                                                                            No.    89-264

                                          I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                                                  1990




ROSCOE C .        COMBS,

                                                  C l a i m a n t and A p p e l l a n t ,
            -vs-

WAGAR LOGGING, E m p l o y e r ,
           and
S T A T E COMPENSATION INSURANCE FUND,

                                                  D e f e n d a n t and R e s p o n d e n t .




A P P E A L FROM:                                 The Workers' Compensation Court, The Honorable Timothy
                                                  R e a r d o n , Judge p r e s i d i n g .

COUNSEL O F RECORD:

            For A p p e l l a n t :

                                                  David Lauridsen;             R o t h e & L a u r i d s e n , C o l u m b i a Falls,
                                                  Montana

            For R e s p o n d e n t :

                                                  R e b e c c a S m i t h ; S m i t h Law F i r m , H e l e n a , M o n t a n a




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Justice Fred J. Weber delivered the Opinion of the Court.

     This appeal arises from an order by the Workers' Compen-
sation Court of the State of Montana. Claimant appeals. We
affirm.
     The sole issue on appeal is whether the Workers' Compen-
sation Court's findings of fact regarding claimant's loss of
earning capacity are supported by substantial credible
evidence.
     Mr. Rosco Combs suffered a compensable industrial injury
on July 7, 1986, while working as a knot bumper for Wagar
Logging.   A log struck him, injuring his back.     Mr. Combs
received temporary total disability benefits from July 7,
1986, through August 29, 1988, when benefits were reduced to
permanent partial based on a six percent impairment ratins.
Claimant elected to calculate permanent partial disability
benefits on an actual loss of earning capacity, pursuant to 5
39-71-703, MCA (1985).
     The Workers' Compensation Court determined that Mr.
Combs was entitled to 500 weeks of permanent partial disabil-
ity benefits at the rate of $34.68 per week, pursuant to S
39-71-703, MCA (1985), which states in pertinent part:

         Compensation for injuries causing partial
    disability.   (1) Weekly compensation benefits for
    injury producing partial disability shall be 66
    2/3% of the actual diminution in the worker's
    earning capacity measured in dollars, subject to a
    maximum weekly compensation of one-half the state's
    average weekly wage.
The Workers' Compensation Court found that Mr. Combs'
post-injury earning capacity was $3.34 per hour. Comparing
this to his pre-iniury earning capacity of $4.65 per hour,
the court determined he had a loss of earning capacity of
$1.30 per ho,ur, or $52.00 per week. The court then found
that Mr. Combs was entitled to 2/3 of that loss, or $34.68
per week.
     On appeal, Mr. Combs contends that the Workers' Compen-
sation Court erred in its findings regarding his earning
capacity.   He claims his pre-injury earning capacity was
$16.55 per hour, and that the court's finding that his
pre-injury earning capacity was $4.65 per hour is not sup-
ported by substantial credible evidence.
     This Court's standard of review is to determine whether
substantial credible evidence supports the findings of the
Workers' Compensation Court.   Sharkey v. Atlantic Richfield
Co. (1989), 777 P.2d 870, 872, 46 St.Rep. 1169, 1171.
     The   documented   evidence   of Mr.     Combs' work   history
includes only three brief jobs in the three years prior to
this injury.   In 1983 Mr. Combs worked for Doug Henry as a
knot bumper, earning $400 total for the year. In 1984 Mr.
Combs worked as a construction laborer for Hugh Louden,
earning a total of $638.48. He worked approximately 50 hours
for Mr. Louden; thus his hourly wage was about $12.96.           In
May 1986 Mr. Combs began working for Wagar Logging. He was
injured on July 7, 1986.    He had worked 414 hours and had
earned $1925.00; thus his average hourly wage was $4.65. The
Workers' Compensation Court found that Mr. Combs' work histo-
ry prior to 1983 had not been documented or presented in a
consistent manner and could not be considered by the court.
The court determined the amount of $4.65 to be Mr. Combs'
pre-injury earning capacity.
     Claimant contends the court should have determined his
pre-injury earning capacity to be $16.55.     He bases this
assertion on deposition testimony from Mr. Hugh Louden, a
previous employer.   Mr. Louden testified that in 1984 Mr.
Combs worked for him as a laborer in government construction
jobs which   paid   wages   of   $12.69 per   hour, accordinq   to
Davis-Bacon scale.    Claimant asserts that in the current
market these wages would amount to $16.55 per hour, assuminq
Mr. Combs was at the top of the scale.
     Claimant also relies on testimony from Mr. Charles
Schloss, a vocational rehabilitation expert, who testified
that in his opinion Mr. Combs could have been trained to be a
sawyer .  He testified that as a construction worker, Mr.
Combs would not reach his maximum earning capacity until age
30. Claimant contends that had he not been injured he would
have eventually earned $8.00 per hour as an experienced knot
bumper. Additionally, Mr. Combs asserts that had he not been
injured he would have been promoted to sawyer, or skidder
operator, earning a possible $13.75 per hour.
     We have previously stated the following standards in
determining earning capacity:

          Impairment of earning capacity has been de-
     fined as "the permanent diminution of the ability
     to earn money in the future."    Additionally, we
     have stated that earning capacity is not only
     determined by a comparison of pre-injury and
     post-injury wages but also by age, occupational
     skills, education, previous health, remaining
     number of productive years and degree of physical
     or mental impairment. (Citations omitted.)
Hurley v. Dupuis (1988), 759 P.2d 996, 998-99, 45 St-Rep.
1457, 1461.
     In Hurley, this Court faced a similar issue. In that
case the Workers' Compensation Court calculated pre-injury
earning capacity at $12.44 per hour, which was an amount
claimant earned working one or two weeks on a part time
basis. This Court reversed, stating:

          Here, although Hurley was thirty years old at
     the time of filing this claim, he has no real
     occupational skills; he dropped out of school in
     the tenth grade and obtained a G.E.D.   Due to his
     back injury he is basically removed from any manual
     labor employment. The most important fact is that
     he never maintained a job for an extended period of
     time so that he could establish higher earnings.
          Granted, McIntosh testified that in the Denver
     area, current labor market earnings for concrete
     workers ranged up to $517.20 per week which trans-
     lates to approximately $13.00 per hour in a 40-hour
     work week. However, due to Hurley's previous work
     history it is extremely unlikely that he would be
     ahle to obtain one o f these johs or remain
     employed.
Hurley, 759 P.2d at 999.
     In Hurley we also noted that the claimant had not been
able to verify his claimed previous employment with either a
W-2 or income tax return.
     Although in the present case Mr. Combs attempts to
distinguish Hurley , we conclude that the facts are analogous
and the same rationale applies. Mr. Combs is 25 years old,
single, and has a ninth grade education.       Because he i.s
dyslexic, his ability to read is minimal. He is an unskilled
laborer. Since dropping out of school, Mr. Combs has worked
at various construction jobs, logging jobs, and other johs
requiring manual labor.   His work history demonstrates an
inability to stay at one job for more than a few weeks or
months.   Mr. Combs has filed no tax returns since 1977, and
he has been unable to document most of his past wages.
     At the hearing, testimony was received by deposition
from Dr. Trontel, a clinical psychologist who examined Mr.
Combs.   His testimony indicated that Mr. Combs has a low
level of reliability and responsibility. He has difficulty
getting along with people and in accepting authority.   He
testified that Mr. Combs would not perform well in any job
requiring close supervision. Dr. Trontel testified that Mr.
Combs has been incarcerated over 15 times, indicating severe
interpersonal difficulties. He also testified that Mr. Combs
stated that he had been fired several times.
     Although claimant urges that in 1984 he earned wages
according to Davis-Bacon scale, the testimony from his em-
ployer indicated that he only earned these amounts for one to
two weeks on four or five separate occasions. Mr. Combs also
earned $12.00 to $14.00 per hour as a truck driver for Mr.
Louden in 1984, but this was only for 3 or 4 days.
     Claimant's contentions regarding his potential to become
an experienced knot bumper, or his future potential of becom-
ing a skidder operator, are speculative and unlikely based on
his previous work history. Mr. Combs has been unable to keep
a job for more than two months. As stated by Dr. Trontel, he
is neither persistent nor responsible. Testimony by Dennis
Wagar, his employer at the time of his injury, demonstrated
that Mr. Combs was not being trained for the job of skidder
operator.
     The Workers' Compensation Court considered testimony hy
claimant, three vocational rehabilitation consultants, Dr.
Trontel, and Mr. Combs' previous employers, Mr. Hugh Louden
and Mr. Dennis Wagar.       The court considered not only
pre-injury wages, but also other relevant factors as stated
in Hurley.   However, applying other factors such as claim-
ant's age, skills, and education is unhelpful to claimant in
this case.    As in Hurley, from claimant's previous work
history, it is unlikely that he would remain employed long
enough to be trained for a higher-paying position.       The
court's finding that Mr. Combs' pre-injury earning capacity
of $4.65 per hour was based on documented evidence of claim-
ant's actual wages at the time of injury. We conclude that
substantial credible evidence supports the finding of the
Workersi Compensation Court that claimant's pre-injury earn-
ing capacity was $4.65 per hour.            We affirm the Workers'
Compensation Court on this issue.
     Claimant also contends that the hearing examiner errone-
ously calculated permanent partial benefits by calculating a
weekly wage of $ 1 8 6 . 0 0 ( $ 1 9 2 5 . 0 0 amount earned, divided by
4 1 4 hours worked multiplied by 4 0 hours per week)       .     He con-
tends that the insurer previously based temporary total
benefits on a weekly wage of $ 2 1 4 . 3 0 .           Claimant does not
contend that the numbers used by the hearing examiner are
incorrect; rather he contends the weekly wage determined by
the hearing examiner is inconsistent with the weekly wage
determined by the claims examiner.    We conclude that the
hearing examiner did not err in his calculation and affirm
this portion of the order by the Workers' Compensation Court.
     A£ f irmed.




We Concur:
                I//




                                /
          Justices
Justice William E. Hunt, Sr., dissenting.

       I dissent.
       The majority correctly notes that decisions of the Workers
 Compensation Court must be based on substantial credible evidence
 and yet it makes the assumption that Combs' future work potential
  is speculative and unlikely. Such rationale is itself speculative.
       The majority states that Combs' contentions concerning his
 pre-injury earning capacity are undocumented. Combs, however, did
 present a witness who testified that Combs had worked for him at
 a rate of $12.69 per hour (Combs asserts this rate would be $16.55
 on the current market). Nonetheless, this testimony was ignored
by the court when establishing Combs' loss of earning capacity.
As noted in Beck v. Flathead County (Mont. 1988), 749 P.2d 527, 45
St.Rep. 215, loss of earning capacity is defined as "a loss of
ability to earn in the open labor market."        Certainly, Combs'
 injury has significantly reduced his ability to earn.
       The majority refused to consider the factors set forth in
Beck 749 P.2d 527, including age, occupational skills, education,
I


previous health, remaining number of productive years and degree
of physical or mental impairment when arriving at the loss of
earning capacity amount. Even if the court properly calculated the
differences between Combs pre-injury and post-injury wages, the
difference is but one factor to consider among many. See, Beck,
749 P.2d at 529.
       I would reverse for a recalculation of Combs' pre-injury
earning capacity.




Justice John C. Sheehy joins in the foregoing dissent of Justice
William E. Hunt, Sr.
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