NO. 91-221
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
SAMUEL J. GRENZ,
Claimant and Appellant,
-vs-
FIRE AND CASUALTY OF CONNECTICUT,
Insurer, Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Samuel J. Grenz, Pro Se, Whitefish, Montana.
For Respondent:
Terry G. Spear, Matovich, Addy E, Keller, Billings,
Montana.
Submitted on Briefs: July 25, 1991
Decided: November 5 , 1991
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
The claimant, Samuel J. Grenz, appearing pro se, appeals from
the judgment of the Workers' Compensation Court denying him
workers' compensation benefits. We affirm.
The dispositive issue on appeal is whether the Workers'
Compensation Court erred in ruling that the claimant is not
permanently totally disabled as a result of his August 22, 1984
right elbow injury and that the claimant's psychological problems
are not compensably related to that injury.
At the time of trial the claimant was forty-six years old,
married and living in Whitefish, Montana. His work history
includes employment as a laborer, mill worker, driller and miner.
The claimant has been a body builder since he was eight years old.
On August 22, 1984, the claimant bumped his right elbow on a
steel handrailing while working for American Stud Company in
Flathead County; the claimant had been working as a side edger for
his employer since 1979. The elbow became sensitive and inflamed
and the claimant was examined the next day by Dr. Ken McFadden at
the Family Physicians Clinic in Whitefish. The injury involved
limited medical bills and no lost wages. The claimant's medical
bills were paid by the workers' compensation insurer, Fire and
Casualty of Connecticut.
On January 29, 1985, Dr. Ronald A. Miller, the claimant's
treating physician since 1977, saw the claimant for discomfort in
both elbows, both wrists, both hands, and his cervical, thoracic
and lumbar spine. Based on laboratory data, x-rays, the claimant's
personal history and a physical examination, Dr. Miller diagnosed
the claimant as having degenerative arthritis which is an
inflammatory disease of the joints. Dr. Miller also discussed with
the claimant in February 1985 the probability that the claimant's
continued weight lifting activities would make his symptoms worse.
On November 18, 1985, Dr. Miller saw the claimant again and
diagnosed his condition as degenerative arthritis of his fingers,
wrists and shoulders, and recurrent bursitis and epicondylitis of
his elbows. That same day, Dr. Miller gave the claimant a note in
which he recommended that the claimant not do any lifting or
physical use of his elbows and shoulders for several weeks due to
a flare-up of bursitis and arthritis.
The claimant gave the note to his employer and reported that
his condition at that time was related to his August 22, 1984 right
elbow injury. The employer then notified the insurer that the
claimant would be off work for several weeks due to his 1984 elbow
injury. Thereafter, the insurer assumed liability for the injury
and paid compensation and medical benefits to and for the claimant.
The claimant received temporary total disability benefits. The
claimant has not worked since November 18, 1985 due to progressive
degenerative problems. The insurer continued to pay workers'
compensation benefits to the claimant through the time of trial.
Dr. Miller's deposition testimony was that the claimant's work
activity over a period of time was probably more responsible for
the claimant's degenerative arthritis than his body building. He
could not provide any reasonable medical explanation of how the
claimant's left elbow, left thumb, index finger and joint pain
3
could have been the result of bumping his right elbow at work.
Beginning in April 1986, the claimant, complaining of lower
back pain and stiffness, received a series of chiropractic
adjustments to his lower back from Dr. Arvin R. Wilson. He had
received similar treatments from Dr. Wilson from August 1977 to
December 1979 and was directed to return if and when he needed
further treatment. At the time the claimant returned for
chiropractic treatments in 1986, he was receiving workers'
compensation benefits and had been off work for five months.
However, the claimant never suggested to Dr. Wilson that his back
problem was related to his bumped right elbow. When sixty-three
chiropractic adjustments failed to improve the claimant's lower
back condition, he was referred to a pain management specialist.
In February 1988, at the insurer's request, the claimant was
examined by a panel of multi-disciplinary medical specialists
assembled and coordinated by Medical Management Northwest. The
panel diagnosed the claimant as having lumbar degenerative disease
attributable to both work-related injuries and the claimant's
weight lifting avocation. In addition, the panel found x-ray
evidence of calcification and abnormal bone formation in the
claimant's right elbow and again traced the condition to his
recurrent work-related injuries and aggravation from his weight-
lifting activities. The panel felt that the claimant was at
"maximum medical improvement" and further medical treatment was not
needed at that time. In relation to psychological difficulties,
the panel found that the claimant was suffering from a personality
disorder and learning disability but determined that these
4
conditions were not work-related.
Subsequent to the panel's evaluation, the insurer, on August
24, 1988, reduced the claimant's benefits from temporary total
disability to permanent partial disability. The claimant's total
disability status was reinstated on December 15, 1988, retroactive
to August 24, 1988, following mediation of the claimant's claim.
The claimant at this time received permanent total disability
benefits.
Dr. John W. Hilleboe, an orthopedic surgeon who was a member
of the medical panel, explained in his deposition that the medical
panel's use of the phrase "work-related injuries" reflected its
belief that the claimant's progressive degenerative problems may
have resulted from heavy occupational or vocational activity as
well as avocational activity. Dr. Hilleboe testified that the kind
of degenerative changes that the claimant has experienced are not
likely to result from an acute injury. He further testified that
he found no significant difference between the condition of the
claimant's two elbows and that he found no evidence that the
claimant's back problems are related to the claimant's August 22,
1984 right elbow injury.
Dr. John V. Stephens, the director of the physical medicine
and rehabilitation program at the Kalispell Regional Hospital
Rehabilitation Center, was also a member of the medical panel which
examined the claimant in February 1988 and he authored the panel's
evaluation summary. Dr. Stephens testified in his deposition that
he had no opinion as to whether the 1984 right elbow injury might
be responsible for the problems found by the panel. He deferred
5
that question to Dr. Hilleboe. Dr. Stephens testified that nothing
in his records relating to the medical panel's evaluation suggested
that the 1984 right elbow injury was causally related to the
chronic irritation of the claimant's left elbow or that that injury
may have contributed to the claimant's back problems.
Dr. Herbert Gray is a psychiatrist who treated the claimant
for major depression requiring hospitalizations in January 1 9 8 6 and
December 1 9 8 9 . Dr. Gray testified in his deposition that the
claimant has suffered from chronic depression throughout his life.
In a letter dated October 1 7 , 1 9 8 8 , addressed "TO WHOM IT MAY
CONCERN, Iq he agreed with the medical panel's conclusion that the
claimant's learning disability is not a consequence of his
industrial accident. However, Dr. Gray believed that the
industrial injury represented a greater insult to the claimant than
would otherwise have occurred because the claimant overemphasized
his physical ability.
Dr. Gray noted that due to serious abuse as a child, and
perhaps other factors, the claimant had preexisting psychological
problems. He further noted that the claimant's ability to fight
with and intimidate people was a way of coping which the claimant
learned as a child and continued to use as an adult. Dr. Gray did
not testify that the claimant's hospitalizations or psychotherapy
were caused by the claimant's 1984 right elbow injury.
Dr. James H. Mahnke, a neurosurgeon, examined the claimant on
March 6, 1 9 8 9 . Based on x-rays and scans, Dr. Mahnke diagnosed
cervical spondylosis at C6-7 and lumbar spondylosis with herniated
discs at L4-5 and L5-S1. Dr. Mahnke testified in his deposition
6
that he did not know what caused the claimant's condition.
On March 7, 1990, Dr. William Stratford, a psychiatrist,
examined and tested the claimant on the insurer's behalf. Dr.
Stratford testified in his deposition that the claimant suffered
from anxiety and depression due to his loss of physical prowess and
inability to work. However, Dr. Stratford could not opine to what
extent the claimant's right elbow injury, as distinguished from the
claimant's other medical complaints, may have contributed to his
psychological problems.
In his May 2, 1990 petition to the Workers' Compensation
Court, the claimant asserted that he was totally disabled as a
result of his August 22, 1984 right elbow injury and requested that
the insurer be ordered to convert all future benefits into a lump
sum payment, assessed a statutory twenty percent penalty, and
ordered to pay costs. The claimant also requested payment of the
expenses from his 1989 hospitalization for depression and for
continuing psychotherapy. The insurer disputed both the claimant's
entitlement to a lump sum conversion and his disability status.
After a trial held on September 17, 1990, the Workers'
Compensation Court ruled that the claimant is not permanently
totally disabled as a result of his August 22, 1984 right elbow
injury and that his psychological problems are not compensably
related to that injury. The claimant's motion for reconsideration
or a new trial was denied. This appeal followed.
Did the Workers' Compensation Court err in ruling that the
claimant is not permanently totally disabled as a result of his
August 22, 1984 right elbow injury and that the claimant's
7
psychological problems are not compensably related to that injury?
The Workers' Compensation Court found that the claimant failed
to establish, by a preponderance of the medical evidence, a causal
connection between his current degenerative condition and his 1984
right elbow injury and, therefore, concluded that the claimant is
not permanently totally disabled as a result of his August 22, 1984
right elbow injury. The Workers' Compensation Court also found
that the psychological problems that the claimant experiences may
have been aggravated by his loss of physical prowess, but that no
medical evidence was presented showing that the claimant's loss of
physical functioning is related to his 1984 right elbow injury.
Based on this finding, the court concluded that the claimant is not
entitled to payment for his 1989 hospitalization for depression or
for continuing psychotherapy.
This Court will not overturn findings of fact of the Workers'
Compensation Court if there is substantial credible evidence in the
record to support them. Kraft v. Flathead Valley Labor & Contr.
(1990), 243 Mont. 363, 365, 792 P.2d 1094, 1095. The Workers'
Compensation Court's conclusions of law will be upheld if the
tribunal's interpretation of the law is correct. Steer, Inc. v.
Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.
The claimant raises several arguments challenging the decision
of the Workers f
Compensation Court. Initially, the claimant
asserts that the court's determination that he was not permanently
totally disabled ignored the first issue in the pretrial order,
which was whether the claimant is "totally disabled." He argues
that disability may be temporary total or permanent total and by
8
limiting its decision to whether he is permanentlytotally disabled
the Workers' Compensation Court changed the whole intent of the
first issue to the insurer's advantage. We disagree. The claimant
argued before the Workers' Compensation Court that the parties'
stipulation in a prior action that the claimant was at that time
llpresentlylt
permanently disabled, is res judicata in the present
action. The Workers' Compensation Court rejected the claimant's
position, stating that:
The stipulation previously entered only binds the parties
for the purposes of that action only, and it has no
effect on subsequent litigation. Defendant refused such
stipulation and it was agreed by both parties that it is
the first issue for determination in this litigation.
In addition, in his petition to the Workers' Compensation Court the
claimant sought a lump sum conversion of permanent total disability
benefits. The issue of whether the claimant is permanently totally
disabled necessarily had to be determined in order to reach his
lump sum demand.
The claimant next asserts that the Workers' Compensation Court
erred in finding that his current disabilities were not caused by
his employment. He argues that, through his employment, he
suffered a series of "micro-traumas" attributable to constant
vibrations of machinery, heavy lifting, and multiple jars and jolts
to his joints. The claimant asserts that these "industrial
injuries," which he suffered after and in addition to this August
22, 1984 injury and which were reported to his employer, caused him
to develop his degenerative joint disease.
The insurer argues that the claimant's sole basis for
entitlement to benefits was his August 22, 1984 right elbow injury
9
and asserts that the claimant is now arguing a completely different
theory on appeal than that which was presented to the Workers'
Compensation Court. We agree. Our review of the record shows that
the claimant admitted at trial that the sole basis for his claim to
benefits in that proceeding was his 1984 injury.
Q. Your injury occurred in 1984?
A. Right.
Q. That's the only industrial injury you claim: is that
right?
A. Right. .. .
The claimant is limited on appeal to those issues which he
presented to the Workers' Compensation Court. Baldwin v. Orient
Express Restaurant (1990), 242 Mont. 373, 376, 791 P.2d 49, 50.
Thus, on appeal we will consider only whether the Workers'
Compensation Court properly determined that the claimant failed to
establish a causal connection between his current physical
condition and his August 22, 1984 right elbow injury and,
therefore, was not permanently totally disabled as a result of the
1984 injury.
Section 39-71-116(13), MCA (1983), in effect at the time of
the claimant's 1984 injury, defines permanent total disability 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. Disability shall be
supported by a preponderance of medical evidence.
10
causation is an essential element to an entitlement to
benefits and the claimant has the burden of proving a causal
connection by a preponderance of the evidence. Brown v. Ament
(1988), 231 Mont. 158, 163, 752 P.2d 171, 174. After reviewing the
entire record in this case, we hold that there is substantial
credible evidence to support the Workers' Compensation Court's
finding that the claimant failed to establish a causal connection
between his current physical condition and his 1984 right elbow
injury. Virtually all of the medical testimony in this case
reflects that, while it was possible that prolonged work activity
combined with strenuous avocational body building activity caused
the claimant's current degenerative condition, a causal connection
between the claimant's current physical problems and his 1984 right
elbow injury is not present. Because no causal connection between
the claimant's current physical condition and his 1984 right elbow
injury was shown, the Workers' Compensation Court correctly
concluded that the claimant is not permanently totally disabled.
In the proceedings before the Workers' Compensation Court, the
claimant requested payment of the expenses from his 1989
hospitalization for depression and for continuing psychotherapy.
The responsibility of the insurer to provide medical benefits for
treatment which is the result of an injury is set forth in 5 39-71-
704, MCA (1983), in pertinent part as follows:
Payment of medical, hospital, and related services. (1)
In addition to the compensation provided by this chapter
and as an additional benefit separate and apart from
compensation, the following shall be furnished:
(a) After the happening of the injury, the employer
or insurer shall furnish, without limitation as to length
11
of time or dollar amount, reasonable services by a
physician or surgeon, reasonable hospital services and
medicines when needed, and such other treatment as may be
approved by the division for the injuries sustained.
Both Dr. Herbert Gray and Dr. William Stratford, psychiatrists
who examined the claimant, testified that due to serious abuse as
a child, and perhaps other factors, the claimant had preexisting
psychological problems before his 1984 right elbow injury. In
addition, both agreed that the claimant’s emotional problems may
have been aggravated by his loss of physical prowess. However,
there is no credible medical evidence in the record establishing a
relationship between the claimant‘s loss of physical prowess and
his 1984 right elbow injury. Absent a causal connection between
his current psychological problems and the 1984 right elbow injury,
the claimant is not entitled to payment for his 1989
hospitalization for depression or continuing psychotherapy
treatment.
The claimant also argues that because the insurer assumed
liability in this case and paid benefits to him for over five
years, the insurer waived its right to deny his claim for benefits.
We disagree. Section 39-71-608, MCA (1983), provides that:
An insurer may, after written notice to the claimant and
the division, make payment of compensation benefits
within 30 days of receipt of a claim for compensation
without such payments being construed as an admission of
liability or a waiver of any right of defense.
It is clear that under the particular facts of this case the
insurer accepted liability for the 1984 right elbow injury and paid
workers’ compensation benefits to the claimant. However, under
§ 39-71-608, MCA (1983), the insurer, by making such payments, did
12
not waive its right to subsequently assert nonliability for the
claimant's condition insofar as it was not causally related to the
elbow injury.
In conclusion, we hold that the Workers' Compensation Court
did not err in ruling that the claimant is not permanently totally
disabled as a result of his August 22, 1984 right elbow injury and
that his psychological problems are not compensably related to that
injury.
Af finned.
13
November 5, 1991
CERTIFICATE OF SERVICE
I hereby certify that the llowing order was sent by United States ma.., prep: to the
following named:
Samuel J. Grenz
104 Colorado Ave.
Whitefish, MT 59937
Terry G. Spear
225 Petroleum Bldg.
2812 First Ave. No.
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT
STAT~MONTANA