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                                                                No. 00-437

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 365

                                                             303 Mont. 393

                                                               15 P. 3d 935

                                                         JOHN McFERRAN,

                                                      Petitioner and Appellant,

                                                                      v.

                                             CONSOLIDATED FREIGHTWAYS,

                                               Employer/Insurer and Respondent.

                         APPEAL FROM: Workers Compensation Court, State of Montana

                                   The Honorable Michael McCarter, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                      Patrick R. Sheehy, Halverson, Sheehy & Plath, P.C., Billings Montana

                                                            For Respondent:

                   Leo S. Ward, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana

                                           Submitted on Briefs: November 9, 2000
                                               Decided: December 28, 2000

                                                                   Filed:

                                   __________________________________________

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                                                                     Clerk




Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The Claimant, John McFerran, filed a petition in the Workers' Compensation Court for
the State of Montana in which he sought total disability benefits. His employer,
Consolidated Freightways, asserted that he was still employable, and therefore not
permanently totally disabled. The Workers' Compensation Court concluded that, pursuant
to § 39-72-116(24), he did not qualify for total disability benefits. McFerran appeals this
conclusion. We reverse the judgment of the Workers' Compensation Court.

¶2 We conclude that the following issue is dispositive:

¶3 Did the Workers' Compensation Court err when it concluded that McFerran was not
totally disabled because he could perform duties of a part-time pharmacy delivery driver?

                                                FACTUAL BACKGROUND

¶4 John McFerran is 57 years old. He graduated from high school at age 20 and joined the
Army. While in the Army, he was sent to Korea to work as a chauffeur for government
officials and Red Cross nurses. After two years in the Army, he worked at various jobs
including railroad work and at a sugar refinery. During this period, he received his
Teamsters card. In 1972 Consolidated Freightways hired him to be a hostler and delivery
driver. He was employed by Consolidated for the next 26 years. As a hostler, he worked in
the truck terminal in Billings servicing trucks.

¶5 In 1990, McFerran injured his back while picking up the front-end of a dolly. He was
out of work as a result of that injury for nearly two years. The company accepted liability
for the injury and McFerran received workers' compensation benefits while he was out of
work. McFerran returned to work in 1992, and continued to work in "heavy-duty lifting
areas."

¶6 In 1997 McFerran suffered a groin injury at work while loading tires. McFerran was
unable to return to work for another two months. In January 1998, he suffered another
groin injury and then, a knee strain two days later. His employer referred him to Dr.

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Donald Grewell as a primary physician. Dr. Grewell prohibited McFerran from returning
to heavy- duty work and Consolidated refused to accommodate a light duty work
restriction. Consolidated believed that any job it could offer would put McFerran at risk of
additional injury. Soon after, he resigned in order to ensure receipt of his Teamsters health
insurance and benefits. He also applied for and received Social Security disability benefits.

¶7 In his petition to the Workers' Compensation Court, McFerran sought a determination
that he is permanently totally disabled. Consolidated hired Juanita Hooper Addy, a
certified vocational consultant to assess McFerran's employability. Although Addy found
five job possibilities for McFerran, his doctors approved only three of them for the court's
consideration: a part-time pharmacy driver position, newspaper deliveryman, and
bookmobile driver.

¶8 After considering all three job descriptions, the Court concluded that both the
newspaper delivery job and the bookmobile driver position did not meet the statutory
requirements of regular employment. It held, however, that, the part-time pharmacy driver
position, was "regular employment" and, therefore, the Court held that McFerran did not
qualify for permanent total disability benefits.

                                                             DISCUSSION

                                                              ISSUE ONE

¶9 Did the Workers' Compensation Court err when it concluded that McFerran was not
totally disabled because he could perform duties of a part-time pharmacy delivery driver?

¶10 The findings of fact of the Workers' Compensation Court will be upheld if they are
supported by substantial credible evidence. Wunderlich v. Lumbermens Mut. Cas. Co.
(1995), 270 Mont. 404, 408, 892 P.2d 563, 566. Our standard of review of a Workers'
Compensation Court's conclusions of law is whether the court's interpretation of the law
was correct. Stordalen v. Ricci's Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393,
394.

¶11 The Workers' Compensation Court found that the claimant had "reasonable prospect
of physically performing" three of the jobs identified by Addy. The issue is whether any of
the three were "regular employment" pursuant to § 39-71-116(24). The court concluded
that only the part-time pharmacy delivery job met that requirement. McFerran appeals that

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conclusion. Consolidated has not cross-appealed the Workers' Compensation Court's
Findings or Conclusions.

¶12 The Workers' Compensation Court relied on § 39-71-701, MCA (1997) which
provides that "[i]f a worker is no longer temporarily totally disabled and is permanently
totally disabled, as defined by 39-71-116, MCA (1997), the worker is eligible for
permanent total disability benefits." Permanent total disability is defined as:

         [A] physical condition resulting from injury as defined in this chapter, after a
         worker reaches maximum medical healing, in which a worker does not have a
         reasonable prospect of physically performing regular employment. Regular
         employment means work on a recurring basis performed for remuneration in a trade,
         business, profession, or other occupation in this state. Lack of immediate job
         openings is not a factor to be considered in determining if a worker is permanently
         totally disabled.

Section 39-71-116(24), MCA (1997).

¶13 The court concluded that regular employment did not mean any job but one that the
Claimant was qualified for both physically and vocationally and that "regular employment
encompasses part-time employment, at least where that employment is substantial and
significant." The court concluded that the other two jobs did not amount to "regular
employment" but that the pharmacy job provided up to six hours of daily work and,
therefore, was substantial and significant enough to be considered "regular employment."

¶14 We conclude that the Workers' Compensation Court's analysis of what constitutes
regular employment for purposes of the statutory definition of permanent total disability is
correct. If a particular job is both substantial and significant, then that job would constitute
regular employment, regardless of whether the position was part-time or full-time.
However, we conclude that the Workers' Compensation Court erred when it concluded
that the part-time pharmacy job is substantial and significant.

¶15 McFerran contends, and we agree, that this is an inaccurate characterization of the
pharmacy driver position. Although Addy testified at trial that the position provided
anywhere from two to six hours of employment per day, the written documentation on
which she based her testimony is less optimistic. According to the Western Pharmacy Job
Analysis prepared by Addy, the work shift is listed as "1:30-4:30 work hours." In the


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General Comments section of the analysis, it additionally states that the "work hours range
from one to four hours, six days a week . . . ." The same report describes the work shift as
1 to 4 hours. Accordingly, based on information provided by the employer the hours per
week range from 6 to 24. The pharmacy driver position pays $5.50 an hour, for a weekly
range of $33.00 to $132.00 of income. Annually, assuming 52 weeks of employment, the
income would range from $1716.00 to $6864.00. The Federal Poverty level for the year
                                                                (1)
2000 for a family of three is $14,150.00. Furthermore, the job does not guarantee any
minimum number of hours. Addy testified that the job depends on the amount of
deliveries to be made each day.

¶16 The Workers' Compensation Court did not reach the issue of whether these hours
constituted regular employment because the lower court estimated 30 to 36 hours of work
per week. It further commented that the Court "need not determine whether minimal or
trivial employment such as 1, 5 or 10 hours a week, or even something more than that,
would constitute regular employment since in this case the evidence is that the part-time
pharmacy drivers work up to 6 hours a day which is substantial and significant."

¶17 With no assurance of more than one hour of work each day, we conclude that this job
is not substantial and significant, and therefore does not amount to "regular employment."

¶18 Because no other forms of regular employment exist for McFerran, we conclude that
the Workers' Compensation Court erred when it concluded that he is not permanently,
totally disabled.

¶19 The judgment of the Workers' Compensation Court is reversed and this case is
remanded for entry of judgment for the Claimant, John McFerran.

                                                /S/ TERRY N. TRIEWEILER

                                                               We Concur:

                                                     /S/ JAMES C. NELSON

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART


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                                                      /S/ KARLA M. GRAY

1. 2000 Federal Poverty Level, 65 Fed. Reg. 3, 7555-57 (2000).




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