No. 92-184
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
CHARLES WHITE,
Claimant-Appellant,
-vs-
FORD, BACON & DAVIS TEXAS, INC.
Employer-Respondent,
and
AETNA LIFE & CASUALTY CO.,
Defendant-Respondent.
APPEAL FROM: Workers' Compensation Court
of the State of Montana,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz, Billings, Montana
For Respondent:
William J. Mattix, Crowley Law Firm, Billings,
Montana
Justice Fred J. Weber delivered the Opinion of the Court.
Claimant, Charles White, appeals the order of the Workers'
Compensation Court which denied his claim for additional permanent
partial disability benefits based upon a 1982 injury. We affirm.
The issues for our review are:
1. Does substantial evidence support the Workers'
Compensation Court's conclusion that Charles White failed to prove
an entitlement to additional permanent partial disability benefits?
2. Did the Workers' Compensation Court properly weigh the
expert testimony?
3. Did the Workers' Compensation Court err in admitting
evidence of Charles White's drug and alcohol abuse?
4. Does Aetna's proposed conclusion of law stating that
Charles White is entitled to receive a $10,000 nominal disability
award constitute a judicial admission?
Charles White (White) sustained a compensable back injury on
May 8, 1982, while working as a construction laborer at the Exxon
refinery in Billings, Montana. Aetna Life and Casualty Co. (Aetna)
was the insurer for the employer, Ford, Bacon and Davis Texas, Inc.
Aetna paid White temporary total disability benefits at the rate of
$241 per week from May 8, 1982 through December 20, 1982. Pursuant
to the January 11, 1983 rating of Dr. Nelson, a neurologist, Aetna
paid claimant $6,025 in permanent partial disability benefits at
the rate of $120.50 per week for 50 weeks.
Dr. Schwarten, an orthopedic surgeon, and Drs. Nelson and
Peterson, both neurologists, examined White in 1982. They
2
performed various extensive examinations and tests. Dr. Peterson
examined White on October 22, 1982 and concluded that he could
return to work. On January 11, 1983, Dr. Nelson assigned a 10%
impairment rating based on his June 16, 1982 examination. As above
mentioned, Aetna paid 50 weeks of permanent partial disability
benefits based upon this impairment rating. In addition, Aetna
advised White that such payment would not close the case and that
additional compensation might be paid if his ability to work was
affected by the injury or if future medical reports showed an
increase in the percentage of his loss.
White contends the 1982 injury has reduced his earning
capacity because he can no longer perform heavy work. White
submitted various testimony in support of that theory. The record
demonstrates that White worked as a construction laborer for 754.4
hours in 1983, 1,104.8 hours in 1984 and 437.5 hours in 1985.
White testified these were light duty jobs with the exception of
one which required the use of a jackhammer. The supervisor on one
job testified that White performed concrete and other heavy work
without complaint.
White testified that in 1984 he obtained a real estate license
and began working for Associate Realty because he could no longer
perform physical labor. The broker at Associate Realty testified
that his impression was that White left construction labor because
he wanted to get away from the organizational pressures of the
laborer's union in which he served as an officer. That broker
further testified that White performed numerous physical labor
jobs, such as renovating a building, moving heavy boxes and
building various items and that he never observed White showing any
signs of pain or discomfort.
The record establishes a key aspect of the case. White did
not seek medical treatment or examination for back pain from 1983
to August 1988. White's explanation was that he did not seek
medical treatment for 55 years for his back pain because he did not
think he had any rights left following his receipt of the
impairment settlement. That is contradicted by the evidence on the
part of Aetna that he was advised of his right to receive
additional medical care and possible compensation if there was
further disability.
Dr. Nelson saw White following a sudden onset of pain in
August 1988, which White experienced while helping a friend with
some fencing. Dr. Nelson testified that he could not say to any
degree of medical certainty whether the disc bulge demonstrated in
a 1988 MRI had been there in 1982.
In May 1990, Dr. Espinosa examined White and found him to be
normal, assessing no limitation with regard to lifting, pulling,
pushing, reaching, walking, stooping or kneeling. In June 1990,
Dr. Wagner, a psychologist, evaluated White and concluded that the
pain and discomfort was probably exacerbated by White's anxiety and
stress. In February 1991, Dr. Shaw, a specialist in occupational
medicine, performed an independent medical examination and found no
evidence of neurological defect or skeletal abnormality and could
not attribute any of White's symptomology to his 1982 muscle
strain. He concluded that White's symptoms can be explained by his
poor posture, excess weight, smoking and generally poor physical
condition.
Extensive evidence was introduced to show that White had a
long history of drug and alcohol abuse, starting at age 14. This
evidence included his treatment history from Rimrock Foundation.
While at Rimrock, White was examined by Dr. Ely, a psychiatrist,
who noted the adverse effects of drug and alcohol consumption with
regard to White's employment. Since White's discharge from
Rimrock, he has held a number of jobs ranging in pay from $5.00 to
$8.00 per hour. This is less than he could earn as a construction
laborer.
I.
Does substantial evidence support the Workerst Compensation
Courtts conclusion that White failed to prove an entitlement to
permanent partial disability benefits beyond the permanent
impairment award already paid to him as a result of his 1982
industrial injury?
A Workerst Compensation Courtts decision will not be
overturned by this Court if it is supported by substantial credible
evidence. McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont.
63, 813 P.2d 451. However, to the extent the decision is based on
medical reports and depositions, this Court sits in as good a
position as the Workerst Compensation Court and we review the
evidence de novo. This de novo standard of review does not extend
to a review of the entirety of the case and the overall decision.
Medical testimony must be harmonized with and considered in the
context of the evidence as a whole. The substantial credible
evidence standard controls the analysis of the record as a whole.
McIntyre, 813 P.2d 454.
In this case, the Workers' Compensation Court relied on the
conclusion of this Court in Brown v. Ament (1988), 231 Mont. 158,
752 P.2d 171. In Brown, a claimant was injured in 1978. Following
the termination of treatment for that injury on December 1, 1978,
the claimant sought no further treatment for the injury for 34
years. The Workers' Compensation Court found it a difficult case
to chart because too much time had passed without explanation or a
tracing of the injury. This Court said that the medical evidence
was inconclusive and at best established only a possibility of a
causal relationship between the two injuries. Brown, 752 P.2d at
175. Similarly, White sought no further medical treatment for his
back following the termination of his treatment for the 1982 injury
for more than 51 years after Dr. Nelson assessed the 10% impairment
rating in January of 1983. White explained this lengthy lapse in
treatment by testifying that he did not know he was entitled to
additional medical benefits. However, a letter from Aetna to White
dated March 2, 1983, expressly advised him that the case remained
open and that he could qualify for additional medical benefits.
White relied on the testimony of Dr. Nelson whose August 1988
notes made no indication that White had been experiencing back
problems between 1982 and 1988. Dr. Nelson concluded that White's
industrial injury set the stage for potential re-injury down the
road, an occurrence which he thought had happened several times,
including the 1988 incident. Dr. Nelson requested an MRI which did
not show a herniated disc but did show a bulge of a disc. He
testified that he could not say to any degree of certainty whether
that bulge existed in 1982 or developed subsequently. Dr. Nelson
recommended light work as he had originally done in 1982. As
previously mentioned Dr. Espinosa assessed no limitations in May of
1990 as to White's employment. In February 1991, Dr. Shaw, a
specialist in occupational medicine, opined that White's condition
was mechanical, found no evidence of neurological deficit or
skeletal abnormality, and had no reason to preclude White from
returning to work as a construction laborer. Dr. Shaw could not
attribute any of White's symptomatology to his 1982 muscle strain.
In addition, the record contains substantial evidence on the issue
including the following: (1) White's representations and
admissions at Rimrock; (2) White's representations to medical and
psychiatric professionals that he did not experience chronic back
pain; (3) White's representations to SRS employees who found him
ineligible for rehabilitation services; (4) White's contradictory
statements in his deposition that he had an awareness of a constant
uncomfortableness and subsequent testimony at trial of chronic back
pain; and (5) White's continued construction employment during the
years 1983 to 1986.
The Workers' Compensation Court concluded that White had
failed to prove an entitlement to permanent partial disability
benefits beyond the permanent impairment award already paid. The
court pointed out that White had the burden of proving his case by
a preponderance of credible evidence and referred to the statutory
definition. The court then concluded that White had failed to
prove by a preponderance of evidence that the injury he received in
1982 was responsible for or proximately caused his current
employment condition. The court then pointed out that in this case
the medical evidence is completely contradictory, and at best
establishes only a possibility of a causal link between White's
employment and the industrial injury - which is insufficient to
find compensability.
The court finally concluded that given the prolonged lapse in
medical treatment and other evidence discounting the extent of
White's pain and discomfort, the totality of the evidence
preponderated in favor of finding that White's employment situation
is not a direct result of his compensable industrial injury. The
foregoing conclusions are supported by substantial evidence in the
record. We therefore affirm that holding of the Workers'
Compensation Court.
White disputes the Workers1 Compensation Court's finding that
his chemical use had an adverse effect on his employment by his own
admission in the Rimrock Foundation records and other testimony
before the court. He argues that such findings are not material
and that reliance on them is clear error. The record demonstrates
that White entered a treatment program at Rimrock in 1987, but did
not successfully complete the aftercare program. He lapsed into
subsequent chemical abuse as late as 1989. Mr. and Mrs. White both
testified in connection with this issue. The Workers' Compensation
Court is in the best position to observe the character and demeanor
of the witnesses. We will not substitute our judgment for that of
the trial court. Sharkey v. Atlantic Richfield Co. (1989), 238
Mont. 159, 777 P.2d 870. We conclude the evidence relating to drug
and alcohol abuse is relevant to both job performance and earning
capacity. We further conclude that the Workers1 Compensation Court
properly admitted substance abuse evidence and weighed that
evidence properly.
We hold that the Workers' Compensation Court correctly
concluded that White had failed to prove an entitlement to
additional permanent partial disability benefits and that such
conclusion is supported by substantial credible evidence.
11.
Did the Workers' Compensation Court properly weigh the expert
medical testimony?
White contends that the Workers' Compensation Court failed to
properly weigh Dr. Nelson's testimony as White's treating
physician. He contends that Dr. Nelson's testimony as treating
physician was entitled to greater evidentiary weight. See Snyder
v. San Francisco Feed & Grain (l987), 230 Mont. 16, 27, 748 P.2d
924, 931. As previously mentioned, Dr. Nelson's treatment was very
limited. He examined White on only two occasions--on June 16, 1982
and in August 1988. As previously outlined, his testimony at most
established the possibility of a causal link between the 1982
injury and White's subsequent condition but does not constitute
medical evidence which demonstrated to a reasonable degree of
probability that there was a connection. We will not set forth in
detail the extensive testimony which preponderated in favor of
finding no permanent physical impairment in 1982 beyond the
impairment paid for. We conclude there is substantial evidence to
support the analysis and conclusions reached by the Workerst
Compensation Court.
We hold the Workers' Compensation Court properly weighed the
expert medical testimony.
111.
Did the Workers' Compensation Court err in admitting evidence
of White's drug and alcohol abuse?
White contends that the Workers' Compensation Court should not
have admitted evidence about drug and alcohol abuse because Aetna
refused to supplement discovery requests properly. Specifically,
he claims that this action prejudiced him because he was not
informed that Aetna would claim that substance abuse influenced his
loss in earning capacity. He maintains that he was entitled to
rely on Aetna's good faith in making discovery responses and thus
he could reasonably expect that this would not be an issue at
trial.
The record is replete with information to the contrary.
Aetnats discovery requests asked for information relating to
treatment for chemical dependency and all records relating to
chemical dependency treatment. White signed the releases for such
treatment information. Documents filed with the court argued the
relevancy of treatment records and indicated that the possibility
of a causal relationship between substance abuse and loss of
earning capacity would be an issue. During their depositions, both
Mr. and Mrs. White were questioned at length--with particularity
and without objection--about his drug and alcohol abuse and its
effects. On September 19, 1991, Aetna served a supplemental
response to an interrogatory inquiring whether it contended that
some other condition contributed to White's degree of disability,
stating:
At this point, defendant believes that the records
identified and exchanged by the parties and [sic] indicate
that any loss of earnings or capacity that Mr. White has
experienced is not causally related to his May 8, 1982
industrial injury. Defendant believes that this conclusion is
supported by the medical and psychological records that have
been identified and exchanged and, most particularly, by the
treatment records from Rimrock Foundation. The extent of Mr.
White's chemical abuse and its impact on his employment
history is set forth in detail in those records.
The Workers1 Compensation Court noted this, stating, "I think the
answer is pretty much right on the money as to what they're
arguing.
A trial court's ruling on the admissibility of evidence will
not be disturbed absent a showing of an abuse of discretion.
Britton v. Farmers Ins. Group (1986), 221 Mont. 67, 721 P.2d 303.
White bases his claim of error here upon his inability to discern
from pre-trial events that Aetna would theorize that White's drug
and alcohol abuse affected his ability to maintain his employment.
Nonetheless, White's counsel came to the hearing armed with a brief
dated and signed the day prior to the hearing which supported his
argument against admitting evidence of drug and alcohol abuse.
White's counsel later objected to admission of the evidence because
it was cumulative--because the evidence was already included in the
Whites1 depositions which had already been admitted in the record
based on his stipulation. We conclude that White was not taken by
surprise in any manner nor was there a prejudicial failure to
furnish information.
We hold that the Workers' Compensation Court properly admitted
evidence of White's drug and alcohol abuse.
IV.
Does Aetnals proposed conclusion of law stating that White is
entitled to receive a $10,000 nominal disability award constitute
a judicial admission?
Aetna proposed the following conclusion of law:
Mont. Code Ann. 5 39-71-2906 provides that the judge of
the Montana Workers' Compensation Court may grant nominal
disability awards in cases where it is found that an accident
has occurred in the course and scope of employment but no
disability has resulted therefrom. That appears to be the
situation in this case. Mr. White sustained a compensable
industrial injury on May 8, 1982. As a result of that injury,
it does not appear that he has sustained any permanent partial
disability which term is defined as a loss of earnings or
earning capacity occasioned by the industrial injury.
Therefore, Mr. White is awarded the sum of TEN THOUSAND
DOLLARS ($10,000) as a nominal disability award pursuant to
the provisions of Mont. Code Ann. 9 39-71-2906.
Aetnals position has not changed from the beginning. It has
consistently maintained that White sustained no loss of earning
capacity as a result of his industrial injury. Aetnals proposed
conclusion recommended that the Workers' Compensation Court
exercise its discretion and grant Mr. White a nominal disability
award. A nominal benefit award under former 5 39-71-2906, MCA, was
authorized in cases where an accident had occurred during the
course and scope of employment but no disability resulted
therefrom. This does not have the effect of a confessory pleading
or evidentiary admission. It could not be used as a substitute for
legal evidence at trial.
A court entering judgment on the basis of proposed findings
and conclusions submitted by the parties has a duty to properly
consider the facts of the case and exercise its own independent
judgment. In Sharkey, we saidthatthe Workerse Compensation Court
properly considers the actual facts presented at trial through
witnesses and exhibits and what the parties may have contended is
irrelevant to the factual determinations made by the court.
Sharkev, 777 P.2d at 873.
Here the Workers' Compensation Court declined to award even a
nominal disability award. This is within its discretion. In Brown
v. Markve (1985), 216 Mont. 145, 700 P.2d 602, the jury awarded
plaintiff $25,000 despite the fact that defense counsel suggested
$30,000 as a fair verdict. This Court on appeal stated:
The court . .
. concluded that this argument to the jury had
the legal effect of an admission against interest which set
the lower limits of the verdict at $30,000. . . .
. ..[Tlhat suggestion cannot be classed as evidence or an
admission against interest which set a floor of $30,000 below
which the jury could not go. The jury remained the finder of
fact with the right to set the damages at $25,000 or such
other figure as the jurors might conclude to be appropriate
under the evidence.
Brown
I 700 P.2d at 603
Similarly, Aetna's proposed conclusion did not establish a lower
limit of liability. We conclude that the Workerse Compensation
Court remained free to consider this proposed conclusion in light
of the evidence presented and to reach its own conclusions.
We hold that Aetna's proposed conclusion stating that White is
entitled to receive a $10,000 nominal disability award does not
constitute a judicial admission.
Af finned.
We Concur:
d
December 17, 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Jeffrey T. Renz
Attorney at Law
724 Grand Ave.
Billings, MT 59101
William Mattix
Crowley Law Firm
P.O. Box 2529
Billings, MT 59103-2529
ED SMITH
CLERK OF THE SUPREME COURT
STATE O F MONTANA