author: JUSTICE NELSON

text:
    IN RE THE MATTER OF THE PATERNITY AND CUSTODY OF T.J.H., a minor child
    No. 95-549.
    Submitted on Briefs June 4, 1996.
    As Amended on Grant of Rehearing September 9, 1996.
    Decided August 22, 1996.
    53 St.Rep. 789.
    278 Mont. 74.
    923 P.2d 1070.

      For Appellant: Richard De Jana, Kalispell.
    For Respondent: James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

The mother of the minor child appeals the findings of fact, conclusions of law, and order entered by the Eleventh Judicial District Court, Flathead County increasing child support from $200 a month to $261 a month. We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

1. Did the District Court err in imputing wages of $12,000 to the mother and was this imputation of income supported by substantial evidence?

2. Did the District Court properly apply 40.30.1520 (3), ARM, in considering that the father was supporting two children from his present marriage in addition to the child for which the child support increase was sought?

3. Did the District Court properly implement 46.30.1508(2), ARM, in not adding the father’s bonus to his gross income?

BACKGROUND

Upon the father’s petition for paternity and custody of the minor child, on August 10, 1993, the mother and father stipulated to joint custody, that the mother would be designated as the primary residential parent and that child support would be determined within 60 days. In its initial findings of fact, conclusions of law and order entered May 29, 1985, the District Court had ordered the father to pay the mother $200 a month for child support.

On June 22,1995, the mother moved the District Court to redetermine support for the minor child, which motion the father of the child opposed. The mother is a part time waitress and she agreed to impute $8,772 as her income. The mother stated that she may be able to increase her work hours from 15 to 30 hours a week to a full 40 hours a week. The father stated that $12,000 should be imputed to the mother as income because she is able to work full time. The father is a supervisory employee at Plum Creek where he earns an annual salary of $44,055. He is also supporting two children from his present marriage.

The District Court heard the matter on August 30, 1995, and requested that both parties submit proposed findings of fact and conclusions of law. After considering the evidence presented and the trial memoranda, the District Court modified the existing support order, taking into consideration that the father supports two other children.'The court imputed an income of $12,000 to the mother, and determined that father’s bonus is income for his hard work and therefore is income for the benefit of his second family. The mother appeals these findings of fact, conclusions of law and order entered by the District Court.

STANDARD OF REVIEW

We review a district court’s findings of fact in child support modification cases to determine whether they are clearly erroneous. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 862-63. However, we review a district court’s overall decision on modification of child support awards to determine whether the court’s interpretation of the law was correct. Marriage of Kovash, 893 P.2d at 863.

DISCUSSION

1. Did the District Court err in imputing wages of $12,000 to the mother and was this imputation of income supported by substantial evidence?

The mother contends that the District Court based its imputation of income of $12,000 to her on a finding for which there was not substantial evidence. She therefore argues that the court’s decision was clearly erroneous. On the other hand, the father argues that the District Court heard evidence that the mother was capable of doing the same type of work full time and therefore she was underemployed.

The guideline at issue, 46.30.1513, ARM, states:

DETERMINATION OF IMPUTED INCOME

(1) “Imputed income” means income not actually earned by a parent, but which may be attributed to the parent because the parent is voluntarily unemployed, is not working full-time when full-time work is available, or the parent is intentionally working below his or her ability or capacity to earn income.
(2) Income may be imputed according to one of two methods as appropriate:
(a) Determine employment potential and probable net earnings level based on the parent’s recent work history, occupational qualifications, and prevailing job opportunities and earnings level in the community. ...
(c) Whenever income is imputed to an unemployed parent who is providing in-home care for the child for whom support is being calculated, and if that parent would be required to incur child care expenses if employed at the imputed level, then the imputed income should be reduced by the reasonable value of the parent’s child care service.
(d) Income should not be imputed if any of the following conditions exist:
(i) the reasonable costs of day care for the parties’ dependant children will offset, in whole or in substantial part, the amount of income the custodial parent can earn.

In the instant case, in her child support guidelines financial affidavit, the mother stated that she worked 15 to 30 hours a week at $5.20 an hour. The mother also testified that there was nothing to prevent her from working another shift or working a 40-hour week. Without tips, the mother could gross $10,816 working a 40-hour week at $5.20 an hour. Therefore, the father suggested imputing income at $5.77 per hour, $5.20 base wage plus $.57 per hour for tips, for a 40-hour work week for a total gross of $12,000. Figuring income from tips and from the base hourly wage, the mother could work less than a 40-hour week and still make $12,000.

We hold that the District Court correctly imputed income to the mother according to the methods set forth in 46.30.1513, ARM. The court, properly determined the mother’s employment potential and probable net earnings level based on her work history, occupational qualifications, job opportunities, and earnings level in the community. The mother testified that she anticipated being able to work 40 hours a week and is not physically prevented from doing so. The District Court’s interpretation and application of 46.30.1513, ARM, was correct and its findings were within the evidence presented. Accordingly, we affirm the District Court’s imputation of income to the mother.

2. Did the District Court properly apply 40.30.1520 (3), ARM, in considering that the father was supporting two children from his present marriage in addition to the child for which the child support increase was sought?

The mother contends that a court may consider the noncustodial parent’s other natural born and adopted children only when the custodial parent petitions to increase child support. The mother further contends that she did not petition for an increase in child support but rather petitioned for the court to make a redetermination of child support in which she sought to increase that support.

Section 46.30.1520, ARM, provides in part:

ALIMONY, MAINTENANCE, PRE-EXISTING CHILD SUPPORT OBLIGATIONS AND RESPONSIBILITY FOR OTHER CHILDREN
(1) The amount of alimony or spousal maintenance which a parent is required to pay under a court or administrative order should be deducted from gross income.
(2) For the support of children who are not subject of the child support action:
(a) the amount of the order should be deducted from the parent’s gross income if there is a pre-existing support order ...._
(3) Use of the deductions provided in this rule are appropriate at the time of the establishment of a child support order. In a proceeding to modify an existing order, the following limitations apply: ...
(b) If the custodial parent with a support order petitions to increase child support, all other natural born and adopted children of the non-custodial parent may be considered in determining whether to increase the support order.

Here, the District Court correctly applied the guideline. Although not labeled a petition to increase child support, the mother sought a child support increase from an existing support order. Therefore, in determining the increase, the District Court correctly considered the father’s other natural bom and adopted children. The District Court had the discretion to consider the father’s present family support obligations. Accordingly, we hold that the District Court correctly interpreted the law in its determination to increase the child support.

3. Did the District Court properly implement 46.30.1508(2), ARM, in not adding the father’s bonus to his gross income?

The mother argues that the father’s bonuses should have been included in his gross income and thus figured in the child support calculations. On the other hand, the father contends that the District Court correctly applied 46.30.1508(2), ARM, in excluding his bonuses from his gross income. 46.30.1508, ARM, states in part:

DETERMINATION OF GROSS INCOME
(1) In determining for each parent the resources which can be made available for child support, the following considerations apply:
(a) “gross income” means income from any source, except as excluded in subsection (d), and includes but is not limited to income from salaries, wages, commissions, bonuses, earnings, profits, dividends, severance pay, pensions, pre-retirement distributions ...
(2) In determining a parent’s gross income, do not consider income attributable to subsequent spouses .... If a person with a subsequent family has income from overtime or a second job, that income is presumed to be for the use of the subsequent family, and is not included in gross income for the purpose of determining support for a prior family. The presumption may be rebutted upon showing that the additional income is discretionary.

The District Court found that the father’s base income was $44,055 a year, but that he could obtain an additional sum based on merit and extra time spent on the job. The court also found that the father was a salaried employee in a supervisory position.

We conclude that because the father is a salaried employee in a supervisory position, he works extra hours as any supervisory employee would and does not earn the additional sum of money “from overtime or a second job”. We are not persuaded that his bonus, which is strictly performance related, should be deemed a “second job income” or “overtime” used for the support of his second family under the guideline. Clearly his bonus is simply that, a bonus, which should be added to his gross income and considered part of his gross income. We hold that the District Court erred in its interpretation of the guideline. Accordingly, we reverse and remand to the District Court for a determination of child support consistent with the guideline.

Affirmed in part, reversed in part, and remanded for farther proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN and HUNT concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    A.C. WARNACK, Trustee of the A.C. WARNACK TRUST; and KENNETH R. McDONALD, Plaintiffs, Appellants and Cross-Respondents, v. THE CONEEN FAMILY TRUST; ELK CANYON ASSOCIATES LIMITED PARTNERSHIP, a Montana Limited Partnership; and J. BOWMAN WILLIAMS, Defendants, Respondents and Cross-Appellants.
    No. 95-519.
    Submitted on Briefs June 27, 1996.
    Rehearing Denied September 19, 1996.
    Decided August 27, 1996.
    53 St.Rep. 812.
    278 Mont. 80.
    923 P.2d 1087.

      For Appellants: John V. Potter, Jr., Attorney at Law, White Sulphur Springs; Jean Faure; Church, Harris, Johnson & Williams, Great Falls.
    For Respondents: Patrick F. Hooks; Luxan & Murfitt, Townsend; Perry J. Moore, Cindy E. Younkin; Moore, O’Connell & Refling, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

A.C. Warnack and Kenneth R. McDonald (collectively Wamack) appeal and Coneen Family Trust, Elk Canyon Associates, and J. Bowman Williams (collectively Coneen) cross-appeal from the amended judgment and injunction order of the Fourteenth Judicial District Court, Meagher County. Wamack appeals from the District Court’s determination that the easement at issue here was limited in scope to its use during the prescriptive period, and Coneen appeals from the determination that a prescriptive easement has been established. We affirm.

We address the cross-appeal first and restate the issues raised on appeal and cross-appeal as follows:

1. Did the District Court err in granting Wamack a private prescriptive easement over and across Coneen’s lands?

2. Did the District Court err in restricting use of the prescriptive road easement to its use during the prescriptive period?

3. Should this Court adopt sections 478 and 479 of the Restatement of Property in determining the extent of a prescriptive easement?

This is the second appeal arising out of a dispute between landowners regarding a prescriptive easement. This Court reversed and remanded the District Court’s grant of a prescriptive easement in an earlier opinion, Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 879 P.2d 715 (Warnack I), for reconsideration of whether Wamack had proven the elements of prescription for the full statutory period and for a determination of the scope of the claimed prescriptive easement.

On remand, the District Court granted the easement finding that Warnack had satisfied the elements of prescriptive use of the roadway for the full statutory period and that the easement was limited in scope to its use during the prescriptive period. Warnack appeals and Coneen cross-appeals from this determination.

1. Did the District Court err in granting Warnack a private prescriptive easement over and across Coneen’s lands?

Our standard of review for conclusions of law by a district court is whether the court’s interpretation of the law is correct. Warnack I, 879 P.2d at 718 (citing Public Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527).

Coneen filed a cross-appeal asserting that the District Court erred in finding that Warnack had established a prescriptive easement. In order to establish an easement by prescription, the party claiming the easement “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.” Leffingwell Ranch, Inc. v. Cieri (1996), [276 Mont. 421], 916 P.2d 751, 754 (citing Public Lands Access, 856 P.2d at 527).

The burden is on the party seeking to establish the prescriptive easement to prove all the elements of prescription. Leffingwell Ranch, 916 P.2d at 754. To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 424-26, 913 P.2d 641, 648. Such claim must be known to and acquiesced in by the owner of the land. Tanner, 913 P.2d at 648. Once the claimant establishes open, notorious, exclusive, continuous and uninterrupted (unmolested) use for the full statutory period, a presumption of adverse use or adversity arises and the burden shifts to the landowner to prove permissive use or license. Warnack I, 879 P.2d at 723. If the owner shows permissive use of the alleged easement, no easement can be acquired because the theory of prescriptive easement is based on adverse use. Tanner, 913 P.2d at 648. This Court has recognized that “ ‘where the use of a way by a neighbor was by express or implied permission of the owner ... continuous use of the way by the neighbor [is] not adverse and [does] not ripen into a prescriptive right.’ ” Tanner, 913 P.2d at 648 (quoting Public Lands Access, 856 P.2d at 528).

In Tanner, we recognized that the plaintiffs were under no duty to communicate to the landowner that they were using the road under a claim of right and adversely to the landowner. Tanner, 913 P.2d at 648. Accordingly, although the plaintiffs bear the burden of establishing that their claim is known to and acquiesced in by the owner, they need not specifically notify the servient landowners that they are using the easement under a claim of right. In this case, Coneen asserts that Warnack did not notify the servient landowners that he was using the primary easement under a claim of right. Coneen further asserts that the use of the easement was a “neighborly accommodation.” Under our holding in Tanner, Coneen’s first argument must fail — Warnack was not required to communicate notice. In essence, Coneen’s second argument is that Warnack’s use of the primary easement was not open, notorious, or adverse — that it was a “neighborly accommodation.”

This Court has held that “[i]n order to overcome the [claim of right] presumption, thereby saving its title from the encumbrance of an easement, the burden is on the defendant to show that the use was permissive.” Tanner, 913 P.2d at 648 (citations omitted). In addressing this argument, the District Court found that:

By reason of the foregoing findings, there arises a disputable presumption that the primary easement road was traveled under a claim of right not only by Plaintiffs, [Warnack] but by their predecessors which presumption must be overcome by Defendants [Coneen]. The use of the primary route was in fact exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owners of the land and that claim was known to and acquiesced in by the Defendants and their predecessors and such use was adverse to the Defendants.
The Court specifically finds that though there was evidence of a local custom of neighborly accommodation or courtesy relating to many facets of the agricultural endeavors in the area, the use of the primary easement was based more on an assertion of the users’ respective rights to use the road than it was based upon neighborly accommodation.

The court found that Coneen failed to prove that use of the primary easement by Warnack and his predecessors was in any way merely permissive' or by revocable license. The court further noted that Coneen’s assertion that the use had been permissive did not overcome the presumption of adverse use and acquiescence that Warnack established. Accordingly, the court concluded that the primary easement “[h] as been used by Plaintiffs [Warnack] and their predecessors in an open and notorious manner, under claim of right, and such use has been adverse for a period of time exceeding the statutory period consisting of the early 1950’s through October 1, 1988[.]”

The District Court’s determination that Warnack had established an easement by prescription is well supported by the record. For example, Coneen’s predecessor in interest, Jeff Doggett, testified that he never objected to Warnack’s, or that of Wamack’s predecessors in interest, use of the road and never required permission to use the road. In addition, Ben Hurwitz, defendant J. Bowman Williams’ predecessor in interest who owned the servient estate from 1950-1991, testified that “[t]he idea of neighborly accommodation assumes that if you are not neighborly anymore that you could somehow stop a person from crossing you, and we never dreamed that we could have stopped anybody that had business on the end of that road.” Although Coneen has pointed to additional or contradictory evidence in the record, we will not substitute our judgment for that of the trial court where the issue relates to the weight given to certain evidence or the credibility of the witnesses. Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432, 437-38, 913 P.2d 1242, 1245 (citing Burns v. Plum Creek Timber Co. (1994), 268 Mont. 82, 84, 885 P.2d 508, 509). Accordingly, we hold that the District Court was correct in concluding that Wamack had established a private prescriptive easement over Coneen’s property.

2. Did the District Court err in restricting use of the prescriptive road easement to its use during the prescriptive period?

In Warnack I, we remanded the case to the District Court and directed that “if the court determines that the Respondents [Warnack] have met their burden of proof and have established a prescriptive easement over the lands of the Appellants [Coneen],” then the court should determine the appropriate scope and extent of the easement under the following rule: “It is settled law in Montana that in acquiring a prescriptive easement, ‘the right of the owner of the dominant estate is governed by the character and extent of the use during the period requisite to acquire it.’ ” Warnack I, 879 P.2d at 724 (quoting Marta v. Smith (1981), 191 Mont. 179, 183, 622 P.2d 1011, 1013).

We recently reiterated this principle in the case of Ruana v. Grigonis (1996), 275 Mont. 441, 452-54, 913 P.2d 1247, 1255. In Ruana, we stated that “for prescriptive easements, the use of a roadway cannot exceed the use made of it during the prescriptive period.” Ruana, 913 P.2d at 1255.

On remand, the District Court followed our mandate and limited the scope of the easement to its use during the prescriptive period. The court found that Wamack and his predecessors in interest utilized the primary easement in an open, notorious, and exclusive manner continuously and uninterrupted from at least 1950 to 1988. Further, the District Court determined that:

F. The right of the Plaintiffs [Wamack], heirs, successors, assigns and agents to use the primary road easement should be on foot, horseback, and all ordinary modern means of transportation for purpose of access to their lands, construction of a residence and outbuildings as necessary, all for agricultural purposes. Additionally, Plaintiffs have a right to access their property for hunting, fishing, camping and recreation. It is the conclusion of the Court that the easement is governed by the character and extent of its use during the period requisite to acquire it and that the easement can not exceed the use which Plaintiffs and their predecessors made of it during the prescriptive period. This grants Plaintiffs an absolute right to access their property over the primary easement for all agricultural purposes, as well as hunting and fishing recreational purposes. It does not grant an easement for purposes of logging, mineral extraction or exploration, or subdividing of the real property. Such uses of the prescriptive easement would increase the burden on the servient landowners. None of the parties are hereby prohibited from placing gates or cattle guards on their respective properties but if locks are placed on gates, keys or combinations, as necessary, shall be provided to Plaintiffs and their agents.
G. All of the Defendants [Coneen], their heirs, successors, assigns and agents, shall be permanently enjoined and restrained from obstructing or interfering with Plaintiffs’ use and enjoyment of the primary easement.

Warnack asserts that four homesteaders settled on the subject property in the early part of this century, thus, easements for four residences should be allowed. However, Warnack presented the District Court with this argument in his motion to amend the order. The District Court denied this motion to amend. Apparently, the District Court reasoned that during the prescriptive period, the easement had been used for only one seasonal residence and for agricultural and recreational purposes. Thus, under the direction given by this Court on remand in Warnack I, the District Court properly limited the scope of the easement to its use during the prescriptive period. See Ruana, 913 P.2d at 1255.

3. Should this Court adopt sections 478 and 479 of the Restatement of Property in determining the extent of a prescriptive easement?

Warnack urges this Court to adopt sections 478 and 479 of the Restatement of Property. Citing a number of decisions from other jurisdictions, Warnack asserts that an evolutionary approach should be used in prescriptive easement cases to allow greater use of the easement over time. In this regard, Warnack argues that “the inflexible rule in Marta v. Smith should be reconsidered or clarified.” Although Warnack may not cotton to the result reached by this Court in Marta, and more recently in Ruana, neither decision is the least bit unclear. In fact, on remand, the District Court appropriately applied the principles expressed in Marta finding a prescriptive easement and limiting its scope. The rule expressed in Marta and Ruana accurately reflects the scope of prescriptive easements in Montana and we decline Warnack’s request to adopt sections 478 and 479 of the Restatement of Property.

Affirmed.

JUSTICES NELSON, ERDMANN, GRAY and TRIEWEILER concur.


author: JUSTICE HUNT JUSTICE TRIEWEILER JUSTICE GRAY,

text:
    EDWARD KILLOY, JR, Petitioner and Appellant, v. RELIANCE NATIONAL INDEMNITY, Respondent and Insurer for, RHONE-POULENC BASIC CHEMICAL CO., Employer and Respondent.
    No. 95-551.
    Submitted on Briefs April 11, 1996.
    Decided September 3, 1996.
    53 St.Rep. 838.
    278 Mont. 88.
    923 P.2d 531.

      For Appellant: Bernard J. Everett, Knight, Dahood, McLean & Everett, Anaconda.
    For Respondent: Brendon J. Bohan, Butte.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Edward Killoy, Jr. (claimant), appeals the Workers’ Compensation Court’s order concluding that he was not permanently totally disabled and, therefore was not entitled to permanent total disability benefits as a result of his work-related injury.

We reverse and remand.

Appellant raises the following issues for review, which we restate as follows:

1. Did the Workers’ Compensation Court err in finding that claimant had a reasonable prospect of being able to tolerate his pain and physically perform at regular employment?

2. Did the Workers’ Compensation Court err in failing to award claimant attorney’s fees and costs pursuant to §§ 39-71-611 and 39-71-2907, MCA?

FACTS

At the time of trial, claimant was 58 years old. He did not graduate from high school but did obtain a GED while in the Navy. Claimant has worked since 1962 as a heavy-duty mechanic for various employers. He went to work fiill-time for Rhone-Poulenc Basic Chemicals in 1991.

Claimant was injured in the course and scope of his employment on August 20,1993, when a heavy shaker screen fell on his head and jammed his neck. At the time of the injury, Rhone-Poulenc was insured by Reliance National Indemnity (Reliance). Reliance accepted liability for claimant’s injury and has paid out his medical benefits, as well as temporary total disability benefits.

Following his injury, claimant was initially examined by Dr. Knutsen. X-rays showed “[degenerative disc changes, spurring, and some narrowing of the lower foramina.” Dr. Khutsen prescribed physical therapy and medication, and directed that claimant be placed on light-duty.

On August 27,1993, claimant told Dr. Knutsen that the light-duty work was aggravating his neck. Dr. Khutsen advised him to take a full week off. He continued to treat claimant conservatively, prescribing bed rest, physical therapy, cervical traction, and medication. After his condition deteriorated, claimant was referred to Dr. Dewey for a second opinion.

Following an examination on October 14, 1993, Dr. Dewey determined that claimant suffered from “significant cervical canal stenosis at L4-5, 5-6, and 6-7 [sic]. There is degenerative disease at these levels, some neuroforaminal encroachment.” All parties agree that the reference to the lumbar disc, however, appears to be in error, and should refer to the cervical level. Dr. Dewey examined claimant again on November 9, 1993, at which time he reported that claimant was much improved and felt that decompression surgery was unwarranted. Dr. Dewey advised claimant to continue his stretching exercises and to return for a examination the following year to determine whether his spinal stenosis was progressing.

By November 16, 1993, both Dr. Knutsen and Dr. Dewey had released claimant to work full-time. Dr. Khutsen cautioned claimant to avoid any trauma to or hyperextension of his neck. Claimant returned to work, but experienced increasing pain. Dr. Khutsen took claimant back off of work on December 14, 1993, until his condition improved. Claimant returned again on January 3, 1994.

On February 18, 1994, Claimant was pulling on a cable at work when the cable slipped and hit him in the face. This incident resulted in a violent jolting of his head which aggravated claimant’s original injury. After this, claimant felt he could no longer perform at his heavy labor position. Dr. Knutsen agreed but again sent claimant to Dr. Dewey for a second opinion.

On March 14,1994, Dr. Dewey wrote Dr. Knutsen a report regarding his examination of claimant. Dr. Dewey noted muscular symptoms in claimant’s neck, shoulder area, and at the base of his skull. He recommended a month of very aggressive stretching, supplemented by deep heat, ultrasound, and massage by a physical therapist. Dr. Dewey was unable to state whether claimant would be able to return to his time-of-injury job.

Dr. Dewey saw claimant again on April 18, 1994. Claimant’s condition had not improved, and Dr. Dewey concluded that claimant could not return to his time-of-injury position. Dr. Dewey identified several problems:

Cervical spondylosis; radiculopathy not identified; cervical stenosis, possible but not proven cervical radiculopathy; bilateral ulnar entrapment neuropathies; significant cervical myospasm ...

At this point, Dr. Dewey did not feel that claimant would get any better, he noted that claimant’s condition may in fact worsen over time.

Both at trial and by deposition, claimant testified that he experiences constant pain from the base of the skull, down the middle of the back through his shoulders. He has headaches and muscle spasms. Claimant’s level of pain is aggravated both by increased activity as well as by remaining stationary for any length of time. Claimant finds temporary relief from pain by using a stretching apparatus for his neck and performing stretching exercises on a daily basis. On “bad” days, he seeks relief through hot showers and a heating pad. Claimant has not worked since he re-aggravated his injury in February 1994.

In August 1993, Rhone-Poulenc retained a certified rehabilitation counselor to perform medical case management services relative to claimant’s injury. The counselor, Patricia Hink, submitted a preliminary report in which she encouraged claimant to apply for social security benefits which he subsequently applied for and received. Later, Hink identified several jobs as possibly suitable for claimant and submitted job analyses to Dr. Dewey for review. Dr. Dewey approved of four of the positions, stating that if a patient such as claimant had expressed a desire to try one of these positions, that, in his opinion, these positions could be “safely attempted” without risk. Dr. Dewey, however, did not offer his opinion as to whether claimant was capable of doing these positions, stating instead that only the patient was able to answer that question.

Based on Hink’s “Employability Assessment Report,” the insurer converted claimant’s benefits from temporary total disability to permanent partial disability on May 27,1995. On June 9,1995, claimant petitioned the Workers’ Compensation Court for a hearing. After the hearing in August 1995, the Workers’ Compensation Court found that claimant’s testimony regarding his pain was credible. However, the court was not persuaded that his pain would necessarily preclude claimant from working. The court then concluded that RhonePoulenc had met its burden of establishing that claimant had a reasonable prospect of “physically performing regular employment.” The Workers’ Compensation Court concluded that claimant was not permanently totally disabled and, therefore was not entitled to corresponding benefits.

Claimant appeals from that decision.

DISCUSSION

Did the Workers’ Compensation Court err in finding that claimant had a reasonable prospect of being able to tolerate his pain and physically perform at regular employment?

Decisions of the Workers’ Compensation Court must be based on substantial credible evidence. O’Brien v. Central Feeds (1990), 241 Mont. 267, 271, 786 P.2d 1169, 1172. The court’s findings of fact will be upheld if they are supported by substantial credible evidence. Wunderlich v. Lumbermens Mutual Casualty Co. (1995), 270 Mont. 404, 408, 892 P.3d 563, 566.

The law in effect at the time of the injury governs the claimant’s entitlement to benefits. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Claimant was injured on August 20, 1993, therefore, the 1993 version of the Workers’ Compensation Act governs this case. The claimant bears the burden of proving he or she was permanently totally disabled. Dumont v. Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105.

The definition of permanent total disability reads as follows:

Section 39-71-116(13), MCA (1993) (emphasis added).

In its decision, the Workers’ Compensation Court found that appropriate jobs existed for claimant. The rehabilitation counselor, Hink, identified several jobs as possibly suitable for regular employment: lubrication technician, sewer (sewing backpacks), shoe repair person, cashier, motel clerk, lumber salesperson, and meter reader. Of these positions, the Workers’ Compensation Court narrowed the list, and determined that claimant was physically capable of performing as either a motel clerk or a cashier.

At trial, claimant disputed his ability to perform any of the suggested positions. According to his testimony, his pain makes him uncontrollably unpleasant. Claimant specifically contended that because of his pain it would be difficult for him to be confined to the limited space provided to a cashier, or to carry luggage if employed as a motel clerk.

The Workers’ Compensation Court did not dispute that claimant was in pain and that activity increased his pain, rather the court was not convinced that this would prevent him from working. Instead, the court found claimant to be a positive and up-beat person who had “worked all his life and has a good work ethic, and [the court] was persuaded [that claimant] would cope with his pain if he was forced to do so.” Ultimately, the court found that claimant had a reasonable opportunity for regular employment.

On appeal, claimant argues that the Workers’ Compensation Court erred in this finding. Claimant asserts that it is the law in Montana that pain can be considered when determining whether a claimant is permanently totally disabled. Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 521-22, 575 P.2d 67, 72 and Jensen v. Zook Brothers Construction Co. (1978), 178 Mont. 59, 63, 582 P.2d 1191, 1193.

In Robins, the claimant fractured his skull and other bones after falling 16 to 18 feet. He returned to work, then fell a second time and injured his back. There, one doctor stated that the claimant could work, if he could endure the pain. The other doctor testified that the claimant could not work because he could not take the pain. In affirming the lower court, this Court held that pain must be considered as a factor when determining disability. Robins, 575 P.2d at 71.

In Jensen, the claimant crushed his dominant hand. The claimant testified that he had pain up his arm into his elbow. Following Robins, this Court held that the evidence showing that the claimant could not work without pain or endure pain while working constitutes substantial evidence supporting a finding of permanent disability. Jensen, 582 P.2d at 1193.

In its decision, the Workers’ Compensation Court considered both Jensen and Robins, nevertheless, the court determined that under recent revisions to the permanent total disability statute, pain is only one factor to be considered when determining a claimant’s disability. Metzger v. Chemetron Co. (1984), 212 Mont. 351, 354, 687 P.2d 1033, 1035. Under 1993 revisions to the definition of permanent total disability, the court noted that the claimant must prove that he or she has “no reasonable prospect of physically performing regular employment.” Section 39-71-116 (13), MCA.

This Court agrees with the Workers’ Compensation Court’s conclusion that pain is only one factor to be considered when reaching a determination of disability. As was also aptly pointed out by the court in this case, “Pain ... may be so severe for some individuals that it renders them physically incapable of performing their job duties.

In its order, the Workers’ Compensation Court relies on the “medical evidence concerning permanent total disability.” This medical evidence, the court states, was provided by Dr. Dewey, “who approved of five positions.” The court concluded further, that Dr. Dewey’s testimony did not support claimant’s claim for disability. However, where medical testimony is offered by deposition, this Court is in as good a position as the Workers’ Compensation Court to determine its weight. Caekaert v. State Comp. Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498. Although Dr. Dewey did approve of several of the suggested positions, this was not the extent of the medical testimony.

In his deposition, Dr. Dewey specifically qualified his approval and made no determination concerning claimant’s ability to cope with pain. At trial, the court pointed this out:

THE COURT: ... [Dr. Dewey] basically said medically [claimant’s] not going to be at risk. In other words, he’s not at risk with further injuring himself in these jobs, but whether or not he performs them is really up to him.

Dr. Dewey testified that claimant could safely attempt the jobs without risk, his opinion does not support a finding that claimant was physically capable of performing regular employment.

Furthermore, Dr. Dewey testified that he considered claimant’s response to his neck injury as “appropriate.” Accordingly, Dr. Dewey testified that he would defer to claimant regarding his ability to tolerate the pain associated with a suggested position. Therefore, according to the medical opinion of Dr. Dewey, the claimant in this case stands in the best position to judge his abilities.

Other medical evidence was provided through the records of Dr. Knutsen. Throughout his records, Dr. Knutsen notes that claimant experienced chronic neck pain. Following claimant’s re-aggravation in February, Dr. Knutsen noted that he did not think claimant would be able to return to his regular job. In a letter to the insurer, Dr. Knutsen wrote that “[s]ometimes the slightest little neck jolt or bump on the head will markedly aggravate his chronic neck pains.”

Following Jensen and Robins, this Court must consider the evidence regarding claimant’s pain when reviewing the Workers’ Compensation Court’s determination of disability. In this case, the medical evidence does not support the court’s finding that claimant was capable of working without pain or that he was capable of enduring his pain while working. See Jensen, 582 P.2d at 1192.

We conclude that the record does not contain substantial credible evidence supporting a finding that claimant has a reasonable prospect of physically performing regular employment. In this matter, not only did Dr. Dewey testify that he considered claimant’s response to his injury as appropriate, the court also found that “[claimant’s] testimony regarding his pain was credible.” Considering this, both at trial and in his deposition, claimant testified that he experiences constant pain from the base of the skull, down the middle of the back through his shoulders. He described headaches and muscle spasms. His level of pain increases if he engages in any increased activity or if he is stationary for any length of time. On “bad” days, he seeks relief through hot showers and uses a heating pad.

It is evident from this testimony that claimant’s pain would prevent him from holding down regular employment. This Court has held that a trial court may not disregard uncontradicted credible evidence. Burns v. Plum Creek Timber (1994), 268 Mont. 82, 85, 885 P.2d 508, 510 (citing McGuire v. American Honda Co. (1977), 173 Mont. 171, 566 P.2d 1124.)

In its order denying claimant’s motion for rehearing, the court raises concerns that because pain is subjective, claimants would unilaterally determine that they cannot work. That may or may not be the case but that is not the situation here. Claimant’s testimony was corroborated by medical evidence offered by both Dr. Dewey and Dr. Knutsen. Furthermore, claimant’s testimony regarding his pain was found to be credible by both Dr. Dewey and the court.

In summary, we conclude that uncontroverted testimony presented at trial supports a finding that claimant is unable to perform at any óf the suggested positions without experiencing substantial pain. Furthermore, we conclude that the Workers’ Compensation Court erred in concluding that claimant is capable of tolerating his pain and physically performing at regular employment.

Having concluded the claimant is entitled to benefits, we remand this case for a determination of attorney’s fees and costs pursuant to §§ 39-71-611 and 39-71-2907, MCA.

Reversed and remanded.

JUSTICES TRIEWEILER, NELSON and LEAPHART concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority opinion. However, I write in response to the dissent.

In my opinion it is the dissent which misapplies the standard of review in this case and the author of that opinion who has refused to follow the correct standard of review in the past.

In this case, the only medical evidence was the written reports, which were admitted as exhibits without objection, and the transcribed deposition testimony of Richard C. Dewey, M.D. We have repeatedly held, for obvious reasons, that where medical evidence is submitted by deposition, this Court is in as good a position to evaluate that evidence as the trial court. Larson v. CIGNA Ins. Co. (1996), [276 Mont. 283], 915 P.2d 863; Weber v. Public Employees’ Retirement Bd. (1995), 270 Mont. 239, 890 P.2d 1296; Simons v. State Comp. Mut. Ins. Fund (1993), 262 Mont. 438, 865 P.2d 1118; White v. Ford, Bacon & Davis Texas, Inc. (1992), 256 Mont. 9, 843 P.2d 787; Schrapps v. Safeway Stores (1989), 238 Mont. 355, 777 P.2d 887; Roadarmel v. Acme Concrete Co. (1989), 237 Mont. 163, 772 P.2d 1259; Hartman v. Staley Continental (1989), 236 Mont. 141, 768 P.2d 1380; Hurley v. Dupuis (1988), 233 Mont. 242, 759 P.2d 996; Brown v. Ament (1988), 231 Mont. 158, 752 P.2d 171; Snyder v. San Francisco Feed & Grain (1988), 230 Mont. 16, 748 P.2d 924; Lauderdale v. Montana Dep’t of Agric. (1987), 229 Mont. 188, 745 P.2d 690. Larson v. Squire Shops, Inc. (1987), 228 Mont. 377, 742 P.2d 1003; Currey v. 10 Minute Lube (1987), 226 Mont. 445, 736 P.2d 113; Brewington v. Birkenbuel, Inc. (1986), 222 Mont. 505, 723 P.2d 938; Frost v. Anaconda Co. (1985), 216 Mont. 387, 701 P.2d 987. Shupert v. Anaconda Aluminum Co. (1985), 215 Mont. 182, 696 P.2d 436; Lamb v. Missoula Imports, Inc. (1984), 211 Mont. 360, 684 P.2d 498; Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140; Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d 656.

Our oft-repeated rule regarding medical testimony by deposition makes practical sense because there is no witness demeanor for the trial court to observe, nor are there other intangible aspects to the testimony about which the trial court is exclusively aware. The problem with this standard of review is that it does place some additional responsibility on the reviewing court to independently analyze and evaluate the medical evidence offered by deposition. The author of the dissenting opinion has been reluctant to do so. See Larson v. CIGNA Ins. Co. (1996), [276 Mont. 283], 915 P.2d 863; McIntyre v. Glen Lake Irr. Dist. (1991), 249 Mont. 63, 813 P.2d 451. I have no similar reservations.

However, in this case, my differences with Justice Gray over the scope of our review of Workers’ Compensation Court decisions where the medical evidence has been provided exclusively by deposition is not critical to our decision. Whether we review this case based on the rule that we have repeatedly articulated, or simply for substantial evidence, as the dissenters would prefer, there is absolutely no basis for upholding the Workers’ Compensation Court’s finding that Edward Killoy, Jr., is employable.

The dissent contends that Killoy offered no medical evidence that he was physically'incapable of regular employment. However, that is not correct. Exhibit No. 4, admitted at the time of trial, consisted of medical records from Bruce E. Knutsen, M.D., who initially treated Killoy for his injury. The records included Dr. Knutsen’s February 28, 1994, report, which was issued at the request of the insurance adjuster shortly after Killoy’s aggravation of his injury. In that report he stated that:

I suspect Mr. Killoy will be disabled from his laboring type profession as I have attempted to send him back on two different occasions. He has been able to work reasonably well, although he continues with neck pain. Sometimes the slightest little neck jolt or bump on the head will markedly aggravate his chronic neck pains.
At this point, I have suggested he go back and get a second opinion from Dr. Richard Dewey who he saw previously to see if there is anything else Dr. Dewey may be able to offer him in the way of surgical correction. If not, he may be on permanent disability. I just do not think he can continue in a laboring profession.

Edward Killoy did go back to Dr. Dewey who examined him and issued a report to Dr. Khutsen regarding his observations on April 18, 1994. That report was admitted without objection at trial as Exhibit No. 1. In that report he stated:

Edward is really unchanged. He continues to have significant muscular symptoms in the back, shoulders, base of the skull. Hands go to sleep at night although not in the ulnar distribution and he has not made any improvement. The symptoms he is having are related to the amount of heavy work that he does. It is my opinion that he could not return to his usual occupation with Rhone Poulene [sic] but could return to a lighter occupation if that can be worked out. If not, I think he should be medically retired. ...
The options are clear. Surgery will not relieve his muscular problems and will not relieve problems related to cervical spondylosis. These are aggravated by heavy work and lighter work is recommended. In the absence of that, his only option is medical retirement. He has the following problems: Cervical spondylosis, radiculopathy not identified; cervical stenosis, possible but not proven cervical radiculopathy; bilateral ulnar entrapment neuropathies; significant cervical myospasm. I do not feel he will get any better. He may worsen as time goes on and he cannot return to his usual occupation.

In response to the recommendations of Dr. Knutsen and Dr. Dewey that the possibility of lighter work be considered, or in the alternative, that Killoy be medically retired, his employer’s insurer hired Patricia Hink, a vocational consultant, who reviewed Killoy’s medical records, his educational and work background, and his physical limitations, and issued a report to his employer’s insurer on June 23, 1994. The report consists of ten pages and meticulously outlines Killoy’s work history, his education, his medical status, and his physical limitations. That report was admitted without objection as trial Exhibit No. 3. In that report, Hink concluded:

Due to the persistent problems that Mr. Killoy has had in performing even normal daily functions, I felt that it was appropriate for him to apply for Social Security benefits. Given his age at 57 years which makes him an older adult, a 10th grade education, and a heavy to very heavy occupation which he has performed consistently since 1956, it would be difficult for Mr. Killoy to re-enter the work force even at unskilled jobs at this time.
At the present time Mr. Killoy remains off work and has applied for Social Security Benefits. I have encouraged him in this direction since his past relevant work has been heavy, to very heavy physical demand work. ... These skills do not easily transfer into lighter work, especially for an individual of his age, which is now 57. He has a limited formal education, however, he has obtained his GED through the Navy in 1955. Given the [severity] of the industrial injury that he has sustained and his persistent symptoms, he appears to be a favorable candidate for Social Security Benefits.

Hink’s report goes on to state that Killoy had reached maximum medical improvement but that his employer had no light-duty work for him and that he was a high risk for re-injury in the work place. She pointed out that he had difficulty sitting for any length of time and difficulty sleeping, which made any employment problematic.

The combination of Dr. Knutsen’s report, Dr. Dewey’s report, and Patricia Hink’s analysis of the medical records, as they apply to the field of vocational placement, clearly established by a preponderance of the medical evidence that Edward Killoy was unemployable. To suggest, as the dissent does, that he offered “no medical evidence that he did not have a reasonable prospect of physically performing regular employment” simply ignores the record. To suggest that the necessary quantum of medical proof requires that a doctor testify that in his or her opinion Killoy was “physically incapable of performing regular employment” confuses the function of medical evidence and vocational evidence. Doctors are not qualified to testify regarding vocational opportunities, they are merely qualified to testify regarding the nature of a patient’s injury and the physical restrictions that result from that injury. In this case, the medical evidence clearly established the nature of Killoy’s injury, that physical limitations resulted from that injury, and that Killoy’s pattern of pain was consistent with his injury. Medical evidence can do no more. Somewhere common sense has to be applied.

The dissent argues that Dr. Dewey approved five positions for Killoy, and therefore, that the Workers’ Compensation Court’s opinion was supported by substantial evidence. However, the dissent’s characterization of Dr. Dewey’s testimony is out of context and incomplete. When specifically asked whether it was his opinion that Killoy was physically capable of performing the jobs which had been submitted to him and described for him by Patricia Hink, Dr. Dewey testified as follows:

No, I didn’t say that. I said he could. I didn’t know if he was capable of doing it. I very clearly caged myself on that record. I said, “Can safely be attempted without risk.”
...But if he was capable of doing them, I can’t answer that. That’s a question that doctors can’t answer; only the patient can answer that.
I know that’s not the answer you want to get. You want to get this thing absolutely black and white, but I can’t give you that answer. I can tell you whether there’s risk and no risk. And I can tell you that the patient should be able to perform those duties. Whether they can tolerate them or not, that’s a different story.

... I can only give you what is safe and what is unsafe. (Emphasis added.)

The dissent criticizes the majority opinion because:

Dr. Dewey did not opine that Killoy’s pain rendered him unable to perform the positions and, therefore, the Court’s reliance on our ability to determine the weight of medical deposition testimony, under Caekaert, is totally misplaced; there is simply no medical evidence of pain too severe to permit the performance of regular employment.

The dissent apparently did not consider Dr. Dewey’s testimony that neither he nor any other doctor can give the type of testimony that the dissenters would like to see. Ultimately, however, Dr. Dewey’s testimony is just common sense. The state of medical science has not yet advanced to the point where it can measure the degree of an individual’s pain, no matter how much the dissenters would like to reduce the evaluation process to a question of connecting the dots. For purposes of the result in this case, though, Dr. Dewey did testify that:

His symptoms were very typical of that kind of an injury, and aggravation of — a muscular aggravation of something which, you know, for reasons we don’t quite understand, are quiet for a long time. ...
... Whether it’s the patient’s tolerance or not, his symptoms are certainly consistent with everything that happened to him, and he’s not alone in having this kind of problem.

In conclusion, Dr. Dewey gave the following relevant testimony, which was all the medical proof he could offer:

Q. By approving the job descriptions that were submitted to Patricia Hink, you were recommending that he could, without risk, attempt to work in those positions; is that correct?
A. That is correct. And I will read to you the paragraph which I specifically signed my name to.
“This job is physically compatible with this worker’s physical capabilities.” Doesn’t say anything about his tolerance, it says about his capabilities.
Q. We’re talking about tolerance, you’re referring to the level of pain that he may have to — or would incur if he attempted that?
A. For this patient, yes, that is correct.
Q. And the pain that he suffers is certainly consistent with the injury he sustained?
A. Yes.
Q. And is it consistent with his medical condition?
A. Yes.
Q. And you would defer to the patient his ability to tolerate those jobs?
A. Probably, in this case, yes, because I’ve seen him a number of times. If someone came in off the street and told me they couldn’t do that, I think I’d want to get a little bit better feeling for how that patient responds and whether the patient’s an appropriate or inappropriate responder.
Q. Did you, in this case, feel it is appropriate?
A. Yes.

The dissent’s conclusion that “Killoy’s subjective view of his pain does not constitute medical evidence” is therefore directly contradicted by the only medical evidence which could be offered. Killoy’s subjective view of his pain, as evaluated by his attending physician, is the best evidence of his physical limitations. To hold otherwise is to ignore the medical evidence.

Because Dr. Dewey testified that whether Killoy could work would ultimately depend on whether he could tolerate work, and because the Workers’ Compensation Court found that Killoy’s testimony regarding the degree of his pain was credible, it is appropriate to review what he said in that regard.

He stated that he has pain from the base of his skull to the middle of his back and in both shoulders. His pain causes headaches on a continual basis. He has muscle spasms related to any physical activity. The muscle spasm occurs in his neck, back, shoulders, chest, and throat. Whenever that occurs he has to change positions. If he is sitting he has to stand; if he is standing he has to sit.

The pain in Killoy’s neck is constant and any kind of activity, including walking, prolonged sitting, sleeping, or standing makes the pain worse. Reaching aggravates his condition. When his pain is aggravated the severity of his headaches increases.

When Killoy does experience spasms, he has to apply cervical traction. This occurs an average of two to four times daily for up to ten minutes at a time. He also has to perform stretching exercises throughout the day.

During each week Killoy has one or two bad days where he sits in a recliner chair with a hot pad and “can’t do a hell of a lot” except try to get relief. He has almost quit fishing, he has quit hunting, and he no longer exercises, although he used to be a regular participant in programs at the YMCA.

Edward Killoy, who is the best judge of his physical tolerance, did not think there was any job he could perform for eight hours a day. To suggest that he can, demonstrates a total insensitivity to the requirements of regular employment.

One of the reasons Killoy has not attempted to return to employment is because, at Patricia Hink’s recommendation, he applied for and received social security disability benefits, which he would lose if he attempted to return to work that he does not think he can perform. What is unreasonable about that?

The Workers’ Compensation Court specifically found that:

Claimant testified that he experiences pain from the base of the skull, down the middle of the back and through his shoulders. He described his pain as constant. He has headaches and muscle spasm, which are aggravated by increased activity. He obtains temporary pain relief by using a stretching apparatus for his neck and performing stretching exercises on a daily basis. He has his “bad days” once or twice a week. On those days, he seeks relief through hot showers and a heating pad. His level of pain increases if he is stationary for any length of time. Claimant’s testimony regarding his pain was credible.

In spite of Dr. Dewey’s testimony that Killoy’s ability to be employed would depend on his ability to tolerate the pain, and his further testimony that Killoy’s complaints of continuous pain were consistent with the nature of his injury, Patricia Hink did not even bother to submit the job descriptions that the employer now relies on to Killoy for his consideration before changing her opinion about his employability. She admitted that she did not know whether Killoy could tolerate the pain he would have to endure to perform the jobs she submitted. She did not arrange for him to attempt to perform any of those jobs. Neither did she arrange for a work-hardening program which would help him prepare to attempt those jobs. She did not even bother to discuss the jobs she was recommending with him. When asked by the court whether she thought Killoy was capable of full-time work, as opposed to part-time work, she simply said, “I would hope that he would be able to work at full-time work ....” However, when asked whether anyone would hire him if he explained to a potential employer all the physical limitations that he had testified to, she admitted that no one would.

The dissent characterizes the preceding summary of the evidence in this case as “bits and pieces” of the record. I disagree. However, the important point is that in spite of a diligent search I have been unable to find any “bits and pieces” of the record which support the judgment of the Workers’ Compensation Court or the dissent’s strained effort to affirm that judgment.

In summary, even if this Court applies the standard of review preferred by the dissent, there was no substantial evidence that Edward Killoy was physically capable of regular employment. All of the evidence, medical and otherwise, was to the contrary. The dissent’s insistence that there be medical evidence regarding the degree of Killoy’s pain ignores reality and the limitations of medical science. The dissent’s criticism of the majority’s reliance on Killoy’s own description of his pain ignores the fact that his attending physician testified that that was the only way in which his actual job prospects could be evaluated, and that the Workers’ Compensation Court found Killoy’s description of his pain credible. To suggest that, in light of the combined testimony of Dr. Dewey and Killoy, and the Workers’ Compensation Court’s finding that Killoy was credible, there is no evidence of total disability defies common sense.

For these reasons, I conclude that Killoy proved his entitlement to permanent total disability benefits by a preponderance of the evidence and that there was not substantial evidence to support the Workers’ Compensation Court’s denial of those benefits.

I concur with the majority opinion.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion for the same reason I recently dissented from part of the Court’s opinion in Larson v. CIGNA Ins. Co. (1996), [276 Mont. 283], 915 P.2d 863. It is my view that the Court again misapplies our stated standard for reviewing the Workers’ Compensation Court’s findings of fact and I cannot join the Court in doing so.

The Workers’ Compensation Court’s ultimate finding in this case is that Killoy has a reasonable prospect of physically performing regular employment and, therefore, that he did not meet his burden of proving permanent total disability by a preponderance of the evidence. Our standard in reviewing that finding is to determine whether substantial credible evidence supports it. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 408, 892 P.2d 563, 566. Our standard is not, as we have stated clearly and repeatedly, whether evidence supports a finding different from that made by the Workers’ Compensation Court. See, e.g., Wilson v. Liberty Mut. Fire Ins. (1995), 273 Mont. 313, 903 P.2d 785. It is my view that a proper application of our standard of review mandates a conclusion that substantial credible evidence supports the Workers’ Compensation Court’s finding.

Substantial evidence is “more than a mere scintilla of evidence but may be less than a preponderance of the evidence.” Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432, 437 913 P.2d 1242, 1245 (citation omitted). With regard to the Workers’ Compensation Court’s finding that Killoy has a reasonable prospect of physically performing regular employment, the record reflects the following. A certified rehabilitation counselor identified numerous jobs, generally available on both full- and part-time bases, as possibly suitable for Killoy. On that basis, she testified that Killoy has a reasonable opportunity for regular employment. Dr. Dewey opined that Killoy could safely attempt all but one of those jobs without risk to his physical condition; he did not opine that Killoy’s pain would render him incapable of performing the jobs.

Killoy described his pain as constant, but testified that his “bad days” occur once or twice a week and that he seeks relief via hot showers and a heating pad. His pain is aggravated by both increased activity and remaining stationary for any length of time. Killoy spends a typical day reading, walking, watering his lawn and watching television. He is able to drive, mow his lawn, and participate in limited outdoor recreational activities.

Killoy does not believe he could perform any of the identified jobs which Dr. Dewey opined he could safely attempt because of his pain. He has neither worked nor attempted to work or find employment since his re-injury in February of 1994, and he testified that he does not want to work at a minimum wage job.

Based on Killoy’s testimony as to substantial difficulties in lifting his hands over his head, being required to stand for 85% of a work shift, lifting and carrying up to 15 pounds continuously and extensive physical activity, the Workers’ Compensation Court determined that Killoy was unable to perform three of the identified positions because they would increase his pain beyond what he could reasonably endure. Accepting Killoy’s complaints of pain, the court found that Killoy could perform the jobs of cashier or motel clerk on a full-time or part-time basis.

This record clearly contains substantial credible evidence supporting the Workers’ Compensation Court’s finding that Killoy has a reasonable prospect of physically performing regular employment. He is physically capable of standing, sitting, walking, driving a vehicle, mowing his lawn and engaging in recreational pursuits. Positions involving these, or similar, activities were identified. Nor was any medical opinion testimony presented that Killoy was incapable of performing these jobs because of either physical limitations or pain considerations.

The Court makes much of our conclusions in Robins and Jensen that pain must be considered as a factor in determining disability. It is clear, however, and even this Court does not suggest otherwise, that the Workers’ Compensation Court did consider the pain-related evidence of record. Nothing in Robins or Jensen supports this Court’s implicit conclusion regarding those cases that a claimant’s bare assertion of belief that he cannot tolerate the pain associated with working mandates a determination that he is entitled to permanent total disability benefits. Moreover, in those cases, the Workers’ Compensation Court found that the claimants were permanently totally disabled. What the Court fails to recognize here is that, in bothRobins and Jensen, we discharged our duty of determining whether substantial evidence supported the trial court’s findings of permanent total disability by recognizing the pain-related evidence which supported those findings. We are in the converse situation here and, as noted above, it is not our duty to determine whether evidence supports findings contrary to those made by the Workers’ Compensation Court. See Wilson, 903 P.2d at 788.

In addition, § 39-71-702(2), MCA (1993), requires that a “determination of permanent total disability must be supported by a preponderance of medical evidence.” The Court does not address this statutory requirement at all.

The record is clear, however, that Killoy offered no medical evidence that he did not have a reasonable prospect of physically performing regular employment. No doctor advanced a medical opinion that Killoy was physically incapable of performing regular employment. Indeed, Dr. Dewey approved five positions for Killoy to the extent that his performance of those positions would not harm, or risk, his physical condition. Dr. Dewey did not opine that Killoy’s pain rendered him unable to perform the positions and, therefore, the Court’s reliance on our ability to determine the weight of medical deposition testimony, under Caekaert, is totally misplaced; there is simply no medical evidence of pain too severe to permit the performance of regular employment. Dr. Dewey merely deferred to Killoy’s judgment on that question and Killoy testified that he believed his pain was too great to work through. Killoy’s subjective view of his pain does not constitute medical evidence.

Moreover, any suggestion that questions relating to the extent of a person’s pain, or the person’s ability to tolerate the pain while working, are not medical issues would be problematic with regard to the Court’s opinion in this case. For example, such a suggestion would appear to mean that the requirement contained in § 39-71-702(2), MCA (1993), that permanent total disability be established by a “preponderance of medical evidence” could never be met and, therefore, a claimant could never meet the statutory criteria and could never establish entitlement to permanent total disability benefits regardless of the extent of his or her pain and the clear impossibility of working while experiencing it. Such a result would be anathema to us all.

In addition, it should be noted in this regard that the doctor in Robins testified to his opinion that the claimant could not return to his previous position because of the pain that accompanied working. Robins, 575 R2d at 71. If that doctor could give such a medical opinion, why cannot other doctors do so — either for or against the proposition? The Robins medical testimony would seem to belie any notion that pain is not a medical question. Yet the Court’s failure to address § 39-71-702(2), MCA (1993), in any fashion leaves these problems unresolved.

Finally, it is appropriate to comment briefly on portions of the special concurring opinion in this case. I do not disagree in any way with that opinion’s statement of this Court’s standard in reviewing medical deposition testimony. I agree entirely that our usual deference to the trial court’s ability to observe the demeanor and, thereby, assess the credibility of witnesses does not and cannot relate to medical evidence given by deposition. I also agree that that standard places “some additional responsibility on the reviewing court to independently analyze and evaluate” medical deposition evidence; I have not been reluctant to do so in other cases or in this case.

It appears, however, that Justice Trieweiler views the medical deposition standard as effectively repealing our overriding standard of determining whether substantial evidence supports the Workers’ Compensation Court’s findings and replacing it with a standard that allows us to choose bits and pieces of such evidence as might support findings contrary to those made by the trier of fact. I do not agree. As stated in one of the recent cases discussing the medical deposition standard which is cited in the special concurring opinion,

[t]his de novo standard of review does not extend to a review of the entirety of the case and the overall decision. Medical testimony must be harmonized with and considered in the context of the evidence as a whole. The substantial credible evidence standard controls the analysis of the record as a whole.

White v. Ford, Bacon & Davis Texas, Inc. (1992), 256 Mont. 9, 13, 843 P.2d 787, 789 (citation omitted). We have reiterated that standard on numerous occasions, most recently in Wilson on September 26, 1995. See Wilson, 903 P.2d at 787-88. Clearly, this limited de novo review standard does not allow, and was never intended to allow, this Court to merely substitute its judgment for that of the Workers’ Compensation Court on questions of fact.

Moreover, it is my view that the special concurring opinion mischaracterizes or overreads the portions of Drs. Knutson’s and Dewey’s 1994 reports it cites. Dr. Knutson states that “I suspect Mr. Killoy will be disabled from his laboring type of profession....” Similarly, Dr. Dewey opines that Killoy “could not return to his usual [heavy labor] occupation with Rhone Poulene [sic] but could return to a lighter occupation if that can be worked out. If not, I think he should be medically retired. ...” These reports support the uncontroverted and undisputed reality that Killoy cannot perform the duties of his earlier position as a heavy-duty mechanic for Rhone-Poulenc; they also support the proposition that Killoy cannot perform heavy labor jobs of any kind. They do not, however, support or mandate a determination that Killoy “does not have a reasonable prospect of physically performing regular employment” as required by the statutory definition of permanent total disability. See § 39-71-116(19), MCA (1993).

Under the Court’s decision in this case, a claimant such as Killoy can establish entitlement to permanent total disability benefits, as a matter of law, on the sole basis of his subjective assertion that he cannot tolerate working at any job because of the pain he experiences. Physical incapacity to perform is not required; a good-faith effort— indeed, any effort — is not required; a supporting medical opinion is not required. I cannot agree with the Court’s displacement of the statutory definition of permanent total disability, the claimant’s burden of proof, the proper role of the Workers’ Compensation Court as the trier of fact and our standards in reviewing that court’s findings.

I dissent.

CHIEF JUSTICE TURNAGE and JUSTICE ERDMANN join in the foregoing dissent of JUSTICE GRAY.


author: JUSTICE TRIEWEILER JUSTICE GRAY,

text:
    STEVEN J. SHAPIRO, RICK STRIEB, and BARBARA PATRICK, Plaintiffs and Respondents, v. JEFFERSON COUNTY, MONTANA, a body corporate and politic; the BOARD OF COUNTY COMMISSIONERS of said county; and LEONARD WORTMAN, CHARLES NOTBOHM, and GLENNA OBIE, in their official capacities as County Commissioners of said county, Defendants and Appellants.
    No. 96-005.
    Submitted on Briefs May 30, 1996.
    Decided September 6, 1996.
    53 St.Rep. 848.
    278 Mont. 109.
    923 P.2d 543.

      For Appellant: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena.
    For Respondent: Steven J. Shapiro, Attorney at Law, Clancy.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On August 17, 1995, Steven J. Shapiro, Rick Strieb, and Barbara Patrick (Plaintiffs) filed a petition for a writ of mandamus and prohibition and a petition for a declaratory judgment in the District Court for the Fifth Judicial District in Jefferson County. On September 15,1995, the District Court issued an alternative writ of mandamus. Following a hearing, the District Court issued a peremptory writ of mandamus and prohibition in which it prohibited Jefferson County from paying or allowing Valerie Wilson to act as Jefferson County Attorney and in which it required the County to reopen the application process for the county attorney position. The Defendants appeal the court’s issuance of the writ. We reverse the District Court.

On appeal, we address the issue of whether the District Court erred when it concluded that Jefferson County’s appointment of Valerie Wilson as county attorney was void ab initio.

FACTUAL BACKGROUND

Plaintiffs in this case are residents, electors, and taxpayers in Jefferson County. Defendants consist of Jefferson County, the Board of County Commissioners of Jefferson County, and three individual members of the Board of County Commissioners.

The population of Jefferson County is approximately 9,200. The office of county attorney in Jefferson County is a full-time, elected position. When a vacancy occurs in that position, it is the duty of the Jefferson County Commissioners to appoint a qualified attorney to fill the position until the next general election. See Section 7-4-2206, MCA.

On May 3, 1995, Richard Llewellyn, the duly elected and acting county attorney in Jefferson County, resigned his position. The Jefferson County Commissioners thereafter initiated a process to fill the vacancy created by Llewellyn’s resignation. The Commissioners advertised the vacancy in several newspapers and other publications. They received a total of twenty-one applications for the position.

Prior to the application deadline, the Jefferson County Commissioners formed a selection committee to interview and narrow the list of candidates. The committee was composed of three County Commissioners, the Jefferson County Sheriff, the Justice of the Peace, the District Judge for Jefferson County, the Madison County Attorney, an Assistant Attorney General, and two private consultants. The committee narrowed the list of applicants to seven candidates and scheduled interviews for July 19, 1995.

Following the interviews, the selection committee narrowed the list of remaining applicants to Bridgitt Erickson, Robert Zenker, and Valerie Wilson. After an investigation into those candidates’ backgrounds, the County Commissioners selected Valerie Wilson to fill the position of Jefferson County Attorney at a public meeting in Clancy on July 25,1995. No one lodged an objection to Wilson’s qualifications at that meeting. Wilson became a resident of Jefferson County on August 18, 1995. That same day she assumed office as the Jefferson County Attorney.

On August 17, 1995, Plaintiffs filed a petition for a writ of mandamus and prohibition and a petition for a declaratory judgment requesting the Fifth Judicial District Court to order the Defendants to rescind their decision to appoint Wilson as Jefferson County Attorney and to reopen the application process for that position. Plaintiffs claimed that based on § 7-4-2701, MCA, Wilson was not qualified to hold the position of Jefferson County Attorney because she had not been “admitted to the practice of law for at least 5 years prior to the date of election or appointment.”

Following a hearing on November 24, 1995, the District Court issued an order in which it concluded that Wilson was not qualified to retain the position of Jefferson County Attorney because she had not been admitted to the practice of law for five years prior to her appointment. The District Court therefore concluded that Jefferson County’s appointment of Valerie Wilson to fill the position of county attorney was void ab initio, but determined that Wilson’s actions since she had assumed office could not be challenged because she had been acting as a de facto officer. The court issued a writ of mandamus to enjoin and prohibit Jefferson County from paying or allowing Wilson to act as the county attorney, and to require the County Commissioners to reopen the application process for that position.

Defendants filed a notice of appeal on January 2,1996. On January 30, 1996, this Court issued an order staying the District Court’s writ of mandamus pending the outcome of this appeal.

DISCUSSION

On appeal, we address the issue of whether the District Court erred when it concluded that Jefferson County’s appointment of Valerie Wilson as county attorney was void ab initio. We review a district court’s conclusions of law to determine if they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In this case, the District Court concluded that Valerie Wilson had not been “admitted to the practice of law for at least 5 years,” as required by § 7-4-2701, MCA. The court therefore concluded that Wilson was not qualified to be appointed to the office of county attorney pursuant to the requirements of § 7-4-2701, MCA, and declared that the County Commissioners’ appointment of Wilson to that position was void ab initio. On the basis of its conclusions, the court issued a writ of mandamus in which it ordered that Wilson be terminated from her position as Jefferson County Attorney and in which it required the Jefferson County Commissioners to re-open the application process for the appointment of a statutorily-qualified county attorney.

Section 7-4-2701, MCA, establishes statutory qualifications for county attorneys in counties with populations in excess of 30,000. That statute provides:

No person is eligible for the position of county attorney in counties which have a population in excess of 30,000 unless he is a citizen of the United States who has resided in the state 2 years immediately before taking office and has been admitted to the practice of law for at least 5 years prior to the date of election or appointment.

(Emphasis added.) Counties with populations of fewer than 30,000 may create a full-time county attorney position. In accordance with § 7-4-2706, MCA, however, those full-time county attorneys are subject to the statutory qualifications of § 7-4-2701, MCA:

In any county with a population of less than 30,000, the county commissioners may, upon the consent of the county attorney, on July 1 of any year by resolution establish the office of county attorney as a full-time position subject to the provisions of 7-4-2701 and 7-4-2704.

Section 7-4-2706(1), MCA (emphasis added).

Jefferson County has a population of 9,200; however, that county created a full-time county attorney position on July 1, 1986. In accordance with § 7-4-2706(1), MCA, therefore, the Jefferson County Attorney is subject to the qualifications of § 7-4-2701, MCA: (1) she must be a United States citizen; (2) she must have resided in Montana for two years immediately preceding her election or appointment to that office; and (3) she must have been admitted to the practice of law for at least five years prior to the date of her election or appointment to that office.

In this case, the District Court concluded that Valerie Wilson had not been “admitted to the practice of law for at least 5 years” prior to her appointment to office onAugust 18,1995. The court reasoned that Wilson had not been admitted to the practice of law, pursuant to § 7-4-2701, MCA, until October 8, 1991, when she was admitted to the Montana Bar. Therefore, the court concluded that Wilson “would not achieve the five years until October 8, 1996.”

Although Wilson testified at the District Court hearing that she had begun practicing law as a student attorney in February 1990, and therefore had over five years of experience at the time of her appointment, the District Court discounted Wilson’s experience as a student attorney. Specifically, the court stated:

The court does not give Ms. Wilson credit for experience gained under the Montana Supreme Court “student practice” rule because that rule was intended only to apply to students who had not yet been admitted and who were under the supervision of a licensed attorney.

The Montana Student Practice Rule was adopted by this Court on April 30, 1975, and became effective on May 1, 1975. That rule provides that law students who are enrolled in an accredited law school, have completed two-thirds of the total credit hours required for graduation, and have been certified by the dean of the law school as being of good character and competent legal ability and as being adequately trained to perform as a legal intern, may practice under the Student Practice Rule. Students who are deemed eligible to practice under the Student Practice Rule may, subject to certain guidelines, appear in court or before any administrative tribunal in the state; prepare pleadings, briefs, abstracts, and other documents to be filed in trial or appellate courts in this state; advise, negotiate, and perform other appropriate legal services; and participate in oral argument before the Montana Supreme Court.

Section 37-61-201, MCA, designates who is considered to be practicing law in Montana. That statute provides:

Any person who shall hold himself out or advertise as an attorney or counselor at law or who shall appear in any court of record or before a judicial body, referee, commissioner, or other officer appointed to determine any question of law or fact by a court or who shall engage in the business and duties and perform such acts, matters, and things as are usually done or performed by an attorney at law in the practice of his profession for the purposes of parts 1 through 3 of this chapter shall be deemed practicing law.

Section 37-61-201, MCA, does not require that one must be admitted to the State Bar of Montana in order to be “deemed practicing law” in Montana. Therefore, a student attorney who “[appears] in any court of record or before a judicial body” or who “[engages] in the business and duties and performs such acts, matters, and things as are usually done or performed by an attorney at law in the practice of his profession,” is clearly “deemed practicing law,” pursuant to § 37-61-201, MCA.

At the district court hearing, Wilson testified that she had worked in the Missoula County Attorney’s Office from February 1990 through June 1991 under the Student Practice Rule. Wilson testified that in her position as student attorney with that office, she had tried several cases in front of the Fourth Judicial District Court. In trying those cases, she testified that she had drafted complaints and court orders, interviewed witnesses, and performed direct and cross-examinations of witnesses. Wilson testified that her work was reviewed by a supervising attorney, but that

[generally, when I was assigned a case, it was mine to work. And I would not be supervised as to whether I would continue with the case or dismiss it. That would be my discretion.

Clearly, pursuant to § 37-61-201, MCA, Valerie Wilson had “[engaged] in the business and duties and perform [ed] such acts, matters, and things as are usually done or performed by an attorney at law in the practice of his profession,” and was therefore deemed to be practicing law from February 1990 through June 1991.

Furthermore, since Wilson was entitled to engage in the practice of law only by virtue of this Court’s order enacting the Student Practice Rule and only after she met the requirements of and was certified to practice pursuant to that rule, the Court’s order did admit her to the practice of law. As a student, Wilson would not have been entitled to perform the business and duties usually associated with the practice of an attorney without the requisite certification pursuant to the Student Practice Rule. We hold, therefore, that this Court’s order, which provides for the certification of student attorneys, combined with the dean of the law school’s certification of students to act as student attorneys, provide the guidelines for “admission” of a student attorney to the practice of law. We therefore hold that Wilson was “admitted to the practice of law,” pursuant to the requirements of § 7-4-2701, MCA, in February 1990. Therefore, Wilson had been admitted to the practice of law for “at least 5 years” when she assumed her duties as Jefferson County Attorney.

On appeal, however, Plaintiffs maintain that even if Wilson meets the qualifications set forth in § 7-4-2701, MCA, her appointment is still invalid because the Jefferson County Commissioners did not follow the statutory procedure for filling a vacancy in the office of county attorney. Specifically, Plaintiffs maintain that the County Commissioners did not follow the procedures set forth in § 7-4-2702, MCA, which provides, in relevant part:

(1) Whenever a vacancy in the office of county attorney shall arise in any county and there is no licensed attorney residing in said county who is eligible to be appointed to fill said vacancy, the board of county commissioners is authorized and has the power to employ special counsel from without the county, who shall be designated and officially known as the “acting county attorney” and who during said employment shall be vested with all the powers and shall perform all the duties of the county attorney, including the filing of all complaints, informations, and/or other proceedings for and in which the county or state may be a party and the prosecution and defense of the same to the same extent and with the same force and effect as if he were the regular qualified county attorney....
(2) Whenever any licensed attorney shall establish residence in said county and become eligible to hold the office of county attorney, it shall be the duty of the board to appoint such attorney to fill said vacancy, and the employment of said special attorney shall thereupon cease.

Section 7-4-2702, MCA, provides a means by which county commissioners are authorized to appoint a temporary “acting county attorney,” from without a county, to perform the duties of a “regular qualified county attorney.” In this case, Wilson had become a resident of Jefferson County by the date on which she was sworn in as Jefferson County Attorney. Therefore, the County Commissioners did not appoint a temporary county attorney from outside Jefferson County, according to § 7-4-2702, MCA. They appointed a qualified licensed resident attorney to fill the vacancy in the position of the acting county attorney until the next general election. See § 7-4-2206, MCA. Because there was more than one qualified attorney to fill the vacancy, the County Commissioners clearly had the discretion to choose the replacement attorney. As we stated in Horvath v. Mayor of the City of Anaconda (1941), 112 Mont. 266, 273, 116 P.2d 874, 878:

The power to appoint carries with it a presumption that the appointing power is also, necessarily, discretionary. The determination of the appointing board or officer as to the qualifications of applicants involves official discretion, and, when made fairly and in good faith, is final.

In this case, the Jefferson County Commissioners, in good faith, made the determination that Valerie Wilson was qualified to fill the position of Jefferson County Attorney and appointed her to that position. Based on our conclusion that Wilson was qualified to assume that position, pursuant to § 7-4-2701, MCA, and based on our conclusion that the Jefferson County Commissioners followed the proper procedure for the appointment of a replacement county attorney, pursuant to § 7-4-2206, MCA, we reverse the District Court’s issuance of a writ of mandamus and remand this case to the District Court for entry of a judgment consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN and LEAPHART concur.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion. It is my view that the opinion is legally incorrect on the first, and dispositive, issue it addresses and, furthermore, that the result the Court reaches is laden with consequences far beyond what the Court appears to recognize. Because I would affirm the District Court on this issue, I would not address other issues raised on appeal.

Boiled down to its essence, the issue before us is whether Valerie Wilson was “admitted to the practice of law,” as that term is used in § 7-4-2701, MCA, while she was deemed to be practicing law under this Court’s Student Practice Rule. The Court concludes that she was and, on that basis, reverses the District Court. I conclude that she was not and, therefore, would affirm the District Court’s determination that she did not meet the statutory qualifications for appointment to the vacancy in the office of County Attorney for Jefferson County.

The phrase “admitted to the practice of law” is a term of art in legal circles. It is a different matter entirely from “practicing law” and the difference is clearly reflected in both statutes and Court orders and rules. The Court’s opinion in this case rests entirely on our Student Practice Rule and the statutory definition of when a person is deemed to be practicing law. I do not disagree with the Court’s citations to the language of these sources. Indeed, it is clear that, given the duties Ms. Wilson was authorized to perform under the supervision of an attorney admitted to the practice of law pursuant to our Student Practice Rule, she was “deemed practicing law” under § 37-61-201, MCA.

I strenuously disagree, however, with the Court’s quantum leap that “deemed practicing law” equates to “admitted to the practice of law.” This leap in logic is unsupported by any language in the Student Practice Rule or § 37-61-201, MCA; indeed, it is expressly contradicted by language in the Student Practice Rule which provides that the Rule-required certification by the dean of the law school “remain [s] in effect until the expiration of twelve (12) months after it is filed, or admission to the bar, whichever occurs first.” (Emphasis added.) More importantly, the Court’s conclusion totally ignores the statutes and Court rules regulating “admission to the practice of law.”

The statutes regarding admission of attorneys to the practice of law in Montana are found at Title 37, chapter 61, parts 1 and 2. Those statutes are clear that admitting an attorney to the practice of law is a formal action by this Court which can be taken only after requirements specified by statute and Court rule have been met.

Under § 37-61-101, MCA, this Court is authorized to establish rules for “the admission” of attorneys. Section 37-61-102, MCA, requires us to appoint an examining board to conduct the examination of “applicants for admission to the bar.” Only those persons who, among other things, possess the necessary qualifications of learning and ability are “entitled to admission as attorney and counselor in all the courts of this state.” Section 37-61-202, MCA.

The referenced qualifications for those seeking admission to the practice of law are set forth in both statute and this Court’s Rules for Admission to the State Bar of Montana, the latter having been adopted effective January 17, 1991. See In re the Rules for Admission to the Bar of the State of Montana (Admission Rules). Those qualifications are, inter alia, graduation from an accredited law school, application for admission to the bar, taking and passing a “strict examination,” and approval by this Court’s Committee on Character and Fitness. See §§ 37-61-204 and 37-61-205, MCA; Admission Rules.

When these qualifications are met, this Court must “admit [the person] as an attorney ... and must direct an order to be entered to that effect upon its records, and that a certificate of such record be given to [the person] by the clerk of the court, which certificate is [the person’s] license.” Section 37-61-206, MCA. An oath to support the Constitutions of the United States and the State of Montana and to faithfully discharge the duties of an attorney must be taken “on [the person’s] admission” and filed with the clerk of this Court. Section 37-61-207, MCA. The clerk is statutorily mandated to keep a roll of attorneys “admitted to practice,” and the roll must be signed by “the person admitted” before the license can be issued. Section 37-61-209, MCA.

It is undisputed that Ms. Wilson had not met any of the statutory qualifications and requirements referenced immediately above at the time she began “practicing law” pursuant to our Student Practice Rule in June of 1990. At that time, she had completed the second of three years of law school; she was not “entitled” to admission to the practice of law pursuant to § 37-61-202, MCA, and, indeed, could not yet either apply for or take the “strict examination” required by § 37-61-204, MCA, and the Admission Rules. She had not been approved by this Court’s Committee on Character and Fitness. See Admission Rules. Thus, Ms. Wilson had not been found qualified, upon examination, for admission; she was not approved for admission to the practice of law by this Court’s Committee on Character and Fitness; she did not take the statutory oath, sign the clerk’s rolls or receive a license admitting her to the practice of law. See §§ 37-61-206 and 37-61-207, MCA; Admission Rules.

I am astonished at the apparent ease with which the Court ignores this significant body of statute and its own 14 pages of Admission Rules on the subject of admission to the practice of law by simply “holding” that a law student who, under our Student Practice Rule, assists attorneys admitted to the practice is, herself or himself, admitted to the practice of law. When did these students apply for admission? When did they take and pass the bar examination? When were they approved by the Committee on Character and Fitness? When did they take the required oath to support the federal and state constitutions? When did they sign the roll? When did they receive their licenses as attorneys? The obvious answer is that such students have done none of these things and, as a result, they neither have been, nor could be, admitted to the practice of law in Montana.

I wonder what we are to do at this point, given the Court’s decision in this case, with all those students operating under the Student Practice Rule. Even under the Court’s incorrect result, no guidance is provided regarding how much “practice” under the Student Practice Rule is sufficient to automatically admit the student to the practice of law. Is involvement in one case, under the supervision of an attorney admitted to practice, enough? And, if the student is admitted to the practice of law by virtue of the Student Practice Rule, why is it necessary that he or she be supervised at all?

In any event, since the Court holds that these students are already admitted to the practice of law, apparently we must ensure that they are issued a license and enrolled in the State Bar of Montana, which is — by order of this Court — comprised of “all persons admitted to the practice of law in this state.” See No. 12616, Supreme Court Order Creating The State Bar of Montana, dated January 29, 1974. I am confident that the students will be pleased to avoid the necessity of the otherwise upcoming and onerous bar examination upon their graduation from the University of Montana School of Law. I am equally confident that the number of students seeking to take clinical courses and provide other assistance to attorneys admitted to the practice of law will increase exponentially. Indeed, the State Bar of Montana may be glad to collect the obligatory dues from these heretofore. unknown admittees to the practice of law.

But what of this Court’s obligation to follow the law? And what of our obligation, discharged in the first instance via the statutes and Admission Rules, to take reasonable steps to ensure that the people of Montana are served by qualified attorneys of good moral character? Apparently these matters are of no interest or concern to the Court and it is well beyond my powers of reason to discern why.

To restate the obvious, I dissent in the most strenuous terms from the result reached on the first issue addressed in the Court’s opinion. I would affirm the District Court’s conclusions that Ms. Wilson was not admitted to the practice of law until October 8,1991, and, on that basis, that she had not been admitted to the practice of law for the statutorily-required period of time when she was appointed to the vacancy in the office of the County Attorney of Jefferson County. The District Court correctly concluded that Ms. Wilson was not qualified to be appointed to the vacancy.

JUSTICE NELSON joins in the foregoing dissent of JUSTICE GRAY.