                               No. 86-555
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1987


CHARLES STERNS,
                Appellant,


WALTER DUDLEY and MONTANA STATE COMPENSATIOK
INSURANCE FUND,
                Respondents.



APPEAL FROM:    The Workers' Compensation Court, The Honorable
                Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:

         For Appellant:
                Tan Christopherson, Missoula, Montana


         For Respondent :
                Honorable Mike Greely, Attorney General
                Clay R. Smith, Assistant Attorney General
                Helena, Montana


                                   Submitted on Briefs:   March 12, 1987
                                    Decided: August 11, 1987

Filed:
         R U G 11 1987



                                  Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

      Charles Sterns appeals a Workers' Compensation Court
order which awarded him 200 weeks of permanent partial
disability benefits. The issues on appeal are, (1) whether
the court correctly concluded that Sterns is not permanently
totally disabled; (2) whether the court erred in failing to
award 500 weeks of permanent partial disability benefits to
Sterns; (3) whether the court erred in refusing to impose a
20% penalty upon respondent Montana State Compensation
Insurance Fund (State Fund) for insurer unreasonableness; and
 (4) whether the court erred in failing to award Sterns his
costs and attorneys' fees. We affirm.
      In 1984, Sterns suffered two separate, compensable
industrial injuries while working for Walter Dudley as a
"faller." Basically, Sterns' job was to cut down trees and
help to prepare them for transportation to lumbermills. In
the first accident, in January 1984, Sterns suffered an
injury to his lower back and left hip when a tree top fell on
him. He received temporary total disability benefits for a
relatively short period after that injury and he eventually
returned to his job. In June 1984, Sterns suffered another
injury when his chain saw kicked back and cut into the middle
finger of his left hand.    He also received temporary total
disability benefits after that accident. Sterns returned to
work after the second accident but after several months on
the job, he quit work on the advice of his doctor. He has
not worked since October 1984.      After a dispute between
Sterns and the State Fund, Sterns petitioned the Workers'
Compensation Court for a hearing, mainly to determine whether
or not he was permanently      totally disabled.    Following
discovery and a hearing, the hearings officer filed his
proposed judgment in October 1986. The Workers' Compensation
Court adopted the hearings officer's findings of fact and
conclusions of law and, in October 1986, entered judgment in
accordance with the proposed judgment. The court ruled that
Sterns was not entitled to permanent total disability
benefits, that Sterns was entitled to 200 weeks of permanent
partial disability benefits, and that Sterns was not entitled
to a 20% penalty. The court also refused to award costs and
attorneys' fees to Sterns. This appeal followed.
      The standard of review is clear as to the first issue;
i.e., whether the court erred in ruling that Sterns is not
permanently totally disabled.
           "Our function in reviewing a decision of
           the Workers' Compensation Court is to
           determine whether there is substantial
           evidence to support the findings and
           conclusions of that court.      We cannot
           substitute our judgment for that of the
           trial court as to the weight of evidence
           on questions of fact.     Where there is
           substantial evidence to support the
           findings of the Workers' Compensation
           Court, this court cannot overturn the
           decision."  (Citations omitted.)
Brewington v. Birkenbuel, Inc. (Mont. 1986), 723 ~ . 2 d938,
940, 43 St.Rep. 1458, 1461.      Section 39-71-116 (13), MCA,
defines a permanent total disability as:
           [a] condition resulting from injury as
           defined in this chapter that results in
           the loss of actual earnings or earning
           capability that exists after the injured
           worker is as far restored as the
           permanent character of the injuries will
           permit and which results in the worker
           having no reasonable prospect of finding
           regular employment of any kind in the
           normal labor market. Disability shall be
           supported by a preponderance of medical
           evidence.
In Metzger v. Chemetron Corp. (Mont. 1984), 687 P.2d 1033,
1035, 41 St.Rep. 1788, 1790, we elaborated on the statutory
definition and stated,
           To   establish   the   existence of no
           reasonable prospect of employment in the
           normal labor market, a claimant must
           introduce substantial credible evidence
           of (1) what jobs constitute his normal
           labor market,     and   (2)   a  complete
           inability to perform the employment and
           duties associated with those jobs because
           of his work-related injury.
      At the hearing on his petition, claimant testified to
the continuing effects from both his work-related injuries.
From the first injury, claimant testified that he still
suffers from pain and numbness in the lower back and hip
region.   He also testified that sitting or riding in a car
for extended periods aggravates his back injury. Dr. Sousa,
an orthopedic surgeon who examined Sterns, diagnosed his back
condition as a neuropraxia of the cutaneous nerves in the
lumbar region.    He described the condition, in layman's
terms, as a stretching or bruising of the nerves in the skin.
Dr. Sousa made no objective findings of injury, felt that
Sterns had no impairment rating for his back injury and
stated that this injury had reached maximum healing.      Dr.
Russo, a neurologist, also examined Sterns and described the
back injury as a subjective complaint with no objective
findings. He stated that the injury could conceivably limit
Sterns' ability to lift heavy objects.
      Sterns' second injury involved a chain saw cutting into
his left middle finger.     The injury required surgery and
resulted in a loss of range of motion or flexibility with the
finger. Dr. Sousa assigned an impairment rating of 56% for
the finger, 11% for the left hand, 10% for the upper
extremity and 6% for the whole man.      Sousa described the
"whole man" impairment rating as a 6% whole man permanent
partial impairment based upon the AMA guidelines. (Emphasis
added.) Doctors Russo and Sousa generally agreed that Sterns
should avoid any employment which requires repetitive heavy
gripping of the left hand.       Since his high school days
seventeen years ago, Sterns had worked almost exclusively as
a timber faller in the Missoula and Thompson Falls area.
      There is extensive evidence, some of it conflicting,
bearing on the issue of permanent total disability. Because
substantial credible evidence supports the lower court's
ruling, we affirm the court's determination that Sterns is
not permanently totally disabled. We agree that he has not
established by a preponderance of the credible evidence that
he has no reasonable prospect of finding regular employment
of any kind in the normal labor market.
      In September 1985, the Missoula Community Hospital
Rehabilitation Center (Rehab Center) conducted a five-day
vocational rehabilitation evaluation of Sterns.     The Rehab
Center ' report (1) considered Sterns a competent worker
        s
capable of training successfully for a large number of
occupations, (2) stated that he appears to have the potential
of functioning effectively in a variety of occupations, and
(3) rated Sterns as above-average in work speed, accuracy,
intellectual functioning, academic skills and clerical
aptitude. The International Rehabilitation Associates, Inc.
(IRA) conducted a labor market survey to determine Sterns'
vocational opportunities in the Thompson Falls area.      IRA
considered those vocations listed as possibly appropriate for
Sterns by the Rehab Center.       IRA conducted an extensive
survey and concluded that " [wlhile the job market in the
Thompson Falls are [sic] appears depressed, there are, in
fact, vocational opportunities for an individual with
[Sterns'] documented physical and mental capabilities ..   .I
                                                            '
      Norm Johnson, a counselor for the Montana Job Service
in Missoula, testified for the claimant and stated that
Sterns, after his injury, could compete in 10% of the labor
market in a three county area surrounding Thompson Falls.
Johnson also testified (1) that in his counseling work, jobs
are classified as light duty work, sedentary work or heavy
duty work; (2) that he believed Sterns could handle some jobs
entailing light duty work and some entailing sedentary work;
(3) that based on Sterns' disability, Johnson believed Sterns
could perform certain jobs in lumber manufacturing, the
retail trade industry and the service industry; and (4) that
Sterns obviously is not that unemployable. This testimony,
the testimony of Sterns' own witness, supports a conclusion
that he is not permanently totally disabled. Given the above
cited evidence, we defer to the lower court's ruling that
Sterns has not shown by a preponderance of the evidence a
complete inability to perform the jobs which constitute his
normal labor market.
      The second issue is whether the lower court erred in
awarding claimant 200 weeks of permanent partial disability
benefits rather than 500 weeks. Claimant elected to proceed
under S 39-71-703, MCA, in computing his permanent partial
disability benefits. That statute provides:
           (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.
          (2) The compensation shall be paid
          during the period of disability, not
          exceeding, however, 500 weeks in cases of
          partial     disability.          However,
          compensation   for   partial   disability
          resulting from the loss of or injury to
           any member shall not be payable for a
           greater number of weeks than is specified
           in 39-71-705 for the loss of the member.
The lower court awarded claimant permanent partial benefits
under the second sentence of 5 39-71-703 (2), MCA, which
provides compensation for injury to a member and refers to
the injury scheduled under 5 39-71-705, MCA.          Section
39-71-705, MCA, provides a 200 week benefit period for the
loss of one hand. The lower court reasoned that claimant's
finger injury affected the use of claimant's entire hand and,
therefore, it awarded 200 weeks of benefits. Claimant argues
that his disability resulted also from his back injury and
that he should not be limited to the 5 39-71-705, MCA,
scheduled benefits for one hand.      He argues that he is
entitled to 500 weeks of benefits under the first sentence of
S 39-71-703, MCA.   We disagree.   Sterns elected to proceed
under 5 39-71-703, MCA, which compensates a claimant for his
actual diminution in earning capacity. The evidence in this
case established that Sterns' loss of earning capacity
resulted from his finger injury and the resulting inability
to effectively use his left hand. Sterns did not establish
what loss of earning capacity, if any, he experienced from
his back injury. Moreover, there was substantial credible
evidence tending to show that Sterns suffered no loss of
earning capacity from the back injury. We note that after
his back injury he returned to his former job after only two
weeks and worked apparently without difficulty until he
injured his finger.     Moreover, the Rehab Center's report
states that;
           [Sterns] reported that he occasionally
           continues to experience low back pain,
           however, he did not consider this to be a
           vocational handicap. He referred only to
           his recent hand injury ...
Moreover, Dr. Sousa testified by deposition that from his
evaluation of the back injury, he saw nothing objective which
would prevent Sterns from being employed.
      Finally, claimant's own evidence tended to show that
his loss of earning capacity resulted from his finger injury.
The lower court properly awarded him benefits for that loss.
Because substantial credible evidence supports the lower
court's ruling, we will not second guess the determination
that claimant suffered no loss of earning capacity from his
back injury.
      The third issue is whether the court erred in refusing
to impose a 20% penalty on the insurer. Section 39-71-2907,
MCA, authorizes the workers' compensation judge to increase a
claimant's award by 20% when payment of compensation has been
unreasonably delayed or refused by the insurer.      Claimant
argues that the insurer unreasonably refused to concede that
he was permanently totally disabled. We have already upheld
the ruling that claimant was not permanently totally disabled
and, therefore, we affirm the lower court's refusal to impose
the 20% penalty.
      Lastly, claimant asserts that the lower court erred in
failing to award him his costs and attorneys' fees. Sterns
bases his assertion upon S 39-71-612, MCA, which allows a
claimant costs and attorneys' fees in certain cases if the
claimant is successful in a dispute with the insurer. Sterns
has been unsuccessful below and on appeal and he is not
entitled to costs and attorneys' fees under that section.
      Affirmed.


                                                           f
                                  Justice.
We concur:


  ief Justice
Mr. Justice William E. Hunt, Sr., dissenting:



     I dissent.
     The record shows that the claimant is receiving
temporary total benefits for his injury.        The Workers'
Compensation Court has ordered these reduced to 200 weeks of
permanent partial disability benefits. The majority of this
court mistakenly agrees with that conclusion.
     The record shows that claimant has spent his adult life
as a logger.       Dr. Alberston, the treating physician
concluded "that it was unsafe for claimant to work as a
sawyer."   That is the also conclusion of Dr. Russo and Dr.
Sousa. That is the testimony of the claimant. Claimant has
spent his entire working life as a logger. He is now totally
disabled from doing that work. He is without any new
knowledge or skills to take the jobs that various work
experts say is available to him. He is required to prove "by
a preponderance of the credible evidence" that he cannot find
a job in his area that is, according to the testimony of the
state job expert, depressed.    He has reported to the job
service for work but has not found a job.          He sought
retraining and has been accepted at the University of Montana
in accounting.      But because he has not proven "by a
preponderance of the credible evidence" he cannot find a five
dollar an hour job to replace his $15.35 an hour job, he only
qualifies for 200 weeks of "permanent partial disability." I
cannot agree.
       I      would      reverse      the     judgment       of    the       Workers'
Compensation Court and send this back for a determination
that the claimant is totally disabled and remains so until he
is able to perform work he has been trained to do.




           I concur in the dissent o f M r . J u s t i c e W i l l i a m E . H u n t ,

 Sr.




                                                          Just ice       V
