                                    No. 86-327

                   IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1987




RONALD EVELEIGH ,
                      Claimant and Appellant,


L.E. MYERS, CO., INC.,          Employer,

         and
NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH,
                      Defendant and Respondent.




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

COUNSEL OF RECORD:

         For Appellant.:
                      Larry R. Meyer, Stevensville, Montana

         For Respondent :
                      Garlington, Lohn & Robinson; Larry W. Jones,
                      Missoula, Montana




                                        Submitted on Briefs:       Sept. 18, 1986
                                            Decided:    January 2, 1 9 8 7


Filed:    t   ~ f i N2 - 1987


                                                  jy.



                                       Clerk
Mr. Justice John Conway Harrison delivered. the Opinion of the
Court.

       This appeal arises from a judgment of the Workers'
Compensation Court denying claimant disability benefits at
this time.    Both parties appeal.    We affirm,
       On March 1, 1983, claimant Ronald Eveleigh suffered a
work-related injury to his lower back when he accidentally
drove a caterpiller tractor into a ditch.            At the date of
injury, Eveleigh was employed by the L.E.            Myers Company,
which was provided workers' compensation coverage by National
Union Fire Insurance Company of Pittsburgh (both of whom are
hereinafter referred to as L.E. Myers) .
       Shortly    after    the   accident,     Eveleigh   experienced
stiffness and pain in his lower back and left hip.          He first
sought medical attention on April 11, 1983, when he saw Dr.
O.W.   Baltrusch, who diagnosed lower back pain and probable
muscle strain.     Eveleigh was later referred to orthopedic
surgeon Dr. James Burton on Septemher 29, 1983, who diagnosed
a muscle and ligament strain.         Dr. Burton later testified
that EveLeigh had reached a medically stable condition by
April 11, 1983.
       Eveleigh was laid off by L . E .   Myers on April 29, 1983.
He immediately applied for unemployment insurance benefits,
stating in his application that he was able and available to
work and had no medical condition which prevented him from
accepting    immediate    employment as   an    equipment operator.
Eveleigh received unemployment benefits for five months by
signing weekly    a card indicating that he had no medical
condition preventing him from accepting employment.
       From the time he was laid off by L.E. Myers in April,
1983, Eveleigh remained unemployed for more than fourteen
months.     During this time, Eveleigh remained active around
his   small    farm,       constructing         fences    and    a   pole        barn,
installing plumbing and irrigation pipes as well as hunting
and   fishing.       The Workers' Compensation Court found that
during     this     fourteen        month       span,     Eveleigh         did    not
significantly change his life style as a result of his hack
injury.
         Eveleigh ultimately returned to work on July 23, 1984,
as a heavy equipment operator for the Commonwealth Electric
Company.      After       a    few days with        Commonwealth, Eveleigh
complained of debilitating               back pains which prevented him
from performing heavy manual labor.                 He was ultimately laid
off by Commonwealth on January 13, 1985, and has not worked
since.      After     being      laid    off by     Commonwealth Electric,
Eveleigh applied for and received unemployment benefits.                           In
his application, Eveleigh again stated that he had no medical
condition     which       prevented      him    from     acceptinq         immediate
employment.       The court further found that Evel~j-qhhad not
been actively seeking employment since September 6 , 1985,
because he was winterizing his home.
         In June, 1985, Eveleiqh brought this case before the
Workers' Compensation Court.                  That court found that first,
Eveleigh was        not    entitled      to    temporary       total disability
benefits;     second, Eveleigh was              not entitled to permanent
partial disability benefits at this time; third, Eveleigh was
not   entitled      to    a     twenty   percent       penalty;      and     fourth,
Eveleiqh was not entitled to an award of attorney's fees and
costs.
         Eveleigh now appeals, arguing that he is entitled to
permanent     partial         disability      benefits,    a    twenty      percent
penalty and an award of attorney's fees and costs.
         Eveleigh     first arques that the Workers' Compensation
Court erred in its denial of his claim for permanent partial
disability benefits.       Eveleigh elected to seek permanent

partial disability benefits under S 39-71-703, MCA, for his
actual loss of earning capacity.      The Workers' Compensation
Court, however, held that Eveleigh had failed to prove that
any   loss   of earning capacity was     due    to his    industrial
injury.
       This Court's function on appea.1 is strictly confined to
determining whether the lower court's findings of fact and
conclusFons of      law are   supported by   substantial credihle
evidence.       Tenderholt v. Travel Lodge ~nternational (~ont.
1985); 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794-95.          Where,
as in this case, conflicts exist in the evidence presented,
it is the duty and function of the trial court to resolve
such conflicts; we will not disturb its findings so long as
they are based on substantial evidence.        Tenderholt, 703 P . 2 d
at 1013.
       Our review of the record reveals considerable support
for the court's findings.       We find no error.       We therefore
affirm    the   District Court's   denial of permanent        partial
disability benefits.     We further deny Eveleigh's claim for a
twenty percent penalty and attorney's fees and costs.
       It is so ordered.




We concur:                          w
