No. 90-478
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
ANDREW W. WOOD,
Claimant and Appellant,
CONSOLIDATED FREIGHTWAYS, INC,
Employer, Defendant and
Respondent.
APPEAL FROM: Workers' Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James M. Regnier; Regnier, Lewis & Boland; Great
Falls, Montana
For Respondent:
Thomas A. Marra; Marra, Wenz, Johnson & Hopkins;
Great Falls, Montana
'L'Fn
.-d 3ww.
Submitted on Briefs: February 21, 1991
Decided: March 28. 1991
Filed: MAR 2 8 '$997
Justice R. C. McDonough delivered the Opinion of the Court.
This appeal involves the termination of an injured worker's
temporary total disability benefits. The claimant Andrew L. Wood
appeals an order of the Workers1 Compensation Court. The court
terminated his temporary total disability benefits and converted
them to permanent partial disability benefits on the grounds that
the claimant had reached maximum healing and there was a suitable
labor market for him to return to work. We reverse and remand the
case for further proceedings.
The claimant raises two issues on this appeal:
(1) Did the Workers1 compensation Court err in determining
that Wood was permanently partially disabled and not permanently
totally disabled?
(2) Did the Workers1 Compensation Court err in determining
that the defendant/insurerls termination of temporary total
disability benefits was proper?
Wood was injured on July 16, 1986 while working for
Consolidated Freightways (CF). Wood received temporary total
disability benefits in accordance with § 39-71-701, MCA, from the
date of the injury until February 4, 1988. CF terminated Wood's
temporary total disability benefits by letter on January 20, 1988.
The termination letter did not include copies of any medical or
vocational reports. On January 29, 1988, C F 1 s claims examiner
received a letter from Jeanne Dussault, a vocational rehabilitation
counselor, which included job descriptions Dussault had identified
as employment options for Wood.
2
The letter indicated that the job descriptions listed had not
been approved by Wood's then-treating physician, who had just
retired, or any other physician. The record reveals no subsequent
attempts by C F 1 s claims examiner to attempt to contact Wood's
physician or any other doctor to seek approval of the job
descriptions identified by the vocational rehabilitation counselor.
In its order the Workers' Compensation Court found that the
medical evidence was overwhelming that the claimant had reached
maximum healing and was permanently partially disabled rather than
totally disabled. Indeed, the record indicates that four
physicians, including Wood's own, examined Wood and testified that
he should be able to return to some type of employment. While one
doctor opined that Wood could actually return to his old job as a
dock worker for CF, the others felt that Wood was able to perform
only light-duty, sedentary tasks. Based on this medical
evidence, the vocational rehabilitation counselor was of the
opinion that she had all the information necessary to make a
determination as to what type of physical restrictions in
employment the claimant's treating physician had placed upon Wood.
On cross-examination, however, she admitted that none of the job
descriptions which she had identified had been presented to any
physician for approval although such approval was the normal
procedure in her profession. Another vocational rehabilitation
counselor called by the claimant as an expert witness also
testified that it was normal procedure to obtain a physician's
approval of potential jobs in an injured worker's job market.
Finally, the record also reveals that since his injury, Wood has
made no attempts to go back to work.
Our standard for reviewing a decision of the Workers'
Compensation Court is to determine if 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 weight
of the evidence on questions of fact. Where there is substantial
evidence to support the Workers' Compensation Court, this Court
cannot overturn the decision. Coles v. Seven Eleven Stores (1985),
217 Mont. 343, 347, 704 P.2d 1048, 1050, Hume v. St. Regis Paper
Company (1980), 187 Mont. 53, 59, 608 P.2d 1063, 1066.
There is no dispute in this case that the claimant has reached
maximum healing. Maximum healing triggers a reevaluation of the
claimant's disability status; the claimant is then classified as
either permanently totally disabled or permanently partially
disabled. See McDanold v. B.N. Transport, Inc. (1984), 208 Mont.
470, 475, 679 P.2d 1188, 1191. Under the law applicable at the
time of Wood's injury, permanent total disability is defined 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. (Emphasis added.)
Section 39-71-116(13), MCA (1985) . Under this definition,
disability has non-medical as well as medical components.
Regarding the non-medical component of permanent total disability,
this Court has stated:
"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.I1
(Citations omitted.)
Coles, 704 P.2d at 1051; Metzger v. Chemtron Corp. (1984), 212
Mont. 351, 355, 687 P.2d 1033, 1035. Once a claimant presents
evidence demonstrating that there is no reasonable prospect of
employment in his normal labor market, the burden of proof then
shifts to the employer to show that suitable work is available.
Coles, 704 P.2d at 1051; Metzqer, 687 P.2d at 1036.
In its order, the Workers' Compensation Court set forth the
claimant's work history, which included farm labor, both prior and
subsequent to a period of military service, and 28 years of heavy
physical labor as a dock worker and driver for CF. In conclusion
of law no. 2, the court took
note of the fact that the claimant's normal labor market
consists of heavy physical laboring positions,
particularly, at least for the last 28 years, as a dock
man/driver for Consolidated Freightways a position which
required claimant to frequently, arguably, consistently,
lift, in the process of loading and unloading trucks, in
excess of 150 pounds. With the exception of Dr. Forbeck,
none of the [other three] physicians, or indeed the
claims examiner for the defendant, suggest that the
claimant should return to his previous employment.
In the context of the claimant's normal labor market, the court
then discusses the claimant's ability to return to the "light duty"
work suggested by the vocational rehabilitation counselor but not
approved by a physician. This is inconsistent with the court's
earlier identification of the claimant's ''normal labor market1' as
one consisting of heavy manual labor, and is also inconsistent with
the concept of ''normal labor market1'used in previous decisions of
this Court. See e.g. Wilhelm v. Owens Enterprises, Inc. (Mont.
In this case, there is substantial credible evidence in the
record to support a finding that Wood was unable to return to his
normal labor market of employment involving heavy physical labor.
Three out of four physicians concluded that Wood could no longer
perform the heavy physical labor in employment that he had
performed essentially all of his adult life. Thus, the claimant
met his burden of demonstrating Itno reasonable prospect of
employment1'with evidence that his "normal labor market1' consists
of heavy manual labor and with medical evidence indicating he can
no longer perform such labor due to his work related injury.
Thus, the burden shifted to CF to demonstrate that other suitable
work is available to Wood. Coles, 704 P.2d at 1051, Metzser, 687
P.2d at 1035-36. In this regard, the Workers1 Compensation Court
utilized the following test, taken from its decision in Coles, WCC
No. 2000, decided November 20, 1984, aff'd 217 Mont. 343, 704 P.2d
1048 (1985), to determine whether the employer had provided the
minimum information necessary to discharge its duty to investigate
the extent of claimant's disability. The test requires:
(1) a physician's determination that the claimant is as
far restored as the permanent character of his injuries
will permit;
(2) a physician's determination of the claimant's
physical restrictions resulting from an industrial
6
accident ;
(3) a ~hvsician'sdetermination, based on his knowledge
of the claimant's former employment duties, that he can
return to work, with or without restrictions, on the job
on which he was injured or another job for which he is
fitted bv aqe, education, work experience, and physical
condition;
(4) notice to the claimant of receipt of the report
attached to a copy of the report. (Emphasis added.)
The record indicates that CF has not met its burden under this
test. CF presented a list of suggested jobs as I1availablesuitable
work1' but lailed to meet its evidentiary burden under Coles
requiring a phvsician's determination that the claimant can return
to one of these suggested occupations. There is simply no evidence
in the record to support the court's conclusion suitable work is
available to Wood under the third prong of Coles. The Court itself
noted the lack of evidence:
Though we conclude, under these facts, that the
insurer acted properly, we do so primarily based on the
abundant medical and vocational evidence. The insurer
has stretched the Coles standards to the limit in this
instance and we would caution the parties and counsel
that few cases present themselves with similar
overwhelming medical evidence; thus, adherence to the
Coles elements remains vital.
Despite this attempt to support its conclusions, the evidence
clearly fails to meet the court's own "vital1'criteria as set forth
in Coles. Absent a physician's determination that Wood could
return to work in one of the jobs listed by the vocational
rehabilitation counselor, there is no substantial credible evidence
in the record to support the finding that Wood could return to work
in one of these jobs. Because CF has failed to meet its burden,
we reverse this case and direct the Workers' Compensation Court to
enter judgment in favor of Wood. See e.g. Wilhelm, supra, 790 P. 2d
at 471.
Because we reverse the Workers' Compensation Court's judgment
on the first issue, we need not address the second issue raised by
Wood.
REVERSED and REMANDED for further proceedings consistent with
this opinion.
We Copcur: A
hief Justice