                             NO.    89-504

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1990



JOSEPH M. WILHELM,
           Claimant and Appellant,
    v.
OWENS ENTERPRISES, INC.,
           Employer,
     and
EBI/ORION GROUP,
           Defendant and Respondent.



APPEAL FROM:    The Workers1 Compensation Court,
                The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Kenneth E. OIBrien, Hash, OIBrien and Bartlett,
               Kalispell, Montana
           For Respondent:
                Charles E. McNeil, Missoula, Montana


                             Submitted on Briefs:       January 1 8 , 1 9 9 0
                                             Decided:   April 5, 1 9 9 0
Justice John Conway Harrison delivered the Opinion of the Court.


     Joseph Wilhelm, claimant below, appeals the decision of the
Workers1 Compensation Court holding that the defendant insurer,
EBI/Orion     Group,   properly   terminated   his   temporary   total
occupational disease benefits.      We find that the decision of the
Workers1 Compensation Court did not comport with the principles set
forth in Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 704
P.2d 1048, and we therefore reverse and remand.
     Wilhelm presents two issues for review:
     1.     Did the Workers1 Compensation Court err in concluding that
Wilhelmts benefits were properly terminated pursuant to the Coles
decision?
     2.     Did   the Workers1 Compensation Court err     in denying
Wilhelmls motion to exclude evidence that did not form the basis
for terminating Wilhelmls benefits?
     At the time of trial claimant Joseph M. Wilhelm was 59 years
old. Wilhelm, whose formal education ended when he graduated from
high school in 1947, has spent most of his life working in the
woods.      For the past fifteen years Wilhelm worked for Owens
Enterprises, primarily running a chainsaw, but at times skidding
logs or piling brush.
     During extremely cold weather in November of 1985, Wilhelm cut
frozen timber which caused his saw to "hang up1' and vibrate
excessively.      The next day Wilhelm first noticed numbness is his
right hand and fingers, but he continued to work until February,
1986 despite the chronic numbness.
       Wilhelm consulted Dr. Bruce A. Allison on March 4, 1986. Dr.
Allison advised Wilhelm that the muscle weakness and atrophy
Wilhelm experienced in his right hand was related to his operating
a chainsaw.       Dr. Allison referred Wilhelm to Dr. Robert D.
Schimpff, who diagnosed Wilhelmfscondition as advanced right ulnar
neuropathy related to occupational exposure to a vibrating power
saw.
       During the period April 1, 1983 through April 1, 1986, the
employer, Owens Enterprises, Inc., was enrolled under Compensation
Plan I1 and its insurer was EBI/Orion Group.       The coverage period
included Wilhelmls last day of work and last exposure to use of a
chainsaw while employed with Owens.
       Wilhelm notified his woods boss, Brandon Owens, of his
condition on April        8, 1986.   This was his employer's first
notification.     On April 10, 1986, Wilhelm filed a claim for
compensation with EBI.        EBI accepted liability for Wilhelmls
condition as an occupational disease and paid benefits on a bi-
weekly   basis.     EBI    also advanced Wilhelm    $5,000 under   the
Occupational Disease Act by WilhelmfsPetition for Partial Lump Sum
Settlement. EBI employed Vocational Resources, Inc. to assist in
retraining and securing employment for Wilhelm.
       Dr. Allison found that Wilhelmfs condition had stabilized and
maximum healing had been achieved as of August 24, 1987.        In an
August 28, 1987 letter, EBI informed Wilhelm that his benefits
would be terminated in fourteen days since Dr. Allison had approved
Wilhelm to return to work, though not in the woods running a
chainsaw.    Attached to the letter were a copy of Dr. Allison's
report determining Wilhelm could return to work with restrictions
and two job analyses signed by Dr. Allison.         Two weeks later
Wilhelmls benefits were in fact terminated.
     The termination was based on the two job analyses concerning
employment as a janitor with Kalispell School District No. 5 and
with Doug Johns Building Systems, also in Kalispell.      Dr. Allison
had signed both job analyses.     Both analyses indicated a great
amount of time spent on the jobs required grasping.         Wilhelmls
condition made grasping difficult and painful.        In a Physical
Activities Checklist completed for Vocational        Resources, Dr.
Allison noted that Wilhelm should not lift over 25 pounds with his
right arm nor use vibratory tools and should never grasp with his
right hand.   In addition, the Johns Building Systems job analysis
required one to two years experience, which Wilhelm did not have.
Vocational Resources was unable to find Wilhelm a job.
     Before considering the issues presented we must first address
a procedural matter.    Following a trial, the hearings examiner
entered Findings of Fact and Conclusions of Law and a Proposed
Judgment which were adopted by the Workers1 Compensation Court by
an order dated August 10, 1989.   After the Workers1 Compensation
Court entered its judgment, Wilhelm filed a Motion for Rehearing.
The Workers1 Compensation Court denied the motion, finding that the
requirements for rehearing under Montana law were not met and that
the record supports the Judgment issued on August 10, 1989.
Wilhelm then filed his Notice of Appeal to this Court from the
Workers1 Compensation   Court's   Order   denying   his   Motion   for
Rehearing.
     EBI    argues that this Court cannot review the findings or
judgment since they were not specifically appealed from. Rule 4(c)
of the Montana Rules of Appellate Procedure states that the notice
of appeal shall designate the judgment, order or part thereof
appealed from.       However, the appeal will not be dismissed for
informality of form or title of the notice of the appeal.       Rule
4 (c), M.R.App.P.

     It is correct that the Notice of Appeal was from the Order
denying the Motion for Rehearing rather than from the findings and
judgment.    While we encourage accuracy and admonish attorneys to
be precise, the misnomer contained in the Notice of Appeal is not
fatal to the instant appeal.      In the appeal before this Court the
issues raised are substantially the same as the issues appellant
raised in his Motion for Rehearing.      We will therefore treat the
appeal as an appeal from the August 10, 1987 Workersf Compensation
Court Order adopting the Findings of Fact and Conclusions of Law
of the hearings examiner and entering Judgment.          This is in
accordance with the philosophy of modern appellate practice that
technical defects of procedure should not bar a party from access
to the courts.      Tefft v. Tefft (Mont. 1981), 628 P.2d 1094, 1097,
38 St.Rep. 837, 840 (citing J.C. Penny, Inc. and F.W. Woolworth Co.
v. Employment Security Division (Mont. 1981), 627 P.2d 851, 38
St.Rep. 694).


     ISSUE I.     Did the Workersf Compensation Court err in
     concluding that Wilhelmfs benefits were properly terminated
     pursuant to the Coles decision?
     The standard of review applied to decisions of the Workersf
Compensation Court    is whether there   is substantial credible
evidence to support the findings and conclusions of the Workers'
Compensation Court.    Sharkey v. Atlantic Richfield Co.     (Mont.
1989), 777 P.2d 870, 872, 46 St.Rep. 1169, 1171.        We will not
substitute our judgment for that of the Workers' Compensation
Court.   Schrapps v. Safeway Stores, Inc. (Mont. 1989), 777 P.2d


     Section 39-71-609, MCA, controls termination of benefits by
an insurer.   The statute in effect at the time read:
          If an insurer determines to deny a claim on
          which payments have been made under 39-71-608
          during a time of further investigation or,
          after a claim has been accepted, terminates
          biweekly compensation benefits, it may do so
          only after 14 days1 written notice to the
          claimant,    the    claimant's     authorized
          representative, if any, and the division.
          However, if an insurer has knowledge that a
          claimant has returned to work, compensation
          benefits may be terminated as of the time the
          claimant returned to work.
Section 39-71-609, (1987) MCA.   The August 28, 1987 letter which
EBI sent to Wilhelm contained the requisite fourteen-day notice.
     Additionally, the Workers1 Compensation Court found that EBI
had met the four requirements it had set out in its decision in
Coles v. Seven Eleven Stores, Docket No. 2000 (decided November 24,
1984) which this Court affirmed in Coles v. Seven Eleven Stores
(1985), 217 Mont. 343, 704 P.2d 1048.    The Workers1 Compensation
Court's decision in Coles requires that before temporary total
benefits may be terminated the insurer has the duty to investigate
the claimant's condition and obtain the following information
concerning the claimant's ability to return to work:
           (1) a physician's determination that the
           claimant is as far restored as the permanent
           character of his injuries will permit;
           (2) a physician's determination of the
           claimant's physical restrictions resulting
           from an industrial accident;
           (3) a physician's determination, based on his
           knowledge of the claimantts former employment
           duties, that he can return to work, with or
           without restrictions, on the job on which he
           was injured or another job for which he is
           fitted by age, education, work experience and
           physical condition;
           (4) notice to the claimant of receipt of the
           report attached to a copy of the report.
Coles, Workerst Compensation Court, Docket No. 2000, at p. 11.
     The   Workerst   Compensation   Court   found   that     the   four
requirements of the Coles decision have been met by the fact (1)
Dr. Allison did find that maximum healing had been reached by
August 24, 1987; (2) Wilhelm could return to work as a janitor or
custodian with restrictions that he only perform light work; (3)
consideration was     given to the essential     factors for other
employment; and (4) notice was given to the claimant Wilhelm with
a copy of the reports which were the basis of the termination.
    Wilhelm    agrees that EBI1s August 28 letter meets Coles
requirements   (I),   (2) and   (4), but     disputes   the    Workers'
Compensation Court's conclusion as to requirement           (3).    The
Workers1 Compensation Court held that Dr. Allison's release of
Wilhelm to work as a janitor or custodian was supported by the
evidence presented at the hearing.
    The Workers1 Compensation Court's conclusion was apparently
based on the two job analyses for janitor position signed by Dr.
Allison and attached to the August 28 letter, one with School
District No. 5 and the other with Johns Building Systems. However,
in his deposition Dr. Allison testified that he was only signing
off on the job analyses with respect to the physical requirements
of the job.      No opinion was rendered as to the experience or
education needed to obtain either of the jobs.
       The third Coles requirement incorporates the notion that if
a claimant is unable to return to the job on which he was injured,
the claimant must be released to work at another job for which he
is fitted by      "age, education, work        experience   and   physical
condition."    Dr. Allison testified that he signed off with respect
only to Wilhelm's physical condition. All other evidence adduced
at trial indicated Wilhelm would be precluded from custodial
positions by virtue of his age, education and work experience.
Wilhelm is a 59-year-old high school graduate whose work experience
has been almost exclusively limited to running a chainsaw in the
woods.    Dr. Allison's report released Wilhelm to do ''light work
with   non vibrating machinery.   "   (Emphasis supplied by Dr. Allison. )
Dr. Allison's report was the only information EBI had available to
it that Wilhelm, by reason of his age, education, experience and
physical condition, could be competitive in the labor market.
       The evidence produced      at trial does not establish that
Wilhelm, by reason of his age, education and work experience, would
be competitive in the positions listed on the two job analyses
signed by Dr. Allison.      Wilhelm has no previous experience or
training as a janitor or custodian.              Clifford Larson, EBI 's
vocational rehabilitation expert, testified that Wilhelm would not
be competitive for the position with Johns Building Systems since
the job analysis required two years of experience.            Larson did
state that he thought Wilhelm could be competitive for the position
with School District No. 5 but never spoke with any one at the
school district concerning Wilhelmfs possible employment there.
     By     contrast   Wilhelm   presented   testimony   of   vocational
rehabilitation expert Dan Schara.      Schara testified he spoke with
School District No. 5 officials who were of the opinion that
Wilhelm would not be competitive because he would have difficulty
operating many of the machines school janitors use since the
machines (as well as other duties) require the use of two good
hands and appropriate finger dexterity. Moreover, School District
No. 5 has hundreds of applicants for such positions and school
officials expressed the opinion that Wilhelm by virtue of his lack
of experience and age would not even be considered for a janitorial
position.    Additionally, the job analysis for the School District
No. 5 position states that the job involves grasping with the right
hand four to five hours per day.
     Larsonf testimony and Dr. Allisonts signing off on the job
            s
analyses seem to be the basis for the Workerst Compensation Court Is
holding that the Coles requirements were met and Wilhelmfsbenefits
were, therefore, properly terminated. However, as we have pointed
out, Dr. Allison testified he signed off only as to Wilhelmls
physical condition to work as a janitor, not as to Wilhelm being
fitted by age, education or work experience to work as a janitor.
Furthermore, Larson admitted Wilhelm would not be competitive for
the janitor job with Johns Building Systems. Larsonf opinion that
                                                    s
Wilhelm would be competitive for the School District No. 5 position
is suspect in light of the fact that Wilhelm is 59 years old, has
no training or experience as a janitor, and would have difficulty
operating many of the machines school janitors use. Such testimony
indicates this would prevent Wilhelm from being hired by the School
District.
     For the foresoing reasons greater weight must be accorded the
testimony of vocational rehabilitation expert, Schara, who spoke
with school officials regarding employment of Wilhelm, than to the
testimony    of    expert Larson, who   did   not   speak with   school
officials.        This established that no reasonable prospect of
employment in the normal labor market exists for Wilhelm.        As we
have previously held:
            "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."     (Citations omitted.)
            Once a claimant presents evidence showing
            there is no reasonable prospect of employment,
            "the burden of proof shifts to the employer to
            show that suitable work is available."
Coles, at 347, 704 P.2d at 1051 (quoting Metzger v. Chemetron Corp.
(1984), 212 Mont. 351, 355 and 356, 687 P.2d 1033, 1035 and 1036).
     Dr. Allison's report releasing Wilhelm to work contained
restrictions such that Wilhelm could not return to his normal labor
market, cutting timber with a chainsaw.       Testimony regarding the
janitor positions listed in the two job analyses signed by Dr.
Allison,    showed Wilhelm's complete inability to perform         the
employment and duties associated with those jobs because of his
work-related injury.
       In the case at bar, EBI failed to meet the burden of showing
that suitable work     is available for Wilhelm.      All   evidence
presented tends to show there are no jobs in the local labor market
for which Wilhelm is fitted by age, education, work experience and
physical condition as mandated by the Coles requirements.       The
judgment of the Workers' Compensation Court should be reversed and
judgment entered in favor of Wilhelm.
       Because we reverse the Workers1 Compensation Court's judgment
on the first issue, it is not necessary to reach the second issue.
       We reverse and remand to the Workers' Compensation Court for
proceedings consistent with this opinion.




           Justices        I

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