No. 85-87
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
JACK BREWINGTON,
Claimant and Appellant,
-vs-
BIRXENBUEL, INC., Employer,
and
EMPLOYERS' FIRE INSURANCE CO.,
Defendant and Respondent
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Utick & Grosfield; Andrew J. Utick, Helena, Montana
For Respondent:
William L. Baillie, Great Falls, Montana
Submitted on Briefs: March 13, 1 9 8 6
Decided: August 1 2 , 1 9 8 6
Filed:
AUG 1 2 1986
2 2 Clerk , i 7 r ~
2 2Z ?
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Jack Brewington appeals a Workers' Compensation Court
order which ruled that he is permanently partially disabled
and awarded him 400 weeks of indemnity benefits under
S 39-71-706, MCA. The issues on appeal are: (1) whether
the lower court erred in ruling that appellant is not
permanently totally disabled; (2) whether the lower court
erred in awarding appellant 400 weeks of indemnity benefits
rather than 500 weeks, the statutory maximum; and,
(3) whether the lower court erred in failing to increase
appellant's award by 20% under 5 39-71-2907, MCA, because of
respondent's allegedly unreasonable delay or refusal in
paying benefits. We reverse and remand.
Appellant is 61 years of age, with an eighth grade
education, and since 1960 has generally worked as a
millwright, welder or carpenter. He also worked as a
supervisor in a Missoula paper mill and he has worked for
very short periods of time in other supervisory positions.
These other supervisory jobs lasted only two to three days
but details on how long he worked as a supervisor in the
paper mill are lacking.
In December 1974, appellant suffered a compensable
injury during the course of his employment with Birkenbuel,
Inc. Due to the collapse of some scaffolding, appellant fell
twelve feet to the ground landing on his right hand and
shoulder. Appellant was able to work for some time after his
accident although he experienced pain and difficulties with
his coordination. Appellant stopped working for three weeks
in March 1975 because of his injury but he resumed working
thereafter. Due to the injury, appellant suffered
substantial pain in his neck, shoulder and arm. After
working through 1975, 1976 and part of 1977, appellant
suffered another industrial accident in July 1977 in which he
sawed off the tips of two fingers on his left hand.
Appellant has never worked since this second accident. Any
disability he has from the second injury is not at issue in
the instant case.
Dr. Nelson, appellant's treating physician, first
examined appellant in August 1977. Dr. Nelson diagnosed
appellant as having brachial plexus neuritis, bilaterally,
but greater on the right side. Brachial plexus neuritis is
an inflammation of the nerves in the neck and shoulders which
may be brought on by direct blows or other injuries. Dr.
Nelson later made an additional diagnosis of appellant as
having thoracic outlet syndrome; i.e. a kinking or pinching
of the artery and nerve as the shoulder and arm are elevated.
These problems stem from appellant's 1974 accident. The
doctor stated that appellant's condition had stabilized, and
his healing period was over by October 1982. On September 7,
1982, appellant was examined by Dr. Cahill at the request of
the respondent. Dr. Cahill agreed with Dr. Nelson's
diagnosis.
In January, 1984, appellant described his health
problems stemming from his 1974 accident. He stated that he
had problems with his neck and if it was cold or if he bent
over a lot, his neck would lock and he had a lot of pain;
that he had pain all the time in his shoulder, ranging from
pain "like a toothache" most of the time to a burning
sensation at other times; that he had pain all the time, and
no coordination most of the time, in his right arm; that any
physical work made his arm and shoulder worse; and that he
could do woodworking for about 1% hours before his right arm
hurt him and he was required to stop.
Dr. Nelson testified at deposition that appellant's arm
and shoulder injuries prevent him from doing laborious work;
that is, "overhand, overhead, climbing, lifting, prolonged,
repetitive usage of the arm and shoulder to any degree of
strength." The doctor also recommended no prolonged bending
by appellant or even long-distance driving. Dr. Nelson had
no objections to appellant attempting to work as a foreman or
supervisor. He stated that appellant should be in a
"sedentary" occupation, which he described as something
educative or supervisory or something appellant could take
periodic breaks from if he had to do repetitive physical
work. Dr. Nelson recommended vocational training for
appellant as long as it would outfit him for light work. The
doctor rated appellant's disability as a 10% impairment of
the whole body. Dr. Cahill agreed with Dr. Nelson's
impairment rating and conclusion that appellant was limited
to a sedentary-type occupation.
After quitting work after his second accident,
appellant attempted to secure work as a supervisor with
several Lewistown construction firms and as a welding
instructor. The construction firms indicated that he would
have to be a working foreman and he felt he was physically
unable to handle such a position. Appellant apparently did
not inquire into many jobs which could be classified as
"sedentary" because, as he stated, he would not accept any
job unless he could earn $1,000 a month. He concluded that
he could probably enter into a retraining program and find
work if he could stay close to his wife, who is going blind.
Respondent hired National Rehabilitation Consultants to work
with appellant to improve his employment chances. Appellant
declined the services of the rehabilitative consultants and
admitted that he did so because he had decided to try and
obtain a lump sum settlement of his Workers' Compensation
benefits, and because acceptance would have required him to
travel far from Lewistown and his ailing wife.
R.espondent accepted liability for appellant's first
injury and initially paid him temporary total disability
benefits. Respondent paid these benefits until February
1983. In January 1983, National Rehabilitation Consultants
advised respondent that appellant had refused their services.
Within a month, respondent stopped paying appellant temporary
total disability benefits and began paying appellant lesser
benefits for permanent partial disability. At the time of
this change, respondent had reports from Dr. Nelson and Dr.
Cahill which stated that appellant had reached his maximum
point of recovery and could return to sedentary-type work.
Appellant disagreed with respondent's decision to pay
him permanent partial disability benefits and, in June 1983,
he filed a petition for a hearing with the Workers'
Compensation Court claiming a right to permanent total
disability benefits. The lower court held a hearing in
January 1984, before a hearing examiner who disqualified
himself for conflict of interest reasons and the parties
stipulated that the judge could complete the case. The judge
did not hear any of the testimony but rather issued his
decision in January 1985 based on the record. The court
concluded that appellant was 80% permanently partially
disabled, based upon an impairment rating of 10% of the whole
man. The court awarded appellant 400 weeks of benefits, 80%
of the statutory maximum of 500 weeks. The court refused to
impose a 20% penalty upon respondent. This appeal followed.
The first issue is whether the lower court erred in
finding that appellant is partially rather than totally
disabled. The oft-cited standard of review is that,
"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 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
omitted. )
Metzger v. Chemetron Corp. (Mont. 1984), 687 ~ . 2 d1033, 1035,
41 St.Rep. 1788, 1790; citing Nielsen v. Beaver Pond, Inc.
(Mont. 1983), 661 P.2d 47, 49, 40 St.Rep. 489, 491.
But we have also stated that where the Workers'
Compensation Court received the critical evidence by
deposition "this Court, although sitting in review, is in as
good a position as the Workers' Compensation Court to judge
the weight to be given to such record testimony, as
distinguished from oral testimony, where the trial court
actually observes the character and demeanor of the witnesses
on the stand." Lamb v. Missoula Imports, Inc. (~ont.1984),
684 P.2d 498, 500, 41 St.Rep. 1414, 1416; citing Jones v. St.
Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140; and
Hert v. J. J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d
656. The Workers' Compensation judge did not hear any oral
testimony but decided the case on the same record that we
have before us.
Appellant claims that he has a permanent total
disability, which is defined at § 39-71-116 (13), MCA, as:
[a] condition resulting from injury as
defined in this chapter that results in
the loss of actual earnings or earning
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 medical
evidence.
In expanding upon the statutory definition, we adopted the
following test in Metzger.
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 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, 1 9 8 3 )
Metzqer,
The Workers' Compensation Court concluded claimant
failed to meet this burden. The court placed great emphasis
on the fact that claimant has worked as a foreman, and could
do such work again. The court incorrectly determined that
claimant's normal labor market includes working as a foreman.
As stated above, claimant's work as a foreman was extremely
limited, amounting to two or three days on each of several
occasions. This does not qualify the position of foreman as
part of claimant's normal labor market. Even so, claimant
contacted several construction firms and the rehabilitation
services division in an attempt to secure employment as a
foreman, but was unsuccessful. The only available jobs as a
foreman required claimant to be a working foreman, a position
claimant cannot perform.
Further, claimant testified he refused the services of
a private rehabilitation firm of respondent's choice.
Although he admitted he could likely be retrained, he
declined the services because acceptance would have meant
moving far from Lewistown. Claimant's wife is going blind
and he testified he needed to stay close to her in order to
care for her. While weight is given to claimant's opinion
that he could probably be retrained and that he voluntarily
declined the services of the private rehabilitation firm,
such testimony is not determinative. The medical evidence as
well as claimant's lifetime work history support the
conclusion that claimant was rendered permanently totally
disabled by his industrial accident.
We conclude that claimant has met his burden as defined
in Metzger. He testified in great detail concerning his
injuries and limitations. He suffers constant pain in his
right arm and right shoulder, and intermittent pain in his
neck. Physical work worsens the condition. Dr. Nelson
testified that claimant's injuries prevent him from doing
laborious work, that is, "overhand, overhead, climbing,
lifting, prolonged, repetitive usage of the arm and shoulder
to any degree of strength." This is the very work claimant
had done all his life.
He attempted to secure work as a supervisor with
several Lewistown construction firms and as a welding
instructor, but was unsuccessful. Claimant conclusively
established an inability to perform the jobs in his normal
labor market. Claimant meets the requirements of §
39-71-116(13), MCA, for permanent total disability.
Because of our ruling on the first issue we need not
consider the second issue in this case.
Claimant's final issue is whether the lower court erred
in failing to increase his award by 20% under § 39-71-2907,
MCA, because of respondent's allegedly unreasonable delay or
refusal to pay benefits. We hold claimant is entitled to the
20% penalty.
The Workers1 Compensation Court concluded:
6. Under these facts the penalty provided for
under 5 92-824.1 R.C.M., now MCA 5 39-71-2907
(1983), does not apply. Reducing claimant's
benefits from temporary total to permanent partial
because the claimant refused to work with a private
rehabilitation firm is unreasonable. However, from
the Court's record, it appears that the insurer
coincidentally had sufficient information allowing
it to reduce the claimant's benefits from temporary
total to permanent partial.
The defendant is not without a remedy if
rehabilitation is appropriate and the claimant
refuses to participate. The proper procedure is
delineated in MCA 5 39-71-1005. This procedure was
not followed in the case at bar.
The lower court essentially concluded that respondent's
actions would have been unreasonable had the record not
supported the conclusion that claimant was permanent partial,
not permanent total. It follows that since we now hold that
claimant is permanent total, he is also entitled to the 20%
penalty. Respondent reduced claimant's benefits in
retaliation for his refusal to work with a private
rehabilitation firm. Such action is unreasonable.
Respondent should have followed the procedure delineated in §
39-71-1005, MCA. Claimant is entitled to a 20% penalty
pursuant to § 39-71-2907, MCA.
Reversed and remanded to the Workers' Compensation
Court to enter judgment for the claimant on his claim of
permanent total disability, and to award claimant a 20%
increase in his award pursuant to 5 39-71-2907, MCA.
A
'
W e Concur:
Chief J u s t i c e
Justices
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent.
Appellant must prove, by a preponderance of the
probative, credible evidence, that he is entitled to
permanent total disability benefits. Dumont v. Wickens Bros.
Const. Co. (1979), 183 Mont. 190, 598 P.2d 1099. c his he has
not done.
To establish that he is permanently totally disabled
under the Metzger test cited in the majority opinion, the
appellant must show a complete inability to perform the
employment and duties associated with the jobs constituting
his normal labor market. Although appellant is clearly
permanently disabled, he has not satisfied the Metzger
standard for permanent total disability. There are three
main problems with the majority opinion, which simply glosses
over the voluminous evidence in this case.
First, the only expert medical opinions entered into
evidence tend to show that appellant is - permanently
not
totally disabled. Dr. Nelson diagnosed appellant as having a
10% impairment of the whole body. He testified that
appellant should be in some type of sedentary employment
(primarily educative or supervisory, or doing something, if
repetitive, from which he could take breaks periodically).
Dr. Cahill also rated appellant as having a 10% impairment of
the whole body. Dr. Cahill's opinion in 1982 was that:
The patient's present physical condition
shows ... he has stabilized and has
reached a maximum point of recovery. I
do think he would be able to return to
work, but I think that heavy lifting and
using his upper extremities excessively
other than for writing and desk work
would be very difficult for him.
Second, the majority finds that appellant's normal
labor market does not include working as a foreman. This
finding is perplexing as it runs against the majority's
recitation of facts and the appellant's testimony. The facts
stated in the majority opinion are that:
[Appellant] also worked as a supervisor
in a Missoula paper mill and he has
worked for very short periods of time
[two to three days] in other supervisory
positions ... details on how long he
worked as a supervisor in the paper mill
are lacking.
It is unclear how the majority can find that appellant's
normal labor market does not include a foreman position when
the majority is unsure how long he worked as a foreman.
Appellant's testimony was as follows:
Q. Did you ever work in any of these
occupations strictly as a supervisor?
A. I was a supervisor in the paper mill
in Missoula for awhile.
9 . Other than that job, did you ever
work strictly as a supervisor?
A. Not for any length of time, no.
The testimony is simply unclear as to how long appellant
worked as a supervisor. Appellant has not established what
his normal labor market is. Appellant did attempt to find
employment as a supervisor with three or four construction
firms in Lewistown. This indicates that appellant considers
supervisory positions as within his normal labor market and
that he believes he can perform the duties of those
positions.
Third, appellant explicitly stated that he would not
accept any job unless he could earn at least $1,000 a month.
Although appellant conceded that he had worked as a laborer,
he stated that he had not applied for work at any of the
shops or stores, such as hardware stores, convenience stores
or gas stations, in his hometown of Lewistown. Appellant did
not introduce evidence showing a complete inability to
perform these jobs or the supervisory jobs.
The majority states that appellant has conclusively
established an inability to perform the jobs in his normal
labor market. The record does not support this assertion.
The record does show that appellant refuses to even consider
any job paying less than $1,000 a month. The majority
opinion has dispensed with the requirements of the Metzger
test.
Lastly, I dissent from the majority's imposition of a
20% penalty upon the respondent under § 39-71-2907, MCA.
That section allows the lower court to increase an award by
20% because of an insurer's unreasonable delay or refusal to
Whether an action is "unreasonable" under
this statute is a question of fact which
is subject on appeal to the limited
review of the substantial evidence test.
[Citation omitted.] If there is
substantial evidence to support a finding
of "unreasonableness", this Court cannot
overturn the finding.
Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d
1189, 1192, 38 St.Rep. 1632, 1636. The same standard of
review applies to a lower court's finding of reasonableness.
Substantial credible evidence supports the lower
court's finding of "reasonableness" and its refusal to impose
the penalty. The majority finds that respondent acted
unreasonably because respondent reduced appellant's benefits
in retaliation for appellant's refusal to work with a private
rehabilitation firm. The opinion cites - evidence directly
no
supporting this assertion.
Peter McGraw, a claims manager and insurance adjuster
who worked on appellant's claim, testified as to why the
insurer had reduced appellant's benefits from permanent total
to permanent partial. McGraw stated that the insurer reduced
the benefits because the insurer had received medical reports
from Dr. Nelson and Dr. Cahill that stated: (1) appellant's
condition had stabilized and he had reached his maximum point
of recovery; (2) that appellant was able to go back to a
sedentary-type of work; and (3) that appellant had a 10%
impairment rating of the whole body. There was evidence at
the hearing that the insurer sent a letter to appellant which
stated that the reduction in benefits was due to the doctor's
reports. Moreover, McGraw specifically refuted the
suggestion that the insurer reduced appellant's benefits as
retaliation. There is substantial, credible evidence which
supports the lower court's refusal to impose the 20% penalty.
The reduction of benefits was a reasonable action and no
penalty should be imposed. A
Mr. Justice Fred J. Weber:
I join in the foregoing dissent of Mr. Justice Gulbrandson.
.d
Mr. Chief Justice J. A. Turnage:
I also join in the foregoing dissent of Mr. Justice L. C.
Gulbrandson.