                              No.    92-104

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1992



PERRY HOFFERBER,
            claimant and Appellant,
     -vs-
PLAGO MINING, INC.,
            Employer,
     and
INDUSTRIAL INDEMNITY COMPANY,
            Defendant and Respondent.



APPEAL FROM:     The Workers' Compensation Court,
                 The Honorable Timothy W. Reardon, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Andrew J. Utick, Utick & Grosfield, Helena, Montana
            For Respondent:
                 Thomas A. Marra, Marra, Wenz, Johnson & Hopkins,
                 P.C., Great Falls, Montana




                                Submitted on ~riefs: August 6, 1 9 9 2
                                              ~ ~ ~ i dFebruary 25,
                                                        ~ d :         1993
Filed:
~usticeFred J. Weber delivered the Opinion of the Court.

     Claimant, Perry Hofferber, appeals from a judgment in the
Workers' Compensation Court, State of Montana, Helena, Montana
denying him temporary total disability benefits.
     The sole issue for our review is whether the Workers'
compensation Court erred in refusing to grant Hofferber temporary
total disability benefits for the period between February 14, 1991,
when his doctor advised him that his knee required further surgery,
and January 14, 1992, the date of his most recent knee surgery.
     On October 13, 1980, Perry Hofferber (Hofferber) suffered an
industrial injury to his right knee arising out of and in the
course of his employment with Plago Mining, Inc., in Lewis and
Clark    County, Montana.     Plago Mining,   Inc.   was   insured by
Industrial Indemnity Company (Industrial), the defendant in this
case.
     Industrial accepted liability for Hofferber's initial injury
and paid benefits from the time of the injury through April 8,
1981.      Dr. Carpenter, a Helena orthopedic surgeon, performed
surgery on January 7, 1981, to remove a popliteal cyst from
Hofferber's right knee.     On April 8, 1981, Dr. Carpenter released
Hofferber to return to work, as he felt Hofferber had reached a
medically stable condition and had attained maximum healing at that
time .
        From April 1981 to July 1985, Hofferber worked as a self-
employed carpenter.    Although he had continued to have problems
with his knee, as a self-employed carpenter, he could take breaks
                                   2
and days off if necessary because of the pain.    On July 24, 1985,
Hofferber began seeing Dr. Humberger in Bozeman.      Dr. Humberger
performed arthroscopic surgery on the right knee on September 12,
1985.     Dr. Humbergerls opinion was that the problems Hofferber
experienced which resulted in the second surgery in 1985 were a
direct result of the original 1980 injury.
     Hofferber began attending Montana State University in Bozeman
in the fall of 1985 and continued to do so through the time of the
trial.    In the fall of 1990, he again began to experience problems
with his right knee.     Because Dr. Humberger was then out of the
country, his office referred Hofferber to Dr. Lowell Anderson, who
examined him in February of 1991. After performing some diagnostic
tests, Dr. Anderson recommended further arthroscopic surgery.
Hofferber did not have surgery at that time.       He continued to
attend MSU.    Dr. Anderson testified that the surgery would have
kept Hofferber from attending school for only one or two days.
Hofferber finally had the knee surgery performed in January 1992,
after the Workers' Compensation Courtls December 6, 1991 decision
entitling Hofferber to medical benefits based on the original 1980
injury.
     Hofferber received temporary total disability benefits from
the date of his injury in October 1980 until he reached maximum
healing in April 1981.    An April 1, 1991 decision of the Workers1
Compensation Court awarded him temporary total disability benefits
for the period of time between September 12, 1985 and May 12, 1986,
the period of recovery from the second surgery.        The Workers1
Compensation Court's December 6, 1991 judgment entitles Hofferber
to receive temporary total disability benefits for the period of
time from the date of the January 1992 surgery until the date of
maximum healing following that surgery.


     Did the Workers' Compensation Court err in refusing to grant
Hofferber temporary total disability benefits retroactively from
the date he was advised to have a third surgery to the actual date
of the surgery?
     Hofferber contends that he should receive temporary total
disability benefits not only for the time from the third surgery to
maximum healing, but also retroactively from the date of that
surgery, January 14, 1992, back to February 14, 1991, the date Dr.
Anderson first recommended the surgery. He contends that he meets
the definition of temporary total disability as of February 14,
1991 until he reaches the end of his healing period following
surgery.   The applicable statute in effect at the time of
Hofferber's injury reads as follows:
     "Temporary total disability" means a condition resulting from
     an injury as defined in this chapter that results in total
     loss of wages and exists until the injured worker is as far
     restored as the permanent character of the injuries will
     permit. Disability shall be supported by a preponderance of
     medical evidence.
     Section 39-71-116(19), MCA (1983).
     This statute requires two things: (1) that the injury result
in total wage loss, and (2) that the injured worker is not as far
restored as the permanent character of his injuries permits.
Clearly, as the Workers' Compensation Court found, Hofferber's
                                 4
condition was not "as far restored as the permanent character of
the injuries" would permit at the time he sought medical treatment
in February of 1991.    This second factor is not relevant to our
discussion here.
      Hofferber contends that he meets the first prong of the
statutory definition merely by earning no wages from February 14,
1991 to the time of trial before the Workers' Compensation Court.

Industrial contends that Hofferber, not the insurer, must prove
that he suffered a total loss of wages and that he was unable to
work. Hofferber, on the other hand, argues that the surgery had to
be postponed until after the trial because the insurer refused to
pay medical expenses and, therefore, that he had to wait until the
Workers' Compensation Court ruled on the issue. He claims that the
doctors refused to treat him without cash payment in advance and
that he could not afford to pay for the surgical procedures in
advance.
      Hofferber cites Linton v. City of Great Falls (1988), 230
Mont. 122, 749 P.2d 5 5 , to support his argument that he need not
show a loss of earning capacity, as opposed to loss of wages, in
order to receive temporary total disability benefits based on 5 39-
71-116(19), MCA.   In Linton, we held that a claimant whose injury
caused him to actually lose wages because of his inability to
return to work could receive such benefits.     Linton, 749 P.2d at
61.   Such is not the case here.   Despite Hofferberls argument that
he was not working in February 1991, he presented insufficient
medical or other evidence to establish that he was unable to work.
His choice not to work was purely voluntary because he decided
instead   to   continue   his   college   education.   Under   these
circumstances,    39-71-116(19), MCA, requires the claimant to prove
by a preponderance of the evidence that he is unable to work.
    When a claimant is voluntarily out of the job market attending
college, it is not sufficient to show that he earned no wages.
Thus, the Workers' Compensation Court's denial of temporary total
disability benefits based upon Homme v. Rauenhorst Corp. (1987),
227 Mont. 495, 740 P.2d 1110, is not error.    The claimant in Homme
sought temporary total disability benefits following his healing
period and restoration to a condition "as far as the permanent
character of his injury" would permit.     Throughout the applicable
time period, he attended college.    We concluded that he could not
receive benefits while he was in college being retrained because he
"had a normal labor market" in which to search for a job, even
though he could not work at the same job that he had prior to his
injury.   Homme, 740 P.2d at 1114.   In this case, Hofferber did not
meet the statutory requirements because he attended college and
failed to prove that he was unable to work or that his training was
part of a rehabilitation program.
     We conclude that the Workers' Compensation Court did not err
when it refused to allow retroactive temporary total disability
benefits from February 14, 1991 to January 14, 1992.
     We affirm.
W e Concur:


                         --




              Justices
Justice Terry N. Trieweiler dissenting.
     I dissent from the opinion of the majority.
     When Perry Hofferber could no longer tolerate the pain and
impairment in his knee, he      saw Dr.    Lowell M.   Anderson on
February 14, 1991.   Dr. Anderson observed significant discomfort
and swelling, limited range of motion, pain with movement to the
knee, and a recent increase in claimant's symptoms. We formed the
opinion that a large popliteal cyst had formed on the posterior
side of claimantls knee and that the cyst had resulted from
internal irregularity in the knee joint.
     Doctor Anderson recommendedthat claimant undergo arthroscopic
surgery to treat the problems he had diagnosed and suggested that
he return to Dr. Frank Humberger who had previously performed
arthroscopic surgery on the claimant in 1985. Everyone agrees that
at that point claimant's healing period had not ended.
     The problem for claimant was that defendant still had not paid
for the 1985 surgery (even though it was subsequently ordered to do
so by the Workers' Compensation Court); claimant had been put on a
pay-as-you-go basis by Dr. Humbergerlsoffice manager; and claimant
was unable to afford the surgery.
     In fact, claimantf outstanding bill for Humberger s services
                       s
in relation to the 1985 surgery had been turned over to a
collection agency and was not paid by defendant until the Workers1
Compensation Court entered judgment in April       1991   requiring
defendant to pay that bill.
     Claimant had to file another petition in the Workers'
Compensation Court to compel defendant to accept responsibility for
this surgical procedure.
     It was the decision of the Workers' Compensation Court in this
case that claimant would be entitled to temporary total disability
benefits following surgery until he reached the end of his healing
period, but not before surgery, even though surgery was delayed due
solely to the conduct of defendant.     This Court has affirmed that
judgment. However, the arbitrary point selected for the beginning
of temporary total disability status makes no sense.
     The testimony in this case was that claimant would be unable
to attend classes for at least two days following the arthroscopic
surgery.    However, the testimony from claimant's previous trial,
which was made part of the record in this case, was that his
healing period would last for six months to a year from the date of
this kind of surgery.    Certainly, neither the trial court nor the
majority contend that during that entire six to twelve months
claimant would be less able to work than he was in February 1991
when his need for surgery was determined.
     I also disagree that the medical evidence was insufficient to
establish that claimant was unable to return to his former
occupation as a carpenter. And according to this Court's previous
decision in Linton v City of Great Fall! (1988), 230 Mont. 122, 749 P.2d
                   .
55, it was not necessary for claimant to establish that he had       no
earning capacity in order to qualify for temporary total disability
benefits.
     In Linton, the claimant also failed to demonstrate a total loss

of wages and presented no evidence to demonstrate that he was
completely unable to perform any kind of gainful employment.     In
fact, the undisputed evidence was that there were jobs he could
perform, even though his healing period had not ended. On appeal,
that claimant contended that: the trial court had erred by requiring
him to show a total loss of earning capacity in order to qualify
for temporary total disability benefits under 5 39-73-116(19), MCA.
We agreed and reversed the trial court's judgment for the reason
that there was substantial evidence to show that claimant could not
return to his former occupation. We held that:
          The trial court concluded that the claimant must
     demonstrate an inability to "perform other jobs" before
     being entitled to temporary total benefits and awarded
     claimant permanent partial disability benefits under
     § 39-71-116(12), MCA (1983).

          We cannot agree.     The applicable statute is
     5 39-71-116(19), MCA (1983), which defines temporary
     total disability.
          Claimant is suffering from a condition resulting
     from an injury that has resulted in the total loss of his
     wages and, as the evidence shows, he is not yet as far
     restored as the permanent character of the injuries will
     permit. Linton cannot work because of the inability to
     tolerate the pain that accompanies the use of his injured
     shoulder.  ...
          As the facts are before this Court, the award of
     permanent partial benefits to claimant is in error as a
     matter of law.    Temporary total benefits should be
     reinstated as of the date of Linton's termination from
     work.
Linton, 749 P.2d at 61.
     The only requirements established in Limm to qualify for

temporary total disability benefits are that the worker was unable
to return to his former occupation and that his healing period had
not ended. with this decision, we now add an additional element so
that the emphasis in determination of temporary total disability is
no longer the claimant's physical condition or health, but rather
what he is capable of earning.     This decision wif 1 force injured
workers to obtain employment before they are physically ready to do
so, in many cases aggravating their condition and creating more
significant long-term consequences than would be necessary if they
were allowed to heal adequately before returning to the work force.
     The majority affirmed the Workers' Compensation Court's denial
of temporary total benefits based upon our decision in Hornrne v.

Rauenhorst Corporation (l987), 227 Mont. 495, 740 P.2d 1110.    However,

there is nothing about Hornme which is similar to the facts in this

case. unlike the claimant in this case, Homme had reached maximum
healing.   He did qualify for retraining at the expense of the
Department of Social and ~ehabilitationServices.         However, the
counselor from that agency testified that even without retraining
he would qualify for some forms of employment.                 There was
undisputed testimony that his healing period had ended, and that he
had a normal labor market.    In this case, the undisputed testimony
is just the opposite. It is conceded that by February     1 4 , 1991,   it
had been medically established that this claimant's healing period
had not ended.    It can be logically deduced from the examining
physician's description of his physical condition that he could not
perform the types of physical labor he had performed in the past
without further aggravating his condition and there was no evidence
offered by defendant to establish that claimant had any residual or
normal labor market other than the occupations he had previously
performed   .
     There are sound reasons for placing greater emphasis on a
worker's    physical   condition than   his   earning   capacity when
analyzing temporary total disability, as opposed to permanent total
disability. While it may be true that after the healing period has
ended it is important for workers to test their capacity and
endurance and perform to the greatest extent possible, just the
opposite is true during a worker's healing period.
     It is important that employees who have been injured and whose
healing period has not ended be allowed to fully recover from their
injury before pursuing employment, regardless of whether they are
technically capable of performing some limited activities which
could constitute gainful employment.
     The historical purpose of treating temporary total disability
benefits differently from permanent disability benefits, has been
that workers should be given every opportunity to obtain adequate
treatment and heal to the fullest extent without competition from
economic pressures. With the increased emphasis that this opinion
places on earning capacity, rather than the degree to which a
worker has physically healed, that worthy          purpose has been
jeopardized.
     Had the claimant gone from the doctor's office on February 14
to the surgical suite on February 15, 1991, neither the trial court
nor the majority would have any difficulty concluding that he was
temporarily totally disabled from that point in time, with or
without evidence of his job market.    Neither would the majority
have any difficulty concluding that claimant's disability status
should continue for the six to twelve months of healing following
that surgical procedure. However, the reality of the situation is
that within two days of that surgical procedure, his physical
condition would, in all probability, have been better than the
physical condition in which he found himself from February 14,
1991, to January 14, 1992, when he was finally financially able to
have the surgery performed.   The only reason that the surgery was
postponed was because he was financially unable to pay for it. The
only reason he was unable to pay for it was because of the
insurer's unwillingness to accept responsibility until it had been
ordered to in a second trial court decision over the very same knee
injury.
     This decision arbitrarily and unreasonably penalizes claimant
for defendant's misconduct.
     For these reasons, I dissent. I would reverse the judgment of
the Workers' Compensation Court and award claimant temporary total
disability benefits retroactive to February 14, 1991.
                                   February 25, 1993

                             CERTIFICATE OF SERVICE

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


Andrew J. Utick
UTICK & GROSFIELD
P.O. Box 512
Helena, MT59624-0512

THOMAS A. MARRA
Attorney at Law
P.O. Box 1525
Great Falls, MT 59403-1525

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
