Killoy v. Reliance National Indemnity

NO. 95-551
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

EDWARD KILLOY, JR,
Petitioner and Appellant,
v.
RELIANCE NATIONAL INDEMNITY,

APPEAL FROM: Workers' Compensation Court
State of Montana
The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bernard J. Everett, Knight, Dahood, McLean &
Everett, Anaconda, Montana

For Respondent:

Brendon 5. Rohan, Butte, Montana

Submitted on Briefs: April 11, 1996
Decided. September 3, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Appellant, Edward Killoy, Jr. (claimant), appeals the Workers'

Compensation Court's order concluding that he was not permanently

totally disabled and, therefore was not entitled to permanent total

disability benefits as a result of his work-related injury.

We reverse and remand.
Appellant raises the following issues for review, which we

restate as follows:
1. Did the Workers' Compensation Court err in finding that

claimant had a reasonable prospect of being able to tolerate his

pain and physically perform at regular employment?
2. Did the Workers' Compensation Court err in failing to award

claimant attorney's fees and costs pursuant to §§ 39-71-611 and 39-

71-2907, MCA?

FACTS

At the time of trial, claimant was 58 years old. He did not

graduate from high school but did obtain a GED while in the Navy.
Claimant has worked since 1962 as a heavy-duty mechanic for various

employers. He went to work full-time for Rhone-Poulenc Basic

Chemicals in 1991.
Claimant was injured in the course and scope of his employment

on August 20, 1993, when a heavy shaker screen fell on his head and
jammed his neck. At the time of the injury, Rhone-Poulenc was

insured by Reliance National Indemnity (Reliance). Reliance

accepted liability for claimant's injury and has paid out his

medical benefits, as well as temporary total disability benefits.

2
 Following his injury, claimant was initially examined by Dr.
Knutsen. X-rays showed ’ [dl egenerative disc changes, spurring, and

some narrowing of the lower foramina." Dr. Knutsen prescribed
physical therapy and medication, and directed that claimant be

placed on light-duty.

On August 27, 1993, claimant told Dr. Knutsen that the light-

duty work was aggravating his neck. Dr. Knutsen advised him to

take a full week off. He continued to treat claimant
conservatively, prescribing bed rest, physical therapy, cervical

traction, and medication. After his condition deteriorated,
claimant was referred to Dr. Dewey for a second opinion.

Following an examination on October 14, 1993, Dr. Dewey
determined that claimant suffered from "significant cervical canal

stenosis at L4-5, 5-6, and 6-7 [sic]. There is degenerative

disease at these levels, some neuroforaminal encroachment." All

parties agree that the reference to the lumbar disc, however,
appears to be in error, and should refer to the cervical level.

Dr. Dewey examined claimant again on November 9, 1993, at which

time he reported that claimant was much improved and felt that

decompression surgery was unwarranted. Dr. Dewey advised claimant

to continue his stretching exercises and to return for a

examination the following year to determine whether his spinal

stenosis was progressing.

By November 16, 1993, both Dr. Knutsen and Dr. Dewey had

released claimant to work full-time. Dr. Knutsen cautioned

claimant to avoid any trauma to or hyperextension of his neck.

3
Claimant returned to work, but experienced increasing pain. Dr.
Knutsen took claimant back off of work on December 14, 1993, until

his condition improved. Claimant returned again on January 3,

1994.

On February 18, 1994, Claimant was pulling on a cable at work
when the cable slipped and hit him in the face. This incident

resulted in a violent jolting of his head which aggravated
claimant's original injury. After this, claimant felt he could no

longer perform at his heavy labor position. Dr. Knutsen agreed but

again sent claimant to Dr. Dewey for a second opinion.

On March 14, 1994, Dr. Dewey wrote Dr. Knutsen a report
regarding his examination of claimant. Dr. Dewey noted muscular

symptoms in claimant’s neck, shoulder area, and at the base of his

skull. He recommended a month of very aggressive stretching,

supplemented by deep heat,.ultrasound, and massage by a physical

therapist. Dr. Dewey was unable to state whether claimant would be

able to return to his time-of-injury job.

Dr. Dewey saw claimant again on April 18, 1994. Claimant's

condition had not improved, and Dr. Dewey concluded that claimant

could not return to his time-of-injury position. Dr. Dewey

identified several problems:

Cervical spondylosis; radiculopathy not identified;
cervical stenosis, possible but not proven cervical
radiculopathy; bilateral ulnar entrapment neuropathies;
significant cervical myospasm. . .
At this point, Dr. Dewey did not feel that claimant would get any
better, he noted that claimant's condition may in fact worsen over
time.

Both at trial and by deposition, claimant testified that he

experiences constant pain from the base of the skull, down the

middle of the back through his shoulders. He has headaches and
muscle spasms. Claimant's level of pain is aggravated both by

increased activity as well as by remaining stationary for any

length of time. Claimant finds temporary relief from pain by using

a stretching apparatus for his neck and performing stretching

exercises on a daily basis. On "bad" days, he seeks relief through

hot showers and a heating pad. Claimant has not worked since he
re-aggravated his injury in February 1994.

In August 1993, Rhone-Poulenc retained a certified

rehabilitation counselor to perform medical case management

services relative to claimant's injury. The counselor, Patricia

Hink, submitted a preliminary report in which she encouraged

claimant to apply for social security benefits which he

subsequently applied for and received. Later, Hink identified

several jobs as possibly suitable for claimant and submitted job

analyses to Dr. Dewey for review. Dr. Dewey approved of four of

the positions, stating that if a patient such as claimant had

expressed a desire to try one of these positions, that, in his

opinion, these positions could be "safely attempted" without risk.
Dr. Dewey, however, did not offer his opinion as to whether

5
claimant was capable of doing these positions, stating instead that

only the patient was able to answer that question.

Based on Hink's "Employability Assessment Report," the insurer

converted claimant's benefits from temporary total disability to

permanent partial disability on May 27, 1995. On June 9, 1995,
claimant petitioned the Workers' Compensation Court for a hearing.

After the hearing in August 1995, the Workers' Compensation Court

found that claimant's testimony regarding his pain was credible.

However, the court was not persuaded that his pain would
necessarily preclude claimant from working. The court then
concluded that Rhone-Poulenc had met its burden of establishing

that claimant had a reasonable prospect of "physically performing

regular employment." The Workers' Compensation Court concluded
that claimant was not permanently totally disabled and, therefore

was not entitled to corresponding benefits.

Claimant appeals from that decision.

DISCUSSION

Did the Workers' Compensation Court err in finding that
claimant had a reasonable prospect of being able to tolerate his

pain and physically perform at regular employment?

Decisions of the Workers' Compensation Court must be based on
substantial credible evidence. O'Brien v. Central Feeds (1990),

241 Mont. 267, 271, 786 P.2d 1169, 1172. The court's findings of

fact will be upheld if they are supported by substantial credible

evidence. Wunderlich v. Lumbermens Mutual Casualty Co. (1995), 270

Mont. 404, 408, 892 P.3d 563, 566.

6
 The law in effect at the time of the injury governs the

claimant's entitlement to benefits. Buckman v. Montana Deaconess
Hospital (1986), 224 Mont. 318, 321, 730 P.Zd 380, 382. Claimant

was injured on August 20, 1993, therefore, the 1993 version of the

Workers' Compensation Act governs this case. The claimant bears

the burden of proving he or she was permanently totally disabled.

Dumont v. Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105.

The definition of permanent total disability reads as follows:

"Permanent total disability II means a condition resulting
from injury as defined in this chapter, after a worker
reaches maximum medical healing in which a worker does
not have a reasonable prospect of physically performing
regular employment. Regular employment means work on a
recurring basis performed for remuneration in a trade,
business, profession, or other occupation in this state.
Lack of immediate job openings is not a factor to be
considered in determining if a worker is permanently
totally disabled.

Section 39-71-116(13), MCA (1993) (emphasis added).

In its decision, the Workers' Compensation Court found that

appropriate jobs existed for claimant. The rehabilitation

counselor, Hink, identified several jobs as possibly suitable for

regular employment: lubrication technician, sewer (sewing

backpacks), shoe repair person, cashier, motel clerk, lumber

salesperson, and meter reader. Of these positions, the Workers'

Compensation Court narrowed the list, and determined that claimant

was physically capable of performing as either a motel clerk or a

cashier.

At trial, claimant disputed his ability to perform any of the
suggested positions. According to his testimony, his pain makes
7
him uncontrollably unpleasant. Claimant specifically contended
that because of his pain it would be difficult for him to be
confined to the limited space provided to a cashier, or to carry

luggage if employed as a motel clerk.

The Workers' Compensation Court did not dispute that claimant

was in pain and that activity increased his pain, rather the court

was not convinced that this would prevent him from working.

Instead, the court found claimant to be a positive and up-beat
person who had "worked all his life and has a good work ethic, and

[the court] was persuaded [that claimant] would cope with his pain

if he was forced to do so." Ultimately, the court found that

claimant had a reasonable opportunity for regular employment.

On appeal, claimant argues that the Workers' Compensation

Court erred in this finding. Claimant asserts that it is the law
in Montana that pain can be considered when determining whether a

claimant is permanently totally disabled. Robins v. Anaconda

Aluminum Co. (1978), 175 Mont. 514, 521-22, 575 P.2d 67, 72 and

Jensen v. Zook Brothers Construction Co. (1978), 178 Mont. 59, 63,

582 P.2d 1191, 1193.

In Robins, the claimant fractured his skull and other bones

after falling 16 to 18 feet. He returned to work, then fell a

second time and injured his back. There, one doctor stated that

the claimant could work, if he could endure the pain. The other

doctor testified that the claimant could not work because he could

not take the pain. In affirming the lower court, this Court held
that pain must be considered as a factor when determining
disability. Robins, 575 P.2d at 71.
In Jensen, the claimant crushed his dominant hand. The

claimant testified that he had pain up his arm into his elbow.
Following Robins, this Court held that the evidence showing that

the claimant could not work without pain or endure pain while

working constitutes substantial evidence supporting a finding of

permanent disability. Jensen, 582 P.2d at 1193.
In its decision, the Workers' Compensation Court considered

both Jensen and Robins, nevertheless, the court determined that

under recent revisions to the permanent total disability statute,

pain is only one factor to be considered when determining a

claimant’s disability. Metzger v. Chemetron Co. (1984), 212 Mont.

351, 354, 687 P.2d 1033, 1035. Under 1993 revisions to the

definition of permanent total disability, the court noted that the

claimant must prove that he or she has "no reasonable prospect of

physically performing regular employment." Section 39-71-116 (13),

MCA.

This Court agrees with the Workers' Compensation Court's

conclusion that pain is only one factor to be considered when

reaching a determination of disability. As was also aptly pointed

out by the court in this case, "Pain. . may be so severe for some
individuals that it renders them physically incapable of performing

their job duties. . . .'

1n its order, the Workers' Compensation Court relies on the

"medical evidence concerning permanent total disability." This

9
medical evidence, the court states, was provided by Dr. Dewey, "who
approved of five positions.'1 The court concluded further, that Dr.
Dewey's testimony did not support claimant's claim for disability.

However, where medical testimony is offered by deposition, this

Court is in as good a position as the Workers' Compensation Court

to determine its weight. Caekaert v. State Comp. Ins. Fund (1994),

268 Mont. 105, 110, 885 P.2d 495, 498. Although Dr. Dewey did

approve of several of the suggested positions, this was not the
extent of the medical testimony

In his deposition, Dr. Dewey specifically qualified his
approval and made no determination concerning claimant's ability to

cope with pain. At trial, the court pointed this out:
THE COURT:. . . [Dr. Dewey] basically said medically
[claimant's] not going to be at risk. In other words,
he's not at risk with further injuring himself in these
jobs, but whether or not he performs them is really up to
him.

Dr. Dewey testified that claimant could safely attempt the jobs

without risk, his opinion does not support a finding that claimant
was physically capable of performing regular employment.

Furthermore, Dr. Dewey testified that he considered claimant's

response to his neck injury as "appropriate." Accordingly, Dr.

Dewey testified that he would defer to claimant regarding his

ability to tolerate the pain associated with a suggested position.

Therefore, according to the medical opinion of Dr. Dewey, the

claimant in this case stands in the best position to judge his

abilities

10
 Other medical evidence was provided through the records of Dr.
Knutsen. Throughout his records, Dr. Knutsen notes that claimant

experienced chronic neck pain. Following claimant's re-aggravation

in February, Dr. Knutsen noted that he did not think claimant would

be able to return to his regular job. In a letter to the insurer,

Dr. Knutsen wrote that "[slometimes the slightest little neck jolt

or bump on the head will markedly aggravate his chronic neck

pains."

Following Jensen and -Robins, this Court must consider the

evidence regarding claimant's pain when reviewing the Workers'
Compensation Court's determination of disability. In this case,
the medical evidence does not support the court's finding that

claimant was capable of working without pain or that he was capable

of enduring his pain while working. See Jensen, 582 P.2d at 1192.

We conclude that the record does not contain substantial

credible evidence supporting a finding that claimant has a

reasonable prospect of physically performing regular employment.

In this matter, not only did Dr. Dewey testify that he considered

claimant's response to his injury as appropriate, the court also

found that "[claimant's] . testimony regarding his pain was

credible." Considering this, both at trial and in his deposition,

claimant testified that he experiences constant pain from the base

of the skull, down the middle of the back through his shoulders.

He described headaches and muscle spasms. His level of pain

increases if he engages in any increased activity or if he is

11
stationary for any length of time. On "bad" days, he seeks relief
through hot showers and uses a heating pad.

It is evident from thi's testimony that claimant's pain would

prevent him from holding down regular employment. This Court has
held that a trial court may not disregard uncontradicted credible

evidence. Burns v. Plum Creek Timber (1994), 268 Mont. 82, 85,

885 P.2d 508, 510 (citing McGuire v. American Honda Co. (1977), 173

Mont. 171, 566 P.2d 1124.)

In its order denying claimant's motion for rehearing, the

court raises concerns that because pain is subjective, claimants
would unilaterally determine that they cannot work. That may or
may not be the case but that is not the situation here. Claimant's
testimony was corroborated by medical evidence offered by both Dr.

Dewey and Dr. Knutsen. Furthermore, claimant's testimony regarding
his pain was found to be credible by both Dr. Dewey and the court.

In summary, we conclude that uncontroverted testimony
presented at trial supports a finding that claimant is unable to

perform at any of the suggested positions without experiencing

substantial pain. Furthermore, we conclude that the Workers'
Compensation Court erred in concluding that claimant is capable of

tolerating his pain and physically performing at regular

employment.
Having concluded the claimant is entitled to benefits, we

remand this case for a determination of attorney's fees and costs

pursuant to 55 39-71-611 and 39-71-2907, MCA.
Reversed and remanded.

12
We concur:

Chief Justice

Justices

13
Justice Terry N. Trieweiler specially concurring.
I concur with the majority opinion. However, I write in
response to the dissent.
In my opinion it is the dissent which misapplies the standard
of review in this case and the author of that opinion who has
refused to follow the correct standard of review in the past.
In this case, the only medical evidence was the written
reports, which were admitted as exhibits without objection, and the
transcribed deposition testimony of Richard C. Dewey, M.D. We have
repeatedly held, for obvious reasons, that where medical evidence
is submitted by deposition, this Court is in as good a position to
evaluate that evidence as the trial court. Larson v. Cigna Ins. Co. (Mont.

1996), 915 P.2d 863, 53 St. Rep. 3 94 ; Weber v. Public Employees’ Retirement Bd.

(1995), 270 Mont. 239, 8 9 0 P .2 d 12 9 6 ; Simons v. State Comp. Mut. Ins. Fund

(1993) I 262 Mont. 438, 8 65 P .2d 1118 ; White v. Ford, Bacon & Davis Texas, Inc.

(1992), 256 Mont. 9, 843 P.2d 787; Schrappsv.SafewayStores (1989), 238

Mont. 355, 777 P.2d 887; Roadarmelv.Acme Concrete Co. (1989), 237 Mont.

163, 772 P.2d 1259; Hartmanv.StaleyContinental (1989), 236 Mont. 141, 768

P.2d 1380; Hurleyv.Dupuis (1988), 233 Mont. 242, 759 P.2d 996; Brownv.

Ament (1988), 231 Mont. 158, 752 P.2d 171; Snyderv. SanFranciscoFeed&

Grain (1987), 230 Mont. 16, 7 4 8 P .2 d 9 2 4 ; Lauderdale v. Montana Dep’t of Agric.

(19871, 229 Mont. 188, 745 P.2d 690. Larsonv. SquireShops, Inc. (19871,

228 Mont. 377, 742 P.2d 1003; Curreyv. IOMinuteLube (19871, 226 Mont.

14
445, 736 P.2d 113; Brewingtonv.Birkenbuel,Inc. (1986), 222 Mont. 505, 723

P.2d 938; Frostv.AnacondaCo. (1985), 216 Mont. 387, 701 P.2d 987.

Shupertv.AnacondaAluminum Co. (1985), 215 Mont. 182, 696 P.2d 436; Lamb

v. Missoula Imports, Inc. ( 19 8 4 ) , 2 11 Mont . 3 6 0 , 684 P.2d 498; Jonesv. St. Regis

Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140; Hert v. J.J. Newberry Co.

(1978), 178 Mont. 355, 584 P.2d 656.
Our oft-repeated rule regarding medical testimony by
deposition makes practical sense because there is no witness
demeanor for the trial court to observe, nor are there other
intangible aspects to the testimony about which the trial court is
exclusively aware. The problem with this standard of review is
that it does place some additional responsibility on the reviewing
court to independently analyze and evaluate the medical evidence
offered by deposition. The author of the dissenting opinion has
been reluctant to do so. See Larson v. Cigna Ins. Co. (Mont. 1996) , 915

P.2d 863, 53 St. Rep. 394; McIntyre v. Glen Lake Irr. Dist. (1991) , 249 Mont.

63, 813 P.2d 451. I have no similar reservations.
However, in this case, my differences with Justice Gray over
the scope of our review of Workers' Compensation Court decisions
where the medical evidence has been provided exclusively by
deposition is not critical to our decision. Whether we review this
case based on the rule that we have repeatedly articulated, or
simply for substantial evidence, as the dissenters would prefer,
there is absolutely no basis for upholding the Workers'

15
Compensation court ' s finding that Edward Killoy, Jr., is
employable.
The dissent contends that Killoy offered no medical evidence
that he was physically incapable of regular employment. However,
that is not correct. Exhibit No. 4, admitted at the time of trial,
consisted of medical records from Bruce E. Knutsen, M.D., who
initially treated Killoy for his injury. The records included Dr.
Knutsen's February 28, 1994, report, which was issued at the
request of the insurance adjuster shortly after Killoy's
aggravation of his injury. In that report he stated that:
I suspect Mr. Killoy will be disabled from his
laboring type profession as I have attempted to send him
back on two different occasions. He has been able to
work reasonably well, although he continues with neck
pain. Sometimes the slightest little neck jolt or bump
on the head will markedly aggravate his chronic neck
pains.
At this point, I have suggested he go back and get
a second opinion from Dr. Richard Dewey who he saw
previously to see if there is anything else Dr. Dewey may
be able to offer him in the way of surgical correction.
If not, he may be on permanent disability. I just do not
think he can continue in a laboring profession.
Edward Killoy did go back to Dr. Dewey who examined him and
issued a report to Dr. Knutsen regarding his observations on
April 18, 1994. That report was admitted without objection at
trial as Exhibit No. 1. In that report he stated:
Edward is really unchanged. He continues to have
significant muscular symptoms in the back, shoulders,
base of the skull. Hands go to sleep at night although
not in the ulnar distribution and he has not made any
improvement. The symptoms he is having are related to
the amount of heavy work that he does. It is my opinion
that he could not return to his usual occupation with
Rhone Poulene [sic] but could return to a lighter

16
 occupation if that can be worked out. If not, I think he
should be medically retired. . .

The options are clear. Surgery will not relieve his
muscular problems and will not relieve problems related
to cervical spondylosis. These are aggravated by heavy
work and lighter work is recommended. In the absence of
that, his only option is medical retirement.

He has the following problems: Cervical spondylosis,
radiculopathynot identified; cervical stenosis, possible
but not proven cervical radiculopathy; bilateral ulnar
entrapment neuropathies; significant cervical myospasm.
I do not feel he will get any better. He may worsen as
time goes on and he cannot return to his usual
occupation.

In response to the recommendations of Dr. Knutsen and Dr.

Dewey that the possibility of lighter work be considered, or in the

alternative, that Killoy be medically retired, his employer's

insurer hired Patricia Hink, a vocational consultant, who reviewed

Killoy's medical records, his educational and work background, and

his physical limitations, and issued a report to his employer's

insurer on June 23, 1994. The report consists of ten pages and

meticulously outlines Killoy's work history, his education, his

medical status, and his physical limitations. That report was

admitted without objection as trial Exhibit No. 3. In that report,

Hink concluded:
Due to the persistent problems that Mr. Killoy has had in
performing even normal daily functions, I felt that it
was appropriate for him to apply for Social Security
benefits. Given his age at 57 years which makes him an
older adult, a 10th grade education, and a heavy to very
heavy occupation which he has performed consistently
since 1956, it would be difficult for Mr. Killoy to
re-enter the work force even at unskilled jobs at this
time.

. . . .

17
 At the present time, Mr. Killoy remains off work and has
applied for Social Security Benefits. I have encouraged
him in this direction since his past relevant work has
been heavy, to very heavy physical demand work. . .
These skills do not easily transfer into lighter work,
especially for an individual of his age, which is now 57.
He has a limited formal education, however, he has
obtained his GED through the Navy in 1955. Given the
[severity] of the industrial injury that he has sustained
and his persistent symptoms, he appears to be a favorable
candidate for Social Security Benefits.
Hink's report goes on to state that Killoy had reached maximum
medical improvement but that his employer had no light-duty work
for him and that he was a high risk for re-injury in the work
place. She pointed out that he had difficulty sitting for any
length of time and difficulty sleeping, which made any employment
problematic.
The combination of Dr. Knutsen's report, Dr. Dewey's report,
and Patricia Hink's analysis of the medical records, as they apply
to the field of vocational placement, clearly established by a
preponderance of the medical evidence that Edward Killoy was
unemployable. To suggest, as the dissent does, that he offered "no
medical evidence that he did not have a reasonable prospect of
physically performing regular employment" simply ignores the
record. To suggest that the necessary quantum of medical proof
requires that a doctor testify that in his or her opinion Killoy
was "physically incapable of performing regular employment"
confuses the function of medical evidence and vocational evidence.
Doctors are not qualified to testify regarding vocational
opportunities, they are merely qualified to testify regarding the
nature of a patient's injury and the physical restrictions that

18
result from that injury. In this case, the medical evidence
clearly established the nature of Killoy's injury, that physical
limitations resulted from that injury, and that Killoy's pattern of
pain was consistent with his injury.. Medical evidence can do no
more. Somewhere common sense has to be applied.
The dissent argues that Dr. Dewey approved five positions for
Killoy, and therefore, that the Workers' Compensation Court's
opinion was supported by substantial evidence. However, the
dissent's characterization of Dr. Dewey's testimony is out of
context and incomplete. When specifically asked whether it was his
opinion that Killoy was physically capable of performing the jobs
which had been submitted to him and described for him by Patricia
Hink, Dr. Dewey testified as follows:

No, I didn't say that. I said he could. I didn't
know if he was capable of doing it. I very clearly caged
myself on that record. I said, "Can safely be attempted
without risk."
. . . But if he was caoable of doinq them, I can't
answer that. That's a question that doctors can't
answer; onlv the patient can answer that.
I know that's not the answer you want to get. You
want to get this thing absolutely black and white, but I
can't give you that answer. I can tell you whether
there's risk and no risk. And I can tell you that the
patient should be able to perform those duties. Whether
they can tolerate them or not, that's a different story.
. . . .

. . . I can only give you what is safe and what is
unsafe.
(Emphasis added.)
The dissent criticizes the majority opinion because:

19
 Dr. Dewey did not opine that Killoy's pain rendered him
unable to perform the positions and, therefore, the
Court's reliance on our ability to determine the weight
of medical deposition testimony, under Caekmrt, is totally
misplaced; there is simply no medical evidence of pain
too severe to permit the performance of regular
employment.
The dissent apparently did not consider Dr. Dewey's testimony
that neither he nor any other doctor can give the type of testimony
that the dissenters would like to see. Ultimately, however, Dr.
Dewey's testimony is just common sense. The state of medical
science has not yet advanced to the point where it can measure the
degree of an individual's pain, no matter how much the dissenters
would like to reduce the evaluation process to a question of
connecting the dots. For purposes of the result in this case,
though, Dr. Dewey did testify that:
His symptoms were very typical of that kind of an injury,
and aggravation of -- a muscular aggravation of something
which, you know, for reasons we don't quite understand,
are quiet for a long time. . .
.

. . . Whether it's the patient's tolerance or not,
his symptoms are certainly consistent with everything
that happened to him, and he's not alone in having this
kind of problem.
In conclusion, Dr. Dewey gave the following relevant
testimony, which was all the medical proof he could offer:

Q. By approving the job descriptions that were
submitted to Patricia Hink, you were recommending that he
could, without risk, attempt to work in those positions;
is that correct?
A. That is correct. And I will read to you the
paragraph which I specifically signed my name to.

20
 "This job is physically compatible with this
worker's physical capabilities." Doesn't say anything
about his tolerance, it says about his capabilities.

Q. We're talking about tolerance, you're referring
to the level of pain that he may have to -- or would
incur if he attempted that?
A. For this patient, yes, that is correct.

Q. And the pain that he suffers is certainly
consistent with the injury he sustained?
A. Yes.
Q. And is it consistent with his medical
condition?
A. Yes

Q. And you would defer to the patient his ability
to tolerate those jobs?
A. Probably, in this case, yes, because I've seen
him a number of times. If someone came in off the street
and told me they couldn't do that, I think I'd want to
get a little bit better feeling for how that patient
responds and whether the patient's an appropriate or
inappropriate responder.
Q. Did you, in this case, feel it is appropriate?
A. Yes.
The dissent's conclusion that "Killoy's subjective view of his
pain does not constitute medical evidence" is therefore directly
contradicted by the only medical evidence which could be offered.
Killoy's subjective view of his pain, as evaluated by his attending
physician, is the best evidence of his physical limitations. To
hold otherwise is to ignore the medical evidence.
Because Dr. Dewey testified that whether Killoy could work
would ultimately depend on whether he could tolerate work, and
because the Workers' Compensation Court found that Killoy's

21
testimony regarding the degree of his pain was credible, it is
appropriate to review what he said in that regard.
He stated that he has pain from the base of his skull to the
middle of his back and in both shoulders. His pain causes
headaches on a continual basis. He has muscle spasms related to
any physical activity. The muscle spasms occur in his neck, back,
shoulders, chest, and throat. Whenever that occurs he has to
change positions. If he is sitting he has to stand; if he is
standing he has to sit.
The pain in Killoy's neck is constant and any kind of
activity, including walking, prolonged sitting, sleeping, or
standing makes the pain worse. Reaching aggravates his condition.
When his pain is aggravated the severity of his headaches
increases.
When Killoy does experience spasms, he has to apply cervical
traction. This occurs an average of two to four times daily for up
to ten minutes at a time. He also has to perform stretching
exercises throughout the day.
During each week Killoy has one or two bad days where he sits
in a recliner chair with a hot pad and "can't do a hell of a lot"
except try to get relief. He has almost quit fishing, he has quit
hunting, and he no longer exercises, although he used to be a
regular participant in programs at the YMCA.
Edward Killoy, who is the best judge of his physical
tolerance, did not think there was any job he could perform for

22
eight hours a day. To suggest that he can, demonstrates a total
insensitivity to the requirements of regular employment.
One of the reasons Killoy has not attempted to return to
employment is because, at Patricia Hink's recommendation, he
applied for and received social security disability benefits, which
he would lose if he attempted to return to work that he does not
think he can perform. What is unreasonable about that?
The Workers' Compensation Court specifically found that:
Claimant testified that he experiences pain from the
base of the skull, down the middle of the back and
through his shoulders. He described his pain as
constant. He has headaches and muscle spasm, which are
aggravated by increased activity. He obtains temporary
pain relief by using a stretching apparatus for his neck
and performing stretching exercises on a daily basis. He
has his "bad days" once or twice a week. On those days,
he seeks relief through hot showers and a heating pad.
His level of pain increases if he is stationary for any
length of time. Claimant's testimony regarding his pain
was credible.
In spite of Dr. Dewey's testimony that Killoy's ability.to be
employed would depend on his ability to tolerate the pain, and his
further testimony that Killoy's complaints of continuous pain were
consistent with the nature of his injury, Patricia Hink did not
even bother to submit the job descriptions on which the employer
now relies to Killoy for his consideration before changing her
opinion about his employability. She admitted that she did not
know whether Killoy could tolerate the pain he would have to endure
to perform the jobs she submitted. She did not arrange for him to
attempt to perform any of those jobs. Neither did she arrange for
a work-hardening program which would help him prepare to attempt

23
those jobs. She did not even bother to discuss the jobs she was
recommending with him. When asked by the court whether she thought
Killoy was capable of full-time work, as opposed to part-time work,

she simply said, "I would hope that he would be able to work at
full-time work . . . .I' However, when asked whether anyone would

hire him if he explained to a potential employer all the physical

limitations that he had testified to, she admitted that no one

would.
The dissent characterizes the preceding summary of the

evidence in this case as "bits and pieces" of the record. I

disagree. However, the important point is that in spite of a

diligent search I have been unable to find any "bits and pieces" of

the record which support the judgment of the Workers' Compensation

Court or the dissent's strained effort to affirm that judgment.

In summary, even if this Court applies the standard of review

preferred by the dissent, there was no substantial evidence that

Edward Killoy was physically capable of regular employment. All of

the evidence, medical and otherwise, was to the contrary. The

dissent's insistence that there be medical evidence regarding the

degree of Killoy's pain ignores reality and the limitations of

medical science. The dissent's criticism of the majority's

reliance on Killoy's own description of his pain ignores the fact

that his attending physician testified that that was the only way

in which his actual job prospects could be evaluated, and that the

Workers' Compensation Court found Killoy's description of his pain
credible. To suggest that, in light of the combined testimony of

24
Dr. Dewey and Killoy, and the Workers' Compensation Court's finding

that Killoy was credible, there is no evidence of total disability

defies common sense.

For these reasons, I conclude that Killoy proved his

entitlement to permanent total disability benefits by a

preponderance of the evidence and that there was not substantial

evidence to support the Workers' Compensation Court's denial of

those benefits.
I concur with the majority opinion.

25
Justice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion for the same
reason I recently dissented from part of the Court's opinion in
Larson v. CIGNA Ins. Co. (Mont. 1996), 915 P.2d 863, 53 St.Rep.
394. It is my view that the Court again misapplies our stated
standard for reviewing the Workers' Compensation Court's findings
of fact and I cannot join the Court in doing so.
The Workers' Compensation Court's ultimate finding in this
case is that Killoy has a reasonable prospect of physically
performing regular employment and, therefore, that he did not meet
his burden of proving permanent total disability by a preponderance
of the evidence. Our standard in reviewing that finding is to
determine whether substantial credible evidence supports it.
Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 408,
892 P.2d 563, 566. Our standard is not, as we have stated clearly
and repeatedly, whether evidence supports a finding different from
that made by the Workers' Compensation Court. See, u, Wilson v.
Liberty Mut. Fire Ins. (1995), 273 Mont. 313, 903 P.2d 785. It is
my view that a proper application of our standard of review
mandates a conclusion that substantial credible evidence supports
the Workers' Compensation Court's finding.
Substantial evidence is "more than a mere scintilla of
evidence but may be less than a preponderance of the evidence."
Taylor v. State Compensation Ins. Fund (Mont. 1996), 913 P.2d 1242,
1245, 53 St.Rep. 201, 202 (citation omitted). With regard to the
Workers' Compensation Court's finding that Killoy has a reasonable
prospect of physically performing regular employment, the record

26
reflects the following. A certified rehabilitation counselor
identified numerous jobs, generally available on both full- and
part-time bases, as possibly suitable for Killoy. On that basis,
she testified that Killoy has a reasonable opportunity for regular
employment. Dr. Dewey opined that Killoy could safely attempt all
but one of those jobs without risk to his physical condition; he
did not opine that Killoy's pain would render him incapable of
performing the jobs.
Killoy described his pain as constant, but testified that his
"bad days" occur once or twice a week and that he seeks relief via
hot showers and a heating pad. His pain is aggravated by both
increased activity and remaining stationary for any length of time.
Killoy spends a typical day reading, walking, watering his lawn and
watching television. He is able to drive, mow his lawn, and
participate in limited outdoor recreational activities.
Killoy does not believe he could perform any of the identified
jobs which Dr. Dewey opined he could safely attempt because of his
pain. He has neither worked nor attempted to work or find
employment since his re-injury in February of 1994, and he
testified that he does not want to work at a minimum wage job.
Based on Killoy's testimony as to substantial difficulties in
lifting his hands over his head, being required to stand for 85% of
a work shift, lifting and carrying up to 15 pounds continuously and
extensive physical activity, the Workers' Compensation Court
determined that Killoy was unable to perform three of the
identified positions because they would increase his pain beyond
what he could reasonably endure. Accepting Killoy's complaints of
pain, the court found that Killoy could perform the jobs of cashier
27
or motel clerk on a full-time or part-time basis.
This record clearly contains substantial credible evidence
supporting the Workers' Compensation Court's finding that Killoy
has a reasonable prospect of physically performing regular
employment. He is physically capable of standing, sitting,
walking, driving a vehicle, mowing his lawn and engaging in
recreational pursuits. Positions involving these, or similar,
activities were identified. Nor was any medical opinion testimony
presented that Killoy was incapable of performing these jobs
because of either physical limitations or pain considerations.
The Court makes much of our conclusions in Robins and Jensen
that pain must be considered as a factor in determining disability.
It is clear, however, and even this Court does not suggest
otherwise, that the Workers' Compensation Court did consider the
pain-related evidence of record. Nothing in Robins or Jensen
supports this Court's implicit conclusion regarding those cases
that a claimant's bare assertion of belief that he cannot tolerate
the pain associated with working mandates a determination that he
is entitled to permanent total disability benefits. Moreover, in
those cases, the Workers' Compensation Court found that the
claimants were permanently totally disabled. What the Court fails
to recognize here is that, in both Robins and Jensen, we discharged
our duty of determining whether substantial evidence sunoorted the
trial court's findings of permanent total disability by recognizing
the pain-related evidence which supported those findings. We are
in the converse situation here and, as noted above, it is not our
duty to determine whether evidence supports findings contrary to
those made by the Workers' Compensation Court. See Wilson, 903
28
P.2d at 788.
In addition, § 39-71-702(2), MCA (1993), requires that a
"determination of permanent total disability must be supported by
a preponderance of medical evidence." The Court does not address
this statutory requirement at all.
The record is clear, however, that Killoy offered m medical
evidence that he did not have a reasonable prospect of physically
performing regular employment. No doctor advanced a medical
opinion that Killoy was physically incapable of performing regular
employment. Indeed, Dr. Dewey approved five positions for Killoy
to the extent that his performance of those positions would not
harm, or risk, his physical condition. Dr. Dewey did not opine
that Killoy's pain rendered him unable to perform the positions
and, therefore, the Court's reliance on our ability to determine
the weight of medical deposition testimony, under Caekaert, is
totally misplaced; there is simply no medical evidence of pain too
severe to permit the performance of regular employment. Dr. Dewey
merely deferred to Killoy's judgment on that question and Killoy
testified that he believed his pain was too great to work through.
Killoy's subjective view of his pain does not constitute medical
evidence.
Moreover, any suggestion that questions relating to the extent
of a person's pain, or the person's ability to tolerate the pain
while working, are not medical issues would be problematic with
regard to the Court's opinion in this case. For example, such a
suggestion would appear to mean that the requirement contained in
§ 39-71-702(2), MCA (1993), that permanent total disability be
established by a "preponderance of medical evidence" could never be
29
met and, therefore, a claimant could never meet the statutory
criteria and could never establish entitlement to permanent total
disability benefits regardless of the extent of his or her pain and
the clear impossibility of working while experiencing it. Such a
result would be anathema to us all.
In addition, it should be noted in this regard that the doctor
in Robins testified to his opinion that the claimant could not
return to his previous position because of the pain that
accompanied working. Robins, 575 P.2d at 71. If that doctor could
give such a medical opinion, why cannot other doctors do so--either
for or against the proposition? The Robins medical testimony would
seem to belie any notion that pain is not a medical question. Yet
the Court's failure to address § 39-71-702(2), MCA (1993), in any
fashion leaves these problems unresolved.
Finally, it is appropriate to comment briefly on portions of
the special concurring opinion in this case. I do not disagree in
any way with that opinion's statement of this Court's standard in
reviewing medical deposition testimony. I agree entirely that our
usual deference to the trial court's ability to observe the
demeanor and, thereby, assess the credibility of witnesses does not
and cannot relate to medical evidence given by deposition. I also
agree that that standard places "some additional responsibility on
the reviewing court to independently analyze and evaluate" medical
deposition evidence; I have not been reluctant to do so in other
cases or in this case.
It appears, however, that Justice Trieweiler views the medical
deposition standard as effectively repealing our overriding
standard of determining whether substantial evidence supports the
30
Workers' Compensation Court's findings and replacing it with a
standard that allows us to choose bits and pieces of such evidence
as might support findings contrary to those made by the trier of
fact. I do not agree. As stated in one of the recent cases
discussing the medical deposition standard which is cited in the
special concurring opinion,
[tlhis de nova 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.
White v. Ford, Bacon & Davis Texas, Inc. (1992), 256 Mont. 9, 13,
843 P.2d 787, 789 (citation omitted). We have reiterated that
standard on numerous occasions, most recently in Wilson on
September 26, 1995. See Wilson, 903 P.2d at 787-88. Clearly, this
limited de nova review standard does not allow, and was never
intended to allow, this Court to merely substitute its judgment for
that of the Workers' Compensation Court on questions of fact.
Moreover, it is my view that the special concurring opinion
mischaracterizes or overreads the portions of Drs. Knutson's and
Dewey's 1994 reports it cites. Dr. Knutson states that "1 suspect
Mr. Killoy will be disabled from his laboring type of profession.
. . . I! Similarly, Dr. Dewey opines that Killoy "could not return
to his usual [heavy labor] occupation with Rhone Poulene [sic] but
could return to a lighter occupation if that can be worked out. If
not, I think he should be medically retired. .'I These reports
support the uncontroverted and undisputed reality that Killoy
cannot perform the duties of his earlier position as a heavy-duty
mechanic for Rhone-Poulenc; they also support the proposition that

31
Killoy cannot perform heavy labor jobs of any kind. They do not,
however, support or mandate a determination that Killoy "does not
have a reasonable prospect of physically performing regular
employment" as required by the statutory definition of permanent
total disability. See § 39-71-116(19), MCA (1993).
Under the Court's decision in this case, a claimant such as

Killoy can establish entitlement to permanent total disability
benefits, as a matter of law, on the sole basis of his subjective
assertion that he cannot tolerate working at any job because of the
pain he experiences. Physical incapacity to perform is not
required; a good-faith effort--indeed, any effort--is not required;
a supporting medical opinion is not required. I cannot agree with
the Court's displacement of the statutory definition of permanent
total disability, the claimant's burden of proof, the proper role
of the Workers' Compensation Court as the trier of fact and our
standards in reviewing that court's findings.
I dissent.

Chief Justice J. A. Turnaqe and ce Charles E. Erd
the foregoing dissent of Justice Karla M. Gray.

Justice

32