No. 91-008
IN THE SUPREME COURT OF THE STATE OF MONTANA
HARRY A. NESS,
Petitioner and Appellant,
ANACONDA MINERALS COMPANY,
a division of ATLANTIC
RICHFIELD COMPANY, INC.,
Ernployer/Defendant and
Respondent.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy W. Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. Lewis Brown, Jr., Butte Legal Center,
Butte, Montana
For Respondent:
Andrew J. Utick, Utick & Grosfield,
-
Helena, Montana
MAR 2 4 1993
D -- Submitted on Briefs:
Decided:
September 24, 1991
March 24, 1993
Justice Terry N. Trieweiler delivered the opinion of the Court.
Claimant Harry A. Ness filed a petition in the Workers'
Compensation Court claiming a right to total permanent disability
benefits from the date of his injury on October 14, 1981. Those
benefits had been terminated and partial disability benefits
commenced on December 8, 1982. Claimant's case went to trial
before a hearing examiner of the Workers1 Compensation Court on
September 5, 1989, and the court's findings of fact, conclusions of
law, and judgment were entered on August 25, 1990. The trial court
concluded that claimant was not totally disabled and the extent of
his partial disability was not an issue in that proceeding. From
that judgment, and the trial courtls order denying claimant's
petition for a new trial, the claimant appeals. We reverse the
judgment of the Workers1 Compensation Court.
The issues are:
1. Was there substantial, credible evidence to support the
decision of the Workers1 Compensation Court?
2. Did the Workers' Compensation Court err when it denied
claimant's request for attorney fees and costs?
Claimant was born on February 21, 1929, and was 60 years old
at the time of his trial in the Workers1 Compensation Court. He
had 12 years of formal education. His only specialized training
related to the job of welding.
Claimant testified that all of his work experience had
involved heavy labor. Other evidence indicated that past jobs
2
included stocking shelves, janitorial work, fire fighting, trail
work, and hod carrying. From 1965 until the date of his injury on
October 14, 1981, he worked as a boiler maker for the defendant.
On the date of the accident which gave rise to his claim for
disability benefits, claimant was working for his employer welding
and repairing heavy-duty equipment. At the time of his accident,
he was burning a center bolt off of a belly pan which was attached
to the frame of a D-8 Caterpillar. When he completed the cut, the
belly pan, which weighed from 1000 to 1200 pounds, f e l l on top of
the claimant, As a result of that incident, he sustained various
injuries, including severe compression fractures of his twelfth
thoracic vertebra and his first lumbar vertebra. At the time of
his accident, claimant was 52 years old.
Following his accident, claimant was taken to the Veterans
Administration Hospital at Fort Harrison where he was examined and
treated by James P. Murphy, an orthopedic surgeon. Dr. Murphy
diagnosed the fractures in claimant's back and treated him with a
back brace, rest, physical therapy, and anti-inflammatory
medication. He concluded that claimant's healing period ended on
October 19, 1982, and rated the extent of his physical impairment
as 25 percent of the whole man.
Based on Dr. Murphy's conclusion that claimant had reached the
end of his healing period, but without any release from Dr. Murphy
for claimant to return to employment, claimant's total disability
benefits were terminated on December 8, 1982. Defendant then
3
commenced paying partial disability benefits which were continued
until November 18, 1987.
On August 2, 1989, after claimantls petition to reinstate
total disability benefits had been filed, the defendant retained
Michael Anderson, a vocational rehabilitation consultant, to
evaluate the claimant's employability. He first met w i t h Dr.
Murphy on August 30, 1989. ~uringthat meeting, Dr. Murphy advised
Anderson that claimant could return to light-duty work on a
part-time basis, and specifically apprcwedthe job descriptions for
a sewing machine operator and a parking lot attendant, Although
Anderson apparently prepared a report as a result of this interview
with Dr. Murphy, the record does not disclose when or if that
report was ever provided to the claimant or his attorney.
Dr. Murphy is the only physician who was consulted by the
defendant regarding the claimant's employability, and the only
physician who expressed an opinion on that subject in testimony
before the Workersg compensation Court.
Dr. Murphyts only opinion regarding claimant's capacity for
employment prior to his meeting with Anderson was a July 17, 1989,
letter that he wrote to Dr. William Hoopes at the Disability
Determination Bureau in which he advised that claimant might be
able to return to some type of work, but that it would certainly
have to be limited to light duty.
Dr. Murphy has never released claimant to return to any of his
former occupations, It was his opinion that claimant could do no
4
heavy lifting, no bending, no stooping, and no crawling; and his
prognosis for claimant's ability to return to any type of
employment on a five-day-a-week, eight-hour-a-day basis, was
guarded.
Claimant has not worked since the date of his accident in
1981, and at the time of trial had qualified for social security
disability benefits.
At trial, claimant offered testimony from Ian Steel, a
vocational consultant, who evaluated claimant at the request of his
attorney. It was his opinion that for all practical purposes,
because of his age, lack of training, and physical impairment,
claimant was not employable.
Defendant offered testimony from Michael Anderson, who
expressed the opinion that claimant had the ability to work as a
sewing machine operator, a parking lot attendant, a dispatcher, or
several other light-duty jobs.
After listening to the evidence, the hearing examiner of the
Workers1 Compensation Court concluded that regardless of the
availability of the jobs described by Mr. Anderson, claimant had
the capacity to perform them, and therefore, has not been totally
disabled since October 19, 1982.
On appeal, claimant contends that there was insufficient
evidence to support the trial court's decision. Specifically,
claimant cites Dr. Murphy's testimony that his return to the work
place would initially have to be limited to part-time work, or be
5
preceded by a work-hardening program, and that therefore, Dr.
Murphy's release was conditional.
Defendant responds that claimant failed to prove which jobs
constitute his normal labor market, and failed to demonstrate a
complete inability to perform those jobs. Therefore, according to
the defendant, claimant failed to carry his burden of proving total
disability.
In Rachv. StateFund (1991), 249 Mont. 433, 439, 816 P.2d 1061,
1064, we established the following standard for reviewing findings
of fact and conclusions of law of the Workers1 Compensation Court:
This Court will not overturn findings of fact of the
Workers1 Compensation Court if there is substantial
evidence in the record to support them. fiaft v. Flathead
Valley Labor & Contractors (1990), 243 Mont. 363, 365, 792 P. 2d
1094, 1095. ~onclusions law, "whether the conclusions
of
are made by an agency, Workers1 compensation Court, or
trial court," will be upheld if the tribunal's
interpretation of the law is correct. Steer V. DOR (1990),
245 Mont. 470, 803 P.2d 601, 603.
In Wood v. Coitsolidated Freighhuays, Inc. ( 1 9 9 1) 248 Mont . 26 , 808 P - 2 d
502, we held that maximum healing does trigger a re-evaluation of
the claimantls disability status, but that disability has
nonmedical, as well as medical components. In other words, Dr.
Murphy's conclusion that claimant had reached maximum healing by
October 19, 1982, and that he had sustained a 25 percent physical
impairment, was not a sufficient basis for terminating claimant's
t o t a l disability benefits.
We further held in Wood that:
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.
Wood, 808 P.2d at 504.
In this case, whether you accept the testimony of claimant
that all of his prior work experience involved heavy labor, or the
testimony of Anderson which sets forth the specific jobs claimant
had previously performed, claimant demonstrated an inability to
return to his prior occupations based on the testimony of Dr.
Murphy which limited him to light-duty work and precluded
activities such as heavy lifting, bending, stooping, or crawling.
Since Dr. Murphy testified that claimant's condition had not
changed since 1982, presumably that would have also been his
opinion, if asked, at that time.
Therefore, it was necessary for the defendant to comply with
the four-part test previously established by the Workers'
Compensation Court prior to terminating claimant's disability
benefits. That test was established in Coles v. Seven Elevefl Stores,
WCC No. 2 0 0 0 , decided November 20, 1984, aSfld 217 Mont. 343, 704
P.2d 1048 (1985), and was approved by this Court in Wood as a
proper basis for determining 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
accident ;
( 3 ) aphysicianls determination, 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 i fitted by age, education, work experience, and
s
physical condition;
(4) notice to the claimant of receipt of the report
attached to a copy of the report.
Wood, 808 P.2d at 505.
In this case, the only element of the test satisfied by
December 8, 1982, was the first element.
There was no record of Dr. Murphy's determination of
claimant's physical restrictions until his July 17, 1989, letter to
the Disability Determination Bureau.
Dr. Murphy has never released claimant to return to his former
occupations, and did not indicate that he could return to any other
specific job for which he was fitted by age, education, and work
experience until his meeting with Anderson on August 30, 1989.
Finally, there is no record of the date on which the defendant
provided claimant with any notice that it had received a report
from Dr. Murphy releasing claimant to the two jobs which he had
approved, or whether in fact, that report was ever provided to the
claimant or his attorney.
We conclude, however, that there was substantial evidence that
as of August 30, 1989, the first three elements of the Coles test
had been satisfied. When there is proof of the date on which the
fourth element of the Coles test has been satisfied, there will be
substantial evidence for the termination of claimant's total
disability benefits, and the commencement of partial disability
benefits.
The judgment of the Workers Compensation Court is, therefore,
reversed, and this case is remanded to that court with instructions
to reinstate claimant's total disability benefits retroactive to
December 8, 1982, and continuing until the date on which claimant
or his attorney were provided with notice of the report completed
by Dr. James P. Murphy on August 30, 1989. At that point,
claimant's disability status may be changed from total disability
to partial disability. The partial disability benefits paid during
that time shall be credited against the amount due. The rate for
partial disability benefits was stipulated by the parties to be
$120.50 per week, and shall continue throughout the duration of his
partial disability, not to exceed 500 weeks.
Attorney fees in workers' compensation cases are recoverable
under 5 39-71-611, MCA (1981), when an insurer denies liability for
a claim for compensation or terminates compensation benefits and
the claim is later adjudged compensable by the Workers'
Compensation Judge, or on appeal. Hartman v Staley Continental (1989),
.
236 Mont. 141, 768 P.2d 1380. In addition to the benefits set
forth above, claimant is entitled to an award of attorney fees and
costs, to be determined by the Workers' Compensation Court
Reversed and remanded.
We concur:
Chief Justice
Justices
Justice Fred J. Weber dissents as follows:
I dissent from the conclusion of the majority opinion that the
claimant proved by a preponderance of credible evidence that he had
no reasonable prospect of employment in his normal labor market.
As a result I also dissent from the judgment of the majority that
claimant is entitled to a Ifreinstatement" of total disability
benefits retroactive to December 8, 1982.
The majority has confused the issues by holding that claimant
is entitled to a reinstatement of his total disability benefits
retroactive to 1982. The only total disability benefits which
claimant has received are temporarytotal disability benefits which
the majority agrees were properly terminated on December 8, 1982.
Claimant also received permanent partial disability benefits from
December 8, 1982 to November 18, 1987. As a result, there are no
total disability benefits to be "reinstated."
The contradictions I find are best illustrated by comparing
this case to Wood v Consol. Freightways, Inc. (1991), 248 Mont.
.
26, 808 P.2d 502, which is the key case used by the majority to
reach its conclusions. The analysis of the majority using Wood as
its foundation was neither presented nor argued by the parties. In
Wood the appeal involved the termination of the worker's temporary
total disability benefits and the award of permanent partial
disability benefits. The appeal was taken from that determination.
This Court reversed the lower court. Contrast this to the present
case where the temporary total disability benefits were terminated
on December 8, 1982 and partial disability benefits commenced on
the same date. No appeal was taken from the termination of
temporary total benefits or the granting of permanent partial
benefits. Here, the claimant waited more than six and one-half
years before raising any issue. The issue was raised by a petition
claiming a right to permanent total disability benefits which was
filed after the partial disability benefits had expired. I
emphasize this because of the essential unfairness of the
presentation of an issue grounded on facts, including medical facts
which took place almost seven years prior to the filing of the
petition. The contrast between this case and Wood is that all
parties in Wood had a reasonable opportunity to present their
questions of both fact and law upon an appeal from the 1982
determination. Here, that was not done, and the absence of that
procedure has been disregarded by the majority.
The next contrast between this case and Wood is that the
majority in Wood pointed out there was substantial credible
evidence to support a finding that Wood was unable to return to his
normal labor market, emphasizing that three out of four physicians
concluded that Wood could no longer perform the heavy physical
labor employment he had performed. Thus, claimant had met his
burden of demonstrating Ivnoreasonable prospect of employmentvtin
his labor market. In contrast, as will be subsequently emphasized
in our review of the facts, in this case the substantial evidence
is to the contrary, with very limited evidence submitted on the
part of the claimant--and most important, with a failure on the
part of the claimant here to meet the evidentiary standard which
was to be applied in his case.
In reaching his conclusion that claimant was not entitled to
permanent total disability benefits, the Hearing Examiner made
extensive findings and conclusions. Of significance are the
following findings with regard to the date of injury and dates of
claim.
5. Defendant accepted liability for claimant's
injury and paid temporary total disability benefits from
October 15, 1981 through December 8, 1982. At that time
such benefits were converted to permanent partial
disability benefits. (Uncontested fact No. 4) Claimant
took no action reaardina such conversion for
a~rxoximatelv six and one-half vears. until he filed the
petition herein on June 28. 1989.
6. Claimant's permanentwartial disability benefits
were terminated on November 18. 1987. (a) Claimant did
not mestion the termination of such benefits for
a~vroximatelv one and one-half vears, until the filing of
this petition. (Emphasis added.)
The Hearing Examiner concluded there was no dispute between the
parties that the claimant's entitlement to temporary total
disability benefits ended when maximum healing was reached on
October 19, 1982. Nonetheless the majority remands to the lower
court with instructions to "reinstate claimant's total disability
benefits retroactive to December 8, 1982. This is a contradiction
in terms. The only total disability benefits which could have been
'*reinstatedNare the temporary total benefits.
The Hearing Examiner set forth the following standard of proof
which was to be applied in this case:
The claimant must prove, by a preponderance of the
credible evidence, that he has no reasonable prospect of
employment in his normal labor market. ...
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
inabilityto perform the employment and duties associated
with those jobs because of his work related injury. ..
In holding that claimant demonstrated an inability to return
to his prior occupations, and therefore met the initial test of
Wood, the majority did not analyze the findings and conclusions of
the examiner and the court. The examiner made extensive findings
of fact which included the following:
3. Claimant's prior work history consists of work
as a delivery person, store clerk, forest service
employee, hod carrier, structural iron worker, wireman,
welder, maintenance engineer and boilermaker. ...
Medical Evidence
...
7. Claimant's treating physician for his low back
condition has been Dr. James P Murphy.
. ...
9. Dr. Murphy regularly treated the claimant as he
improved to a point that Dr. Murphy reported that the
claimant had reached maximum healing as of October 19,
1982 and rated his permanent partial impairment as
twenty-five percent of the whole person.
10. Claimant did not return for treatment from Dr.
Murphy for five years after the October 19, 1982 visit.
On September 9, 1987, Dr. Murphy examined the claimant
and found him to be essentially the same as he was at the
October 19, 1982 examination. ...
12. claimant was last examined by Dr. Murphy for
his back condition on July 10, 1989, for purposes of a
disability evaluation for Social Security purposes. As
a result of this examination, Dr. Murphy wrote to Dr.
William Hoopes at the Disability Determination Bureau
stating "1 think he may be able to return to some type of
work, but it would certainly have to be light-duty
pr~file.'~In such letter Dr. Murphy also stated: "1 do
think he should be restricted from any prolonged bending,
crawling, stooping or heavy lifting."
3 . On August 30, 1989, Dr. Murphy met with Michael
Anderson, a certified rehabilitation counselor. Dr.
Murphy filled out a physical capacities form in which he
stated that the claimant could return to light-duty work
at that time, but starting out part-time. He released
the claimant to return to work as a sewing machine
operator and a parking lot attendant. ...
15. There is no medical evidence relating any of
the claimant's other physical difficulties, except for
his low back problems, to his industrial injury of
October 14, 1981.
It is important to note that the July 10, 1989 examination by Dr.
Murphy was for Social Security disability evaluation purposes, and
not specifically for workers1 compensation purposes. There is no
medical evidence relating any of the claimant's other physical
difficulties, except for his low back problems, to his industrial
injury of October 14, 1981. The findings of the Hearing Examiner
included the following:
Vocational Evidence
16. Claimant retained Ian Steel, a vocational
rehabilitation consultant, who interviewed the claimant
and read the depositions and transcript of this case. He
reviewed the medical records and the vocational
consultant's report of Michael Anderson. ...
17. Mr. Steel concluded that, at this time with the
claimant's physical limitations, it would be difficult to
place the claimant in employment which limits him to very
light work. At sixty years old, retraining was not
feasible and Mr. Steel concluded that the claimant is
basically unemployable at this time. ...
18. On cross-examination, Mr. Steel conceded that
claimant could perform the job of a dispatcher assuming
that he could find a job opening. ...
19. Looking back to claimant's maximum healing date
of October 19, 1982, Mr. Steel testified as follows:
Q. In other words, if in Mr. Ness's cases he
tried to go back to work back when he reached
maximum healing, it would be a lot better
situation than it would be attempting
something, for example, now.
A. Definitely. (Emphasis added.)
20. Claimant has failed to prove, by a
preponderance of the credible evidence, that he has no
reasonable prospect of employment in his normal labor
market.
21. Claimant is employable and has been employable
since the time he was determined to have reached maximum
medical improvement on October 19, 1982. Specific
positions have been approved by Dr. Murphy, claimant's
treating physician. No other medical evidence was
presented by the claimant to dispute his medical
opinions.
22. Michael Anderson's report concludes that the
positions appraised by Dr. Murphy and within the
capability of the claimant include sewing machine
operator, inspector, radial arm or power saw operator,
parking lot attendant, picture framer or dispatcher.
In his conclusions of law, the Hearing Examiner stated as follows:
The claimant's normal labor market consists of those
jobs at which he has already worked and any other jobs
for which his prior formal education and vocational
experience, when coupled with his age and physical
condition, directly qualify him. ...
Auulvinathe above criteria to claimant's situation.
it is clear that the medical evidence and preponderance
of the vocational evidence suuuort the conclusion that
the claimant does have emulovment opportunities as a
sewina machine o~erator/insuector.a radial arm or power
saw operator, a uarkina lot attendant or a receptionist
at a car rental aaencv. Even claimant's rehabilitation
counsellor, Mr. Steel, admitted that the claimant could
probably uerform the iob of dispatcher. His concern
about the actual availability of iobs in Butte is not a
valid concern. The test is whether a iob exists in the
market and whether the claimant can uerform that job.
Claimant has failed to meet his burden of provina bv
a ~reponderance of the credible evidence that he is
entitled to permanent total disabilitv benefits
retroactive to October 19, 1982.
Claimant's counsel did not raise the issue as to
what, if any, permanent partial disability benefits the
claimant may be entitled and this decision does not
consider that issue. (Emphasis added.)
It is at this point that I strongly disagree with the majority
conclusion. I would hold that the examiner established the proper
standard of proof to be applied. I would further hold that there
clearly is substantial evidence to support the findings of the
examiner and the court. Because of that analysis of the facts, we
would not even get to the Wood analysis which was relied upon by
the majority, because the precondition to the application of the
Wood tests is the proof that the claimant was unable to return to
his normal labor market.
The majority states that claimant demonstrated an inability to
return to his prior occupations based on the testimony of Dr.
Murphy which precluded activities such as heavy lifting, bending,
stooping, or crawling. That disregards the conclusion of the
examiner that there were a number of jobs which claimant could
perform, including a job such as a dispatcher. It is also
significant to emphasize that even the claimant's expert conceded
that if claimant had tried to go back to work in 1982 rather than
seven years later in 1989, there would have been a much better
situation for attempting other types of work. I, therefore,
emphasize Findings 20 through 22 where the examiner in substance
had concluded that claimant had failed to prove that he had no
reasonable prospect of employment in his normal labor market, and
that he was employable on October 19, 1982. At that point the
Hearing Examiner correctly concluded that claimant had failed to
meet his burden of proving by a preponderance of credible evidence
that he was entitled to permanent total disability benefits. At
that point, the majority takes a unique twist. Instead of
discussing at length the evidence showing whether or not claimant
had met the tests properly promulgated by the examiner, the
majority almost casually concluded that claimant had proved he had
no reasonable prospect of employment in his normal labor market and
then proceeded to apply the four part test established in Wood. In
Wood it was appropriate to suggest that the burden should shift to
the insurer and to analyze the evidence submitted by the insurer as
being insufficient to meet the burden placed upon the insurer.
That was of course not true here where no appeal was taken from the
original determination. Now, close to seven years after the
determination by the Workers8 Compensation Court, claimant filed
his petition and relief is granted to him because the insurer
failed to present evidence on a theory not presented at the time of
the 1982 hearing, not considered by appeal from that determination
in 1982, and adopted by this Court a number of years subsequent to
the 1982 determination. I conclude that is essentially unfair to
all parties.
I again emphasize that the majority has incorrectly stated
that it requires the Workers' Compensation Court to "reinstate88
claimant's total disability benefits retroactive to December 8,
1982. There are no such benefits to be reinstated.
I would affirm the conclusion of the Workers' Compensation
Court that claimant has failed to meet his burden of proving by a
preponderance of credible evidence that he is entitled to permanent
total disability benefits retroactive to October 8, 1982.
Chief Justice Jean A. Turnag
in the foregoing dissent.
Chief Justice
March 24, 1993
CERTIFICATE OF SERVICE
1 hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
R. Lewis Brown, Jr.
Butre Legal Center
305 E. Front St.
Butte, MT 59701
Andrew J. Utick
Utick & GrosfieId
P.O. Box 512
HeIena, MT 59624-0512
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF .MONTANA
BY:
Depu