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No. 12384
IN THE SUPREME COURT OF THE STATE OF MONTkIU 1973
DUANE OLSON, Claimant and Appellant,
PIP,NIOII~I'S INC. , Employer, FEDERATED MUTUTAL KC1RDIdARE & IMPLEMENT INSWANCE CBMPAM',
Defendant and Respondent.
Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Kell er, Judge presiding. Counsel of Record:
For Appellant : McGarvey, Morrison and Hedman, Kalispell, Montana, James D. Moore argued, Kalispell, Montana.
For Respondent : Korn, Warden, Walterskirchen and Christiansen, Kalispel.l, Montana. Meritt N. Warden argued, Kalispell, Montana.
Submitted: April- 24, 1973
Decided : MR( 151973 Filed :MAY 1.5 :973
Yr. ?ustice Gene B. Dafy delivered the Opinion CIE the Court.
This appeal is from a decision of the district court of the eleventh judicial district, Flathead County, affirming an .~rderaf the Industrial Accident Board denying benefits to plaintiff Duane Olson.
On January 23, 1962, Olson in an industrial accident sustained injuries which impeded his movement and ability to assume certain ~ositions. A claim was filed by Olson and accepted by the In- dustrial Accident Board under Plan 2 of the Workmen's compensation Act5 carried by his employer Manion's Inc,, a car dealership and garage in Kalispell. kt that time temporary total disability compensation was paid for a period of 9 and 4/7ths weeks. In 1-967 the Industrial Accident Board on rehearing determined that 3lson had suffered permanent partial disability from 5% of the back to 20% of the body as a whole, Later that year, a subsequent application for rehearing was denied by the Board and Olson ap- pealed the ~oard's order to the district court.
After several continuances, the district court on July 5, 1972, ruled against Olson, adopting the ~oard's findings of fact and conclusions of law which denied admissibi.lity of certain evi- dence offered by Olson on the ground ic was without legal effect.
The additional evidence offered by Olson and refused by the Soard and the district court was: (1) At the time Olson sustained the cornpensable injury in 1962 he was earning $2.50 per hour but the same job at Manion's paid $4,60 per hour in 1972. (2j ~lson's present job, which pays $3.80 per hour, is substitute employment because he is physically unable to perform the job he held prior Lo i.njury,
On appeal the sole issue is whether the Industrial Accidcnt SoC*rdand the district court erred in refusing to admit and con-sider the offered evidence of impairment of earning capacity.
Section 92-703, R. C.N. 1947, establishes the amount of
compensation to be paid in cases of permanent partial disability. It provides for a fixed percentage (subject to a stated maximum): It* * * of the difference between the wages received at the time of the injury and the wages that such
injured employee is able to earn thereafter 9: ik i?".
(Emphasis added)
Olson relies on cases decided by this Court applying section

92-703, in which the terms IS loss of earning capacityt' and "loss of ability to earn in the open markett' were used: Shaffer v, Midland Empire Packing Co., 127 Mont. 211, 259 P.2d 340; Mahlum
v. Broeder, 147 Mont. 386, 412 P.2d 572. We also cites section 92-838, R.C.M. 1947, which states: I IIdhenever this act or any part or section thereof
is interpreted by a court it shall be liberally construed by such court. !I' It is fundamental to the issue of this case to keep in mind
that the workmen's compensation system is not based on common law tort liability concepts, but rather depends upon the particular statutes which the legislature enacts to create and administer the system. 2 arson's workmen's Compensation Law 5 57.10, pp.2,3 states :
ItIt has been stressed repeatedly that the distinc- tive feature of the compensation system, by contrast with tort liabil-ity i.s that its awards (apart from medical benefits) are made not for physical injury as such, but for 'disability' produced by such injury, The central problem, then, becomes that of analyzing the unique and rather complex legal concept which, by years of compensation legislation, decision, and prac- tice, has been built up around the term 1 compensable disability', "
hrhat constitutes a "compensable disability" is not a static concept, particularly in the instance of permanent partial dis- ability, Section 92-830, R.C.M, 1947, empowers the Board at any time after an award is made, to review, increase or diminish that award. Possible bases for review include: changes in the job market affecting the availability of jobs which the disabled can perform; changes in tecl~nolagy or method in a particular job field so as to preclude a disabled person from performing; or, a determination that subsequent wages earned were based on con-
sideration of sympathy or relationship. None of these situations
apply in the instant case. Essentially, Olson is contending that
he has a compensable disability based on his inability to do his
old job,
99 C,J.S. workmen's Compensation 5 295, p. 1031, states:
1IEarning power in same or other employment. It has been held under, apart from, or without reference to, statutes so providing, that the test of an in-jured employee's right to compensation is his in- ability by reason of the injury to work and earn wages 'n the employment at which he was engaged when injured, so that the earning capacity remaining to the employee in other callings cannot be considered. r ow ever, it is otherwise under statutes which impose no such limitation, or where the compensation is measured by the loss of ability to earn in any suit- able employment or in the sane-or any other employ-
ment $? ;'c *.
11The fast that a claimant might have been earning more had he been able to resume, and been promoted in, the employment he was engaged in when injured does not affect the determination. 'Idhere the average weekly wages which a claimant is able to earn are not limited to those he could earn in the same employment but include the whole monetary result of a reasonable use of all his powers, mental and physical, whether working for himself or for others and whether or not his earnings are called wages in common speech, no compensation can be had where talents previously undiscovered produce an earning capacity greater than that enjoyed prior to the injury." (Emphasis added).
In Montanaf s Workman's Compensation Act we find no limitation
of consideration to a disabled's earning ability in the same em-
ployment, or the same type of employment he was engaged in when
injured. Dosen v, East Butte Copper Min. Co., 78 Mont, 579, 254
P. 880; McXinzie v, Sandon, 141 Mont. 540, 380 P.2d 580.
The New Hampshire court in Desrosiers v, Dionne Bros. Furni-
ture, Inc., 98 N.H. 424, 101 A.2d 775, 778, decided under a
similar statutory provision an analagous fact situation, and
stated:
11In some jurisdictions earning capacity refers only
to the employee's capacity to earn in the employment or trade in which he was working at the time of the accident so that for compensation purposes the earning capacity remaining to him in other callings is not considered. * * Section 23 of our act imposes no such limitation nor has it been so interpreted. * 2
I IThe test of compensable disability under our statute is not the employee's ability or dis- ability because of his injury to do hi.s old job. Nor is it what the claimant could have earned but for his injury in the employment or trade in which he was working at the time of the acci.- dent. * * It is the difference between 'his average weekly wage before the injury and the average weekly wage he is able to earn thereafter' with his injury in suitable work under normal employment conditions, 11 We hold that the test of compensable disability under the Montana workmen's Compensation Act is "the difference between the wages received at the time of the injury and the wages that such injured employee is able to earn thereafter" in any suitable field of employment or profession he subsequently enters under normal conditions, whether or not his earnings in that field of employment or profession are comronly called "wages". Olsonls contention thzt this rule makes no provision for "inflation" or "parity" is correct. He makes a meritorioils argu- ment supporting the desirabil-ity and practicality of such a pro-vision, and we take judicial notice of the fact that prevailing wage scales have risen in the period between 1962 and 1972. However, it is neither the function nor prerogative of this Court to rewrite the workmen's Compensation Act to include such.a provision. That is the function of the legisl.ature, The courts of this state have followed the directive set forth in section 92-838, R.C.M. 1947, in liberally construing the pro- visions of the Act, particularly in the interpretation of the terms I I in the course of" and "arising out of". Rut we see no room for interpretation of the words 11wages received at the time of injury. As this Court said in ?font. Assn. of Tobacco and Candy Distributors
v. State Board of Equalization, 156 Mont. 108, 114, 476 P.2d 775:
"b+%ere the Language of a statute is plain, un-
ambiguous, direct, and certain, the statute
speaks for itself and there is nothing left for
the court to construe. 11

The judgment of the distr
hief Justice
il /
cociate Justice.

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