No. 85-581
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
RICHARD A. LINTON,
Claimant and Appellant,
-vs-
CITY OF GREAT FALLS, Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bottomly & Gabriel; Joe Bottomly, Great Falls,
Montana
For Respondent :
Marra, Wenz, Johnson & Hopkins; David A. Hopkins,
Great Falls, Montana
Submitted on Briefs: Jan. 13, 1987
Deeided : January 15, 1988
Filed: BAN 1 5 1988
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal by the claimant, Richard Linton, and
the State Compensation Insurance Fund from the judgment of
the Workers ' Compensation Court awarding Linton permanent
partial disability payments retroactive to October 19, 1984,
and ordering the State Fund to pay rehabilitation in the form
of a pain clinic. Both Linton and the State Fund appeal.
We affirm in part, reverse in part and remand with
instructions.
Each party raises three issues on appeal. Linton's
are :
1. Whether the Workers ' Compensation Court erroneously
excluded health insurance, retirement contributions and
vacation time which were earned pursuant to union contract
from the claimant's compensation rate. We hold that it did
not err and affirm on this issue.
2. Whether the Workers' Compensation Court erroneously
required the claimant to show a total loss of earning
capacity, as opposed to loss of wages, in order to receive
temporary total benefits. We hold that the court erred and
reverse on this issue.
3. Whether the Workers' Compensation Order permitting
the defendants to have private interviews and correspondence
with the claimant's physicians was erroneous. We hold that
the court erred and reverse on this issue.
The State Fund cross-appeals. Its three issues are:
1. Whether the Workers' Compensation Court improperly
awarded the claimant retroactive disability benefits despite
the testimony of two neurologists, two orthopedic surgeons
and the treating chiropractor that the claimant was able to
continue working as a water meter reader for the City of
Great Falls. We hold that the court did not err in awarding
benefits and affirm this issue.
2. Whether the Workers1 Compensation Court improperly
ordered the State Compensation Insurance Fund to pay for the
expenses of a "pain clinic" at the cost of $4,000 to $4,500
when the treatment was not authorized by the defendant and no
physician had referred the claimant to the "pain clinic." We
hold that the court did not err and affirm on this issue.
3. Whether the Workers1 Compensation Court improperly
ordered the State Compensation Insurance Fund to pay the
claimant's attorneys fees. We hold that there is substantial
evidence in the record for the court to award attorneys fees
and remand for a determination of attorneys fees by the
court.
At the time this appeal was filed, Richard Linton was a
36-year-old divorced father of two who worked as a meter
reader for the City of Great Falls. His job entailed driving
a truck to various neighborhoods where he would walk around
and read the meters with a TTR gun and record the results.
The TTR gun weighs approximtely 10 pounds. The job required
walking approximately six miles a day.
On December 13, 1983, Linton slipped and fell on the ice
injuring his right knee, neck, back and shoulder. The day
after the accident he went to the emergency room at Columbus
Hospital and had x-rays taken. He took three days off work
after the accident, then returned to work until March 15,
1984, when he went to see Dr. Trosper, a chiropractor. The
injuries to his knee and lower back had cleared, but because
his shoulder and neck were painful Dr. Trosper felt it
advisable to remove Linton from work. Claimant applied for
and was accepted for Workers I compensation. Dr. Trosper
treated Linton until July 2, 1984, when the doctor released
him t o r e t u r n t o work on a l i m i t e d b a s i s . Linton asked t h e
S t a t e Fund t o change d o c t o r s . S t a t e Fund r e f e r r e d him t o D r .
Forbeck, a neurologist. Dr. Forbeck found no n e u r o l o g i c a l
abnormalities, but recommended an orthopedic examination.
Linton was then examined by Dr. Jacobson, an orthopedic
surgeon, in September, 1984. Dr. Jacobson found t h a t the
symptoms suggested muscle-ligament discomfort but his
e x a m i n a t i o n was e n t i r e l y normal. H e found n o t h i n g t h a t would
p r e v e n t L i n t o n from r e t u r n i n g t o work, e x c e p t t h e s u b j e c t i v e
complaint of pain.
Because Linton did not return t o work following D r .
J a c o b s o n ' s e x a m i n a t i o n , on October 5 , 1984, t h e S t a t e Fund
a d v i s e d him t h a t h i s b e n e f i t s would b e d i s c o n t i n u e d a s o f
October 1 9 , 1984. L i n t o n r e t u r n e d t o work on October 15 and
16. He t e s t i f i e d t h a t h e g o t s t i f f from working and a f t e r
two d a y s h e c o u l d n o t even t u r n h i s head. He t o o k s i c k l e a v e
f o r t h e next four days.
On October 18, 1984, the City of Great Falls wrote
Linton and asked him to provide them with medical
v e r i f i c a t i o n by October 2 3 , 1984, o f h i s i n a b i l i t y t o work.
When L i n t o n d i d n o t produce t h e v e r i f i c a t i o n w i t h i n t h e t i m e
p e r i o d s p e c i f i e d , h e was t e r m i n a t e d by t h e C i t y f o r a b u s e o f
s i c k leave.
Linton made an appointment to see Dr. Power, an
o r t h o p e d i c surgeon. Dr. Power found t h a t t h e o r i g i n a l i n j u r y
c o u l d have t o r n some l i g a m e n t s t h a t h e a l e d w i t h a s c a r . He
suggested heat and exercises and felt the pain should
disappear with time. Linton also saw Edward Shubat, a
clinical psychologist in January, 1985. Dr. Shubat gave
Linton a psychological e v a l u a t i o n i n o r d e r t o determine i f he
was a good c a n d i d a t e f o r a c h r o n i c p a i n management program.
Dr. Shubat d e t e r m i n e d t h a t L i n t o n was a n e x c e l l e n t c a n d i d a t e
for such treatment, which includes biofeedback training,
formal relaxation training, and stretching mobility
exercises.
Linton was also examined by Dr. Nelson, a neurologist,
who gave Linton a thermogram. The thermogram showed trigger
points in the claiment's shoulder girdle. The trigger points
are damaged muscles and fibrous tissue that show up on
thermograms as hot spots. Dr. Nelson recommended an exercise
and therapy program and vocational rehabilitation.
Linton also saw Dr. Tacke who specializes in
rehabilitation. He stated Linton would be a good candidate
for a chronic pain management program.
The Workers' Compensation Court found that Linton was a
credible witness, and that he should be reinstated with
permanent partial disability payments retroactive to the date
his benefits were terminated. It also ordered the State Fund
to pay for rehabilitation services in the form of a pain
clinic and awarded Linton his attorney fees.
The first issue raised on appeal by Linton is whether
the Workers' Compensation Court erred in excluding health
insurance, retirement contributions, and vacation time from
the calculation of Linton's wages. The Workers' Compensation
Court calculated Linton's wages based on 5 39-71-116(20),
MCA, (1983). That statute defines wages as:
... the average gross earnings received by the
employee at the time of the injury for the usual
hours of employment in a week, and overtime is not
to be considered. Sick leave benefits accrued by
employees of public corporations, as defined by
subsection (16) of this section, are considered
wages.
Because the definition of public corporations in 5
39-71-116(16) includes cities, the Workers' Compensation
Court calculated wages by adding Linton's gross weekly
earnings to his weekly sick leave benefits and excluded all
other benefits. Linton contends the term "average gross
earnings" should be construed broadly to include health
insurance, retirement fund contributions and vacation time
accrued. Linton argues that these benefits are all items
that were negotiated as part of a union contract and earned
in exchange for his labor.
It is our intention to examine federal cases to assist
us, but consistent with our often stated position, we will
initially examine adequate and independent state grounds to
resolve issues and cite federal cases for their analytical
persuasiveness and not to mandate our decision. We proceed
here on that basis.
Benefits to employees increasingly serve as a substitute
for wage demand in collective bargaining agreements. West
Winds, Inc. v. M.V. Resolute (9th Cir. 1983), 720 F.2d 1097,
1102, cert. den. (1984), 467 U.S. 1242, 104 S.Ct. 3513, 82
L.Ed.2d 822. Fringe benefits offer to the employee tax-free
benefits that he would otherwise have to buy with after-tax
dollars, and often at a substantially higher cost.
.
Morrison-Knudsen Const. Co v. Director, Office of Workers '
Compensation Programs (1983), 461 U.S 624, 103 S.Ct. 2045, 76
L.Ed.2d 194. While we may agree with the theory presented by
the claimant that the wording of our statute indicates the
legislature intended calculations for Workers' Compensation
benefits to be based on wages plus the fringe benefit of sick
leave and not other benefits, the legislature did not mention
other benefits that it might have included. The general rule
is that if a statute lists specific exceptions to the general
rule, then other exceptions are excluded. Stephens v. City
of Great Falls (1946), 119 Mont. 368, 381, 175 P.2d 408, 415.
The United States Supreme Court was faced with the same
question of whether wages as defined in the Longshoremen's
and Harbor Workers' Compensation Act includes a contribution
made by the employer to union trust funds under the terms of
a collective bargaining agreement. Morrison-Knudsen Const.
Co. v. Director, Office of Workers ' Compensation Programs,
supra. The trust funds were used for health and life
insurance, unemployment benefits, disability payments, and
pensions for the members. The statute in question, 33 U.S.C.
S 902 (13), stated:
"Wages" means the money rate at which the service
rendered is recompensed under the contract of
hiring in force at the time of the injury,
including the reasonable value of board, rent,
housing, lodging, or similar advantage received
from the employer, and gratuities received in the
course of employment from others than the employer.
The United States Supreme Court held that while board,
rent, housing, or lodging are benefits with a present value
that can be readily converted into a cash equivalent on the
basis of their market values, the trust funds could not. The
Court stated the employer's cost is irrelevant because it
does not measure the employee's benefit nor his compensation.
The employer's cost does not measure the benefit to the
employee because it would cost the employee substantially
more to purchase those policies on the open market. The
employer's cost also does not measure compensation because it
does not tie costs to the employee's labor. The Court
refused to value the funds by the employee's expectation in
them because the employee's interest is speculative at best.
The Court also stated that while fringe benefits were
virtually unknown when the Compensation Act was passed, they
have since become quite common. Although the Act has been
amended several times, the Court found no indication that
Congress intended to expand the definition of wages to
include fringe benefits. The Court also refused to expand
the definition of wages because it would alter the balance
between the employers and the employees and dramatically
alter the cost factor on which employers have ordered their
affairs.
The Ninth Circuit recently adopted the rationale of
Morrison-Knudsen in West Winds. In that case, the Ninth
Circuit, held the phrase "wages of the crew" under the Ship
Mortgage Act of 1920, 5 30 (M), 46 U.S.C. 5 953 (1976) did not
include contributions to a trust fund to provide health,
retirement, pension, training, vacation and similar benefits
to the seamen. The Court noted the anomaly that money given
to an employee which is spent on benefits is treated as
"wages" while money given to a fund that bestows identical
benefits upon the employee are not.
In this case the definition of ''wages" in S
39-71-116(20), MCA, is even more narrow than the definition
in Morrison-Knudson. We specifically adopt the rationale of
Morrison-Knudson and West Winds and hold the term "wages"
under the Workers' Compensation Act does not include employer
contributions to funds that provide health or life insurance,
retirement, training, vacation, pension or disability
payments. We affirm the Workers' Compensation Court on its
finding that health insurance, retirement contributions and
vacation time, which were earned pursuant to union contract,
are excluded from the claimant's compensation rate.
The second issue raised by Linton on appeal is whether
the Workers' Compensation Court erred in denying him
temporary total benefits instead of awarding him permanent
partial disability. Temporary total disability is defined in
5 39-71-116 (19), MCA, (1983) as:
... a condition resulting from an injury as
defined in this chapter that results in total loss
of wages and exists until 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.
The Workers' Compensation Court held that two conditions
must be satisfied in order to award temporary total benefits.
First, a total loss of wages, and second, the claimant not be
restored as far as the permanent character of his injuries
permit. The Workers' Compensation Court held:
Claimant has satisfied the second condition by
demonstrating by a preponderance of the medical
evidence that there is room for improvement in his
physical condition as far as tolerance for pain is
concerned. However, he did not demonstrate a total
loss of wages. There was no evidence presented to
demonstrate that claimant had looked for other
employment or that claimant was unable to perform
other jobs.
However, the Workers' Compensation Court determined that
Linton was entitled to permanent partial disability as
defined in 5 39-71-116 (12), MCA, (1983), as:
.. . a condition resulting from injury as defined
in this chapter that results in the actual loss of
earnings or earning capacity 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.
The Workers' Compensation Court held:
Claimant is medically as far restored as his injury
will permit. His ongoing problem is an inability
to tolerate the pain that accompanies use of his
injured shoulder. For this reason, claimant should
be referred to a pain clinic. Referral to a pain
clinic is not inconsistent with an award of
permanent partial disability benefits.
Linton contends the lower court erred in requiring him
to show a loss of earning capacity in order to get temporary
total benefits, and that all that 5 39-71-116(19), MCA,
requires for an award of temporary total d.isability is an
i n j u r y t h a t r e s u l t s i n t o t a l l o s s o f wages and e x i s t s u n t i l
the injured worker is as far restored as the permenant
c h a r a c t e r of h i s i n j u r i e s w i l l permit. H e a l s o argues t h a t
he i s n o t r e s t o r e d a s f a r a s t h e permanent c h a r a c t e r o f h i s
i n j u r i e s w i l l permit. The S t a t e Fund c o n t e n d s t h e Workers'
Compensation C o u r t erred i n awarding retroactive permanent
partial benefits because he was not entitled to further
benefits. The S t a t e Fund a d v a n c e s two a r g u m e n t s . First, the
e v i d e n c e showed t h e wage l o s s was n o t d u e t o t h e i n j u r y b u t
was caused by Linton's misconduct which led t o h i s being
f i r e d from h i s j o b . The Workers' Compensation C o u r t f o u n d
Linton t o be a c r e d i b l e witness. No f i n d i n g s o r c o n c l u s i o n s
w e r e made r e l e v a n t t o m i s c o n d u c t a s t h e r e a s o n f o r L i n t o n ' s
wage loss. Our d e c i s i o n i n t h i s case does not require a
further discussion of t h i s contention.
Second, t h e S t a t e Fund a r g u e s t h a t t h e s t a t u t e s r e q u i r e d
a showing by a p r e p o n d e r a n c e o f t h e e v i d e n c e t h a t t h e i n j u r y
c a u s e d t h e wage l o s s and t h a t L i n t o n h a s f a i l e d t o show t h e r e
was a n y i m p a i r m e n t t h a t p r e v e n t e d h i s r e t u r n t o work.
W e b e g i n w i t h w h e t h e r L i n t o n was e n t i t l e d t o b e n e f i t s a t
all. The S t a t e Fund c o n t e n d s t h a t L i n t o n should n o t have
b e e n awarded r e t r o a c t i v e b e n e f i t s b e c a u s e h e was f i r e d d u e t o
misconduct. The S t a t e Fund r e l i e s on 2 L a r s o n , Workmen's
Compensation Law, 5 5 7 . 6 4 ( a ) , ( 1 9 8 5 ) , which s t a t e s :
I f t h e r e c o r d shows no more t h a n t h a t t h e employee,
h a v i n g resumed r e g u l a r employment a f t e r h i s i n j u r y ,
was f i r e d f o r m i s c o n d u c t , w i t h t h e i m p a i r m e n t
p l a y i n g no p a r t i n t h e d i s c h a r g e , i t w i l l n o t
s u p p o r t a f i n d i n g o f compensable d i s a b i l i t y .
L i n t o n resumed r e g u l a r employment a f t e r t h e i n j u r y a n d
worked two d a y s t h e n s t o p p e d b e c a u s e o f p a i n . W affirm the
e
c o u r t ' s award o f r e t r o a c t i v e b e n e f i t s .
Next t h e S t a t e Fund c o n t e n d s L i n t o n d i d n o t show by a
preponderance of t h e evidence an impairment t h a t prevented
his return to work. In reviewing workers ' compensation
cases, the standard for factual findings is whether there is
substantial evidence to support the court's findings.
Flansburg v. Pack River Co. (1977), 172 Mont. 163, 561 P.2d
1329. This is especially true in issues of credibility where
the lower court has had the opportunity to observe the
witnesses. Lamb v. Missoula Imports, Inc. (Mont. 1984), 684
P.2d 498, 41 St.Rep. 1414. However, in reviewing deposition
testimony we may examine the findings more closely because we
are in as good a position to assess the evidence as is the
lower court. Jones v. St. Regis Paper Co. (1981), 196 Mont.
138, 639 P.2d 1140. There is substantial evidence in the
record to show that Linton was unable to return to work.
In reviewing the record on appeal, we have found
evidence, including medical evidence, that at the time this
claim was filed Linton was still experiencing pain due to his
injuries a.nd has been unable to return to work. We hold that
Linton is entitled to benefits. We therefore turn to the
issue of the disability payments which he should receive.
The trial court concluded that the claimant must
demonstrate an inability to "perform other jobs" before being
entitled to temporary total benefits and awarded claimant
permanent partial disability benefits under S 39-71-116 (12),
MCA, (1983). (Cited previously.)
We cannot agree. The applicable statute is S
39-71-116 (19), MCA, (1983), (cited previously), which defines
temporary total disability.
Claimant is suffering from a condition resulting from an
injury that has resulted in the total loss of his wages and,
as the evidence shows, he is not yet as far restored as the
permanent character of the injuries will permit. Linton
cannot work because of the inability to tolerate the pain
that accompanies the use of his injured shoulder. The
Workers' Compensation Court recognized that fact when it
ordered the defendant to provide treatment by the pain
clinic. After treatment and evaluation another determination
can be then be made as to whether claimant is eligible for
permanent partial disability benefits under § 39-71-116 (12),
MCA, or will continue to receive temporary total disability
benefits under the provisions of § 39-71-116(19), MCA.
As the facts are before this Court, the award of
permanent partial benefits to claimant is in error as a
matter of law. Temporary total benefits should be reinstated
as of the date of Linton's termination from work. Because of
a significant time lapse between that date and this decision,
we remand to the Workers' Compensation Court to determine
Linton's present level of pain and ability to work.
The State Fund contends the Workers' Compensation Court
erred in awarding Linton the cost of a pain clinic because
Linton had been referred to Dr. Tacke and the pain clinic by
Linton's lawyer and he had not sought the prior approval of
the State Fund. Section 24.29.1403, A.R.M. states:
The injured worker may select the physician to
provide initial treatment. Authorization is
required to change treating physicians.. ..
In Garland v. Anaconda Co. (19781, 177 Mont. 240, 244,
581 P. 2d 431, 433, this Court stated " [t]he proper result of
the claimant failing to comply with this rule is that the
employer cannot be charged for the services of the
unauthorized second doctor, however the Workers' Compensation
Court must consider the medical reports and diagnosis of the
second doctor." In this case the Workers' Compensation Court
obviously did consider the medical reports and diagnosis of
the other doctors, and found Linton should be referred to a
pain clinic. The court did not err in concluding that Linton
should be referred to a pain clinic.
The final issue raised by Linton is whether the Workers'
Compensation Court erred in allowing State Fund to have
private interviews and correspondence with Linton's
physicians. Linton contends that 5 26-1-805, MCA, which
creates the doctor-patient privilege, and Japp v. ~istrict
Court (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 280, prevent
the State Fund from having private interviews with the
claimant's physician. (Emphasis added.) We agree with the
claimant.
The doctor-patient privilege is set forth in S 26-1-805,
MCA, (1983):
Except as provided in Rule 35, Montana Rules of
Civil Procedure, a licensed physician or surgeon
cannot, without the consent of his patient, be
examined in a civil action as to any information
acquired in attending the patient which was
necessary to enable him to prescribe or act for the
patient.
Rule 35 (b)(2), M.R.Civ.P. states, among other things,
that the privilege is waived by commencing an action or
asserting a defense which places in issue the mental or
physical condition of a party to the action. The waiver does
not apply to any treatment or condition not related to the
action. In Japp, we ruled that the District Court did not
have the power under the Rules of Civil Procedure to order
private interviews between counsel for one party and a
possible adverse witness in a contested case. The issue here
is whether an employer or insurer can communicate with
physicians in order to determine the nature and extent of a
workers' injury for purposes of compensating him for that
injury. The Workers ' Compensation Act is withdrawn from
private controversies because of the unique status of the Act
as a humanitarian, quasi-judicial legislative creation of
several special provisions applicable only to injured workers
covered by the law. Section 50-16-311 (2) (e), MCA, (1983),
provides :
(2) Consent is not required for release or
transfer of confidential health care information:
(e) to an employer as may be reasonably necessary
in the administration of a group insurance plan or
to a workers' compensation insurer, the division of
workers' compensation, or the workers' compensation
judge, as is necessary in the administration of
Title 39, chapters 71 and 72;
This lanuage is restated in S 39-71-604(1), MCA, (1983),
which provides in part:
Where a worker is entitled to benefits under this
chapter, the worker shall file with the insurer or
the division all reasonable information needed by
the insurer to determine compensability. It is the
duty of the workers' attending physician to lend
all necessary assistance in making application for
compensation and such proof of other matters as may
be required by the rules of the division without
charge to the worker. The filing of forms or other
documentation by the attending physician does not
constitute a claim for compensation.
and §24.29.1404(3), A.R.M. which states:
The rule of privileged comn~unication is waived by
the injured worker seeking benefits under the
workers' compensation or occupational disease acts.
Workers' Compensation Court rules provide for an
exchange of all medical records prior to trial S 2.52.317,
A.R.M. Depositions, interrogatories and motions to produce
are available. Sections 2.52.322 to -324, A.R.M. Further,
the insurer may have the claimant examined by a physician of
his choice. Section 39-71-605, MCA, (1983). What the Act
does not contemplate are private interviews between the
employer or insurer without the knowledge or opportunity of
the claimant to be present. Claimant does not argue, and
cannot argue, for a physician-patient privilege. Clearly,
the insurer or employer is entitled to all medical
information pertaining to claimant1 claim through the usual
s
methods of discovery as well as exchanges between the parties
and personal interviews with those who have treated the
claimant.
A claimant waives any privilege of confidentiality and
health care information which - relevant to the subject
is
matter involved in his claim. See Bowen v. Super Valu
Stores, Inc. (Mont. 1987), 745 P.2d 330, 44 St.Rep. 1799.
However, a personal interview between defendant
insurance company and claimant's treating physician must be
done openly to allay any suspicion that there is something
available to one party and not to the other.
For the reasons stated we reverse the Workers1
Compensation Court on the issue of private interviews.
Respondent cross-appeals and raises three issues.
First, whether the Workers1 Compensation Court improperly
awarded the claimant retroactive permanent partial disability
benefits despite the testimony of two neurologists, two
orthopedic surgeons and the treating chiropractor that the
claimant was able to continue working as a water meter reader
for the City of Great Falls. Dr. Tacke, a rehabilitation
specialist, examined Linton after he attempted to return to
work. Dr. Tacke recommended that Linton receive additional
treatment at the pain clinic. Again, we conclude that there
was substantial credible evidence for the Workers1
Compensation Court" award of disability benefits.
Next, respondent contends the court improperly ordered
the State Fund to pay expenses for a pain clinic which was
not authorized by the respondent. We have already ruled on
this issue.
Finally, respondent argues the Workers1 Compensation
Court erred in awarding claimant his attorneys fees. The
c o u r t found t h a t t h e c l a i m a n t was e n t i t l e d t o a t t o r n e y s f e e s
i n t h e s u c c e s s f u l p u r s u i t of t h i s matter. There i s
s u b s t a n t i a l evidence i n t h e record t o support t h i s finding
and w e w i l l n o t d i s t u r b it on a p p e a l . W e remand t h e c a s e t o
t h e Workers ' Compensation C o u r t f o r d e t e r m i n a t i o n o f t h e
amount o f a t t o r n e y s f e e s d u e .
Affirmed i n p a r t , r e v e r s e d in,part and remanded w i t h
instructions.
W e Concur: