No. 90-629
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
CARLA J. SMITH-CARTER,
Petitioner and Appellant,
AMOCO OIL COMPANY, (Cyprus Industrial
Minerals Beaverhead Mine),
Employer,
and
AMOCO OIL COMPANY,
Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. Lewis Brown, Jr.; Butte Legal Center, Butte,
Montana
For Respondent:
Paul C. Meismer; Garlington, Lohn & Robinson,
Missoula, Montana
Submitted on Briefs: May 2, 1991
Decided: June 4, 1991
Filed:
Justice John Conway Harrison delivered the opinion of the Court.
Petitioner, Carla Smith-Carter, appeals from the judgment of
the Workerst Compensation Court of the State of Montana which found
petitioner permanently partially disabled and entitled to 500 weeks
of permanent partial disability benefits. We affirm the Workers1
Compensation Court.
On appeal petitioner raises five issues which this Court has
consolidated into one issue: whether the judgment of the Workers'
compensation Court is supported by substantial credible evidence.
This complaint was originally heard by the Workers'
Compensation Court on October 9, 1986. In that complaint
petitioner alleged a dispute between the parties regarding the
nature, degree, and extent of injuries from a February 6, 1981,
industrial accident which occurred while petitioner was employed
by Cyprus Industrial Minerals (Cyprus).
As the result of the 1986 hearing, the Workers1 Compensation
Court found that petitioner was not permanently totally disabled,
but was permanently partially disabled, although the degree of
disability could not be determined because an impairment rating of
petitioner's left wrist was lacking.
On April 10, 1989, Smith-Carter filed another petition in the
Workers1 Compensation Court, seeking to adjudicate the nature,
duration, and extent of her injuries.
After a hearing on November 1, 1989, and upon consideration
of depositions taken before and after the hearing, the court on
August 21, 1990, issued an order adopting the findings of fact and
conclusions of law of the hearing examiner and entered judgment
determining that petitioner is permanently partially disabled, but
not permanently totally disabled. The judgment awarded her 500
weeks of permanent partial disability payments. Petitioner
requested a rehearing on September 11, 1990, and upon denial by
the Workers1 Compensation Court, appealed to this Court.
Petitioner was employed by Cyprus in October of 1979 at its
Beaverhead Mine near Ennis, Montana, as a l1talc sorter.I1 Her
duties with Cyprus entailed picking and sorting talc rocks from a
conveyor belt; the rocks weighed anywhere from a few ounces to two
hundred pounds.
On February 6, 1981, petitioner left her job because the pain
she had been experiencing in her right wrist became too great. She
returned to work on May 4, 1981, with a brace on her right wrist.
The addition of the brace forced petitioner to use her left arm
more than usual in the performance of her duties, and petitioner
began to notice pain in her left wrist.
Because of increased difficulties in her right arm and pain
in her left wrist, petitioner sought medical assistance from
several doctors. Petitioner initially consulted Dr. Wilkins, who
sent her to Dr. Losee in Ennis, Montana. Dr. Losee ultimately
referred her to Dr. Thomas Johnson in Billings, Montana.
In view of the importance of the testimony of Dr. Johnson and
other experts, we will summarize the opinions of each of the
principal witnesses.
Medical evidence
Petitioner first saw Dr. Johnson, who became her attending
physician, in August 1981. Dr. Johnson diagnosed carpal tunnel
syndrome in both wrists, eventually performing two surgeries on her
right wrist. Despite the surgeries, petitioner continued to
experience problems with her right wrist. Dr. Johnson concluded
that surgery on her left wrist would be futile in view of the poor
results with the other wrist.
In April 1989, petitioner began complaining of neck pain.
Dr. Johnson requested nerve-conduction studies which were performed
by Dr. Donald H. See of Billings on May 3, 1989. The test results
indicated that nerve velocity was normal without any delay. On May
26, 1989, petitioner received an MRI scan which showed no physical
abnormalities, such as a pinched nerve, in her neck. Although Dr.
Johnson was unable to explain the neck pain, he did not relate the
neck pain to petitioner's carpal tunnel syndrome.
Dr. Johnson stated that petitioner's strength has remained
constant since 1987. Using American Medical Association
guidelines, Dr. Johnson determined that petitioner's left wrist was
ten percent impaired. Her two wrist impairments converted to a
thirteen per cent "whole man" impairment.
Dr. Johnson reviewed three occupations, pharmacy cashier,
self-service gas station cashier, and bartender, submitted by Pete
Sesselman, a rehabilitation counselor. Dr. Johnson felt that
petitioner would be unable to perform the duties of a bartender
because of the lifting involved and the temperatures of the
coolers. Dr. Johnson agreed that if the job entailed only working
on four or five customers a day without stocking shelves or a
cooler, as described by Sesselman, then petitioner could work as
a bartender. In Dr. Johnson's opinion, although petitioner would
experience some pain during an eight-hour workday, the pain would
not prevent her from doing the tasks required by the other
suggested occupations.
At Dr. Johnson's request, Dr. See, a neuromuscular and
musculoskeletal specialist, examined petitioner. After extensive
examination and testing, Dr. See completed a physical capacities
form used by his office. In addition to some restriction in
grasping, pushing-pulling, and fine manipulation, Dr. See found
that petitioner should limit frequent lifting to ten pounds and
occasional lifting to twenty-five pounds. Dr. See also advised
that petitioner refrain from driving more than one to three hours
without a break. According to Dr. See, petitioner had the ability
to sit, stand, or walk for an eight-hour day and could operate foot
controls repetitively.
In Dr. See's opinion, petitioner was not totally disabled and
could perform the jobs recommended by Sesselman.
Vocational and rehabilitation evidence
A rehabilitation counselor employed by Cyprus, Pete Sesselman,
who had not interviewed or tested petitioner because she refused
to meet with him in 1986, testified that in his opinion petitioner
had the skills to perform the occupations of self-service gas
station cashier, pharmacy cashier, and bartender. Sesselman
reviewed the depositions and reports of medical experts and
vocational counselors, as well as the testimony taken at the 1989
hearing. In addition, in June 1989 Sesselman sat in on
petitioner's deposition. Based on this information and several
types of vocational criteria, Sesselman submitted to Dr. Johnson
and Dr. See descriptions of the three occupations in the Ennis
area. Sesselman admitted that he did not consider petitioner's
pain in his assessments because the degree of pain was a medical
determination which physicians could weigh when evaluating job
descriptions.
In Sesselmanls opinion, petitioner was capable of completing
her GED and acquiring vocational training.
Petitioner's vocational expert, Ian Steel, was of the opinion
that she could not perform even entry level, sedentary occupations,
because of pain, limited education, and lack of skills. He stated
that petitioner could not sit, stand, or use her hands for
prolonged periods of time.
A professional vocational evaluator employed by the Butte
Sheltered Workshop, Robert McGuire, tested petitioner six hours a
day for four days in 1986. In reaching his conclusions, McGuire
had analyzed earlier medical reports, but had not reviewed recent
depositions of the physicians who had treated petitioner. McGuire
testified that "depending on the training, how long, intense the
training is ... [petitioner] could get into some sort of training
and job." He felt that petitioner could probably handle the
bartender's job at the Silver Dollar Bar if not overburdened with
customers.
The Workers' Compensation Court concluded that petitioner was
capable of performing particular jobs in her labor market and noted
that college training after completion of her GED could provide her
with the skills to enter a number of additional occupations.
I
Petitioner claims that she is permanently totally disabled,
rather than permanently partially disabled as determined by the
Workers' Compensation Court, because her medical condition prevents
her from finding regular employment of any kind in her normal labor
market.
This Court will not substitute its judgment for that of the
Workers' Compensation Court concerning the credibility of witnesses
or the weight of their testimony. When conflicting evidence is
presented, the scope of review is to establish whether substantial
evidence supports the lower court's findings, not whether evidence
may support contrary findings. B'Brien v. Central Feeds (1990),
241 Mont. 267, 271-72, 786 P.2d 1169, 1172. In sum, this Court's
role is not to redetermine all issues presented to the lower court,
but rather to examine whether the findings of the lower court are
based upon substantial credible evidence.
When critical medical testimony is presented through
depositions, this Court can assess the evidence as well as the
lower court. Stangler v. Anderson Meyers Drilling Co. (1987), 229
Mont. 251, 255-56, 746 P.2d 99, 101-02; Dunn v. Champion
International Corp. (1986), 222 Mont. 142, 147-48, 720 P.2d 1186,
1189.
Here, medical testimony does not conflict. Dr. Johnson was
the treating physician of petitioner's choice, and his involvement
in this case spans a time period of over ten years from 1981 to
the present time. Dr. See had less involvement with the patient,
but his conclusions have not been challenged at any stage in the
proceedings below. Both physicians approved, without restriction,
the jobs in Ennis, Montana, of pharmacy cashier and cashier at two
self-service gas stations. In addition, both physicians accepted
the job of daytime bartender with limitations on lifting as
described by Sesselman.
The Workers' Compensation Court had the opportunity to
personally observe petitioner and her husband testify on more than
one occasion. The court was in the best position to determine
petitioner's credibility. According to our standard of review, the
court's findings based on her testimony are to be accorded great
weight.
Petitioner sought to be determined permanently totally
disabled pursuant to 5 39-71-116(13), MCA (1979). To establish the
existence of no reasonable prospect of employment in the normal
labor market, a claimant must introduce substantial evidence of (1)
what jobs constitute her normal labor market; and (2) a complete
inability to perform the duties associated with those jobs because
of the work-related injury. Metzger v. Chemetron Corp. (1984), 212
Mont. 351, 355, 687 P.2d 1033, 1035; Spooner v. General Insurance
Co. of America (1983), I11 Workers1 Compensation Court Decisions
No. 85.
Petitioner failed to satisfy the test found in Spooner and
Metzser. Although petitioner's physical condition prevents her
from returning to the type of work in which she was engaged before
she was injured, she is not precluded from a reasonable prospect
of employment in her normal labor market.
Petitioner attempts to rebut the uncontroverted medical
testimony of her treating physician and Dr. See through testimony
of her expert, Robert McGuire, who was not a practicing physician
or certified by any medical review board in Montana. We note that
McGuire did not take issue with the medical findings. McGuire
agreed that petitioner could perform the work of bartender and
cashier at self-service gas stations. His main concern was whether
petitioner had difficulty standing and operating the cash register
with her fingers for extended periods of time, although he conceded
that if the job descriptions were accurate she could perform the
physical tasks required. McGuire questioned whether petitioner
could perform ncompetitivelylt
over a forty-hour work week.
McGuire admitted that petitioner could be retrained for other
jobs and could perform them competitively. McGuire was unable to
comment upon Sesselmanlsdescriptions of specific job tasks since
he had not reviewed Sesselmants reports. He concluded that any
disagreement he had with Dr. Johnson, Dr. See, or Mr. Sesselman
would have no medical basis.
Finally, Ian Steel's June 1989 evaluation of petitioner was
questionable because Steel had drawn conclusions about petitioner's
physical capacities without reviewing the June 1989 reports of Dr.
Johnson and Dr. See. After Steel read the medical depositions and
reports, he still refused to modify his conclusion that petitioner
had the skills, but not the physical capacity, to perform the jobs.
The Workers' Compensation Court properly discounted Steel's
testimony as unfounded and of little assistance in evaluating
petitioner's claim.
Substantial, credible evidence supports the findings of the
court below. We do hereby affirm the judgment of the Workers1
Compensation Court.
We co cur:
Chief Justice
Justices