No. 87-198
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
GLENN EDWARD STANGLER,
Claimant and Appellant,
-vs-
ANDERSON MEYERS DRILLING COMPANY,
Employer,
and
HOME INSURANCE COMPANY,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Herndon, Harper & Munro; James G. Edmiston, Billings,
Montana
For Respondent:
Marra, Wenz, Johnson & ~opkins;David E. Bauer, Great
Falls, Montana
Submitted on Briefs: Sept. 17, 1987
Decided: November 24, 1987
Filed: NOV2 4 1987
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
Glenn Edward Stangler appeals the judgment of the
Workers' Compensation Court, which found that Stangler
suffered a new injury while working out of state and that
Home Insurance Company was not responsible for payment of
Workers' Compensation benefits.
We affirm the order of the Workers' Compensation Court.
Claimant raises three issues for our review:
1. Whether defendant as the first insurer in a
successive injury case should escape liability where; the
alleged second injury occurred in North Dakota; the second
employer and insurer are not present before the Workers'
Compensation Court; and, the North Dakota Bureau of Workers'
Compensation has denied a claim for the alleged second
injury.
2. Whether the evidence was sufficient to support the
Workers' Compensation Court's conclusion that the claimant
had reached maximum healing after his industrial injury of
January 24, 1982.
3. Whether the Workers' Compensation Court erred by
failing to hold that the Home Insurance Company waived its
defenses by agreeing to pay benefits on a non-acceptance
basis pursuant to § 39-71-608, MCA.
On January 24, 1982, while working in the course and
scope of his employment, Stangler injured his lower back. At
that time, Stangler was employed as an assistant driller for
Meyers Drilling Co. in Helena, Montana. Stangler worked for
two more days following his injury but then, upon the advice
of John Harlan, M.D., a general practitioner in Helena,
returned to his home in Grenora, North Dakota. After 21 days
off work, Stangler returned to work in Montana for
approximately one week. Pain in his back caused him to seek
further medical advice from his family doctor in Williston,
North Dakota. Stangler again attempted to return to work but
due to pain was forced to terminate his job with Meyers
Drilling on February 22, 1982.
Stangler's family doctor referred him to Dr. Mattheis, a
neurosurgeon in Bismark, North Dakota. Dr. Mattheis examined
Stangler on April 7, 1982, diagnosing his injury as an acute
lumbar strain, with the possibility of a herniated mid-line
disc. On April 27, 1982, Dr. Mattheis ordered a CT scan for
Stangler. The CT scan indicated a "bony spur lateral
posterior margin of L4 which may be deforming the nerve root
at this level with disc space minimally bulging at the L4-5
level with herniated disc at the L5-S1 level anterior and in
the mid-line." Dr. Mattheis recommended a surgical procedure
for Stangler. Dr. Mattheis later testified by deposition
that upon review of the CT scan report he did not know what
prompted him to recommend surgery as he saw nothing
indicating any serious abnormalities.
After seeing Dr. Mattheis, Stangler saw Dr. Roger
Kennedy, another neurosurgeon, for a second opinion
concerning the necessity of surgery. Dr. Kennedy examined
Stangler on May 20, 1982, for approximately one-half hour.
Based on that examination, Dr. Kennedy did not advise surgery
for Stangler. In fact, when requested to clarify Stangler's
condition, Dr. Kennedy stated that he could find no
structural pathology and assigned a 0% whole body permanent
physical impairment rating. He later clarified this rating
by saying that an impairment rating does not account for
pain. Any pain Stangler was experiencing would limit him
according to his individual tolerance for pain and the job he
has expected to perform. Based on Dr. Kennedy's report,
defendant terminated Stangler's temporary total disability
benefits of $241.00 per week on September 27, 1982.
Stangler testified that at this point he believed that
he was medically released to return to work. Also, he had to
go back to work to pay bills and provide for his family.
Stangler testified that although in constant pain, he
returned to very strenuous work on the oil rigs in North
Dakota. He had to lift 50-80 pound bags of chemicals on a
frequent basis. Stangler worked for three different drilling
companies between the fall of 1982 and June 1, 1984, when his
legs gave out while lifting a 50 pound sack. He experienced
severe back pain and reported the injury to his employer.
The report of this injury was never documented in the
foreman's logbook, however. At the time of this injury,
Stangler was employed by Grace Romac Drilling. Following the
second injury, he did not miss any work, but states that the
pain was constant.
On September 17, 1984, Stangler saw Dr. Frank Ise, an
orthopedic surgeon. A CT scan was performed on Stangler
which did not show anything which was "clinically
significant." Dr. Ise fitted Stangler with a lumbosacral
support on October 3, 1984. Dr. Ise saw Stangler again on
November 3, 1984, December 31, 1984, and January 16, 1985.
According to Stangler, continued pain made his condition
dangerous to himself and fellow employees. At Stangler's
request, Dr. Ise recommended that Stangler quit work for
Grace Bomac. On July 31, 1985, a myelogram was performed on
Stangler. That test was also found to be within normal
limits.
Stangler contacted Home Insurance Co. (~ome)in March,
1985. On March 21, 1985, Home agreed to pay temporary total
disability benefits on a non-acceptance basis effective
.
February 27, 1985, the date Stangler quit working for Grace
Romac. Home requested that Stangler file a claim with North
Dakota's Compensation Bureau with the understanding that such
a filing would not amount to an admission by Stangler of
North Dakota's jurisdiction of his claim in Montana.
Stangler's North Dakota claim was denied by the North
Dakota's Workmens' Compensation Bureau on the grounds that
Stangler did not prove that an injury actually occurred on
June 1, 1984, while employed by Grace Bomac Drilling and that
any injury causing disability was more likely than not
related to the first injury on January 24, 1982 in Montana.
A hearing was then held before the Montana Workers'
Compensation Court to determine Stangler's benefits. The
court held that a preponderance of the evidence supported the
conclusion that claimant had reached maximum healing after
the January 24, 1982, injury. The North Dakota injury of
June 1, 1984, was deemed a "successive" injury, and all
benefits to Stangler were denied.
As claimant's second issue of whether Stangler had
reached maximum healing is deemed most critical to this
appeal, we will address it first in this opinion.
In Relton v. Carlson Transport (1983), 202 Mont. 384,
658 P.2d 405, this Court adopted the idea of "maximum
healing" and "successive injuries" in order to more fairly
assess which employer is responsible for an employees
on-the-job injury. Maximum healing means that following a
compensable injury a claimant has reached a point
constituting the end of a healing period. It does not mean
the person is free of symptoms such as pain or objective
signs. Belton, 658 P.2d at 408.
The rule in Belton controls a situation where an
employee has been injured more than once and different
employers' insurance carriers are at risk for the separate
injuries. If the first injury has not reached maximum
healing, the insurer at risk at the time of the first injury
will be responsible for the second injury as well. If the
claimant is medically stable or has reached maximum healing,
the insurer at risk at the time of the second injury is
responsible for Workers' Compensation benefits.
The record before us includes deposition testimony of
Glenn Stangler, Doctors Ise, Mattheis, Kennedy. The Montana
Workers' Compensation Court found that the doctors' testimony
showed that Stangler had reached maximum healing, or a
medically stable condition following the January 24, 1982
injury.
The standard of review for this Court when reviewing
factual findings from the Workers' Compensation Court is
whether substantial credible evidence supports the findings
of the Workers' Compensation Court. Tenderholt v. Travel
Lodge International (Mont. 1985), 709 P.2d 1011, 1013, 42
St.Rep. 1792, 1794-95. Absent a showing of a lack of
substantial credible evidence, this Court will not upset the
decision of the Workers' Compensation Court. Dunn v.
Champion International (Mont. 19861, 720 P.2d 1186, 1189, 43
St.Rep. 1124, 1128. Where crucial testimony is taken by
deposition, the court will examine findings more closely, as
it is in as good a position as the lower court to assess such
evidence. Jones v. St. Regis Paper Co. (1981), 196 Mont.
138, 144, 639 P.2d 1140, 1144.
Reviewed in that light, the record before us on appeal
supports the finding that Stangler had reached a stabilized
medical condition after his January 24, 1982, back injury.
The testimony of the doctors who saw Stangler indicates
that he was still experiencing periodic, sometimes severe
pain. None of the doctors found any objectively identifiable
injury upon extensive testing conducted on Stangler's back.
Neither the physicians nor the Workers' Compensation Court
refuted Stangler's credibility nor his testimony that he was
experiencing pain. However, pain does not negate a finding
that an injury has reached maximum healing. Belton, 658 P.2d
at 408-409.
Stangler's Montana benefits from his first injury were
terminated September 27, 1982, based on a report from Dr.
Kennedy who gave Stangler a 0 percent whole body impairment
rating. At that time, Stangler returned to work in the oil
fields, which by all accounts is very strenuous labor. He
continued to work for various drilling companies until
February 27, 1985. This is a period of almost two and a half
years. Even accepting the fact that Stangler was
experiencing pain, if his back was not medically stable
during this time it is inconceivable that he would be able to
keep lifting 50 and 80 pound sacks of chemicals on a
"frequent" basis. Stangler's physicians testimony as well as
his own testimony concerning the nature and duration of his
work supports the finding of the Workers' Compensation Court
that Stangler had reached maximum healing before working in
North Dakota from 1982-1984.
Regardless of our holding concerning claimant's level of
healing, Stangler requests this Court to adopt a corollary
rule to the Relton rule of successive injuries. Claimant
would like us to follow the rationale of the Oregon Court of
Appeals in Miville v. SAIF (0r.App. 1985) , 710 P.2d 159, as
precedent for this new rule. However, Miville is factually
distinguishable from the instant case. In Miville, claimant
injured himself in Oregon. Later he suffered an on-the-job
injury while working in Indiana where he filed a Workers1
Compensation claim. The Oregon Court of Appeals held that if
the claimant's injury in Oregon "materially contributed" to
claimant's present condition, even though the injury in
Indiana also ind-ependently contributed to the same condition,
- Indiana denied
and claimant benefits, then Oregon must
provide benefits for claimant's compensable injury.
This rule, although a well-intentioned way to help
claimants who otherwise would not receive benefits, is not
applicable to Stangler's situation, nor to the case law in
Montana.
The deposition testimony of Dr. Ise supports the holding
of the North Dakota Workmens' Compensation Bureau that
Stangler did not adequately show that he was reinjured while
working for Grace Bomac Drilling in North Dakota. Dr. Ise
testified that there was no way to determine whether
Stangler's back pain in 1984 was related to the January 24,
1982, injury. He also stated that he recommended no
treatment for Stangler and that his back will probably never
be "perfect." Stangler missed no work because of the alleged
second injury. The incident was not recorded on Bomac's
foreman's logbook. Stangler asserts that if there was no
second injury, Home - to be liable for the condition of
has
Stangler's back in 1984. We find no merit in this argument.
Home terminated benefits for Stangler's January, 1984, injury
in September, 1984, when it was determined that Stangler had
reached maximum healing. We affirm that finding. The
condition of Stangler's back in North Dakota in June, 1984,
is not relevant in light of that holding.
In addition to the recorded evidence, Montana case law
presents problems for Stangler's mandatory benefits argument.
Oregon's "material contributory cause," (See Grable v
FJeyerhaeuser Co. (Or. 1980), 631 P.2d 768) is inconsistent
with Montana ' s "maximum healing'' rule adopted in Belton.
This Court has refused to allocate benefits based on a first
injury, however casual, to a subsequent condition. See e.g.
Newman v. Kamp (1962), 140 Mont. 487, 374 P.2d 100. We now
uphold the Belton rule that once a claimant has reached
maximum healing or a medically stable condition the insurer
at risk at the time of the original injury is no longer
responsible for any subsequent injuries or conditions.
Claimant's third issue alleges that Home waived all
defenses regarding the reopening of Stangler's claim in 1984
pursuant to $j 39-71-608, MCA, when it accepted liability for
the January 24, 1982, industrial accident. Section
39-71-608, MCA, states:
An insurer may, after written notice to the
claimant and the division, make payment of
compensation benefits within 30 days of receipt of
a claim for compensation without such payments
being construed as an admission of liability or a
waiver of any right of defense.
It is true that Home accepted liability for Stangler's
claim relating to the January 24, 1982, injury. In
September, 1982, those benefits were properly terminated. In
June, 1984, Stangler allegedly reinjured his back while
working in North Dakota. He continued working until February
27, 1985. In response to his demand to have his benefits
reinstated, Home began paying weekly benefits to Stangler on
a nonacceptance basis from February 27, 1985. A March 21,
1985, letter to Stangler from Home concerning his demand for
reinstated benefits stated:
... It is our position that Mr. Stangler had
reached a medically stable condition prior to
October of 1984 when to the best of our knowledge
he aggravated his preexisting condition while
employed as a derrick hand for Bomac in Williston,
North Dakota.
Section 39-71-608 does not require a 30-day notice of
nonacceptance of a claim demanding reinstatement of benefits
at the time the original cornpensable injury is claimed. Home
provided benefits on a nonacceptance basis while Stangler
pursued his claim in North Dakota and then in Montana. There
was no waiver of defenses or acceptance of liability for
benefits by Home at any time during those proceedings.
The judgment of the Workers ' Compensation Court is
affirmed on all issues. /
We Concur: I