No. 84-39
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
CALVIN METZGER,
Claimant and Appellant,
-VS-
CHEMETRON CORPORATION, Employer,
and
LIBERTY MUTUAL INSURANCE CO.,
Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William T. Kelly, P.C.
Halverson, Sheehy & Prindle, Billings, Montana
For Respondent:
Garlington, Lohn & Robinson, Missoula, Montana
Submitted on Briefs: July 27, 1984
Decided: September 19, 1984
Filed:
SEP 1 9 1984
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an appeal by claimant from a Workers' Compensa-
ti~nCourt order awarding permanent partial disahility bene-
fits. He challenges the court's application of our workers'
compensation laws to the facts of his case, claimins, among
other things, that his pain plus inability to find suitable
work entitle him to permanent total disability benefits.
Claimant's arguments are without merit. The Workers'
Compensation Court correctly applied the relevant case and
statutory law. Its findings are supported by the record. We
affirm the order and award.
The claims-nt and appellant, Calvin Metzger, suffered a
back injury on April 8, 1980, when he attempted to free a
twenty-five foot section of rail lodged in the roller assem-
bly of a we]-ding machine. Metzger was initially hospitalized
for two days and then for two weeks while his attending
physician attempted to alleviate the pain associated with the
injury. From the time of his release from the hospital until
early 1983, the claimant underwent a series of surgical
procedures designed to relieve his pain. The procedures
were, at best, unproductive and, at worst, counterproductive.
Claimant continues to suffer pain. His condition has been
diagnosed as low back instability accompanied by radiating
I-eg pain. The Workers ' Compensation Court determined that
claimant had reached a medically stable condition and awarded
80 percent permanent partial disability benefits.
Claimant raises three issues on appeal:
1. Whether the Workers' Compensation Court erred in
.
concluding that the claimant is not entitled to permanent
total. disability benefits;
2. Whether the court erred in determining that claim-
ant has reached a medically stable condition; and
3. Whether the court erred in denying claimant's
request for an award of the 20 percent penalty provided by
section 39-71-2907, MCA.
The appellant bases his appeal of the determination of
partial rather than total disability on the court's alleged
failure to take proper account of his disabling pain and on
the court's concLusion that claimant failed to establish the
existence of no reasonable prospect of employment.
The court found that appellant appeared honest and
straightforward, that he appeared to be uncomfortable and to
have trouble sitting, and that he testified to suffering
severe pain. Appellant erroneously relies on our holding in
Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 575
P.2d 67, to assert that pain is not only - factor in deter-
a
mining disability but - fzctor.
the In Robins, we described
pain as "another factor" to be considered in determining
disability. Robins, 175 Mont. at 521, 575 P.2d at 71. The
Workers' Compensation Court expressly included consideration
of claimant's pain in finding 80 percent disability.
"Our function in reviewing a decision of
the Workers' Compensati.on Court is to
determine whether there is substantial
evidence to support the findings and
conclusions of that court. We cannot
substitute our judgment for that of the
trial court as to the weight of evidence
on questions of fact. Where there is
substantial evidence to support the
findings of the Workers' Compensation
Court, this court cannot overturn the
decision." (Citations omitt.ed.) Nielsen
v. Beaver Pond, lnc. (Mont. 1983), 661
P.2d 47, 49, 40 St.Rep. 489, 491.
Substantial- evidence appears on the record to support a
finding of partial. disability.
Appella-ntclaims that he is without reasonable prospect
of employment. Section 39-71-116(13), MCA, defines permanent
total. disability as:
"'Permanent total disability' means a
condition resulting from injury as de-
fined in this chapter that results in the
loss of actual earnings or earning capa-
bility that exists after the injured
worker is as far restored as the perma-
nent character of the injuries will
permit and which results in the worker
having no reasonable prospect of finding
regular employment of any kind in the
normal labor market. Disability shall be
supported by a preponderance of medical
evidence."
Disability is not, however, a purely medical condition.
Section 39-71-121, MCA. Our statutes do not assign the
burdens of production and proof of the nonmedical elements of
disability. The trial court relied on its holding in an
earlier case:
"To establish the existence of no reason-
able prospect of employment in the normal
labor market, a claimant must introduce
substantial credible evidence of (1) what
jobs constitute his normal labor market,
and (2) a complete inability to perform
the employment and duties associated with
those jobs because of his work-related
injury." Spooner v. Action Sales, Inc.,
I11 Workers' Compensation Court Decisions
No. 85 (January 24, 1983).
We adopt the Spooner approach as an accurate applica-
tion of the general rule that claimant bears the burden of
establishing a right to compensation. Dumont v. Wickens
Bros. Const. Co. (1979), 183 Mont. 190, 201, 598 ~ . 2 d1099,
1105. See, Brurud v. Judge Moving and Storage Co., Inc.
(1977), 172 Mont. 249, 563 P.2d 558 (excusing the failure to
show reasonable efforts at finding employment where the trial.
court could foresee the futility of a search for very light
work by a sixty-two-year-old claimant with limited education
and forty years of experience at heavy labor); Keene v.
Anaconda Co. (Mont. 1982), 652 P.2d 216, 39 St.Rep. 1982
(holding that the trial court's finding that claimant could
not return to his usual work did not support a conclusion
that a thirty-two-year-old claimant, with varied experience
and skills, had no reasonable prospect of finding regular
employment); McCormack v. Sears, Roebuck & Co. (Mont. 1984) ,
682 P.2d 1357, 41 St.Rep. 979 (upholding an award of perma-
nent total disability conditioned on claimant successfully
pursuing vocational rehabilitation where the employer failed
to rebut claimant's showing that his injury disqualified him
from all work for which he had experience).
In the present case, claimant's therapist testified
that claimant was able to engage in activities in his normal
labor market. Both the therapist and claimant's physician
urqe claimant to return to work of a type consistent with his
physical limitation. A rehabilitation specialist testified
that claimant possesses the physical abilities, skills and
experience to qualify him for available work.
Appellant accurately states that the burden of proof
shifts to the employer to show that suitable work is avail-
able once claimant has presented evidence affirmatively
showing that he cannot return to a job i n his normal labor
.
market. Claimant did not, however, make a prima facie show-
ing of inability to find suitable work. In the almost four
vears between injury and trial, he applied for one job.
Claimant voiced a willingness to return to work but voiced,
also, an uncertainty as to his physical condition. Claim-
ant's own uncertainty coupled with a minimal job search
cannot combine to support a claim of no reasonable prospect
of employment.
Appellant seeks to excuse, as in Brurud, supra, his
failure to present evidence of reasonable job search and
raises the rule for the "odd lot" employee:
"If the evidence of degree of obvious
physical impairment, coupled with other
factors such as claimant's mental capaci-
ty, education, training, or age, places
claimant prima facie in the odd-lot
category, the burden should be on the
employer to show that some kind of suit-
able work is regularly and continuously
available to the cia-imant." 2 Larson,
Workmen's Compensation Law 5 57.61.
Metzger is not an odd lot employee. The rule above is
gleened from cases involving, among others, a
sixty-one-year-old claimant suffering severe mental deficien-
CY t a previously injured ill-iterate diabetic, a
forty-year-old laborer with one month of formal education,
and a seventy-year-old arthritic laborer. Larson, supra, at
5 s 57.51 n. 96, 57.61 n. 25. Claimant, here, is twenty-eight
years old, enjoys high manual dexterity skills, above average
intelligence and has gained experience in a variety of job
settings.
The trial court found that claimant's job possibilities
and earning capacity are limited but that he had failed to
establish that he had no prospects of empl-oyment. Adequa.te
evidence supports the court's finding of partial disability.
Appellant challenges the Workers' Compensation Court's
conclusion that he has achieved the stable medical condition
necessary for a finding of either total or partial permanent
disability. Temporary disability ends and permanent
disability begins when the injured worker "is as far restored
as the permanent character of the injuries will permit."
Section 39-71-116(19), MCA. The court found that claimant
had reached a medically stable condition and made its finding
of permanent partial disability based on claimant's existing
condition.
Claimant initially petitioned the court for finding
of permanent total disability. Only in retrospect--and after
the trial court1s determination that claimant was partially
rather than totally disabled--does claimant seek to charac-
terize his condition a.s temporary. The phrase "as far re-
stored .. ." does not translate into a requirement that
claimant be "completely healed." Belton v. Carlson Transport
(Mont. 1983), 658 P.2d 405, 4.08, 40 St.Rep. 158. Logic
prevents such a conclusion. "Completely healed" would indi-
cate the attainment of preinjury condition. The transition
would then be one from temporary total. disability to full
recovery, and our provisions for permanent disability would
take shape as mere irrelevancies. The legislature obviously
did not intend that resul t.
Substantial credible evidence supports the trial
court's finding that claimant has reached a medically stable
condition. McDanold v. B. M. Transport, Inc. (Mont. 1984),
679 P.2d 1188, d l St.Rep. 472. We will not disturb that
finding on appeal.
I11
Appellant additionally claims a 20 percent penalty for
defendant's refusal to tender a partial lump sum advance.
Section 39-71-2907, MCA, provides for an increased award
where payment of compensation has been unreasonably delayed
or refused. The determination of what is unreasonable is a
question of fact. Paulson v. Bozeman Deaconess Foundation
Hosp. (Mont. 1984), 673 P.2d 1281, 41 St.Rep. 62. The claim-
ant was paid total disability payments up through the time of
hearing. He received partial lump sum advances totalling
$6,000 plus overpayments totalling $7,287.97. The trial-
court found, and we agree, that absolutely no basis exists
for the consideration of a penalty.
We a £ firm the Workers ' Compensation Court ' s d.etermina-
tion and award of permanent partial disability.
Z Chief Justice 4
&$..%
We concur: