No. 92-437
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
LESTER D. NORMAN,
Plaintiff and Appellant,
CITY OF WHITEFISH, and TRUSTEES OF CITY L
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OF WHITEFISH POLICE RETIREMENT FUND, C&RX OF SUPREME COURT
STATE OF MONTANA
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John H. Bothe and Laurie Wallace; Bothe &
Lauridsen, Columbia Falls, Montana
For Respondents:
Donald E. Hedman; Hedman, Hileman & LaCosta,
Whitefish, Montana
Submitted on Briefs: January 14, 1993
Decided: April 28, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the Eleventh Judicial District,
Flathead County, the Honorable Michael H. Keedy presiding.
Appellant Lester Norman (Norman) appeals from a judgment of the
District Court denying his claim for police disability retirement
benefits. We affirm.
The issue on appeal is whether the District Court erred in
affirmingthe Whitefish City Council's denial of Norman's claim for
police disability retirement benefits. We note that this appears
to be a case of first impression regarding the applicable statutes.
Norman served as a reserve police officer with the Whitefish
Police Department from 1969 until 1973, at which time he entered a
full-time position with the department. He left the department in
1975, but returned again in 1979 as a reserve officer. He became
a full-time officer again in 1984 and worked as a full-time officer
until March 16, 1988, when he quit the department.
During the course of his employment, Norman was involved in
two automobile accidents. The first occurred on November 16, 1980,
while he and a fellow officer pursued another vehicle. The car
Norman was driving slid off an embankment, and Norman hit his head
on the ceiling of the car. He filed a workers' compensation claim
that was accepted by the City of Whitefish, which was self-insured.
The second accident occurred February 12, 1987, when the car he was
driving slid on the ice and struck a snow bank as he turned the
corner on a city street. Norman hit his head and shoulder against
the door frame and window of the car. The city also accepted a
workers' compensation claim for this accident and paid his medical
expenses. Norman suffered no wage loss from either accident and
continued to work after the 1987 accident until March 16, 1988,
when he quit the department due to stress and anxiety problems.
In an affidavit submitted into evidence, Norman stated that he
"became very nauseous and jittery feeling" while patrolling that
day. He stated that he became ill and told the city manager that
he was very sick and had to leave because of his nerves. He told
the city manager that he could not take any more of the treatment
he had received on the force. It appears, though, that Norman had
decided to leave the police department before his shift started.
According to a voluntary statement given by the officer whom Norman
relieved of duty that day, Norman informed him at the beginning of
the shift that he was leaving the department. The officer made
this statement to the chief of police on the day Norman quit.
The "treatment" Norman referred to in his affidavit related to
a history of tension between him and other officers and the police
chief. He had been denied promotion twice in the eight months
before he quit. Also, Norman had complained of abuses occurring in
the department such as mistreatment of prisoners and excessive use
of force by other officers. He claims his relationship with the
chief and other officers, the incidents of abuse he witnessed, and
the fact that he did not believe anyone was acting on his
complaints elevated his pre-existing anxiety problems to a
disabling level.
He then petitioned the Whitefish City council for police
disability retirement benefits on the basis of anxiety-stress
syndrome. The city council held a meeting on June 27, 1988, and on
July 18, 1988, voted unanimously to deny the request. In November
1988, Norman filed the present action in District Court seeking
benefits and claiming that the stress and pressure he experienced
at work caused the anxiety problems that led him to quit working.
On or about December 5, 1989, Norman filed a petition in
Workers1 Compensation Court seeking temporary total disability
benefits, claiming that a cervical disk injury was related to the
automobile accident of February 12, 1987. In August 1990, the
Workers' Compensation Court denied that claim, concluding that
Norman had not met his burden of showing "that his current ...
ability to engage in gainful employment is diminished ... by his
February 12, 1987 accident.lV The Workers' compensation Court
added, IiIfanything, the evidence is overwhelming that claimant's
anxiety disorder is his predominant disabling condition." This
Court aff inned the Workers Compensation Court in Norman v. City of
Whitefish (19911, 248 Mont. 490, 812 P.2d 1259.
In December 1989, Norman filed another petition with the
Whitefish City Council seeking police retirement disability
benefits. This petition included the anxiety-stress claim and a
claim for benefits due to herniated discs in his cervical spine.
The city council denied this petition also. On May 4, 1990, Norman
filed an amended complaint in District Court adding the herniated
disk claim.
The District Court held a bearing on May 24, 1991. After
reviewing numerous depositions and Normants extensive medical
records, the court issued its findings of fact, conclusions of law,
and judgment on May 18, 1992. The court made extensive findings as
to both the cervical disk injury and the anxiety-stress problem.
The District Court concluded that the findings and conclusions of
the Workers' Compensation court regarding the cervical disk injury
were res judicata. As to the anxiety disorder, the court concluded
that it was @'not caused by injuries or disabilities in the active
discharge of his duties as a police officer, but [was a] pre-
existing condition[] for which Plaintiff had been treated many
times. ... If The ~istrictCourt, therefore, affirmed the city
councillsdenial of benefits.
As for the cervical disk injury, Norman claims the court erred
in concluding that the Workers1 Compensation Court's decision had
- iudicata
res effect on the proceeding in the District Court. He
argues that the elements of res iudicata have not been satisfied
and that in considering the matter res iudicata, the District Court
ignored relevant medical evidence developed after the workersr
compensation case had been heard, H e a l s o claims t h a t t h e District
Court's determination that he was not entitled to benefits is
clearly erroneous because it is not supported by substantial
evidence.
In reviewing the decision in a civil case tried to a court
sitting without a jury, this Court will uphold a trial court's
findings unless the findings are clearly erroneous. Rule 52(a),
M-R.Civ.P.; Interstate Prod. Credit Ass'n v. Desaye (1991), 250
Mont. 320, 322, 820 P.2d 1285, 1287. Findings are clearly
erroneous if not supported by substantial evidence. Desave, 820
P.2d at 1287. This Court will uphold the result reached in the
district court, regardless of the reasoning used by the district
court, if the decision is correct. District No. 55 v. Musselshell
County (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253; Jerome v.
Pardis (1989), 240 Mont. 187, 192, 783 P.2d 919, 922.
Section 19-10-402, MCA, governs an award of police disability
retirement benefits. It provides as follows:
~ligibility for disability retirement. When a police
officer receives injuries or disabilities in the active
discharge of his duties as a police officer, which
injuries or disabilities are, in the opinion of the board
of police commissioners or city council of the city or
town, of such character as to impair his ability to
discharge his duties as an active police officer, he
shall be placed on the retired list of the city or town.
The officer is then entitled to disability benefits under 5 19-10-
502, MCA, which reads in part:
Disability retirement allowance. When a police officer
is transferred from the active list to the retired list
of a city, he shall thereafter receive monthly payments
from the city's police retirement fund, as follows:
(1) A police officer who is eligible under 19-10-
402 before completing 20 years of service shall receive
a sum equal to one-half the base salary, excluding
overtime and payments in lieu of sick leave and annual
leave, he was receiving as an active officer computed on
the highest salary received in any one month during his
last year of active service.
The Cervical Disk Iniurv Claim
The District Court made extensive findings regarding Norman's
cervical disk injury and its effect on his ability to work,
ultimately finding that "the evidence submitted to the Whitefish
City Council (as Police Pension Fund Commission) was not so
persuasive as to require a determination of entitlement under the
applicable code section.'' Norman raises issue with the District
Court's findings because he claims they are nothing more than an
adoption of those submitted by the City and the Workers'
Compensation Court. He cites In re Marriage of Johnson (1989), 238
Mont. 153, 157, 777 P.2d 305, 308, where this Court said that the
district court "errs in adopting a party's proposed findings only
if the court does so 'without proper consideration of the facts'
and with a lack of independent judgment." (Citation omitted.) In
those cases we look to whether the '''findings and conclusions are
sufficiently comprehensive and pertinent to the issues to provide
a basis for decision, and are supported by the evidence. ' "
Marriase of Johnson, 777 P.2d at 308 (citation omitted). Because
the parties' proposed findings and conclusions are not contained
within the record and subject review, we are unable to address this
point. See Glaspey v. Workman (1988), 230 Mont. 307, 749 P.2d
1083; First Nat'l Bank of Cut Bank v. Springs (1987), 225 Mont. 62,
731 P.2d 332. However, even if this matter were before us, our
decision renders the point moot as we do not find error in the
District Court's findings and conclusions.
The District Court made over thirty findings related to the
cervical disk injury. sample of those findings indicates t h a t
Norman clearly did not quit his job because of any difficulties
related to the cervical disk injury, and that the court did not err
in determining that any injuries he received did not entitle him to
disability benefits.
15. Prior to March 16, 1988, Plaintiff voiced no concern
to h i s fellow police officers that he was suffering any
discomfort or disability relating to his cervical spine.
11. Plaintiff did not leave the employment of the City
of Whitefish Police Department by reason of the injury to
his cervical spine.
15. The history related to Dr. Mahnke was that Plaintiff
left the force in the tlcontext political and personnel
of
problems in the force."
18. Dr. Mahnke in his notes states that Plaintiff was
"fighting for disability for anxiety, for anxiety-stress
disorder, whitefish Police Department, 1979-1988.sg
19. Even in October, 1989, Plaintiff still felt his
disability was related to his nervous disorder, not to
the herniate discs in his cervical spine.
21. Dr. Mahnke, neurosurgeon, indicates that Plaintiff's
spondylosis may be simply a degenerative process,
although it could be caused by trauma; in fact,
intellectually, he wouldhave trouble discriminating them
completely.
22. Were it not for the history related by Plaintiff,
Dr. Mahnke could not relate the condition to any
accidents or injuries.
25. A delay of approximately nine years, from the 1980
automobile accident until the 1989 MRI study, and
considering that the condition complained of by Plaintiff
may be the result of natural degeneration, traumatically-
induced, the likelihood that Plaintiff's condition is
related to his automobile accident is highly
questionable.
29. Although acting as Plaintifits consulting
psychiatrist, Dr. Gray did not know of claimant's neck
complaints until the morning of his deposition, March 21,
1990. Dr. Gray had previously prescribed time away from
work for Plaintiff due to his anxiety or stress.
31. The findings of the Workers1 Compensation Court were
that at no time did Dr. Wenzel (chiropractor) advise
claimant to quit work due to his physical problems.
After seeing the claimant in February, 1987, Dr. Wenzel
does not reference cervical complaints, but rather
'ftrapezius fibrocytis," which refers to the upper
shoulder muscles.
33. Judge Reardon found that, "during the entirety of
the claimant's pursuit of retirement disability benefits
in calendar year 1988, his claim for disability was for
stress. No mention was made of any disability related to
the February 12, 1987 automobile accident. In fact,
until the denial of his disability retirement benefits,
claimant did not pursue any Workersq compensation
benefits."
while pursuing promotions in August 1987 and January 1988,
Norman did not mention any problems related to the cervical disk
injury. As specifically found by the District Court, Norman's
chiropractor, Dr. Wenzel, never advised him to be off work or to
quit work because of any physical problems. At the time Norman
quit, his physician, Dr. Miller, clearly indicated that it was for
stress and anxiety, not a physical problem. In fact, Dr. Miller
had not heard of the 1987 accident until he spoke with Norman's
attorney on the date of his deposition for the workers'
compensation claim--March 22, 1990. Dr. Miller actually had no
opinion as to whether the cervical disk problems were related to
the 1987 accident. Dr. Mahnke, a neurosurgeon who examined Norman
once, could not tell from reading the MRI, or from the examination,
whether the 1987 accident changed the underlying anatomical
condition of Norman's neck.
The parties stipulated to the introduction of numerous
depositions and medical records. This Court is in as good a
position as the district court to review evidence of this nature,
Spadaro v. Midland Claims Sen., Inc. (1987), 227 Mont. 445, 449,
740 P.2d 1105, 1107-1108, and has done so freely. Having done so,
we conclude that substantial evidence supports the District Court's
finding that the evidence "was not so persuasive as to require a
determination of entitlement under the applicable code section."
As we conclude that the District Court correctly determined that
Norman was not entitled to benefits based on the cervical disk
injury, we need not address whether the Workers1 Compensation
Court's decision had res iudicata effect here.
Stress and Anxietv Related Claim
Dr. Gray, Norman's psychiatrist, diagnosed Norman as suffering
from "generalized anxiety disorder and psychological factors
influencing physical condition." In his April 8, 1991, deposition,
Dr. Miller testified that Norman had a predisposition toward
anxiety and that he had less ability to handle stress factors than
the average person.
The District Court also made extensive findings recounting
Norman's anxiety and stress problems before he became a full-time
officer in 1984. Those findings cite numerous diagnoses of
anxiety, anxiety reactions, and chronic anxiety. Based on this
history, the court concluded:
The anxiety disorder and panic attacks which Plaintiff
complains of are not caused by injuries or disabilities
in the active discharge of his duties as a police
officer, but were pre-existing conditions for which
plaintiff had been treated many times by the doctors at
Family Physicians Clinic in Whitefish.
Dr. Kuffel, a Whitefish physician who reviewed Normanss medical
records in 1990 at the city's request, reached much the same
conclusion.
Norman claims the District Court misinterpreted the statute by
requiring a separate work-related injury or disability aside from
the anxiety disorder. He argues that his anxiety disorder his
work-related disability and that an aggravation of a pre-existing
condition should be cornpensable as it is for workers' compensation
injuries and occupational diseases. We note, however, that both
the Workerst Compensation A c t and the Occupational Disease Act
exclude coverage for physical or mental conditions arising from
emotional or mental stress. See 5 39-71-119(3) and 39-72-
102(10), MCA. Therefore, we do not find his argument persuasive.
Although Normants employment with the Whitefish Police
Department may have been stressful and he may have experienced
anxiety problems while serving on the force, substantial evidence
supports the District Court's finding that his problems did not
result from the active discharge of his duties. We conclude that
the District Court did not err in determining that Norman's history
of problems precluded him from receiving police disability
retirement benefits.
Af finned.
/I . Justice
We concur: A
April 28, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
John H. Bothe and Laurie Wallace
Bothe & Lauridsen, P.C.
P. 0. Box 2020
Columbia Falls, MT 59912
Donald E. Hedman
Hedman, Hileman & LaCosta
433 Second Street
Whitefish, MT 59937
ED SMlTH
CLERK OF THE SUPREME COURT