                               NO. 89-147

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1989



RUSSELL M. ALLEE,
                Claimant and Appellant,
       -vs-
ALUMINUM PRODUCTS AND ALPINE GLASS, INC.,
              Employer,
       and
STATE COMPENSATION INSURANCE FUND,
                Defendant and Respondent.



APPEAL FROM:     The Workers' Compensation Court, The Honorable
                 Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                John H. Bothe; Bothe   &   ~auridsen,Columbia Falls,
                Montana
       For Respondent:
                 W. D. Hutchison, Agency Legal Services, Helena,
                 Montana



                                   Submitted on ~riefs: Aug. 10, 1989
                                     ~ecided: September 20, 1989
Justice Fred J. Weber delivered the Opinion of the Court.

     The claimant, Mr. Allee, sought recovery of additional
permanent partial disability benefits in the Workers' Compen-
sation Court, and requested such benefits to be paid in a
lump sum. The court found Mr. Allee suffered a 2 0 % permanent
partial disability and awarded him a total of 44 weeks of
benefits. From this decision, Mr. Allee appeals. We remand
for further findings of fact and conclusions of law.
     The issues are:
     1. Is the lower court's finding of 2 0 % disability
supported by substantial credible evidence?
     2.  Do the findings of fact and conclusions of law
support the lower court's judgment that Mr. Allee is entitled
to 44 weeks of permanent partial disability benefits?
     Mr. Allee has worked as a ranch hand, an oil field
laborer, an oil field large engine mechanic, a backhoe opera-
tor, a small truck driver, and a glazier. He first worked as
a glazier for Powder Basin Glass in Gillette, Wyoming, in
1983. He became employed by the defendant, Aluminum Products
and Alpine Glass, Inc. (Aluminum Products) of Kalispell,
Montana as a glazier in June of 1985. His duties included
the fabrication and installation of frames for glass and the
installation of glass.    He has worked as a glazier since
1983. Mr. Allee left high school in the eleventh grade. He
is right-handed.
     On January 9, 1986, while working on a window frame, 26
year-old Mr. Allee scratched his left hand with a six inch
piece of aluminum. The next day, when his hand swelled and
he noticed red streaks going up his arm, he went to the
hospital emergency room where he received penicillin and
tetanus shots.     The infection worsened and subsequently
required surgical drainage. The surgery was performed by Dr.
Paul Ruttle, an orthopedic surgeon located in Kalispell,
Montana. Mr. Allee was hospitalized for eight days.
     Alumin,um Products is enrolled under Compensation Plan
No. 3 of the Workers' Compensation Act and is insured by the
State Compensation Insurance Fund. Mr. Allee filed his claim
for compensation and received temporary total disability from
Aluminum Products for the period of time he was off work due
to the injury. He returned to work with Aluminum Products on
February 11, 1986.
     Dr. Ruttle remained as Mr. Allee's treating physician
from the time of surgery on January 10, 1986, until September
21, 1987.    Initially, he released Mr. Allee to return to
light duty work, and released him to full duty work on Janu-
ary 21, 1987. As evidenced by Dr. Ruttle's office note on
that date, Mr. Allee had "full range of motion of all fingers
and thumb" and was "doing well. "
     Dr. Ruttle's notes of September 1, 1987, stated that the
strength of Mr. Allee's left hand was approximately 75% of
the right, and rated Mr. Allee as "approximately 10%
permanent [ly] partial [ly] impair [ed] of the left upper ex-
tremity."   This was the only medical impairment rating as-
signed to Mr. Allee.     Aluminum Products paid Mr. Allee an
impairment liability award of $146.50 per week for 20 weeks
(10% of 200 weeks).
     That was Dr. Ruttle's last examination of Mr. Allee.
Dr. Ruttle was unavailable to testify in this matter, and
there was no other medical expert testimony. Dr. Ruttle's
office notes were stipulated into evidence.
     The lower court's findings are summarized as follows:
Since returning to work, Mr. Allee has been unable to tightly
grip and carry thin objects, such as sheets of glass. He has
had a loss of strength in his left upper extremity, including
a loss of grip strength and finger pincer strength, a loss of
coordination and dexterity in the left hand, a loss of feel-
ing in the left index finger, constant puffiness and swelling
of the hand, contraction of the first web space on the left
hand, and pain associated with the web space contraction.
Because of the loss of strength in his left upper arm, his
performance as a glazier has been limited.     His left hand
hurts him when he carries things, and it is easily fatigued.
For lifting and carrying, he now requires the use of a suc-
tion cup.   However, he has continued to work as a glazier
since the accident.    Due to a seasonal slowdown, he left
Aluminum Products in January 1987 and went to work for his
present employer, again as a glazier. Mr. Allee testified
that he is able to perform all of the job requirements of his
present employer. He receives fifty cents per hour more with
his current employer than he did prior to the accident.
                              I
     Is the lower court's finding of 20% disability supported
by substantial credible evidence?
     The lower court made the following pertinent findings of
fact and conclusions of law:

                      Findinas of Fact
     13. Claimant has had a - -of strenath - -
                               loss              in his
     left upper extremity, including a 1;  0s   of grip
     strength and of finqer pincer strenqth, a loss of
     coordination and dexterity in the left hand, a loss
     of feeling in the left index finger, constant
     puffiness and swelling of the hand, contraction of
     the first web space on the left hand, and pain
     associated with the web space contraction.
    14. Because of the - -of strength - - -
                            loss             in his left
    upper arm, it has limited the claimant in perform-
    ing h i r j o b as a glazier. He experiences pain in
    his left hand when he is required to carry framing
    boxes and he easily fatigues with use of his left
    hand. He now requires the use of a suction cup and
     relies more   on his right hand      for lifting and
     carrying.
                     Conclusions of Law
    2. Claimant is permanently partially disabled - -
                                                    as a
    result - - injury ---- hand on January 9,
           of the         to his left
    1986, and entitled to 56 weeks of benefits at
    $146.50 per week for possible loss o f future earn-
    ing capacity under Sections 39-71-705 through 708.
    Defendant will receive credit for such benefits
    previously paid.
         The factors considered by the Court in deter-
    mining the percentage of disability include claim-
    ant's age, 29, and the fact that he has not gone
    beyond eleventh grade in school. His work history
    incudes heavy manual labor, which is still possible
    after his injury. His primary work as a full-time
    glazier since 1983 continues to be his choice of
    employment and by all indications he can continue
    in his employment without loss of income.
         The facts of each permanent partial disability
    case are different and each must be decided on
    their own merits.       Considering - - percent
                                         the 10
    impairment rating - - upper left extremity, his
                       of his
    loss of strength, limitation of his first web space
    in his left hand, - Court finds the claimant-has
                        the
    suffered - - percent disability - - upper left
              a 20                     of the
    extremitv.
            A
                   Based on the schedule in Section
    39-71-705, MCA, one hand between the wrist and
    elbow, he is entitled to 220 weeks of permanent
    partial disability benefits, times 20 percent
    equals 44 weeks of permanent partial disability
    benefits.   This, times his permanent partial rate
    of $146.50, equals $6,446.00, less permanent par-
    tial benefits previously paid.     (Emphasis added. )
     Mr. Allee contends the lower court "ignored" his physi-
cal inability to return to oil field work and failed to
consider the effects of his permanent loss of physical
strength on his future earning capacity.    He asserts that
what he asked the court to consider was his prospective loss
of earning capacity. Therefore, the lower court's conclusion
that he could return to oil field work had an unfair and
significant effect on his entitlement to permanent partial
disability benefits.
     Section 39-71-116 (12), MCA (1985), defines "permanent
partial disability" as follows:

         "Permanent partial disability" means a condi-
    tion resulting from injury as defined in this
    chapter that results in the actual loss of earnings
    or earning capability less than total that exists
    after the injured workers is as far restored as the
    permanent character of the injuries will permit.
    Disability shall be supported by a preponderance of
    medical evidence.
The purpose of workers' compensation is to protect the worker
against economic loss.      Hafer v. Anaconda Aluminum Co.
(1984), 211 Mont. 345, 348, 684 P.2d 1114, 1116.     It is a
well established rule in Montana that a "claimant's age,
education, work experience, pain and disability, actual wage
loss, and - -of future earning capacity" determine perma-
           loss
nent partial disability.   (Emphasis added.) Holton v. F.H.
Stoltze Land and Lumber Co. (1981), 195 Mont. 263, 266, 637
P.2d 10, 12.    The lower court properly applied this rule.
     In reaching the determination of 20% permanent partial
disability, the record established that the lower court
considered Mr. Allee's age of 29, his departure from high
school in the eleventh grade, work history, medical evalua-
tions, post-injury employment and his post-injury earnings.
However, the lower court's conclusions of law manifest con-
flicting findings.    Throughout its findings of fact and
conclusions of law, the court repeatedly referred to Mr.
Allee's 10% impairment rating of the upper left extremity.
However, the court, without explanation, found 20% disability
of the upper left extremity.
     Mr. Allee contends that glaziers usually leave that
occupation in their mid-thirties, hence his past work
experience and his alleged "inability" to do 50% of his past
occupations anymore, directly effect his future earning
capacity. Mr. Allee's testimony that glaziers only work into
their   mid-thirties    before   changing    occupations   is
uncorroborated. In fact, he contradicted himself when refer-
ring to glaziers in the Billings area: "90 percent of them
was between 25, 26 and 30, 40's."      Similarly he testified
"the oldest person in our shop is probably around his 40's."
     Mr. Allee had the burden of proof to establish a loss of
future earning capacity. Metzger v. Chemetron Corp. (1984),
212 Mont. 351, 687 P.2d 1033. He correctly notes the burden
shifts to the employer after the claimant affirmatively shows
that he cannot return to a job in his normal labor market.
He argues that he is physically unable to return to work in
the oil fields. He was a mechanic, a truck driver, and a
backhoe operator in the oil fields. He testified he might be
limited in doing backhoe work and that he had "started on the
backhoes because [he] wanted out of the oil field." We agree
with the lower court that the record does not support his
argument. However, based on the inconsistency of the lower
court's findings, we remand this issue for further findings
of fact and conclusions of law to determine the percentage of
disability.
                             I1
     Do the findings of fact and conclusions of law support
the lower court's judgment that Mr. Allee is entitled to 44
weeks of permanent partial disability benefits?
     The parties dispute the maximum number of weeks under
the schedule of benefits to which Mr. Allee is entitled under
5 39-71-705, MCA. Mr. Allee argues that he is entitled to a
maximum of 280 weeks for "loss of an arm at or near the
shoulder" because the impairment rating was made concerning
his left upper extremity.    Aluminum Products contends Mr.
his left upper extremity.    Aluminum Products contends Mr.
Allee's injury is limited to his left hand, limiting his
entitlement to a maximum of 220 weeks. The relevant statute
is S 39-71-705, MCA (1985), which follows in pertinent part:

          Compensation for loss of certain body members
     or loss of hearing. (1) In addition to temporary
     total disability benefits allowed in this chapter,
     indemnity benefits for loss of a member shall be
     paid at the weekly rate provided in 39-71-703 and
     shall be paid for the following periods:
     one arm at or near shoulder . . . . . . . 280 weeks
     one arm at the elbow . . . . . . . . . . 240 weeks
     one arm between wrist and elbow . . . . . 220 weeks
     onehand.   . . . . . . . . . . . . . . . 200 weeks
     It is Mr. Allee's contention that the court recognized
that he has had a loss of strength in his "upper left extrem-
ity" but failed to correctly find that he was entitled to 280
weeks of permanent partial benefits under $ 39-71-705, MCA
(1985). Aluminum Products argues that because injury was to
the hand, and the "residual impacts" of the injury are to the
hand, the court's conclusion was logical and supported by
substantial credible evidence.
     In its conclusions of law, the lower court repeatedly
stated that Mr. Allee was entitled to "44 weeks of benefits."
At one point it said "56 weeks." Mr. Allee contends that the
combination of the references to the "upper left extremity"
and "56 weeks" indicates that the court erroneously concluded
that he receive only "44 weeks" of benefits. We agree.
     Throughout its findings of fact and conclusions of law,
the court repeatedly referred to Mr. Allee's injury to the
"left upper extremity" and "left upper arm."         Although
5 39-71-703, MCA, allows 280 weeks for such an injury, the
lower court concluded that Mr. Allee was entitled to only 220
weeks, which is the compensation allowed for "one arm between
wrist and elbow." This is inconsistent. Furthermore, in its
conclusions of law the court's first reference to the period
of benefits, stated Mr. Allee was "entitled to 56 weeks of
benefits."   This corresponds with the court's findings of
injury to the "left upper extremity."      But then, without
explanation, the court changed to "44 weeks."
     We hold that the findings of fact and conclusions of law
are conflicting within, and remand this issue to the Workers'
Compensation Court for further findings and conclusions as to
the weeks of permanent partial disability allowed.
     Remanded.

                                L




We concur:        A
