loss           of    earning                  capacity               in     the          future.              Stuker             v.
Stuker        Ranch           (1991),             251 Mont.                    96,       98,      822 P.2d               105,        107.

           Burglund                argues                 that              the          Workers'                     Compensation                     Court

erroneously             interpreted                       the        law       in      finding            that         he suffered                  no loss

of      earning         capacity                  and       concluding,                         therefore,                  that       he        was         not

entitled          to benefits                     under          5 39-71-703,                     MCA (1983).                    He argues                  that

the       Workers'               Compensation                        Court            failed         to     determine                 whether                his

ability        to     earn         in    the        open labor                      market         had been diminished                                by his

work-related                 injury           after         taking              into           account           all      relevant              factors.

           Section                39-71-703,                         MCA            (19831,               provides                  that              weekly

compensation                 benefits              in the              amount            of     662/3            percent            of the            actual

diminution             in        the     worker's                    earning              capacity               shall          be paid               for      an

injury        producing                 permanent                    partial             disability.                     Permanent               partial

disability              is         defined                by          §      39-71-116(12),                           MCA        (1983),              as       "a

condition             resulting                   from          injury                as defined                 in      this       chapter                 that

results        in     the         actual           loss          of        earnings              or earning                 capability."                       We

have       previously                held         that          the         relevant              inquiry               under        § 39-71-703,

MCA (1983),                 is     whether                a claimant's                         ability            to      earn        in        the         open

labor        market           has       been             diminished                    by      a work-related                       injury             after

taking         into          account               all          relevant                 factors.                      Sedlack         v.           Bigfork

Convalescent                 Center               (1988),              230 Mont.                 273,        749         P.2d       1085.              These

factors           include              the        injured              worker's                 age,       occupation,                     skills            and


                                                                                  6
education,                  previous                  health,          number               of     productive                 years         remaining,

and       degree            of        physical                or     mental                impairment.                   Reeverts                v.      Sears

(1994),          266 Mont.                     509,       514,        881 P.2d                   620,     623.          Under          5 39-71-703,

MCA (1983),                   a claimant                      does        not        have         to     prove          that         his     job         is      in

jeopardy           or that                there          is     a likelihood                      of     losing          present            employment

because               of         an        injury               to        be         eligible               for         permanent                     partial

disability                 benefits.                    Taylor         v. Columbia                      Falls         Aluminum             Co.        (1990),

243 Mont.              464,           795 P.2d                433.

             The           Workers'                 Compensation                     Court's             conclusion                  that        Burglund
was       not      entitled                    to      benefits             under                § 39-71-703,                  MCA (19831,                    was

based        on its              resolution                   of     factual               disputes               concerning                whether              he

had physical                  restrictions                         from        his       1984 injury                  which         would        diminish

his     earning              capacity                 on the          open labor                  market.               In order            to address

Burglund's                  assertion,                  we must            first           address              the    findings             upon which

the     court          based             its        conclusion                 that        he was not                 entitled             to benefits

under        5 39-71-703,                           MCA (1983).

           At    trial,               Burglund                claimed            significant                    and prolonged                    physical

restrictions.                            The         Workers'             Compensation                      Court            did      not        find         his

testimony              credible                 and it             determined                that        Burglund              did     not       have           the

physical               restrictions                        he        claimed.                     The       evidence                 and      testimony

presented              at        trial          showed             that         Burglund                returned             to work          without               a

physician-imposed                                   restriction                    resulting                from             his      work-related

injury.            Burglund                    completed              a medical                   history             form         and stated              that

he did          not        have          any disease,                     illness,                or defect              which         might           result

in    a disability                        or         incapacity.                      In     addition,                Burglund's                 numerous

recreational                     activities,                       including               nordic           ski        patrol,             white         water


                                                                                     7
rafting,           sailboat               racing,                  and hunting,                         indicate          that         he remains                     in
excellent             physical                 condition.                          This        Court           will      not        substitute                   its
judgment           for       that         of        the        trial              court        when the                issue         relates             to      the

credibility                  of         the         witnesses                       or        the         weight             given           to      certain

evidence.                Wunderlich,                         892 P.2d               at        566.         The court's                   finding               that

Burglund             did          not         have           the        physical                    restrictions                    he       claimed                  is

supported             by      substantial                       credible                  evidence               in     the        record.

           Burglund              asserts                that        the Workers'                        Compensation                  Court        erred              by
analyzing             his         claim            in        the       context                of        a "pre-injury                    normal               labor
market"           and not           in        the        context              of an open labor                          market           as set               forth

in      Sedlack,            749         P.Zd            at     1088.                However,                given            the      fact         that          the

Workers'           Compensation                          Court              specifically                       found         that        Burglund                did

not      suffer            from         the     physical                    restrictions                       he claimed,                 a review                   of

Burglund's                 contention                   would           be superfluous.

               The           court              evaluated                           the            relevant                  factors                in           its

determination                      of          Burglund's                          loss            of      earning                 capacity.                          It

considered                 Burglund's                        education                    and           stated           that          although                  his

electronics                  certification                             is          obsolete,                   his      previous                  education

demonstrates                 his        intelligence                         to     master              technical              subjects            and that

the      type         of      work            he         has        chosen                does           not         require          the          level              of

education             he         has      achieved.                          As      to        Burglund's                 work           history,                the

court         noted         that          performance                         in        his        position             at      the       time           of      his

injury          has        not      been            diminished                      by his               injury.               The       court           stated

that        Burglund's                    pain                 and          disability                     does          not          significantly

interfere             with         his         employment.                           Burglund's                      age was          considered                      by

the      court        to     be a neutral                          factor.                The Workers'                    Compensation                        Court


                                                                                    8
therefore               concluded                   Burglund          suffered              no actual                      wage loss                from      his

injury           and is               physically             able      to continue                       performing                    his      job        until
he        reaches                retirement                  age.             We          determine                   that             the          Workers'

Compensation                     Court           correctly           interpreted                   the         law when it                    determined

that            Burglund                    suffered            no          loss           of         earning                  capacity                    under
5 39-71-703,                      MCA (1983),                 and that              it      properly                  denied            PPD benefits

to       Burglund            under            this        section.

            Burglund                   also         appeals          the       denial              of          his         motion             for         a new

trial.             The            decision              to     grant          a new              trial           is          within            the         sound

discretion                  of        the     trial          judge         and will              not       be overturned                            absent          a

showing           of        manifest                abuse      of     discretion.                         Fjelstad                v.         State         Dep't

of Highways                  (1994),              267 Mont.            211,         220,         883 P.2d                  106,        111;         Stanhope

v.       Lawrence                (1990),            241 Mont.              468,          471,      787 P.2d                   1226,           1228.

            The Workers'                      Compensation                  Court          found          Burglund's                    testimony                  at

trial           that         he was               physically                restricted                    in         his       job       performance

unbelievable.                           Burglund             argues          that          newly           discovered                    evidence                  of

his        current           physical                 condition             raises              a reasonable                      probability                      of

a different                      result,              especially             concerning                    the          findings                involving

his       credibility.                        He claims             that      the         1984 injury                      forced            him      to stop

working            at        UPS            seventeen              months            after               the         trial             and         that       his

credibility                      at      trial          as    to      his         physical                restrictions                         should              be

reevaluated.                          Burglund            asserts           that          refusing               to          reopen           the         record
to       admit       evidence                 on what         the      lower             court        viewed               as a central                    issue

of       this     case,           whether              he could            continue              working               indefinitely                       in his

current           position,                   was a manifest                       abuse         of       discretion                    that          compels

reversal               of    the            lower       court's            decision.


                                                                              9
            The Workers'                   Compensation                  Court            stated             that          it      cannot           go back
and       retry           a    matter             simply            because                there             have               been         subsequent
developments.                         The             court         held,            however,                   that               it        does          have
jurisdiction                  to consider                 subsequent                 changes             in his                 disability            under

§ 39-71-2909,                      MCA,          and      that          Burglund's                 remedy              is          to      file       a new

petition.                We conclude                   that      the     Workers'             Compensation                              Court       did        not

abuse        its         discretion               in      so holding.

                                                                        ISSUE        2

          Did           the   Workers'                 Compensation                  Court             err      in          determining                    that

Liberty            is     liable           under         55 39-71-705                     through             -708,              MCA (1983),                   for
payment            to     Burglund               of      100 weeks              of        PPD benefits,                           representing                       a

twenty        percent              disability?

            Permanent                 partial                 disability                    benefits                       available                  under

§§ 39-71-705                  through             -708,        MCA (1983),                  are         commonly                   referred               to    as

"indemnity                benefits."                    Liberty           and UPS assert                            that          the        triggering

event        for        an award            of        indemnity           benefits                is     a physical                       restriction

arising            from       an injury                that       has or may adversely                                    affect             a person's

ability            to     work        in     the         future.              They         argue             that          because                Burglund

has no physical                    restrictions                    on his        work         or recreational                                activities

that      as a matter                  of        law     he is          not     entitled                 to         indemnity                  benefits.

            Indemnity              benefits              are based            upon the                 schedule                  of      injuries              set

forth        in         § 39-71-705,                  MCA (1983).                    In     the        case          of          a non-scheduled

injury,             such      as      the         back        injury          found           in        this          case,              the        maximum

number         of        weeks       of     benefits               is     500 weeks.                     Section                  39-71-706,                   MCA

(1983).




                                                                           10
          To      determine                    an      indemnity                benefit                 claim       under             §§ 39-71-705

through           -708,            MCA (1983),                    the         court          must          consider             the         claimant's

age,      education,                    work          experience,                   pain          and disability,                      actual                wage

loss,        and loss              of     future              earning               capacity.                  Carroll          v.     Wells                Fargo

Armored           Serv.        Corp.            & CNA (1990),                       245 Mont.               495,         499,        802 P.2d                618,
621     (citing             Holton             v.      F.H.       Stoltze              Land and Lumber                        Co.          (1981),              195

Mont.        263,         266,           637 P.2d                10,         12).          As we have                previously                       stated,

the      purpose              of         indemnity                benefits                  is       to        indemnify               the            injured

worker         for        "possible"                   loss       of      future            earning             capacity,              rather                than

any     "actual"              loss         of         earning            capacity.                      Stuker,          822 P.2d                 at        107.

          Burglund                 may not              have        a present                    physical            restriction                       on his

work;        however,                   this           does         not         mean             that       he      will         not             suffer               a

possible             loss      of        future            earning             capacity                 as a result             of         his        injury.

One-half             of     the         twenty             percent             disability                  award         is     represented                        by

the     impairment                   award,             which           is      strictly                  a medical             determination.

UPS       attacked                 this              medical              determination                         before               the          Workers'

Compensation                  Court            but         did      not        appeal              this         issue.           Given                the       ten

percent           impairment                        rating,            the          court          awarded            an        additional                      ten

percent           for        factors                 other         than          medical                impairment.                    The            court's

award        of      an additional                         ten      percent               does          not,       as a matter                        of     law,

require           that       Burglund                  be currently                   physically                  restricted                     in     either

his     employment                  or     his         recreational                       activities.                    It     is     an award                    to

compensate                  future             possible                loss          of      earning              capacity.                      There             is

sufficient                  evidence                  in      the            record          which              supports              the             court's

conclusion                  that          Burglund                could             possibly               be      forced             to         quit           his




                                                                                11
position         with       UPS and         therefore              suffer     future        possible      loss      of
earning         capacity.
          We therefore           determine           the Workers'           Compensation          Court   did    not

err     in    concluding         that      Liberty       is    liable       under      §§ 39-71-705       through

-708,        MCA (1983),         for     payment        to Burglund          of     100 weeks      of permanent

partial          disability              benefits,             representing             a     twenty      percent

disability.

          We affirm           both      issues       raised        on appeal.



                                                                            Justice


We concur:




                                                              12
