Opinion
ORDER ON REHEARING
Our original opinion in this matter, Walker v. H. F. Johnson, Inc. (1978), Mont., 591 P.2d 181, 35 St.Rep. 1667, is modified as follows.
Over the past several years this Court has developed in Workers' Compensation cases involving partial disability what might be described as an election doctrine. This doctrine developed out of a desire on the part of the Court to follow the statutory mandate requiring that the Workers' Compensation Act be construed liberally. Section 92-838, R.C.M.1947, now section 39-71-104 MCA; Jones v. Glacier General Assurance Co. (1965), 145 Mont. 326, 330, 400 P.2d 888, 890.
The election doctrine was described in McAlear v. Arthur G. McKee and Co. (1976), 171 Mont. 462, 558 P.2d 1134, 1137, 33 St.Rep. 1337, 1341:
"In the beginning, we note that there are two distinct types of partial disability benefits which a claimant may seek, such being the situation on the date of McAlear's injury. A claimant may elect a disability benefit under section 92-703.1, R.C.M.1947, or an indemnity benefit under section 92-709, R.C.M.1947.
"The distinction between these two benefits is that section 92-703.1 bases the benefit upon actual loss of earning capacity resulting from the injury, whereas section 92-709 awards compensation regardless of earnings to compensate for possible loss of earning capacity in the future. Jones v. Glac. General Assurance Co., 145 Mont. 326, 400 P.2d 888."
An example may clarify the distinction. Assume two workers earning the same salary suffer identical injuries during the course of their employment. The injuries result in the amputation of each worker's right leg at the knee. Assume further that worker A's job at the time of his injury required him to stand and be mobile. As a result of his injury, he is unable to return to this job and is not trained for any others available at comparable wages. Assume worker B's job at the time of his injury was a sitting job not requiring mobility. As a result of his injury, he misses only a short time and is able to return to his job with no loss in efficiency or wages.
Under the election doctrine, worker A could elect between compensation based on actual loss of earning capacity under section 92-703.1, R.C.M.1947, now section 39-71-703 MCA, or indemnity benefits for possible future loss of earning capacity under section 92-709, R.C.M.1947, now section 39-71-705 MCA, for his enumerated injury. Worker B, however, has suffered no actual loss of earning capacity. He, therefore, would be compelled to apply for indemnity benefits under section 92-709 for his enumerated injury to compensate for possible loss of earning capacity in the future. Of course, both workers would be eligible for total temporary benefits during their convalescence. Section 92-701.1, R.C.M.1947, now section 39-71-701 MCA; Jones v. Glacier General Assurance Co., 145 Mont. at 331, 400 P.2d at 891.
The duration of compensation for each worker is the same regardless of which statute he elects to proceed under.
Section 92-709 lists the loss of one leg at or about the knee as being compensable for a maximum of 200 weeks. Worker B would therefore be limited to 200 weeks. Should worker A, who continues to suffer actual loss of earning capacity, proceed under section 92-703.1, the result would be the same as to duration of compensation. Section 92-703.1(2) provides:
"The compensation shall be paid during the period of disability, not exceeding however, five hundred (500) weeks in cases of partial disability; provided, however, that compensation for partial disability resulting from the loss of or injury to any member shall not be payable for a greater number of weeks than is specified in section 92-709 for the loss of the member." (Emphasis added.)
Therefore, even though worker A's wage loss may continue past the 200 week compensation period, benefits must cease at that time. Although this may appear inequitable, this is clearly what the legislature has directed.
It is important to note the reference in this statute to "injury to any member." By this reference, the legislature is providing that a worker who sustains an injury less severe than amputation, but which results in a continuing actual loss of earning capacity, may receive compensation up to the number of weeks specified in section 92-709 for the loss of the member. For example, worker C, worker A's co-worker, badly fractures his lower right leg so as to prevent him thereafter from standing on it for any length of time, but the leg was not amputated. Worker C, who incurs a continuing loss of actual earning capacity, is also eligible for benefits up to the 200 weeks specified in section 92-709, even though he has not actually lost his leg. It would be a matter of proof as to the actual loss of earning capacity. McAlear v. Arthur G. McKee and Co., 558 P.2d at 1137.
The duration for compensation for both loss and injury to their legs suffered by workers A and C is subject to the maximum as established by section 92-709, the indemnity benefit statute even though these workers by election may proceed under section 92-703.1 to determine the dollar amount of the compensation.
In the instant case, Walker suffered a nonenumerated (back) injury resulting in estimated disability of 15 percent of the whole man. As a result of this injury, Walker was unable to continue his employment as a truck driver and high school coach. Therefore, he suffered an actual loss of wages and properly elected to proceed under section 92-703.1 for compensation based on his lost wages.
To compute the maximum duration of benefits to which Walker is entitled under section 92-703.1 for his back injury, we refer to section 92-709, the indemnity benefit statute. In this section we also find the following provision relating to limitation of benefits for nonenumerated injuries:
"... In all other cases of permanent injury, less than total, not included in the above schedule, the compensation for partial disability shall bear such relation to the periods stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule or to partial disability (500 weeks)." (Emphasis added.)
This language provides a means to calculate the duration of indemnity benefits for less than total nonenumerated injuries on a proportionate basis depending on the severity of the nonenumerated injury. A worker suffering a nonenumerated back injury resulting in 15 percent disability would be eligible for indemnity benefits for a maximum period of 75 weeks (15 percent times 500 weeks maximum). McAlear v. Arthur G. McKee and Co., 558 P.2d at 1137.
As noted earlier the proviso in section 92-703.1(2), relating to duration of compensation for injury or loss of members resulting in actual loss of earning capacity, specifically limits these benefits to the maximum number of weeks established for indemnity benefits for loss of members in section 92-709. It is only consistent to similarly limit the duration of compensation for nonenumerated injuries resulting in actual loss of earning capacity under section 92-703.1 to the maximum time established for indemnity benefits for such injuries in section 92-709.
Therefore, by virtue of his 15 percent disability resulting from a nonenumerated injury and upon sufficient proof of his actual loss of earning capacity, claimant William G. Walker herein is entitled to compensation for such actual lost wages for a maximum period of 75 weeks.
Respondent's petition for rehearing is denied. Our original opinion in this matter is modified to conform with this order.