No. 95437
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
VICTORIA KLOEPFER,
Petitioner and Appellant,
v.
LUMBERMEN'S MUTUAL CASUALTY COMPANY,
Respondent and Insurer for
BECHTEL CONSTRUCTION COMPANY,
Employer and Respondent.
APPEAL FROM: Workers' Compensation Court, State of Montana,
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James G. Edmiston, III, Edmiston Law Firm,
Billings, Montana
For Respondent:
Steven S. Carey, Carey, Meismer & McKeon,
Missoula, Montana
Submitted on Briefs: April 25, 1996
.,~,I v ” 8s
Decided: May 20, 1996
Fi1ed: 22
‘LERKOFSUPRBMECOUR~
STATE OF M O N T A W
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal from the Workers' Compensation Court
judgment denying Victoria Kloepfer permanent total disability
benefits. We affirm.
The issue presented for review is whether the Workers'
Compensation Court erred in denying Kloepfer permanent total
disability benefits.
FACTS
From April through September 1991 Kloepfer worked as a general
laborer for Bechtel Construction Company at the Conoco Refinery in
Billings, Montana. During that time, Kloepfer filed an
occupational disease claim for an injury arising out of her
employment at Bechtel. The claim was accepted and she participated
in a work-hardening program as part of her rehabilitation for her
occupational disease. In that program, Kloepfer injured her back
in April 1992 when she was directed to move a wheelbarrow loaded
with gravel.
A diagnostic test in March 1993 revealed that Kloepfer had a
small central disc protrusion, L5-Sl. She was diagnosed with
myofascial pain and complained of pain from her interscapular area
down to her legs and toes. An orthopedic surgeon, Dr. Teal,
performed a lumbar fusion at L5-Sl in an attempt to alleviate the
pain. After the operation, Kloepfer experienced essentially the
same pain as she had before.
Dr. Teal, as her treating physician, testified that there was
nothing more he could do for her at that point. At the time of
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trial, she was receiving no treatment and took a mild analgesic for
pain. Kloepfer has reached maximum healing and maintains that her
pain renders her incapable of gainful employment and that she is
therefore permanently and totally disabled.
At the request of Lumbermens Mutual Casualty Company, Kloepfer
was evaluated by an independent medical panel of physicians in
Missoula. The panel concluded that Kloepfer could perform
sedentary and light-duty work on a full-time basis. Kloepfer's
treating physician, Dr. Teal, testified that he felt she could work
at least part-time although with significant absenteeism. The
Workers' Compensation Court concluded that Kloepfer's pain did not
preclude her from returning to work. From the Workers'
Compensation Court's judgment denying permanent total disability
benefits, Kloepfer appeals.
DISCUSSION
Did the Workers' Compensation Court err in denying Kloepfer
permanent total disability benefits?
The Workers' Compensation Court found that Kloepfer could
return to work full-time if she was motivated to do so. However,
the court found that Kloepfer was unmotivated to work and that her
lack of motivation was fueling the pain which she claimed prevented
her from working. The court found that Kloepfer's physical
condition did not preclude her from working. Pursuant to those
findings, the court determined that Kloepfer was not permanently
totally disabled and was not entitled to permanent total disability
benefits.
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We review the Workers' Compensation Court's findings of fact
to determine whether they are supported by substantial credible
evidence. We review the Workers' Compensation Court's conclusions
of law to determine whether the court's interpretation of the law
is correct. Williams v. Plum Creek Timber (1995), 270 Mont. 209,
212, 891 P.2d 502, 503.
Permanent total disability is defined in § 39-71-116(23), MCA,
to mean
a physical condition resulting from injury as defined in
[the Workers' Compensation Act], 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.
Conflicting testimony was presented regarding Kloepfer's
ability to physically perform regular employment. Kloepfer's
treating physician, Dr. Teal, testified that Kloepfer could only
perform part-time work and her work would be subject to significant
increased absenteeism on days when she was in severe pain. Due to
these restrictions on employment, Dr. Teal opined that Kloepfer
could not return to regular employment and was therefore
permanently totally disabled.
At the defendant's request, an independent medical panel was
assembled consisting of an occupational and environmental medicine
specialist, an orthopedic surgeon, a neurologist, and a
psychologist specializing in pain evaluation and management. The
panel examined Kloepfer and concluded that she did suffer from
4
chronic pain but that it was due to a somatoform disorder, which
meant her pain was amplified on account of psychological factors.
In the panel's opinion, Kloepfer could perform entry level,
light-duty work on a full-time basis. Kloepfer claims that the
District Court erred in discounting Dr. Teal's opinion, as the
opinion of her treating physician, in favor of the panel's
opinions.
As a general rule we have held that the testimony of a
treating physician is entitled to greater evidentiary weight.
Pepion v. Blackfeet Tribal Industries (1993), 257 Mont. 485, 489,
850 P.2d 299, 302. Nevertheless, a treating physician's opinion is
not conclusive. To presume otherwise would quash the role of the
fact finder in questions of an alleged injury. The Workers'
Compensation Court, as the finder of fact, is in the best position
to assess witnesses' credibility and testimony. Miller v. Frasure
(19941, 264 Mont. 354, 362, 871 P.2d 1302, 1307. "Even though
conflicting evidence may exist in the record, it is the duty of the
Workers' Compensation Court, and not this Court, to resolve such
conflicts." Peoion, 850 P.2d at 302.
As the reviewing court, our function is confined to the
Workers' Compensation Court's final determination and not to
whether there was sufficient evidence to support contrary findings.
Gaumer v. Dept. of Highways (1990), 243 Mont. 414, 418, 795 P.2d
77, 79. The Workers' Compensation Court's final determination was
that Kloepfer
presented no evidence that her physical condition is
permanently disabling. Her claim for disability is based
5
on her assertion that she cannot work because of pain.
While pain must be considered in determining the ability
of an injured worker to return to work, Metzgerv. Chemtron
Corporation, 212 Mont. 351, 687 P.2d 1033 (1984), I am not
persuaded that [Kloepfer's] pain precludes her from
returning to work. Rather, I am persuaded that
claimant's ability to return to work is purely a function
of her motivation.
We have reviewed the record and conclude that it contains
sufficient evidence to support the Workers' Compensation Court's
finding that Kloepfer's inability to return to work was a result of
her lack of motivation and she was physically able to perform
regular employment. Having reached that finding, the court
correctly concluded that Kloepfer was not permanently totally
disabled pursuant to 5 39-71-116(23), MCA. Accordingly, the
Workers' Compensation Court did not err in denying Kloepfer
permanent total disability benefits. Because we have affirmed the
District Court's determination that Kloepfer is not precluded from
returning to full-time work, we need not address her contention
that a release to restricted part-time work justified a finding of
permanent total disability.
Affirmed.
mg!Justice
We concur:
, _c
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Justice William E. Hunt dissenting.
I dissent. Reading the majority opinion and the record, I can
only conclude that the claimant in this case cannot enter into a
full employment market and is restricted in what she can do
regardless of what her motivation may be. The medical record as
set forth by Dr. Teal, finds her to be suffering from chronic pain.
The panel finds the pain was due to a psychological problem which
Dr. Teal finds was the result of the injury claimant suffered. I
believe because claimant is medically restricted in what work she
can do she is entitled to permanent total disability.
/
Justice '