No. 92-094
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
CLARENCE MENNIS,
Claimant and Appellant,
ANDERSON STEEL SUPPLY,
Employer,
and
EBI/ORION GROUP,
Insurer and Respondent.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Overfelt Law Firm, Great Falls,
Randall 0 ~korheim,
.
Montana
For Respondent:
Susan J. Rebeck, Attorney at Law, Great Falls,
Montana
Submitted on Briefs: August 20, 1992
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the Workers' Compensation Court, the
Honorable Timothy W. Reardon presiding. The Workers' Compensation
Court adopted the Findings of Fact and Conclusions of Law and
Proposed Judgment of the hearing examiner granting claimant
Clarence Mennis (Mennis) permanent total disability benefits and
reasonable attorney's fees and costs, but denying domiciliary care
benefits. Mennis appeals from that part of the judgment which
denied domiciliary care benefits. We affirm.
The issue on appeal is whether the Workersr Compensation Court
erred in denying Mennis' claim for domiciliary care benefits
pursuant to 5 39-71-704, MCA (1983), and the five part test adopted
in Carlson v. Cain (1985), 216 Mont. 129, 700 P.2d 607.
Mennis worked in the metal fabrication shop at Anderson Steel
Supply (Anderson Steel) as a fabricator and welder. His duties
included producing orders, building door frames, fabricating doors,
and modifying doors. On February 22, 1985, three steel door frames
fell on him and fractured his cheek bones, broke several teeth,
separated his right shoulder, and inflicted atraumatic closed head
injury. At the time of the accident Anderson Steel was enrolled
under Compensation Plan Two of the Workers' Compensation Act and
EBI Insurance Company (EBI) was its insurer.
When his shoulder had healed satisfactorily, his doctor
released him to return to work. Mennis returned to Anderson Steel
on April 24, 1985, in the same position he had before the accident.
In August 1985, Mennis complained of lightheadedness and headaches
to Dr. Person. Dr. Person referred Mennis to Dr. Labunetz, a
neurologist at the Great Falls Clinic, who diagnosed Mennis'
condition as "muscle contraction/vascular headaches, post
concussive as well as post concussive syndrome.lr By March 1986,
Dr. Labunetz felt that this condition basically had been resolved.
In July 1986, Dr. Labunetz referred Mennis to Dr. Shubat, a
clinical psychologist, for biofeedback relaxation therapy to help
control some continuing pain and for neuropsychological evaluation.
Dr. Shubat diagnosed Mennis as suffering from mixed organic brain
syndrome. Dr. Shubat referred Mennis to Charles Bock, a speech
pathologist, for cognitive retraining. Mennis also received
treatment from Dr. David Bush, a psychologist, from March through
June of 1987 for what Mennis perceived as personality changes and
declining cognitive performance.
In January 1988, Mennis transferred from the fabricating and
welding shop to the sales force at Anderson Steel. The noise,
dust, and heat of the shop aggravated Mennisf problems caused by
the injury. Anderson Steel did not create this position to
accommodate Mennis; rather, the position came open and Mennis
received a transfer.
In September 1988, Mennis did not return to work at Anderson
Steel after undergoing a septoplastyto correct a nasal obstruction
that was secondary to the injury caused by the accident. Anderson
Steel had informed Mennis that it could not hold his job open
because it did not know when he would return after the surgery. He
has been unemployed since September 13, 1988.
In July 1989, Mennis' wife Beverly also quit working full
time, reducing her hours to six hours a week. She is employed as
a legal secretary. Mennis claims she quit working full time at the
direction of Drs. Labunetz and Shubat. However, Jeanne Dussault,
an independent living specialist who met with the Mennises in March
1990, testified that Beverly had indicated that she wanted to quit
working before Mennis' accident to spend more time with the
children, and that she reduced her hours because of her needs and
to alleviate the stress she felt from working full time and being
a full time homemaker.
In order to investigate Mennis' claim, EBI hired Allstate
Professional Investigators to observe Mennis. Larry Alexander, the
investigator assigned to the case, testified at trial that he first
observed Mennis on December 19, 1989. On that day he saw Mennis
drive his vehicle to his home, pick up the mail, and enter his
home. He again observed Mennis on January 11, 1990. On that day
he watched Mennis drive his children to and from school and drive
his wife to work. Mr. Alexander also observed Mennis depart in his
vehicle and later return on foot.
EBI later hired Putman and Associates to do further
surveillance of Mennis. Rick Hawk testified that he first observed
Mennis from February 21 to February 24, 1990. During that time he
observed Mennis driving his vehicle on numerous occasions, washing
the interior and exterior of his vehicle, buying groceries for his
children's lunch, and cleaning a storage shed beside his house.
Mr. Hawk testified that he never observed a problem with Mennis'
driving. Mr. Hawk also observed Mennis from April 15 to April 18,
1990, and saw him drive with no difficulty on those occasions.
Mennis claims that it is necessary for his wife to stay home
to provide domiciliary care and that he should receive benefits to
pay for her services. The Workers' Compensation Court denied
Mennisl claim for domiciliary care benefits finding that he failed
to meet the five point test adopted in Carlson for allowing
domiciliary care. The issue on appeal is whether the Workers'
Compensation Court erred in denying Mennisl claim for domiciliary
care pursuant to 5 39-71-704, MCA (1983), and the five part test of
Carlson.
This Court will not overturn the findings and conclusions of
the Workers1 Compensation Court where there is substantial credible
evidence to support them. Nor will this Court substitute its
judgment for that of the Workers1 Compensation Court as to the
weight of evidence on questions of fact. EBI/Orion Group v. State
Compensation Mut. Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d
1070, 1072 (citing Steffes v. 93 Leasing Co., Inc. (1978) 177 Mont.
83, 86, 580 P.2d 450, 452-453). In this case we are asked to
determine whether there is substantial credible evidence to support
the Workers' Compensation Courtlsdetermination that Mennis is not
entitled to domiciliary care benefits under Carlson.
Initially, Mennis' claim to domiciliary care arises out of
§ 39-71-704(1)(a), MCA (1983), which states:
Payment of medical, hospital, and related services.
(1) In addition to the compensation provided by this
chapter and as an additional benefit separate and apart
from compensation, the following shall be furnished:
(a) After the happening of the injury, the employer
or insurer shall furnish, without limitation as to length
of time or dollar amount, reasonable sewices by a
physician or surgeon, reasonable hospital sewices and
medicines when needed, and such other treatment as may be
approved by the division for the injuries sustained.
Domiciliary care comes within the l'such other treatment" language
of the statute. This Court adopted a five point test in Carlson to
determine whether in-home services are compensable. Those factors
are:
(1) The employer knows of the employee's need for medical
sewices at home resulting from the industrial injury;
(2) the preponderance of credible medical evidence
demonstrates that home nursing care is necessary as a
result of accident, and describes with a reasonable
degree of particularity the nature and extent of duties
to be performed by the family members; (3) the services
are performed under the direction of a physician; (4) the
services rendered are of the type normally rendered by
trained attendants and beyond the scope of normal
household duties; and (5) there is a means to determine
with reasonable certainty the approximate value of the
services performed.
Carlson, 700 P.2d at 614.
We subsequently reaffirmed the use of that test in Larson v.
Squire Shops, Inc. (1987), 228 Mont. 377, 742 P.2d 1003.
Although the Workers1 Compensation Court found that Mennis was
permanently totally disabled, it also found that he failed to meet
any part of this test, so it denied domiciliary care. As EBI
correctly points out, the evidence required to prove permanent
total disability is different than that required to justify
domiciliary care.
The first element of the Carlson test requires that the
employer know of the employee's need for medical services at home
as a result of the accident. In his Petition For Hearing and
Amended Petition For Hearing, Mennis sought domiciliary care
benefits from the date of his injury. The first indication
Anderson Steel had that Mennis claimed a need for domiciliary care
came in June of 1989 when EBI1s attorney received a letter from
Mennis' attorney. That letter included copies of letters from Drs.
Labunetz and Shubat. In a letter dated May 22, 1989, Dr. Labunetz
claimed:
Domiciliary care or supervision would be important and in
fact essential. This would be required constantly unless
or until he developed a rigid enough program to function
with only spot supervision, though this seems unlikely.
In a letter dated May 24, 1989, Dr. Shubat claimed:
It is clearly apparent that Beverly Mennis's presence in
the home is absolutely paramount. . .. [I]t is still
going to require the presence of Beverly in the home to
implement these programs in an integrated and consistent
manner.
Up to this point, Anderson Steel was justifiably unaware of any
need for full time care. As noted previously, Mennis returned to
work approximately two months after the accident and worked for
approximately two and a half years before not returning after the
nasal surgery. His supervisor, Dan Sayre, testified at trial that
Mennis had a noticeable sinus problem and complained of the noise,
dust, and heat in the shop. These symptoms did not give any
indication that Mennis required domiciliary care. Apart from those
two problems, Sayre testified that Mennis was a reliable,
conscientious worker whose quality of work did not suffer after the
accident and who did not require help from others. Nor did Mennis
receive any reprimands for his work after the accident.
As evidence that Anderson Steel knew that he needed care,
Mennis cites the testimony of his brother-in-law and co-worker,
Phillip Warmath, who testified that Mennis became forgetful and
needed correcting. Warmath's statements, however, show only
occasional difficulty with the job; they are irrelevant to Anderson
Steel's knowledge of a need for domiciliary care.
Mennis' return to work and his thirty months of continued
employment distinguish this case from Carlson, Larson, and Hilbig
v. Central Glass Co. (1989), 238 Mont. 375, 777 P.2d 1296, where
the claimants were unable to return to work due to the severity of
injuries caused by an industrial accident. Although Mennis may
have suffered a permanent total disability, that did not
automatically put the employer on notice that he also required
domiciliary care. Anderson Steel had no knowledge of any need for
domiciliary care during the two and a half years Mennis continued
to work or for another nine months after that until the doctors
made the claim.
The second element of the test requires that the preponderance
of credible medical evidence demonstrate that home nursing care is
necessary and that the nature and extent of the duties to be
performed by the family members be described with a reasonable
degree of particularity. There was much testimony regarding
whether Mennis needs care. Mennis argues that the opinions of Drs.
Shubat and Labunetz establish his need for domiciliary care. Dr.
Shubat's main concerns were that Mennis have structure, have
someone to administer his medications, and have someone present
during emergencies. However, he admitted that he did not know how
Mennis would react in an emergency and that Mennis should be tested
and should practice responding to emergencies. Dr. Labunetz
admitted that Beverly Mennis could see that Mennis took his
medication as directed by administering it in the morning, at
lunch, and in the evening when she returned from work.
Dr. Charles Bock found no significant malingering on Mennis'
behalf. He felt that even though Beverly's personality is such
that other people could provide better therapy for Mennis, she had
provided an environment on a day-to-day basis that was optimum for
dealing with such problems as his short attention span,
distractibility, and limited ability to plan and carry out tasks.
Jeanne Dussault, an independent living specialist, stated that
a domiciliary caretaker might have helped Mennis learn some basic
homemaking skills during the year that she worked with him (March
1989 to February 1990).
Mennis also retained the services of Dr. Lloyd Cripe, a
clinical neuropsychologist, to test him and evaluate the other
information gathered on him. Dr. Cripe testified in his
deposition that a person with the degree of brain dysfunction
Mennis suffered typically does not need attendant care. He stated
that on the basis of the neuropsychological test results alone,
Mennis would not need attendant care. He did add, however, that
Mennis* depression and headaches complicate the situation. In the
end, Dr. Cripe deferred to Drs. Shubat and Labunetz on the issue of
domiciliary care.
On the other hand, even Dr. Shubat testified that Mennis'
"badafdays only meant that he did not have a good day with his
children or with himself. Although Dr. Tompkins of the Montana
Medical/Legal Panel did not have an opinion as to whether Mennis
needed full time care, he did find that Mennis possessed some
functional skills, was purposeful, motivated, cooperative, and able
to initiate action.
Dr. Bock felt that it is easier for Mennis to sit back and not
deal with the complexities of the day, but he did not order
domiciliary care. He testified that Mennis could draw up a
schedule for the day with his computer program which broke down
chores and activities into small tasks. EBI plausibly argues that
structuring the day does not require a trained nursing attendant.
Dr. Bush, a psychologist who treated Mennis from March through
June of 1987, testified that at that time Mennis was capable of
maintaining himself in the home during the day, and that he found
it hard to believe that a person with the type of injury Mennis
suffered would decline to the point of total invalidism unless he
had medical complications leading to severe damage of the central
nervous system. In his June 5, 1989, deposition, Dr. Bush was
surprised to learn that Mennis requested domiciliary care.
Dr. Lees-Haley, the expert retained by EBI, evaluated Mennis
on March 12, 1991, and testified at trial. We note that Mennis
made a great effort to discredit Dr. Lees-Haleyfscredentials and
testing. However, Dr. Lees-Haley's extensive curriculum vitae was
entered into evidence. Dr. Lees-Haley is a board certified
vocational expert, a fellow of the American College of Forensic
Psychology, and a diplomate of the American Board of Professional
Psychology and the American Board of Vocational Experts. Dr.
Tompkins testified in his deposition that he felt Dr. Lees-Haley
chose reasonable tests. This Court will not substitute its
judgment forthat of the Worker's Compensation Court concerning the
credibility of witnesses or the weight of their testimony. Smith-
Carter v. Amoco Oil Co. (1991), 248 Mont. 505, 510, 813 P.2d 405,
Dr. Lees-Haley found Mennis' claim that he could not do a
number of things implausible because of his objective performances
on the tests he and other doctors administered and because of
Mennis' observable behavior on the day he tested him. As part of
his evaluation of Mennis' claim, Dr. Lees-Haley viewed the video
surveillance tapes. He testified as follows regarding what he
learned from the tapes:
Q. Do you have an opinion on whether or not the
videotape behavior of Clarence Mennis was consistent with
the cognitive deficits identified by Dr. Shubat?
A. Yes.
Q. What is your opinion?
A. Number one, that he is functioning superior to his
functioning as opined by Dr. Shubat. Number two, that he
was behaving in a way that was different than Dr. Shubat
appears to have believed, based on his own observations
and what Mr. Mennis told him. There's a discrepancy
between what you learn about Mr. Mennis from Dr. Shubat's
record and what you learn from the videotape, and my
viewing of the videotape is that he is able to move
about, ride a bicycle, drive a car, talk with people,
read from a loose-leaf notebook. Apparently he takes a
car to the doctor's office [referring to the fact that
Mennis took a cab to the Dr.'s office on the day that he
was videotaped even though he drove his own car on
numerous other occasions that same day]. Putting a
variety of things together. But he drove a vehicle with
no assistance in the videotape, and he appears to be
monitoring children.
I feel that it's inconsistent. That to say a man is
so incapacitated he can't be left alone himself without
a babysitter for him and see him, in fact, supervising
children. He drove a car with a child and assumed
responsibility for driving a car with a child in the car,
and a woman that I correctly or incorrectly interpreted
as being Mrs. Mennis. ... The ability to move around,
ride a bicycle, and drive a car, things like that have
some relevance.
Dr. Lees-Haley also found Mennis able to initiate and sustain
purposeful activity. He testified as follows:
Q. Do you have an opinion as to whether Clarence Mennis is
able to initiate and sustain purposeful activity?
A. Yes, ma'am.
Q. (By Ms. Rebeck) What is your opinion?
A. That he is able to do so.
Q. On what is your opinion based?
A. Broadly on two things. One is that complete lack of
evidence that he can't, and he's an adult man of normal
intelligence. Number two, that when he came with me and
met with me in the evaluation, when I met him in person,
he walked in and did all sorts of things that are
consistent with being able to engage in purposeful
activity, ranging from little spontaneous things to self-
care things like we ordered lunch. He decided what he
wanted, he ate, and he answered the questions. He was
able to monitor my questions and bring out information.
He was able to go to the phone and call for information
unassisted. He was able to maintain his train of thought
when I interrupted him to see if he was capable of
maintaining his train of thought. He was able to take
written tests. He was able to ask appropriate questions
about the instructions, to clarify things. He was able
to accomplish the tests, to begin and continue and
complete the tests, answer my complicated and simple
questions, understand the questions, and give answers
when he needed to. He didn't always know them. There
were a few times when he said that he didn't know or
didn't remember or didn't understand, but I see no reason
to believe this gentleman can't engage in purposeful
activity, initiate his own activity. I think he's doing
it. I consider the videotape, driving a child in the
car, is hardly the inability to do purposeful and
dangerous activity.
We note that the surveillance occurred almost a year after
Drs. Shubat and Labunetz claimed in their letters that Mennis
required domiciliary care. There is substantial credible evidence
supporting the Workers' Compensation Court's determination that the
need for domiciliary care was not established.
Nor did the request for domiciliary care describe with a
reasonable degree of particularity the nature and extent of the
duties to be performed by the family members. The Workers'
Compensation Court in its Findings of Fact and Conclusions of Law
noted that Dr. Labunetz did not prepare a specific plan stating the
medical assistance Mennis needed. We find nothing in the record to
the contrary.
As we hold that substantial credible evidence exists to
justify the Workers' Compensation Court's decision on the first two
requirements of the Carlson test, we need not discuss the other
elements. The test is clearly a conjunctive test requiring that
all elements be satisfied.
Affirmed.
We concur: