No. 90-559
IN THE SUPREME COURT OF THE STATE OF MONTANA
RANDY L. McINTYRE,
Claimant and Appellant,
-vs-
GLEN LAKE IRRIGATION DISTRICT,
Employer,
JUN 13 1991
and
STATE COMPENSATION INSURANCE FUND, CLERK OF SUPREME COURT
STATE OF MONTANA
Insurer and Respondent.
APPEAL FROM: Workers' Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roger M. Sullivan; McGarvey, Heberling, Sullivan &
McGarvey, Kalispell, Montana
For Respondent:
Mark Stermitz; Warden, Christiansen, Johnson & Berg,
Kalispell, Montana
Submitted on Briefs: March 21, 1991
Decided: June 13, 1991
Filed:
-8' Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
The claimant and appellant, Randy L. McIntyre, appeals the
judgment of the Montana Workers1 Compensation Court that his
disability resulting from thoracic outlet syndrome had not been
proven by a preponderance of the evidence to result from his 1987
injury. We affirm.
The following issues are on appeal:
1. Did the Workers' Compensation Court err in concluding that
the claimant's thoracic outlet syndrome did not result from his
1987 injury?
2. Is the claimant entitled to temporary total disability
benefits as a result of his 1987 injury?
3. Is the claimant entitled to permanent partial disability
benefits as a result of his 1987 injury?
4. Is the claimant entitled to costs, attorney's fees, and
a penalty award?
McIntyre was injured in an industrial accident in the course
of his employment with Glen Lake Irrigation District on May 9,
1987, near Eureka, Montana. He was attempting to change a flat
tire on a heavy equipment trailer when the jack he was using began
to tip. While reaching under the trailer to try and release the
jack, the jack slipped and the trailer came down; the trailer tire
struck McIntyre's chest and pinned him to the ground.
McIntyrels wife discovered him under the trailer and, after
jacking up the trailer to remove the claimant from under the tire,
sought help in taking him to Dr. Andrew Ivy, a physician in Eureka.
2
Dr. Ivy diagnosed the claimant as having suffered a fractured left
clavicle and chest contusions. He prescribed medication for the
pain and put McIntyrelsarm in a sling. Two days later he set the
fractured clavicle in a cast and x-rayed it. He saw the claimant
several more times to check the claimant's progress, the last time
being June 15; on that occasion, he advised the claimant to return
in one month for another x-ray. Dr. Ivy's records indicate that
McIntyre did not return one month later. Dr. Ivy never did remove
the claimant's cast and it was not until McIntyre suffered a second
work-related injury in 1988 that Dr. Ivy saw him again.
As a result of the 1987 injury, McIntyre missed approximately
three months of work. He and his wife agreed with the employer
that McIntyregs wife would perform his regular job duties during
this time, in return for which the employer would pay McIntyre his
usual wage.
On May 15, 1988, McIntyre was injured in a second industrial
accident arising out of his employment with Glen Lake Irrigation
District. While standing in waist-deep water attempting to clear
a beaver dam from a ditch, he pulled a small log out of the ditch
and turned to throw it over his right shoulder when he felt a "poptg
in his back. He immediately felt a pain in his neck and right
shoulder area, and noticed numbness and tingling in his right arm.
The claimant finished the work day and returned to work the next
day.
The soreness continued, however, so he reported the injury to
his employer and went to see Dr. Clay McDonald, a chiropractor in
Eureka. Dr. McDonald referred McIntyre to Dr. Ivy. Upon examining
the claimant on May 23, 1988, Dr. Ivy found him to have pain in the
right shoulder area when he turned his head to the right. Dr. Ivy
also found that the right rotation of McIntyre1s head caused a
sensation going down McIntyre's right arm into the fingers. Dr.
Ivy made the following diagnosis:
I thought he had done something in his neck by that
sudden motion, that pinched one of his cervical nerves,
and therefore I gave him a collar to wear and I gave him
some cortisone, a good dose to take. And at that date
he brought Doctor McDonald's X-rays which showed a slight
degeneration of the disc between cervical 5 and 6 with
some spurring, and I assumed that was probably the source
of his problem.
Dr. Ivy saw McIntyre again on May 27, 1988. The claimant
returned to work on June 1, 1988. He ceased working June 12, 1988,
because of pains in his neck, right shoulder and right arm,
including tingling and numbness.
Dr. McDonald, the chiropractor in Eureka, referred McIntyre
to Dr. Stephen Martini in Kalispell. Dr. ~artinihas no board
certification but limits his practice to "spine rehabilitation.I1
During his first visit with the claimant on July 12, 1988, Dr.
Martini obtained a history from McIntyre which included a
description the injury, but not the injury; that
history reflected that McIntyre noticed pain in the low thoracic
area toward the end of the day on which the May, 1988 injury
occurred. Dr. Martini assessed the claimant's problems as right
thoracic outlet syndrome (TOS), cervical spondylosis and a possible
bulging cervical disc. On August 17, 1988, his assessment
continued to include cervical spondylosis and a bulging cervical
disc, but made no mention of TOS. Dr. Martini was not advised of
the 1987 injury until April 20, 1989. Occupational therapist Tim
Tracy also obtained a history from McIntyre in July, 1988; again
McIntyre made no mention of the 1987 injury when indicating
problems with his right arm and shoulder.
For reasons not entirely clear on the record, McIntyre went
to see Dr. Richard Nelson, a neurologist in ~illings,Montana, in
November, 1988. Dr. Nelson obtained a history of both the 1987
and 1988 injuries and diagnosed cervical, lumbosacral sprain
syndrome, a bulging disc and right TOS. Later, in a June 1, 1989
letter to the claimant's attorney, Dr. Nelson stated:
Since the thoracic outlet syndrome is placed in that same
exact anterior cervical spine taht [sic] the fracture
took place, it is more likely than not that this was,
indeed, the origin of his thoracic outlet syndrome. With
regard to his neck syndrome he has osteoarthritic
spurring and bulged disc which is causing some thecal
indentation in the neck and no one would be able to tell
when that occurred, in either the first or the second
accident.
In November, 1989, Dr. Martini stated by letter to the
claimant's attorney that, due to the trauma involved in the first
accident, it was his opinion that the TOS was "most consistent with
the mechanism of injury surrounding the first incident.'' He
further recommended that the claimant enroll in the spinal
Rehabilitation Program.
McIntyre entered the ~alispell Regional Hospital Spinal
~ehabilitation Program on January 15, 1990. In the admission
history, Dr. Martini recorded that McIntyre had suffered a
fractured risht clavicle in 1987 and had, at the time of that
occurrence, experienced "right upper extremity numbness and
discomfort. If
Trial was held in the Workers1 Compensation Court on May 23,
1990. The medical evidence and testimony of Dr. Ivy and Dr.
Martini were entered by depositions. The Workers' Compensation
Court entered its Findings of Fact and Conclusions of Law and
Judgment on October 18, 1990, ruling that the claimant had failed
to causally relate the TOS to his 1987 injury by a preponderance
of the evidence. The Workers' Compensation Court recognized that
it was without jurisdiction to consider the 1988 injury at that
time; therefore, it could not establish any disability
entitlements.
The first issue is whether the Workers' Compensation Court
erred in concluding that the claimant's TOS did not result from his
1987 injury. We note that the question before this Court is not
whether a 1987 injury occurred; nor is it whether the claimant's
TOS was proved by a preponderance of the medical evidence. The
question the claimant presented to the Workers' Compensation Court
is whether the 1987 injury caused his TOS.
We begin our analysis by considering the question of what
standard of review to apply. The claimant argues that this Court
should review the Workers' Compensation Court's decision based upon
a preponderance of the evidence rather than utilizing the usual
substantial credible evidence test. This argument is based on the
fact that the medical testimony has been entered into evidence by
deposition and we, therefore, sit in as good a position as the
Workers1 Compensation Court to judge the weight to be given to such
record testimony. The claimant is correct as to the medical
evidence on a stand alone basis.
As we have often and consistently stated, the standard of
review for decisions of the Workers1 Compensation Court is whether
substantial credible evidence exists to support the court's
decision. Roadarmel v. Acme Concrete Co. (1989), 237 Mont. 163,
772 P.2d 1259; OIBrienv. Central Feeds (1990), 241 Mont. 267, 786
P.2d 1169. Where medical testimony is offered by deposition,
however, we have held that this Court sits in as good a position
as the Workers1 Compensation Court to judge the weight to be given
that testimony. Roadarmel at 168, 772 P.2d at 1262. Thus, the
claimant is correct that this Court may review and weigh the
medical deposition testimony.
This independent review standard does not apply to our review
of the entirety of the case before the Workers1 Compensation Court
and that court's overall decision, however. As we stated in
Sciuchetti v. Hurt Construction:
Claimant points out that because all of the medical
testimony in this case was by deposition, this Court is
in as good a position as the Workers1 Compensation Court
to judge the weight to be given that testimony.
(Citation omitted.) While that standard of review is
correct, this Court will nevertheless uphold the lower
court if there is substantial credible evidence to
support its conclusion.
Sciuchetti v. Hurt Construction (1989), 238 Mont. 170, 174, 7 7
'7
P.2d 308, 311. Thus, this Courtls review of the medical
depositions must be overlaid onto an encompassing review of the
Workers' compensation Courtls decision under the substantial
credible evidence standard. This result is both obvious and
necessary when we consider that other important evidence--in this
case, the testimony of both the claimant and his spouse--was before
the Workersf Compensation Court as oral testimony; this is
particularly important where, as here, the medical histories on
which the doctors so heavily relied also were provided by the
claimant himself. The Workersf Compensation Court remains in the
best position to determine the credibility and weight to be given
to live testimony.
In Snyder v. San ~ranciscoFeed and rain (1987), 230 Mont.
16, 748 P.2d 924, we reviewed the evidence introduced by medical
deposition and found "the medical evidence, tosether with other
evidenceff was Ifin stark contrast withff the conclusion of the
Workers1 Compensation Court. (Emphasis added.) Snvder at 25, 748
P.2d at 929. Lest we create another standard of review to muddy
the waters, we note that "stark contrastff Snvder was merely a
in
creative way of stating that there was not substantial evidence to
support the Workersf Compensation Court's decision in that case.
It is not this Courtfs function to determine whether there is
sufficient evidence to support contrary findings. OfBrien at 272,
786 P.2d at 1172.
Thus, in reviewing the decision in the case at bar, we will
not substitute our judgment for the Workersf Compensation Court if
there is substantial credible evidence to support its conclusion
that the claimant did not prove the TOS to be causally related to
the 1987 injury. We find such evidence in the record.
The evidence shows that Dr. Ivy was McIntyre's only treating
physician for the 1987 injury. Dr. Ivy testified that McIntyre
never complained of TOS symptoms (pain and numbness in the right
shoulder, arm and hand) prior to the 1988 injury. Dr. Ivy was also
the first medical doctor to examine him after his 1988 injury.
Finally, Dr. Ivy stated clearly that he could not relate the TOS
to the 1987 injury since the TOS was on the right side and the
fractured clavicle was on the left.
Dr. Nelson's opinion, set forth in his June 1, 1989 letter to
claimant's attorney, was based on an examination of claimant
conducted one and a half years after the 1987 injury and a medical
history provided entirely by McIntyre. Furthermore, Dr. Nelson
expressed the belief that the 1987 injury was "more likely than
notu the origin of his TOS because the TOS "is placed in that same
exact anterior cervical spine taht [sic] the fracture took place."
McIntyre suffers from riqht TOS, which is not placed in the Itsame
exact1'area as the left clavicle which was fractured in the 1987
accident.
The evidence also shows that Dr. Martini was not aware of the
1987 accident until April, 1989, almost two years after it had
occurred and approximately nine months after he diagnosed the right
TOS in July, 1988. Dr. ~artini admitted that in assigning
causation of injuries to the two separate accidents he relied
almost entirely on what McIntyre reported to him. And although Dr.
Martini correctly indicated in his office notes on April 20, 1989,
that McIntyre had fractured his left clavicle in 1987, he
incorrectly reported that McIntyre was suffering from riaht TOS as
a result of a fractured right clavicle when admitting him for in-
patient spine rehabilitation in January, 1990.
The fact that Dr. Martini relied so heavily on McIntyre8s
narrations and recountings of the 1987 and 1988 injuries makes it
clear why the claimant's oral testimony, although not medical
evidence, was an important factor in the Workers8 Compensation
Court's decision and must result in this Court basing its overall
review on the substantial credible evidence test. McIntyre8s
credibility and the weight to be given to his testimony are
judgments to be made by the Workers8 Compensation Court; that
credibility, as determined by the Workers' Compensation Court,
appropriately may carry over into the credibility of the doctors'
diagnoses based on the claimant8sstatements.
The claimant claims to have experienced numbness and pain in
the right shoulder and arm prior to the 1988 injury, but admits
that he did not report any of these symptoms to any physician until
after the 1988 accident. Indeed, the claimant did not advise
either Dr. Martini or Mr. Tracy of the 1987 injury when he saw them
regarding the 1988 injury and did not suggest to them at that time
that the right shoulder and arm symptoms predated the 1988 injury.
In addition, McIntyre claims the 1988 injury did not immediately
bother him, while Dr. Ivy testified that McIntyre reported
immediate numbness in his right shoulder and arm after the 1988
injury .
The weight to be given to the totality of the testimony and
evidence is a determination to be made by the Workers' Compensation
Court, not this Court. that court concluded:
[C]laimantlsmedical history from 1987 to May, 1988 does
not include any ongoing problems with his right arm.
Indeed, it appears that most, if not all of claimant's
complaints regarding the numbness and tingling in the arm
originate after the 1988 injury as evidenced in nearly
all of the medical records. ... given the history and
complaints recorded by the physicians before any dispute
arose in this case, the medical opinion of causation
relating thoracic outlet to the fractured clavicle when
anatomically the former is on the right and the latter
the left, and the fact that claimant did not complain of
or seek medical treatment for the thoracic outlet
svmptoms until after the 1988 injury, we are convinced
that he has failed to causally relate the thoracic outlet
to the 1987 event. (Emphasis added.)
The claimant argues that Dr. Ivy's testimony lacked the proper
foundation necessary for admissible evidence regarding expert
opinion. He asserts that the Workers1 Compensation Court gave too
much weight to Dr. Ivy's testimony regarding TOS causation.
The determination of admissibility of expert testimony rests
solely within the discretion of the trial court. Krohmer v. Dahl
(1965), 145 Mont. 491, 402 P.2d 979. Furthermore, it is for the
trier of fact to give whatever weight it sees fit to expert
testimony. Biegalke v. Biegalke (1977), 172 Mont. 311, 564 P.2d
987. The Workers' Compensation Court did not abuse its discretion
in considering Dr. Ivy's testimony.
From the foregoing review of the record, we find that
substantial credible evidence exists to support the decision of the
Workers1 Compensation Court.
The second issue is whether McIntyre is entitled to temporary
total disability benefits for the three-month period following his
1987 injury.
The Workers1 Compensation Court concluded that the claimant
was not entitled to temporary total disability benefits. We agree.
Temporary total disability is defined in 5 39-71-116(20), MCA,
as a condition that "results in total loss of wages." As a result
of an arrangement between himself, his wife and his employer, the
claimant continued to receive his regular wage during that three-
month period. The claimant would have us believe that since it was
his wife who performed the work, it was his wife who was paid and
not him. The record does not support this contention. While both
the claimant and this Court might question the wisdom of the
arrangement entered into by him, the wages were nonetheless paid
It is unnecessary to address the remaining two issues the
claimant raises since he has failed to relate his current
disability to the 1987 injury and since there has been no award of
benefits as a result of his appeal.
Affirmed.
We concur:
Justice Terry N. Trieweiler dissenting.
I respectfully dissent from the opinion of the majority.
In this case, the defendant conceded in the pretrial order
that the claimant had been injured during the course of his
employment on May 9, 1987. The dispute related to the extent of
injury and whether or not the claimant sustained any permanent
disability as a result of that injury. The issue, as framed in the
final pretrial order signed by both parties, was as follows:
1. What is the nature and extent of the claimant's
permanent disability arising from his injuries of May 9,
1987, and what are the benefits to which the claimant is
entitled?
According to the workers' compensation statute in effect at
the time of the claimant's injury, disability must be proven by a
preponderance of medical evidence. Section 39-71-116(12), (13),
and (19), MCA (1985). Therefore, the trial court's decision had
to be based upon the preponderance of the medical evidence.
In this case, all of the medical evidence was by deposition
or written document. There was no medical evidence provided by any
live witness.
The traditional reason for deferring to trial judges and
juries in the resolution of factual disputes is that they are in
a better position to observe the demeanor of witnesses and observe
physical evidence where it is relevant. However, we have
frequently recognized that that traditional notion of deference
makes no logical sense in a case where the Workers' Compensation
Court's decision is based upon the same medical documents or
depositions that are before us in this Court. We have repeatedly
held that in that situation we are in as good a position to
evaluate the medical testimony as the trial judge. Brown v. State
Compensation Ins. Fund, 231 Mont. 158, 752 P.2d 171 (1988); Shupert
v. Anaconda Aluminum Co., 215 Mont. 182, 188, 696 P.2d 436, 439
(1985); Hert v. J.J. Newberry Co., 178 Mont. 355, 360, 584 P.2d
656, 659 (1978).
In this case, any objective analysis of the medical evidence
can lead to only one conclusion--that the claimant's thoracic
outlet syndrome was caused by the crush injury that he sustained
on May 9, 1987.
Of the two medical witnesses whose testimony was offered by
deposition, one testified that he was not in a position to express
an opinion, and the other expressed an unqualified opinion in favor
of the claimant. The only other opinion expressed was in the
medical report of Richard A. Nelson, M.D. It was also his opinion
that the claimant's T.O.S. was caused on May 9, 1987.
Even if this Court had no independent obligation to review
that medical evidence (which is not the case), and chose simply to
defer to the trial judge, there was no medical evidence of any type
to support the trial judge's finding that the claimant was not
injured on May 9, 1987.
In support of its decision, the majority opinion states that
Dr. Ivy could not relate the T.O.S. to the 1987 injury, and implies
15
that he had a reason for believing otherwise. However, what Dr.
Ivy actually said was that he had no opinion because he had never
examined nor treated the claimant for that condition. His actual
testimony was as follows:
So what I am telling you, I can't render an opinion
regarding his thoracic outlet syndrome because I haven't
examined him for it. And the only pain he had down his
arm that I know about is the pain that he had on 5/23,
which was a pinched nerve as far as I'm concerned. It
had nothing to do with thoracic outlet syndrome.
Dr. Ivy's inability to express any opinion regarding causation
hardly rises to the level of substantial medical evidence in
support of the trial court's finding.
Dr. Ivy admitted that he was not qualified to express an
opinion regarding the cause of the claimant's thoracic outlet
syndrome because he had not treated him for that condition. Dr.
Ivy's testimony was properly objected to and should not have formed
the basis for the Workers' Compensation Court's decision.
On the other hand, Steven M. Martini, M.D., who diagnosed and
has treated the claimant for his thoracic outlet syndrome,
expressed a very unequivocal opinion regarding its causation. He
explained that T.O. S. results when the nerves and major vessels,
which pass between the first rib and the clavicle (in the area of
the sternum or chest), sustain a compression or irritation from
injury. He also testified:
The first injury, which was well documented as a crush
injury to the chest, to a high degree of medical
certainty, would have caused his thoracic outlet
syndrome.
It's consistent historically with what we know about
thoracic outlet syndrome, i.e. local trauma to the area
of the brachial plexus. And the medical record and the
patient's account would reflect that was the case.
The majority attempts to minimize the impact of Dr. Martini's
uncontroverted medical opinion by pointing out that in one of his
medical entries he referred to a fracture of the right clavicle,
rather than correctly referring to the left clavicle. However,
that discrepancy is totally irrelevant. The clavicles are
separated by no more than a couple of inches. The claimant's
earliest report of injury to his employer following the May 9,
1987, incident, clearly indicates that the trauma was to his chest
area, and that he sustained contusions over that entire area.
Dr. ~ichard A. Nelson's opinion was also admitted into
evidence, not, as the majority has suggested, because of the
Workers1 Compensation Court's liberal consideration of the medical
evidence, but because there was no objection to it by the
defendant. Dr. Nelson also clearly stated an uncontested opinion
that the claimant's thoracic outlet syndrome resulted from the
crush injury on May 9, 1987.
[I] seems from reviewing my records and the information
t
you provided here regarding your question of which of his
injuries is more likely to have caused the problem with
thoracic outlet syndrome, that would certainly have been
the 5/9/87, injury because it was of such a high
magnitude in fracturing the clavicle at the same time.
Since the thoracic outlet syndrome is placed in that same
exact anterior cervical spine that the fracture took
place, it is more likely than not that this was, indeed,
the origin of his thoracic outlet syndrome.
The majority dismisses Dr. Nelson's opinion, based on its
misunderstanding of anatomy. The majority concludes that because
the T.0. . was on the right and the fractured clavicle on the left,
S
Dr. Nelson was mistaken in his conclusion that both injuries
occurred in the same place. However, Dr. Nelson's reference to
anterior cervical spine does not refer to right or left, it merely
refers to the front part of the body, rather than the posterior or
back side.
The majority opinion also fails to point out that in Dr.
Nelson's November 9, 1988, evaluation, which was attached to Dr.
Martini's deposition without objection, Dr. Nelson clearly pointed
out, when referring to the claimant's history that:
[H]e was jacking up a trailer for a tire flat and the
jack slipped and the tire came down and hit him in the
left shoulder, anterior cervical chest region causing a
fracture of the left collarbone and subsequent to this
he developed headaches about two days later and had a
cast put in place and he continued to live with this pain
with a stiff neck . . . .
(Emphasis added.)
It is clear that Dr. Nelson was aware that the claimant's
fractured clavicle was on the left side.
The majority incorrectly concludes that the Workers'
Compensation Court was free to disregard all of the uncontroverted
medical testimony because of other "substantial1'evidence which the
court had before it. On the one hand, the majority agrees that
where medical evidence is by deposition or document, this Court is
in as good a position as the trial court to evaluate that
testimony. However, in the next breath the majority emasculates
that standard of review by finding that:
The medical depositions must be overlaid onto an
encompassing review of the Workers' Compensation Court's
decision under the substantial credible evidence
standard.
I suppose the only way to reconcile these two apparently
conflicting standards of review is to say that where this Court
wants to reverse the Workerst Compensation Court it will review the
medical deposition testimony independently, and where it wants to
affirm the Workers' Compensation Court, without being accountable
for the decision, it will overlay the medical depositions with the
rest of the testimony. However, in this case, the rest of the
testimony provides no support for the trial court's decision.
The only people who testified at trial were the claimant and
his wife. Neither of them were impeached nor contradicted in any
significant aspect of their testimony, and nothing in their
testimony provided any basis for the trial court's conclusion that
the claimant was not disabled from his May 9, 1987, injury.
Furthermore, the Workerst Compensation Court's conclusion was not
based upon any reservation that it had about the claimant's or his
wife's credibility. It was based upon that court's misunder-
standing of the physical evidence.
The trial court concluded that because the claimant fractured
his left clavicle, and his thoracic outlet symptoms were on the
right side, they could not have both resulted from the same
accident. However, the evidence is to the contrary. Dr. Ivy
testified that when he saw the claimant one-half hour after the
May 9, 1987, accident, he was told that a trailer fell on the
claimant's chest. The claimant described the trailer as a steel
lowboy with three axles which weighed approximately 2000 pounds.
Dr. Ivy also testified, and his records indicate, that in addition
to the fractured left clavicle, the claimant sustained contusions
to his chest.
Dr. Martini explained that thoracic outlet syndrome results
when the nerves and major vessels, as they pass between the first
rib and the clavicle, sustain a compression or irritation from
injury. Those nerves and vessels, which would account for symptoms
on the claimant's right side, are within inches of the fracture
that occurred to his left clavicle. It is extremely doubtful that
the 2000 pound trailer which crushed the claimant's chest was
capable of such discrete damage that it could have injured his left
clavicle without causing any damage several inches further to the
right on his chest.
In short, whether we apply the appropriate standard of review,
which is whether the claimant had proven his claim by a
preponderance of the evidence, or if we simply review the record
to determine whether there was substantial evidence to support the
Workers' Compensation Court's finding that the claimant was not
disabled, this case should be reversed.
I also dissent from the majority's second opinion which
concludes that the claimant was not entitled to temporary total
disability benefits for the three month period following his 1987
injury .
It was uncontradicted that the claimant was placed in a cast
for his clavicle fracture two days after his injury, and that he
was unable to do the heavy physical labor involved in maintaining
ditches for the irrigation district by which he was employed.
It was the secretary for the claimant's employer who requested
that the claimant's wife perform his job so that they could
continue to pay him, instead of providing disability benefits. The
claimant had no prior experience with workers' compensation claims.
Following his injury, he did not return to work, at all, for
three weeks. After that time, he simply rode in a truck to give
instructions to his wife. All of the work which he had previously
performed as part of his job was performed by his wife. Any
payment made by his employer was payment for his wife's services.
To hold that the employer can avoid paying disability benefits,
during a period that the claimant was obviously unable to work
because of a work related injury, by putting his name on the check
that belonged to his wife, is to exalt form over substance and
encourage future mischief by employers and insurers.
If the claimant had not been married, or if his wife had been
otherwise employed and unavailable to perform his duties, his
employer would have had to hire a third person and pay that person
21
directly. Certainly, under those circumstances, the defendant
would not claim, and this Court would not find, that the insurer
could avoid its obligation to pay total disability benefits during
the three months that the claimant was unable to return to work.
Allowing the defendant to avoid those same obligations under the
circumstances in this case, gives this Court's blessing to a
subterfuge and sham.
The claimant's wife was a separate person and entitled to be
treated that way, rather than as an appendage of her husband, for
purposes of compensation for her work.
For these reasons, I would reverse the decision of the
Workerst Compensation Court and remand for a determination of the
claimant's disability rate, the extent of his permanent partial
disability, and whether he is entitled to have any or all of his
disability benefits converted to a lump sum.
We concur with the foregoing dissent of Justice Trieweiler.