                            No.    89-530

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990



THOMAS TAYLOR,
         Petitioner and Respondent,


COLUMBIA FALLS ALUMINUM COMPANY,
                    Employer,
     and
NATIONAL UNION FIRE INSURANCE,
          Defendant and Appellant.



APPEAL FROM:     Workerst Compensation Court
                 The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                 Bradley J. Luck; ~arlington, Lohn         &   ~obinson;
                 Missoula, Montana
          For Respondent:
                 John H. Bothe; Bothe    &   Lauridsen, P.C. ; Columbia
                 Falls, Montana


                                  Submitted on Briefs:     May 16, 1990
                                                Decided:   July 12, 1990
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

     Defendant, National Union Fire Insurance Company (Appellant),
appeals the judgment of the Workers' Compensation Court awarding
Thomas Taylor 500 weeks of permanent partial disability benefits
under 5 39-71-703, MCA (1985), at the maximum biweekly compensation
rate.    We affirm.
     The sole issue on appeal is:
     Whether the Workers' compensation Court erred in awarding
permanent partial disability benefits to the claimant under 5 39-
71-703, MCA (1985).
     At the time of trial, claimant Thomas Taylor was 44 years old,
married, with four children. Mr. Taylor graduated from high school
in Livingston, Montana in 1962, and attended part of one year of
college at Montana State University.      In 1964, Mr. Taylor enlisted
in the Marine Corps, where he served until 1968.           Following his
enlistment, Mr.       Taylor began working    for the Columbia Falls
Aluminum    Company.      He   has   worked   at   the   aluminum   plant
continuously, except for approximately eight months in 1973, when
he worked as a skidder operator and on the green chain at a plywood
plant.
     On June 23, 1987, Mr. Taylor was driving a hot metal truck at
the plant when the truck fell sideways and he was injured.          As a
result of this accident, Mr. Taylor experienced severe headaches
and dizziness.    He was placed in a neck collar and transported to
the emergency room at a local hospital, treated and released. The
examining doctor determined that Mr. Taylor had suffered a neck
sprain.
     The next day Mr. Taylor went to his family doctor, who after
initial treatment, referred him to Dr. John V.              Stephens for
conduction studies.       Eventually, Dr. Stephens diagnosed post
cervical   thoracic    sprain/strain,    myofascial pain     and   muscle
contraction headaches.    As a result of this diagnosis, Mr. Taylor
was permanently restricted to medium work, avoiding repetitive work
above   shoulder    level or     arms   outstretched, avoiding      static
positioning of the head or continuous twisting of his head or neck.
     When he returned to work, Mr. Taylor was initially assigned
to a light duty position. After five weeks at this job assignment
he returned to the hot metal truck driving position.         After three
days the symptoms relating to his injury returned and he went back
to see Dr. Stephens. Following examination, Dr. Stephens told Mr.
Taylor that he could (1) quit work, (2) try to go back to light
duty, or (3) bid out of his present job and get into a less
strenuous position.    He was successful in bidding into a position
as a casting laborer, which is far less strenuous than driving the
hot metal truck.
     Following this job change, Mr. Taylor has not missed any work
as a result of his injury, but the change has limited Mr. Taylor's
advancement     opportunities.     Other   employees   in   the    casting
department have more seniority than Mr. Taylor.        This is not the
case in other departments where, due to his injury, he is no longer
able to work.     As a result of this factor and the limited number
of jobs in the casting department Mr. Taylor is necessarily limited
in advancement.
     Following the accident, appellant accepted liability and Mr.
Taylor was reimbursed for his medical bills and for the time he
was out of work.           A dispute arose concerning the extent of his
permanent partial disability entitlement.                         Trial was held and the
Hearing Examiner issued his Findings of Fact, Conclusions of Law
and Proposed Judgment. The Workersv Compensation Judge issued his
order   accepting        the Hearing            Examiner's          recommendations.              The
judgment awarded Mr.              Taylor 500 weeks of permanent partial
disability benefits under 5 39-71-703, MCA (1985), at the maximum
biweekly compensation rate. This appeal followed.
     Section 39-71-703(1),                 MCA,     as it read before the                         1987
amendments controls the outcome of this case.                          The injury occurred
on June 23, 1987, before the effective date of the amendments. See
Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730
P.2d 380.     That section provided:
             3 9 - 7 1 - 7 0 3 . Compensation f o r i n j u r i e s c a u s i n g p a r t i a l
    d i s a b i l i t y . (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 appellant argues that the language of this statute was
intended to compensate the injured worker for actual loss of
earning capacity, while 5 39-71-705 to 708, MCA, was to compensate
injured workers for possible future loss to earning capacity.
According to their argument, Mr. Taylor can show no real loss in
earning capacity and therefore the decision of the Workerst
compensation Court granting him maximum benefits under 5 39-71-
703, MCA, is not supported by substantial evidence.
     We disagree with this contention.   In a recent case, Sedlack
v. ~igforkConvalescent Center (1988), 230 Mont. 273, 749 P.2d
1085, we were faced with this same argument.   In Sedlack, we fully
described the history and policy of cases decided under    §   39-71-
703, MCA.    Therefore, we need not fully address appellantsf
argument here.   However, it does bear repeating that the correct
test for loss of earning capacity is whether the industrial
accident caused "a loss of ability to earn in the open labor
market.If Sedlack, 749 P.2d at 1088. Given this standard, we need
only review the ruling of the Workers' Compensation Court to
determine if it correctly found that Mr. Taylor suffered Ifanactual
loss of earning capacity."
     The lower court found that following his return to work, Mr.
Taylor earned essentially the same wage as before his injury.
However, it also found that his chances for advancement were
curtailed due to job restrictions placed upon him as a result of
the accident.    The court found that Mr. Taylor lost access to a
number of jobs outside of the aluminum plant.         It based this
conclusion upon the testimony of John Addington, a vocational
rehabilitation consultant who was retained by the appellant.
According to this testimony, Mr. Taylor suffered a loss of labor
market access in Flathead County of 38.5%.   The court further found
that if the aluminum plant were to close, Mr. Taylorfs ability to
compete for other jobs would be diminished and he would suffer a
wage loss.
      Using this testimony as a basis, the court found that Mr.
Taylor was severely limited in his ability to compete for and
perform jobs outside of the aluminum plant in the Kalispell area.
Most of the jobs that he could perform do not require training and
are lower paying jobs.   The only transferable skill position which
Mr. Taylor could readily perform was identified as sub-assembler,
which at entry level pays near minimum wage.
      The lower court determined the average wage in occupations now
available to Mr. Taylor outside the plant approximated $4.00 per
hour.   It then determined that Mr. Taylor suffered a wage capacity
loss of $6.87 per hour, which was derived by subtracting his post-
injury earning capacity of $4.00/hour from his pre-injury wage of
$10.87/hour.    It then determined that Mr. Taylor was entitled to
weekly benefits of $149.50, the maximum recoverable under 5 39-
71-703, MCA (1985)  .
      The benefits awarded in this case and the findings of fact
upon which they are based are supported by substantial evidence.
Findings of the Workers1 Compensation Court will not be overturned
if there is substantial evidence to support them.     Steffes v. 9 3
Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450.
      Furthermore, the lower court did not err in its conclusions
of law.      The court found that Mr. Taylor, as a result of his
accident, suffered I1a loss of ability to earn in the open labor
market. l1   The open labor market necessarily includes jobs found
within the Columbia Falls Aluminum Plant, as well as within the
Flathead County area. Based upon this finding, the court concluded
that Mr.    Taylor incurred an actual diminution in his earning
capacity.   This conclusion is in accordance with the plain language
of 5 39-71-703, MCA (1985), and with case law promulgated by this

Court.   The judgment is therefore affirmed.


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