No. 86-217
IN THE SUPREME COURT OF THE STATE OF MONTAIVk
1986
DARRELL GIERKE,
Claimant and Appellant,
-vs-
BILLINGS GAZETTE, Employer
and
ASSOCIATED INDEMNITY CORPORATION,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Feardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lynaugh, Fitzgerald, Hingle & Eiselein; Thomas J.
Lynaugh., Billings, Montana
For Respondent:
Neil S. Keefer, Billings, Montana
Submitted on Briefs: Aug. 21, 1986
Decided: December 30, 1986
Filed :
-
Clerk
Mr. Chief Justice ,T.A. Turnage delivered the Opinion of the
Court.
Gierke appeals from a March 6, 1986, decision of the
Workers' Compensation Court which denied Gierke's claim for
additional disability benefits. We affirm.
Gierke raises four issues for our review:
1. Did substantial evidence support the court's deci-
sion that Gierke is not entitled to additional benefits?
2. Did the court fail t.o consider Gierke's pain, age,
education and work experience?
3. Did the court err when it characterized. Gierke's
retirement as voluntary?
4. Did the court err when it placed the burden on
Gierke to prove that he had no reasonable prospect of employ-
ment in the normal labor market?
On August 17, 1983, Gierke injured his right shoulder
when he tripped while pullinq a park bench off a street in
Worland, Wyoming. All parties agree that Gierke was injured
within the scope and course of his employment with the Bill-
ings Gazette. Gierke's orthopedic surgeon, Dr. James Scott,
diagnosed Gierke as having a rotator cuff tear to his right
shoulder.
At the time of the injury, Gierke was fifty-six years
old. He had been employed at t.he Billings Gazette for eight-
een years. Before his injury and thereafter, he worked as
county circulation and transportation manager. His duties
consisted primarily of supervising four district managers in
eastern Montana. These duties required Gierke to drive
several hundred miles per week. Gierke testified that he
spent 80 percent of his time on the road. On occasion, he
also performed physical work, such as stacking papers.
Gierke worked full-time from the date of his injury until the
first operation on his right shoulder on January 16, I a 8 4 .
Dr. Scott performed the operation.
Dr. Scott operated again on Gierke's shoulder on Febru-
ary 6, 1984. Associated Indemnity accepted liability and
paid Gierke temporary total disability benefits for January
16 and 17 and February 6 through 12, 1984. On September 16,
1985, Associated Indemnity also paid Gierke $13,850 for one
hundred weeks of permanent partial disability. The payment
was based upon Dr. Scott's 35 percent impairment rating of
Gierke's upper extremity, which converted to a 20 percent
impairment of the whole man.
In April., 1985, the Gazette offered a voluntary early
retirement program to all of its 175 employees. Eighteen
employees accepted the early retirement, including .Gierke.
Gierke's effective date of retirement was April 17, 1985,
when he received a lump-sum separation payment of $12,180.
Four months later, Gierke filed a petition to increase his
disabil-ity benefits.
Issue 1
Does substantial evidence support the court's decision
that Gierke is not entitled to additional disability
benefits?
Judge Reardon of the Workers' Compensation Court heard
the testimony and observed the demeanor of all witnesses at
trial. He reviewed all pleadings, exhibits and depositions.
Judge Reardon concluded that the evidence failed to establish
a causal relationship between the industrial accident and
Gierke's current complaints about his left shoulder pain.
On appeal, Gierke first contends that he was
permanently totally disabled as a result of the injury to his
right shoulder, which he claims has now spread to his left
shoulder. Section 39-71-116(13), MCA, defines permanent
total disability as:
... a condition resulting from injury
as defined in this chapter that results
in the loss of actual earnings or earn-
ing capability that exists after the
injured worker is as far restored as the
permanent 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
medica 1- evidence.
Gierke's contention that he is permanently totally
disabled is disputed by his own t-estimony, where Gierke
discussed his plans to continue working:
Q. What did you plan to do at the time
you retired, if anything?
A. I had no plans other than certainly
the necessity to find employment, or to
be employed some way some time. You
know, I always enjoyed working. I have
no intentions of discontinuing work.
Gierke elaborated on these employment plans later in his
testimony:
Q. What type of work do you feel you
could do? I mean, all things consid-
ered, your training, experience.
A. My training and experience, I think
the strong suit would be sales of some
nature.
As further evidence of his ability to work, both Gierke a.nd
his Gazette supervisor testified that Gierke asked the -
Ga-
zette for an "independent-haul contract'' on the day of his
retirement. Under this independent contract, Gierke would
load bundles of newspapers at the Gazette each night and
deliver them tc elected d r o ~
points.
F e also note that in December, 1984, Gierke was ade-
7
quately performing his job, according to a job perf0rman.c~
review by his supervisor. Gierke supported the review with
his own testimony: "I felt that I was still in the same
category of exceeding job standards."
Furthermore, Gierke has consulted two doctors, Dr.
Scott and Dr. Gary Ray, an osteopath. Both doctors testified
that Gierke can do just about any type of work, as long as he
avoids certain motions wjth his right shoulder on a prolonged
basis.
Dr. Scott testified:
Q. Basically, Doctor, so far as the
right shoulder is concerned, he should
avoid. an activity where he has to have
the right arm above the head, or the
right arm working straight out?
A. Yes.
Q. And, other than that, he can do
about anything that he would be capable
of doing?
A. That is a generous statement, but
generally I would agree.
Dr. Ray testified:
Q. Now, Doctor, let's get on the posi-
tive side of things a little bit. P7hat
can Mr. Gierke do, I would like your
comments on that, I mean so far as
day-to-day physical activities that
would relate to work and the job market.
A. The simple way of answering that
would be to do everything that I have
not mentioned, and, in fact, that is,
there is an awful lot of things that can
be done. If I had these two conditions,
I would want an inside job, to begin
with. And, of course, that gives us
about eighty percent of the jobs avail-
able in Yellowstone County would be
indoors. The limitations of the arm
would be really very minor in terms of
what things that you could not do ...
But any sort of desk work, any sort of
sales work that did not require overhead
work would be fine.
The Workers' Compensation Court properly concluded that
Gierke was not permanently totally disabled as a result of
his industrial accident. The conclusion was based on Dr.
Scott's medical evidence that Gierke had reached maximum
recovery and that his symptoms were chronic. The conclusior
also noted that both Gierke's supervisor and Gierke himself
testified that Gierke satisfactorily performed his empl-oyment
duties from the date of his industrial injury until his
retirement twenty months later.
In the alternative, Gierke contends that he is perma-
nently partially d-isabled. Section 39-71-116 (12), MCA,
defines permanent partial disability as:
... a condition resulting from injury
as defined in this chapter that results
in the actual loss of earnings or earn-
ing capability less than total that
exists after the injured worker is as
far restored as the permanent character
of the injuries will. permit. Disability
shall be supported by a preponderance of
medical evidence.
Gierke has failed to meet the statute's "preponderance
of medical evidence" test. From the date of his injury to
the date of his retirement, Gierke never reported. any pain to
his Gazette supervisor. Furthermore, Gierke did not tell Dr.
Scott about his left shoulder pain until August, 1984, a year
after the original injury to his right shoulder. Gierke's
pain claim j . s also disputed by Dr. Scott. In both a letter
to Gierke and in his deposition, Dr. Scott concluded that the
left shoulder pain was unrelated to Gj erke' s industrial
i n ury :
.j
Q. Now, Doctor, I believe you state on
page four, which would be the January
21st letter, that you don't see any
connection between his left shoulder --
left neck pain and the accident that he
had in August of '83, when he dislocated
his riqht sho~llder, is that corr~ct?
A. Yes, sir.
Q. And that would be your opinion, that
the two were unrelated?
A. Yes, sir.
&. Now is this consistent, Doctor, with
his lack of reporting pain anywhere else
for six or eight months, well, a year
really, after the dislocation in August,
of 1983?
A. Yes.
Q. And this is still your opinion as of
today?
A. Yes, it is.
Dr. Scott also testified that Gierke's new pain in both
shoulders is distinct from the pain resulting from Gierke's
industrial injury:
Q. Now, prior to his hospitalization,
his pain was in his right shoulder, and
it came from the rotator cuff tear, I
take it.
A. Yes, sir.
Q. And the pain that we are talking
about on January 8th, of 1985, nearly a
year later, is different, and it is in
both shoulders?
A. Well, yes sir.
Q. And at this point at least you still
don't have it diagnosed?
A. No, sir.
In reviewing Gierke's case, the substantial evidence
test was defined in Steffes v. 93 Leasing Co., Inc. (1978),
177 Mont. 83, 86-87, 580 P.2d 450, 452-453. We held:
Our function in reviewing a decision of
the Workers' Compensation 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 the
evidence on questions of fact. Where
there is substantial evidence to support
the findinqs of the Workers' Compensa-
tion Court, this Court cannot overturn
that decision.
Gierke failed to establish a causal connection between
his right shoulder injury and his new pain in both shoulders.
Gierke failed to support his claim that he is additionally
disabled by his right shoulder injury. On the contrary, the
abundance of evidence from Gierke's doctor and from Gierke
himself indicates that his right shoulder is not greatly
disabling. Gierke testified that he wants to work, and both
doctors testified that he is able to work.
In view of such substantial evidence, and applying the
Steffes test, we hold that the evidence fully supports the
decision of the Workers' Compensation Court.
Issue No. 2
Did the court fail to consider Gierke's pain, age,
education and work experience?
Gierke contends that the Workers' Compensation Court
ignored testimony by Gierke, Gierke's wife and Gierke's
co-worker about his pain and insomnia. Gierke also claims
that the court failed to consider Gierke's age, education and
work experience.
We find no merit in Gierke's contentions. In its
Findings of Fact, the Workers' compensation Court specifical-
ly notes Gierke's age and education under a section entitled
"Claimant":
2. Claimant was born on January 2,
1927. At the time of the hearing, he
was 58 years of age.
3. He is married and has one minor
child living at home.
4. Claimant did not complete high
school.
The Workers1 Compensation Court further dischsses Gierke's
'.-work experience in a section entitled "Claimant's Employment
-- Gazette":
With The
5. Claimant went to work for the Fill-
ings Gazette in January, 1967. After a
series of promotions, he became the
County Circulation and Transportation
Manager for the Gazette. His job en-
tailed supervising four district manag-
ers and all independent-haul contracts.
Claimant testified that his job included
many different duties, including hauling
papers from the Gazette to the delivery
area if the responsible contractor was
una-ble to do so.
In its Conclusions of Law, the Workers' Compensation Court.
refers to Gierke's overall condition, including his new pain:
Both Dr. Scott and Dr. Ray testified as
to the types of work claimant can do and
which types he should avoid. This
testimony takes into account claimant's
overall physical condition, including
any and all pains not related. to the
industrial injury of August 17, 1983.
Even so, both doctors testified that
claimant can do just about any type of
work, so long as he avoids certain
motions with his riqht shoulder on a
prolonged basis.
In sum, the right shoulder, standing
alone, is not greatly disabling. Even
when other factors are considered, there
is a great deal that claimant can do.
Gierkels assertion that the court failed to consider all
factors is directly rebutted by the evidence and the
well-written decision of the Workers ' Compensation Court..
The court carefully considered all factors and fully support-
ed its conclusions. Gierke's contention on this issue has no
merit.
Issue No. 3
Did the court err when it characterized Gierke's re-
tirement as voluntary?
Gierke argues that his retirement was not voluntary
because the Gazette created and offered the plan to its
employees, rather than the plan being inspired by Gierke
himself. Gierke further contends that the plan was not
voluntary because the Gazette encouraged the plan and thus
exerted subtle pressure. In his brief, Gi-erke omits any
mention of the $12,180 lump-sum payment he received in con-
sideration for his early retirement.
The Gazette contends that Gierke retired of his own
free will and that his job did not seriously aggravate the
pain in his shoulder. As we discussed in the first issue,
Gierke's injury did not prevent him from performing his job
at the Gazette. The Workers1 Compensation Court denied
permanent disabil-ity benefits to Gierke because he could have
continued to work for the Gazette if he had not voluntarily
retired. As the court stated: "He was adequately performing
his duties and was under no threat of being fired when he
elected to take an early retirement." Both Dr. Scott and Dr.
Ray concluded that Gierke could continue to drive his company
pick-up truck, which was equipped with power options, air
conditioning and tilt-wheel steering.
Although Gierke contends that the Gazette forced him to
retire, his contention is directly rebutted by his own
testimony:
Q. Now, I am going to ask you this, Mr.
Gierke: Were you fired by the Gazette,
or did you quit?
A. I don't feel I was fired. Definite-
ly not.
Later in his testimony, Gierke stated:
Q. Okay. Did Michel or anyone else
ever say, "Darrell, either you retire or
we're going to fire you?"
A. No, sir, they did not.
Gierke alleges that his retirement was made under
duress. However, the voluntary retirement program was of-
fered to every Gazette worker, with no special focus on
Gierke. The Workers1 Compensation Court properly concluded,
based upon testimony by Gierke and his Gazette supervisor,
that Gierke voluntarily retired. In consideration for his
retirement, he received the $12,180 payment.
We affirm the Workers' Compensation Court's judgment.
Gierke's retirement was not related to any failure in his job
performance. His retirement WPS voluntary and uncoerced.
Issue No. 4
Did the court err when it placed the burden on Gierke
to prove that he has no reasonable prospect of employment in
the normal labor market?
In the six months following his retirement on April 17,
1985, until the compensation hearing on October 29, 1985,
Gierke never looked for a job. Fe testified:
Q. Now, have you worked at all since
you left the Gazette?
A. No, sir, I have not.
Q. Have you registered at the employ-
ment office?
A. No, sir, 1 have not.
In its decision, the Workers' Compensation Court out--
lined the burden of proof on Gierke, citing Metzger v.
Chemetron Corp. (Mont. 1P84), 687 P.2d 1033, 1035, 41 St.Rep.
1788, 1790: "To establish the existence of no reasonable
prospect of employment in the normal labor market, a claimant
must introduce substantial credible evidence of (1) what jobs
constitute hip normal labor market, and (21 a complete
inability to perform the employment duties associated with
those jobs because of his work-related injury." Gierke
failed to introduce such substantial credible evidence.
On the contrary, Gierke voluntarily retired from one
segment of his normal labor market and then failed to look
for work in the remainder. As we have repeatedly held, the
general rule is that the claimant bears the burden of estab-
lishing a right to compensation. Dumont v. Wickens Bros.
Const. Co. (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105.
Gierke repeatedly testified about his desire to work. Both
doctors testified about his ability to work. When such
evidence is combined with Gierke's failure to seek employ-
ment, Gierke 's claim of "no reasonable prospect of employ-
ment" is without merit.
We affirm the jud.qment of the Workers' Compensation
Court on all issues.
Chief Justice
We concur:
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Justices J