No. 95-439
IN THE SUPREME COURT OF 4'HE STATE OF MONTANA
1996
CARL LARSON,
Petitioner and Appellant,
v.
CIGNA INSURANCE COMPANY
Insurer and Respondent for YELLOWSTONE
FORD AND TRUCK SALES,
APPEAL FROM: Workers' Compensation Court
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James G. Edmiston, III, Billings, Montana
For Respondent:
Sara Sexe, Great Falls, Montana
Submitted on Briefs: February 8, 1996
Decided: April 23, 1996
Filed: :.
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Carl Larson appeals the September 1995 judgment of the
Workers' Compensation Court denying his claim for permanent total
disability benefits for his work related hernia condition.
We reverse and remand.
On appeal, Larson raises several issues which we have
consolidated and restate as follows:
1. Did substantial evidence exist to support the Workers'
Compensation Court's finding that Larson had a reasonable prospect
for employment within his normal labor market, thus precluding him
from receiving permanent total disability benefits?
2. Did the Workers' Compensation Court err in not applying
Brurud v. Judge Moving & Storage (1977), 172 Mont. 249, 563 P.2d
558?
3. Did the Workers' Compensation Court err by not requiring
the insurer to comply with the "Coles" criteria as set forth in
Wood v. Consolidated Freightways (19911, 248 Mont 26, 808 P.2d
502?
STATEMENT OF THE FACTS
Appellant, Carl Larson, was a parts manager for Yellowstone
Ford Truck Sales in Billings, Montana, and had been working in the
truck-parts business for thirty years prior to 1981. On August 22,
1980, Larson suffered a non-work related heart attack and did not
work for several months. Following a series of operations, he
returned to work full time in the spring of 1981. In addition to
this heart condition, Larson had several other significant health
2
problems including degenerative disc disease and a frozen left
shoulder. In 1977, Larson underwent surgery to have portions of
his stomach removed due to peptic ulcer disease. Following this
surgery he suffered an incisional hernia.
In July 1981, following his return to work after his heart
attack, Larson suffered a left inguinal hernia after lifting a
heavy truck spring. CIGNA, the insurer for Yellowstone Ford,
accepted liability for the injury and paid both medical benefits
and temporary total disability benefits. Larson had surgery to
repair the hernia in September 1981, and returned to work on
October 5, 1981. On October 23, 1981, Larson's treating physician,
Dr. Kobold, noted that he considered Larson's inguinal hernia "one
hundred percent healed." In December of the same year, Larson was
laid off because of his inability to perform his job. Yellowstone
Ford's general manager said Larson's physical condition made him
unable to carry out his assigned duties.
In January 1982, Larson underwent heart surgery to replace a
mitral valve. In his deposition, Larson testified that he had
planned on working until he was 65, but following his lay off he
did not seek employment.
In May 1982, Larson complained to Dr. Kobold of pain in his
groin region. Dr. Kobold thought the pain may be related to
Larson's back condition, and referred him to an orthopedic surgeon,
Dr. Daniels. After examining Larson, Dr. Daniels wrote Dr. Kobold
informing him that he did not think that Larson's pain was a result
of a nerve-root problem. In June 1982, an associate of Dr. Kobold,
3
Dr. McGahan, found a recurrence of the inguinal hernia symptoms and
scheduled a follow-up appointment. However, Larson did not return
for further treatment until December 1984.
Beginning in 1982, various medical reports and testimony
indicate that Larson continued to suffer pain in the groin region.
The inguinal hernia was surgically re-repaired in early 1985, again
in 1986, and a fourth time in 1987. The medical bills for these
subsequent hernia repairs were all paid by CIGNA. In September of
1992, Larson submitted a claim for additional compensation benefits
for the hernia.
STATEMENT OF THE CASE
In October 1994, the Workers' Compensation Court denied
Larson's claim for benefits concluding that Larson's non-work
related heart condition preceded the industrial injury. Because he
had been rendered permanently totally disabled prior to suffering
the industrial injury, the Workers' Compensation Court determined
he was not entitled to recover permanent total disability benefits.
Claimant appealed that decision.
In May 1995, this Court reversed the Workers' Compensation
Court's decision. Larson v. CIGNA Insurance Co. (1995), 271 Mont.
98, 894 P.2d 327 (Larson I). In Larson I, this Court adopted the
rationale set forth in a Washington case and later used in an
Alaskan decision. See Shea v. Department of Labor and Industries
(Wash. Ct. App. 1974), 529 P.2d 1131; Ensley v. Anglo Alaska
Construction (Alaska 1989), 773 P.2d 955. 1n -,
Shea the claimant
had been rendered disabled as a result of a degenerative vascular
4
disease as early as 1961. Then, in 1964, the claimant had suffered
a permanently disabling industrial injury. The Washington Court
concluded that although other circumstances may have rendered the
claimant disabled, he was not precluded from receiving benefits as
a result of his second permanently disabling injury. Shea, 529 P.2d
at 1134.
We remanded Larson I for proceedings consistent with that
opinion and asked for specific findings and conclusions "as to
whether Larson's subsequent, inguinal hernia constituted an
independent, totally disabling work related condition." Larson I,
894 P.2d at 330-31. In September 1995, the Workers' Compensation
Court reconsidered the case and again found that Larson was not
entitled to permanent total disability benefits. Again, Larson
appeals.
STANDARD OF REVIEW
The Workers' Compensation Court's findings of fact are
presumed to be correct and will be affirmed if supported by
substantial evidence. Wunderlich V. Lumbermens Mut. Cas. Co.
(1995), 270 Mont. 404, 408, 892 P.2d 563, 566; Sullivan V. Aetna
Life & Cas. (1995), 271 Mont. 12, 15, 894 P.Zd 278, 280.
The statutes in effect on the date of injury must be applied
when determining benefits. Buckman v. Montana Deaconess Hosp.
(X986), 224 Mont. 318, 321, 730 P.2d 380, 382. Larson suffered an
industrial injury on July 15, 1981. Therefore, the workers'
compensation laws of 1979 apply. Under these laws, workers'
compensation claims were to be liberally construed in favor of the
5
injured worker. Section 39-71-104, MCA (1979); Stokes v. Delaney
& sons, Inc. (1964), 143 Mont. 516, 519-20, 391 P.2d 698, 700.
ISSUE ONE
Did substantial evidence exist to support the Workers'
Compensation Court's finding that Larson had a reasonable prospect
for employment within his normal labor market, thus precluding him
from receiving permanent total disability benefits?
Larson filed for workers' compensation benefits in 1992,
claiming the work related injury he had suffered in 1981 left him
permanently disabled. In both its original 1994 judgment and again
in 1995, the Workers' Compensation Court decided Larson was not
entitled to permanent total disability benefits.
The claimant bears the burden of establishing a right to
compensation. DuMont v. Wickens Bros. Constr. Co.(1979), 183 Mont.
190, 201, 598 P.2d 1099, 1105. In this case, Larson had the burden
of establishing that he was permanently totally disabled within the
definition of the statute that reads as follows:
"Permanent total disability" means a condition resulting
from injury as defined in this chapter that results in
the loss of actual earnings or earning capability that
exists after the injured worker is as far restored as the
permanent character of the injuries will permit and which
results in the worker having no reasonable prospect of
finding regular employment of any kind in the normal
labor market.
Section 39-71-116(13), MCA (1979).
This definition contains both medical and non-medical
components. Wood v. Consolidated Freightways (1991), 248 Mont. 26,
29, 808 P.2d 502, 504. The non-medical component of the definition
6
requires that a claimant establish "no reasonable prospect for
employment in the normal labor market." Section 39-71-116(13), MCA
(1979). In order to establish that the claimant had no reasonable
prospect of employment in a normal labor market he must introduce
substantial credible evidence of (1) what jobs constitute his or
her normal labor market, and (2) a complete inability to perform
the employment and duties because of his or her work related
injury. Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355, 687
P.2d 1033, 1035. Once the claimant has presented evidence
affirmatively showing that he cannot return to work in his normal
labor market, the burden of proof shifts to the employer to show
that suitable work is available. Metzqer, 687 P.2d at 1036.
Here, the Workers' Compensation Court's 1995 judgment
acknowledges the Metzser test. In doing so, the court rejected
Larson's argument that he was an "odd-lot" employee. An "odd-lot"
employee is an individual who has suffered total disability to the
extent of being unemployable in the labor market. As an odd-lot
employee, a claimant is excused from introducing affirmative
evidence in satisfaction of the Metzqer test, thus shifting the
burden to the employer to show suitable employment. See 2 Arthur
Larson, Workers' Compensation Law Desk Ed., 5 57.51 at 10-54, 55;
Brurud v. Judge Moving & Storage (19771, 172 Mont. 249, 563 P.2d
558.
Having rejected Larson's odd-lot argument, the Workers'
Compensation Court did not make a finding as to whether Larson
carried his burden to show no reasonable prospect of employment
7
under the Metzqer test. Instead, the court found that Larson had
presented a prima facie case for permanent total disability, not
for his work related hernia condition but, for his non-work related
heart condition. The court then found that even if Larson was an
odd-lot claimant, CIGNA had established that he was employable
despite his industrial accident.
After considering Larson's work history, in combination with
his work related injury, superimposed upon a myriad of pre-existing
conditions, we disagree. Substantial credible evidence does not
support a finding that Larson had a reasonable prospect for
employment following his 1981 injury pursuant to § 39-71-116 (13),
MCA (1979).
In this case, two rehabilitation counselors and two physicians
offered testimony on Larson's prospect of finding regular
employment in his normal labor market. Only one of them, Ms.
Hooper, a rehabilitation counselor, testified at trial. Both
physicians testified by deposition. To the extent a decision is
based on medical reports and depositions, this Court sits in as
good a position as the Workers' Compensation Court and we review
the evidence de nova. White v. Ford, Bacon & Davis Texas, Inc.
(1992), 256 Mont. 9, 13, 843 P.2d 787, 789; McIntyre v. Glen Lake
Irrigation Dist. (1991), 249 Mont. 63, 67, 813 P.2d 451, 454.
Initially, there is no question that Larson could not return
to a position in the auto-parts industry. Dr. Kobold, Larson's
treating physician, testified that from 1982 on, he would not have
allowed Larson to work in any position requiring heavy lifting.
8
The Workers' Compensation Court found that Larson's inguinal hernia
precluded him from returning to any sort of job in this field.
Outside of heavy labor positions, the court adopted Ms.
Hooper's analysis of what constituted Larson's "residual labor
market." Ms. Hooper testified that Larson had numerous skills that
could be transferred to sedentary or light duty positions. At
trial, she testified that Larson could have found a position in
sales, specifically in a retail setting such as a hardware store or
in real estate or insurance telemarketing. Ms. Hooper also
discussed Larson's avocation as a woodworker. She indicated that
there were a few woodworking jobs that fell within Larson's
physical restrictions.
Even with Larson's transferable skills, however, Ms. Hooper
acknowledged that Larson faced significant barriers due to his
"light duty" restrictions, in addition to his age (58 yrs) . Ms.
Hooper testified that without the appropriate assistance, she
thought that it would be "real difficult" for Larson to go out and
seek employment after going through a medical process that focused
on the things that Larson could not do. Ms. Hooper then testified
that overcoming this difficulty would necessitate the use of
rehabilitative services. Larson did not receive rehabilitative
services. Instead, Larson considered himself to be retired
following his lay off.
A review of Larson's work history reveals no telemarketing
experience. Ms. Hooper also explained that the majority of the
woodworking positions were classified as heavy labor, and that
9
finding an appropriate position would require substantial research
and employer contacts. As for the sales positions, Ms. Hooper
admitted that she had not done any job analyses or research to
determine the availability of these types of jobs. At trial, she
stated that she had not identified any "specific" jobs which would
have been available to Larson after his lay off.
Ms. Gordon, the other rehabilitative counselor, testified only
by deposition. In her report, she identified occupations for which
Larson was vocationally qualified, and which were also supported by
labor-market data. It was Ms. Gordon's opinion that Larson had
lost 100% of the jobs in his normal labor market.
In reaching her conclusion, Ms. Gordon prepared several job
analyses using Larson's 1993 physical capabilities. These job
analyses were then used by counsel for both parties when deposing
the testifying physicians. Dr. Kobold approved of only one job
analysis, that of general salesperson in a hardware store. The
Workers' Compensation Court referred to this approval in its
findings of fact.
One of the physical demands of this position, however, was the
ability to lift 26 to 50 pounds. This amount exceeds the physical
restrictions placed on Larson by both doctors. When this was
pointed out to Dr. Kobold, he qualified his approval and stated
that he would still restrict Larson to a 30 pound lifting maximum.
The other physician who reviewed Ms. Gordon's job analyses did not
approve of any of the positions, including the general salesperson
position.
10
Factually, we consider this case to be similar to Brewington
v. Birkenbuel (19861, 222 Mont. 505, 723 P.2d 938. In that case,
the claimant was around the same age as Larson and had also worked
in heavy labor his entire life. Also like Larson, the claimant in
Brewinqton did not receive any rehabilitative services. The
Workers' Compensation Court determined that the claimant could have
secured a position as a foremen. We concluded, after considering
the medical evidence as well as the claimant's lifetime work
history, that the foreman position was not within the claimant's
abilities. We held that the evidence supported the conclusion that
the claimant was rendered permanently totally disabled by his
industrial accident. Brewinqton, 723 P.2d at 941.
In the present case, the court's findings fail to mention
Larson's additional health problems outside of his heart condition
and inguinal hernia. As mentioned above, before suffering the
hernia, Larson was diagnosed with degenerative disc disease and a
frozen left shoulder. Larson also suffered from an unrelated
incisional hernia resulting from surgery to have portions of his
stomach removed due to peptic ulcer disease.
In the depositions, witnesses were asked to restrict their
opinions to a consideration of the inguinal hernia condition, or in
the alternative, a consideration of the heart condition and the
hernia. Larson's heart condition was specifically factored out
upon remand in Larson I but, as we have previously stated, the
employer takes his employee subject to the employee's physical
condition at the time of employment. Bond v. St. Regis Paper Co.
11
(19771, 174 Mont. 417, 420, 571 P.2d 372, 374. It is clear from
the evidence that Larson suffered from several physical impairments
besides the hernia and the heart condition.
In addition, the medical depositions and records reveal that
Larson had a history of pain since 1982. Dr. Kobold testified that
he recalled Larson suffered from an "inordinate amount of pain."
Dr. Kobold referred Larson to Dr. Daniels, an orthopedic surgeon,
to determine if Larson's pain was in his back and therefore
amenable to a nerve block. Dr. Daniels determined the pain was not
related to a nerve-root problem. Dr. Daniels also noted that
Larson had an abdominal bulge, which is indicative of a hernia. In
June 1982, the first recurrence of the inguinal hernia was
diagnosed.
Subsequently, Larson entered a pattern of repair and recovery
for his inguinal hernia. He underwent surgery in 1985, 1986 and
for a fourth time in 1987. Dr. Kobold stated it would appear that
the hernia never healed correctly. In 1988, Larson received a TENS
unit (a pain management device). CIGNA paid for this device and
the related supplies. CIGNA also paid for all of Larson's
subsequent surgeries, acknowledging that the surgeries were all
related to the original industrial injury in 1981.
The Workers' Compensation Court was unpersuaded that this pain
would have deterred him from finding employment. However, in past
cases, this Court has considered a substantial degree of continuing
pain resulting from an injury when determining permanent total
disability. See Robins v. Anaconda Aluminum Co. (1978), 175 Mont.
12
514, 521, 575 P.2d 67, 71; Cleveland v. Cyprus Indus. Minerals
(1981), 196 Mont. 15, 19, 636 P.2d 1386, 1388. We have also held
that a claimant's ability to perform a few odd jobs for a short
period of time does not preclude a finding of permanent total
disability. Jensen v. Zook Bros. Construction Co. (1978), 178
Mont. 59, 62-63, 582 P.2d 1191, 1193.
In summary, the record offers only qualified approval of the
general salesperson position by only one of the testifying
physicians. There were no job analyses for any of the other
mentioned positions, and the record lacks discussion of Larson's
ability to perform at these positions without the aid of
rehabilitative services. At the time of the injury, Larson was a
58 year old man, with a lifetime of experience in heavy labor, and
with multiple health problems.
We hold that the Workers' Compensation Court lacked the
substantial evidence necessary to conclude Larson had a reasonable
prospect for employment. For this reason, we reverse the Workers'
Compensation Court.
ISSUE 2
Did the Workers' Compensation Court err in not applying Brurud
v. Judge Moving & Storage (1977), 172 Mont. 249, 563 P.2d 558?
Prior to adopting the Metzqer test, this Court decided Brurud,
563 P.2d 558. In Brurud, this Court determined that whereas the
claimant must show there is no reasonable prospect of employment,
this does not translate into the burden of showing a reasonable
effort to secure employment. Brurud, 563 P.2d at 560.
13
In Brurud, the claimant was 58 years old at the time of
injury. With a high school education, he had worked his entire
adult life doing heavy labor. In concluding that the claimant was
permanently disabled for the purpose of receiving benefits, the
Division (now the Department of Labor and Industry) found no
reasonable prospect of the claimant finding regular employment in
the labor market. We affirmed the Workers' Compensation Court in
that case, agreeing that in some situations it would be futile for
an employee to make a concerted effort to secure employment.
However, this case is not the same as Brurud. CIGNA has
never contested that Larson had made a reasonable effort to find
employment. Instead, CIGNA attempted to prove Larson's "reasonable
prospect for employment" in the normal labor market.
We hold that the Workers' Compensation Court did not err by
not applying Brurud in its analysis of this case.
ISSUE 3
Did the Workers' Compensation Court err by not requiring the
insurer to comply with the "Coles" criteria as set forth in Wood v.
Consolidated Freightways (1991), 248 Mont 26, 808 P.2d 502?
The "Coles" criteria originated in a 1984 Workers'
Compensation Court opinion. Coles v. Seven-Eleven Stores (1985),
217 Mont. 343, 704 P.2d 1048. 1n Coles the insurer had converted
a claimant's benefits from temporary total to permanent partial
benefits. At that time, the Workers' Compensation Court found that
insurers are statutorily obligated to determine the "nature and
extent of an injured worker's disability" before such a conversion
14
of a claimant's benefits. See Lindquist v. Sletten Construction
Co, decided January 12, 1984, W.C. Docket No. 1851. The court then
concluded that an insurer's failure to investigate prior to
conversion warranted the imposition of a penalty. By way of
anticipation, the Workers' Compensation Court then listed the
"minimum information" necessary to discharge the insurer's duty of
investigation as:
(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) a physician's determination, based on his
[or her1 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 is fitted by, age, education, work
experience, and physical condition;
(4) notice to the claimant of receipt of the
report attached to a copy of the report.
This list became the Coles criteria. Coles
-I 704 P.2d 1048.
Claimant argues that the Workers' Compensation Court erred in
not requiring CIGNA to comply with the Coles criteria. He contends
compliance is required under Wood, 808 P.Zd 502. In Wood, an
injured claimant was receiving temporary total disability payments
when the insurer terminated these benefits with a letter in 1988.
This letter did not include any medical or vocational reports. The
Workers' Compensation Court used the Coles criteria to examine
whether the insurer had met the minimum burden necessary to
15
discharge the duty to investigate the nature and extent of the
claimant's injuries.
The facts here are different, however. Larson returned to
work. When a claimant returns to work, he or she is no longer
experiencing a loss in wages and, therefore, the insurer can
rightfully terminate temporary total disability benefits without
proceeding with an investigation under § 39-71-609, MCA (19791,
which reads as follows:
Denial of claim after payments made or termination of
benefits by insurer. . . If an insurer determines to deny
a claim on which payments have been made. . .during a
time of further investigation or, after a claim has been
a c c e p t e d , . it may do so only after 14 days written
notice to the claimant. . . However, if an insurer has
knowledge that the claimant has returned to work,
compensation benefits may be terminated as of the time
the claimant returned to work.
Since the duty of investigation was statutorily discharged, the
Coles criteria do not apply in this case.
We hold that the Workers' Compensation Court did not err by
not applying the Coles criteria to determine the insurer's burden
of proof in Larson's claim for permanent total disability benefits.
Reversed and remanded with instructions to enter judgment in
favor of the claimant and for any further proceedings necessary in
accordance with this opinion.
Justice
We Concur:
Chief Justice
16
Justices
17
Justice Karla M. Gray, concurring and dissenting.
I concur in the Court's opinion on issues two and three and
respectfully dissent from that opinion on issue one, which is
whether substantial credible evidence supports the Workers'
Compensation Court's finding that Larson had a reasonable prospect
for employment within his normal labor market, thus precluding him
from receiving permanent total disability benefits. The Court's
conclusion that substantial evidence does not support the finding
marks the second time in one month that this Court has mouthed the
correct standard of review regarding findings by the Workers'
Compensation Court and then proceeded to substitute its judgment
for that of the trier of fact with regard to weighing the evidence
and determining the credibility of the witnesses. See South v.
Transportation Insurance Co. (Mont. 1996), 913 P.2d 233, 53 St.Rep.
196. I cannot join in this course of action which demeans the
careful work and proper role of the Workers' Compensation Court in
order to achieve the result this Court prefers.
Our standards of review are clear and, at least in principle,
unwavering. In reviewing findings of the Workers' Compensation
Court, we determine whether those findings are supported by
substantial credible evidence. Wilson v. Liberty Mut. Fire Ins.
(Mont. 1995), 903 P.2d 785, 787, 52 St.Rep. 990, 991 (citation
omitted). Substantial evidence is more than a mere scintilla of
evidence, but it may be less than a preponderance of the evidence.
Wilson, 903 P.2d at 787 (citation omitted). We will not substitute
18
our judgment for that of the trier of fact where the issue relates
to the weight given to certain evidence or the credibility of the
witnesses. Wilson, 903 P.2d at 787 (citations omitted). Our
standard is not whether the evidence supports findings different
from those made by the Workers' Compensation Court. Wilson, 903
P.2d at 788 (citations omitted).
Notwithstanding these clear standards, and the Court's
enunciation of them, even a casual reading of the record in this
case--including the Workers' Compensation Court's findings--
establishes that this Court has merely located evidence which
supports findings contrary to those it is reviewing, reweighed all
the evidence and reached the result it desires. I cannot agree.
This Court concludes that substantial credible evidence does
not support a finding that Larson had a reasonable prospect for
employment following his 1981 hernia injury. That conclusion is
incorrect. The Workers' Compensation Court relied in part on Dr.
Kobold's testimony. Dr. Kobold specifically testified that, as of
1982, he would have approved Larson working at a general
salesperson position with a maximum 20-pound lifting requirement.
The Workers' Compensation Court also relied extensively on
Juanita Hooper's testimony, which it specifically found to be
persuasive and, thus, credible. Ms. Hooper testified that Larson
has transferable skills with which he is qualified to perform
general retail sales and telemarketing jobs which involve minimal
lifting and which are commonly available in the normal job market.
She further testified that, with job placement assistance, Larson
19
has had a reasonable prospect for employment since 1982 and, with
rehabilitation support services, he has had at least an "averacre"
prospect of employment since that time. Thus, contrary to this
Court's opinion, the record is clear that far more than
"substantial" credible evidence supports the Workers' Compensation
Court's finding that Larson had a reasonable prospect of employment
following his 1981 hernia injury.
Nor do I agree with the Court's statement that the Workers'
Compensation Court did not determine whether Larson carried his
burden under the Metzqer test. The court observed that Larson
based his odd-lot employee argument on his heart condition and that
it was necessary to factor that condition out of the disability
determination to be made in this case. The court then observed
that, in any event, the odd-lot doctrine did not add anything to
Larson's case "since, through testimony of his vocational counselor
(JoAnn Gordon) and other evidence, he presented a prima facie case
for permanent total disability." It is my view that this clearly
constitutes a determination that Larson carried his burden under
Metzqer regarding his hernia condition; indeed, Ms. Gordon
testified specifically that her conclusions were based solely on
Larson's hernia condition. The Workers' Compensation Court then
properly addressed the employer's Metzcier burden, determining that
"Cigna has satisfied its burden of proof both by producing evidence
and by persuading me that claimant was employable despite his
industrial accident. Juanita Hooper's and Dr. Kobold's testimony
are persuasive concerning claimant's ability to work in spite of
20
his hernia."
This Court concedes that "two rehabilitation counselors and
two physicians offered testimony on Larson's prospect of finding
regular employment in his normal labor market." As set forth
above, the Workers' Compensation Court was persuaded by the
testimony of Ms. Hooper, one of the rehabilitation counselors, and
Dr. Kobold, one of the physicians, that Larson had a reasonable
prospect of securing employment in the positions identified by Ms.
Hooper and within the limitations placed by Dr. Kobold. Given such
a record, this Court's determination that substantial credible
evidence does not support the Workers' Compensation Court's finding
about Larson's reasonable prospects for employment can be explained
only by reference to the fact that it changes the result in this
case.
Finally, this Court makes several references to the fact that
Larson did not receive the rehabilitation services Ms. Hooper
testified would significantly increase his prospects for
employment. The reason Larson did not receive the services is that
he did not seek them. Even this Court observes in passing that
Larson did not seek employment after being laid off in December of
1981--he "considered himself to be retired." Yet, somehow, the
Court places the 17blame" for Larson's perception of himself as in
retirement, and his failure to seek either employment or
rehabilitative or job placement services, on the employer.
Substantial credible evidence supports the Workers'
Compensation Court's finding that Larson had a reasonable prospect
21
for employment and its conclusion, on that basis, that he is not
entitled to permanent total disability benefits. I would affirm
the Workers' Compensation Court.
Chief Justice J. A. Turn
join in the foregoing concurring and dissenting opinion of Justice "
Karla M. Gray.
Chief Justic
Justice
22