                             No. 94-011

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1994



MONTE PERRYMAN,
          Petitioner and Appellant,

     v.
STATE COMPENSATION MUTUAL
INSURANCE FUND/BLUE RANGE MINING CO.,
          Respondent/EmploYer
          and Respondent.




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



COUNSEL OF RECORD:
          For Appellant:
                  Torger S. Oaas, Lewistown, Montana
          For Respondent:
                  Charles G. Adams, Helena, Montana


                             Submitted on Briefs:     November 21, 1994
                                          Decided:    December 23, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
        Monte Perryman appeals the decision of the Workers' Compensa-

tion Court denying his claim for wage                      supplement   benefits.    We
affirm.

        We rephrase the issue as whether the Workers' Compensation

Court     erred in denying Perryman's claim for wage supplement

benefits.

        In September 1990 Perryman was injured while working on an
underground mining project near Lewistown, Montana.                      A rock fell
and struck him on the back,               resulting in a herniated               disc.

Perryman's      employer, Blue Range Mining Co., was covered under the
State Compensation Insurance Fund (State Fund)                      Perryman filed a

workers'     compensation    claim.      State      Fund    accepted    liability   for

Perryman's      claim,     and paid various           compensation       and   medical

benefits.
        Following    Perryman's   surgery     and    rehabilitation,      an   Employ-

ability Assessment was performed.             Based on medical testimony and

Perryman's      previous    vocational   experience,          the   assessment   found

Perryman    capable of working as a heavy equipment operator.                       The

Department of Labor then formed a Rehabilitation Panel pursuant to
§§ 39-71-1016 and -1017, MCA (1989). The Panel concurred with the

Employability       Assessment, finding that the first appropriate option

for Perryman was to "return to a related occupation suited to the

claimant's education and marketable skills" pursuant to § 39-71-

1012 (2) Cc),    MCA (1989).      Perryman did not contest the Panel's


                                          2
findings.     On April 13, 1993,      the Department of Labor issued an
Order affirming the recommendations of the Rehabilitation Panel.

Perryman did not appeal this order.         Both parties agreed that heavy

equipment operation was within Perryman's post-injury capabilities.

      Perryman has held several post-injury occupations, with wages

ranging from $4.50 per hour to $10.00 per hour.              At the time of

this petition, Perryman was employed as a truck driver with Casino

Creek Concrete Co. earning approximately $8.00 per hour.

      Betty Cross, a vocational rehabilitation counselor, testified

as a witness on behalf of State Fund.            Cross's   research   revealed

that a heavy equipment operator in Montana earns between $10.00 and

$18.00 per hour.    Cross testified that based on Perryman's previous

work experience he was capable of earning between $12.00 and $16.00

per hour.
      At the time of his injury,          Perryman was earning $12.00 per

hour at Blue Range Mining Co.         However,   Perryman did not consis-
tently work 40 hours per week during his employment with Blue

Range.     Had he consistently worked 40 hour weeks, his average pay

would have been $480 per week.        Due to his reduced working hours,

the   Workers'   Compensation Court calculated his actual average
earnings to be $388.61 per week during the entire period he worked

at Blue Range and $393.75 per week during his final four pay

periods.
      The Workers' Compensation Court found that while Perryman only

earned $8.00 per hour at the   time   of his petition, he had failed to


                                      3
show that he had been diligent in attempting to procure higher

paying employment.           The court found that since Perryman was capable

of earning as much or more than he actually earned at the time of

his injury, he was not entitled to wage supplement benefits under

§ 39-71-703, MCA (1989).



        Did the Workers' Compensation Court err in denying Perryman's

claim   for wage supplement benefits?

        We review the findings of the Workers' Compensation Court to

determine if they are supported by substantial credible evidence.

Buckentin      v.   State Compensation Insurance Fund (Mont.            1994),   878

P.2d 262, 263, 51 St.Rep.            656, 657.

        We review the Workers' Compensation Court's interpretation of

the law to determine if its interpretation is correct.                  Steer,   Inc.

v. Department of Revenue (19901, 245 Mont. 470, 474-75, 803 P.2d

601,    603.

        The law in effect at the time of the claimant's injury

controls.       Buckman    v. Montana Deaconess Hospital          (19861, 224 Mont.

318,     730 P.2d 380.         Since Perryman was injured in September of

1990,    the 1989 version of the Montana Code applies.

        Perryman claims that the Workers' Compensation Court misinter-

preted §§ 39-71-123 and -703, MCA (1989).                    He argues that this

misinterpretation         resulted    in   assigning   him   an   artificially    low

pre-injury      wage   and    an   artificially   high   post-injury    wage,    thus

unfairly denying him a wage supplement claim.


                                            4
     Perryman first argues that the Workers' Compensation Court

misinterpreted   §   39-71-703,      MCA        (1989).        Section     39-71-

703(l) (b) (i), MCA (1989), reads:

     (b) The following procedure must be followed for a wage
     supplement:

      (i)  'A worker must be compensated in weekly benefits
     equal to 66 2/3% of the difference between the worker's
     actual waqes received at the time of the injury and the
     wages the worker is qualified to earn in the worker's job
     p o o l    .   [Emphasis  added.]

Perryman claims that the term "actual wages" should be interpreted
as the claimant's dollar per hour wage extrapolated over a 40 hour

work week.   He insists the Workers'            Compensation   Court     erred   by

applying § 39-71-123, MCA (1989),          in    calculating    his    pre-injury

wages.   Perryman claims that while the wage calculation method set

out in 5 39-71-123, MCA (1989),      has been used for calculating pre-

injury wages in other types of workers' compensation claims, this

Court has never approved its use in a wage supplement claim.

     Section 39-71-123(3), MCA (1989), states:

       For compensation benefit purposes, the average actual
     earninqs for the four pay periods immediately preceding
     the injury are the employee's wages, except if:

     (a) the term of employment for the same employer is less
     than four pay periods, in which case the employee's wages
     are the hourly rate times the number of hours in a week
     for which the employee was hired to work; or

     (b) for good cause shown by the claimant, the use of the
     four pay periods does not accurately reflect the claim-
     ant's employment history with the employer, in which case
     the insurer may use additional pay periods.     [Emphasis
     added.]
A wage    supplement    claim,     like   any    other    workers'   compensation
claim,    is a claim for a type of compensation benefits.                     Since
Perryman seeks a form of compensation benefits, § 39-71-I23(3),                 MCA

(1989),    mandates the use of the four pay period average for

calculating his pre-injury wages unless one of the enumerated

exceptions is met.      Perryman's requested method of calculating his

wages is in essence the method provided for in § 39-71-123(3)(a),

MCA   (1989).   However, multiplying a worker's hourly rate by his or

her scheduled working hours is only permitted when the worker has

been employed at a job for less than four pay periods.                     Perryman

had worked for Blue Range in excess of four pay periods; therefore
this method is not available to him.

      The other exception to the last four pay period method

provided by 5 39-71-123, MCA (1989),             is if this method "does not

accurately reflect the claimant's employment history with the

employer."      If the four pay period method does not provide an

accurate reflection of the employee's wages, additional pay periods

can be used.      Section 39-71-123(3) (b), MCA (1989).                 Calculating

Perryman's average weekly wages utilizing all his pre-injury pay

periods at Blue Range, the Workers' Compensation                Court    determined

his wages to be $388.61 per week.               This amounts to approximately

five dollars per week less than his average weekly wages during his

last four pay periods.           Looking at either his entire employment

history with Blue Range or his last four pay periods prior to his

injury,   Perryman     worked, on an average,            less than 40 hours per


                                          6
week.     Thus,   the last four pay period method provided in 5 39-71-
123,     MCA   (1989),   is   the   appropriate    method   for    calculating

Perryman's pre-injury wages.

        We conclude that the 5 39-71-123, MCA         (1989),   was the proper

method of determining Perryman's pre-injury wages for his wage

supplement claim and that the Workers' Compensation              Court     properly

applied § 39-71-123, MCA (1989),            in    determining    his   pre-injury

wages.
        Perry-man also claims that the Workers'           Compensation        Court

assigned him an artificially high post-injury wage, thus further
frustrating his wage supplement claim.            He argues that the Workers'
Compensation Court should take into account all his qualified post-

injury employment in calculating his post-injury income.                 Perryman

claims the court erred by relying on State Fund's witness,                      who

testified that he was qualified and able to earn between $12.00 and

$16.00 per hour as a heavy equipment operator.                  Perryman    claims

that the court should consider his actual post-injury earnings

rather than relying on his earning capacity as alleged by State

Fund.

        As previously stated,         § 39-71-703(l) (b) (i),      MCA      (19891,

governs wage supplement benefits.           This section states:

        (b) The following procedure must be followed for a wage
        supplement:

         (i)  A worker must be compensated in weekly benefits
        equal to 66 2/3% of the difference between the worker's
        actual wages received at the time of the injury and the
        waqes the worker is qualified to earn in the worker's job
        pool . . . [Emphasis added.1

                                        7
This section clearly indicates that the wages a worker is qualified
to earn, not what he actually earns, will be used to calculate wage

supplement    benefits.

        The Employability Assessment Report on Perryman indicated that

he was qualified and physically capable of working as a heavy

equipment     operator.    Perryman likewise admitted at trial that

working as a heavy equipment operator was within his post-injury

capabilities.       State Fund presented evidence that Perryman was

qualified and able to earn between $12.00 and $16.00 per hour as a

heavy equipment operator.      State Fund's witness, Cross, justified

the $12.00 to $16.00 per hour figure based on extensive statewide

employment data, availability of jobs in this field, and Perryman's

previous experience and training as a heavy equipment operator.

The Workers' Compensation Court found Cross to be a qualified and

credible witness.
        The Workers' Compensation Court did not, contrary to Perry-

man's     assertion,   assign him the    "highest   possible"     post-injury

wage.     The evidence established that a heavy equipment operator in

Montana     could earn approximately $10.00         to $18.00 per hour,

depending on his or her training and experience.                Cross   opined

that, based on Perryman's previous training and experience, he was

capable of earning between $12.00 and $16.00 per hour.

        Also, the   Workers' Compensation Court did take into consider-

ation Perryman's actual post-injury wages in qualified employment.




                                     8
However,   the court was not persuaded by this evidence, stating in

its findings of fact:

      In reaching its determination, the Court has considered
      the fact that petitioner is presently earning only $8.00
      an hour. However, it does not give great weight to that
      fact.   Since his injury, petitioner has held higher
      paying jobs. He did not present evidence of a diligent
      job search for higher paying jobs . . . .

The   court    properly    considered   both   Perryman's    actual   post-injury

earnings and his potential post-injury earnings.

      The Workers' Compensation Court found State Fund's witness to

be credible while it found Perryman to be less credible.                     We will

defer judging the credibility and weight of conflicting evidence to

the Workers' Compensation        Court.       Kuenning v. Big Sky of Montana

(19881,    231 Mont. 1, 5, 750 P.2d 1091, 1094.             We will not substi-

tute our judgment for that of the trial court.                Estate of Alcorn

(1994),    263 Mont. 353, 360, 868 P.Zd 629, 633.

      The Workers' Compensation Court found that Perryman                    did not

lose a $12.00 per hour,         40 hour per week job due to his injury.

His average weekly earnings at the time of his injury were not

$480.00 per week,         but were rather $393.75 per week.           The     latter

amount is the proper pre-injury baseline by which Perryman's claim

for wage      supplement benefits must be calculated.                  Since the

Workers'      Compensation Court found that Perryman is capable of

earning as much if not more as he was earning at the                  time   of his

injury, he is not entitled to wage supplement benefits under § 39-

71-703, MCA (1989).



                                          9
     We conclude that the Workers' Compensation Court's findings of

fact were supported by substantial credible evidence and that its

interpretation of §§ 39-71-123 and -703, MCA (1989), were correct.

We hold that the court did not err in denying Perryman's claim for

wage supplement benefits.
     We affirm the decision of the Workers' Compensation Court.




We concur:          6




             Justices




                                10
Justice Terry N. Trieweiler            specially concurring.

      I concur that based on the law we are asked to construe, there

was   sufficient         evidence to    support   the   Workers'    Compensation

Court's denial of benefits in this case.                However,   that law is a
model of anti-worker bias.             The disability statute which pertains

to Perryman's claim was described as follows shortly after its

enactment:

      In other words, a worker's partial disability benefits
      under the new benefit provision are now determined by
      comparing what the worker actuallyearned at the time of his
      injury to some wage that he might theoretically be
      capable of earning subsequent to his injury. The new law
      thus uses the most conservative possible standard for
      pre-injury earning capacity and the most liberal possible
      standard for post-injury earning capacity.      It makes no
      difference if the worker had been capable of working in
      heavy industry at $12 an hour and was injured during a
      temporary lay-off while pumping gas for $3.35 an hour.
      The fact that the worker is now physically incapable of
      returning to his former occupation will have no bearing
      on the rate at which he is paid partial disability
      benefits.

           To make matters even more unfair, the reduced actual
      earnings at the time of his injury will be compared to
      some theoretical earnings in the worker's 'I job pool"
      after his injury. It makes no difference that the job is
      unavailable, that the employer would not hire the worker,
      or that the job is 500 miles away on the other side of
      Montana. In determining the pre-injury standard, actual
      earnings are all that count. However, in determining the
      post-injury standard against which pre-injury earnings
      must be compared,     the computer and the vocational
      consultant's imagination are the only limits.

             .   .   .

           Such a scheme is arbitrary, irrational and, by
      design, unfair to the worker who has forfeited common-law
      rights to compensation for what now appears, at best, to
      be an illusory system of income protection.

           What sense does it make to limit a worker's
      pre-injury earning capacity to his actual earnings at the

                                          11
        time of his injury, but base his post-injury earning
        capacity on a "job pool" which may have no practical
        relevance to what he is actually able to earn?      In the
        worst case scenario, the worker's actual earnings at the
        time of     his   injury may be    atypically   1OW    and
        unrepresentative of what he was actually capable of
        earning,   and his "job pool" may represent no real
        opportunities for employment.     That worker may find
        himself unable to continue in employment that would
        previously have paid $30,000 to $40,000 a year, with no
        realistic alternatives in the present job market, and no
        disability   benefits under Montana's current workers'
        compensation system. That worker has received nothing of
        value in exchange for the forfeiture of his common law
        and constitutional rights to legal redress.   If this is
        the price of improving Montana's economic climate, then
        the price is too high.

Terry N . Trieweiler    , The New Workers’ Compensation Act--Somethingfor all Montanans

tobeAshamed of, 50 Mont. L. Rev. 83, 91-93 (1989) (footnote omitted).

        Section 39-71-703, MCA (1987),         is the result of a concerted

effort by recent legislatures to skew the Workers' Compensation Act

completely in favor of employers and their insurers, and against

those     crippled     and disabled workers           for whose benefit            and

protection the Act was originally created.                  It is an example of
government by business interest groups at its worst.

        It is a reminder that what was once a progressive act for the

protection of disabled workers and their families has been reduced

to   nothing    more    than a      shield     against liability for their

employers.

        Nevertheless,   there is no constitutional requirement that the

legislature act wisely, fairly, or compassionately.                   And, so long

as the Legislature acts within its constitutional constraints, this

Court has no authority to overrule its enactments.


                                          12
     Therefore,   I conclude that based on the statutory law with

which the Court is presented,     the majority has arrived at the
correct    conclusion, and I reluctantly concur in that conclusion.

However,   it is with a good deal of regret that I acknowledge this

sorry state of affairs for injured workers in Montana.




                                   1           ust'ice



Justice William E. Hunt, Sr.,    joins   in    the   foregoing   concurring
opinion.




                                              Justice




                                 13
                                        December 23, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Torger S. Oaas
Attorney at Law
P. 0. Box 76
Lewistown, MT 59457

Charles G. Adams
Legal Counsel
5 South Last Chance Gulch
Helena, MT 59601


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
