NO. 92-293
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
CAROL HASH,
Petitioner/Appellant, -.
-v-
MONTANA SILVERSMITH,
Employer,
and
'R?
STATE COMPENSATION MUTUAL INSURANCE FUND,
APPEAL FROM: The Workers1 Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lloyd E. Hartford, Billings, Montana
For Respondent:
Richard E. Bach, State Compensation Insurance Fund,
Helena, Montana
Submitted on Briefs: November 24, 1992
~ecided: February 2, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal by the claimant, Carol Hash, from an order
of the Workers9 Compensation Court ruling that she had not suffered
permanent disability as a result of her industrial injury, that she
was not entitled to additional benefits beyond those already paid,
and that she was not entitled to attorney's fees or costs. We
affirm.
The claimant presents the following issues for our review:
1. Whether Mrs. Hash is permanently totally disabled as a
result of her industrial injury.
2. Whether Mrs. Hash is entitled to retroactive payment of
temporary total disability benefits and retroactive payment of all
benefits withheld by respondent as an offset due to her receipt of
Social Security Disability benefits.
3. Whether Mrs. Hash is entitled to an award of a reasonable
attorney's fee and costs.
This Court previously affirmed the Workers' Compensation
Court's conclusion that Mrs. Hash suffered a compensable injury to
her hands. For a more complete discussion of the facts of this
case, see Hash v. Montana Silversmith (1991), 248 Mont. 155, 810
P.2d 1174. Because the amount of permanent benefits, if any, was
not settled in that proceeding, Mrs. Hash subsequently petitioned
for a second hearing on the issue of entitlement to permanent total
benefits retroactive to the date that she ceased working, with
credit to respondent State Compensation Mutual Insurance Fund
(State Fund) for Occupational Disease benefits paid under the
Occupational Disease Act, 5 5 39-72-101-714, MCA (1985).
Mrs. Hash suffers from osteoarthritis, a disease of unknown
origin, which was aggravated by her job with Montana silversmith.
The State Fund paid Occupational Disease benefits under a full
reservation of rights pending an Occupational Disease evaluation to
determine the contribution of her employment, if any, to the
osteoarthritis in her hands. The State Fund paid $9,686.51 in
Occupational Disease benefits covering the time period from April
25, 1987 to September 25, 1989.
Thereafter, the State Fund discontinued Occupational Disease
benefits based on a June 19, 1989 evaluation by Dr. William Shaw,
a specialist in Occupational Medicine. Dr. Shaw determined that
Mrs. Hash did not suffer from an occupational disease and that her
osteoarthritis was neither caused by nor progressed more rapidly
from her work activities at Montana Silversmith.
In the previous proceeding, the Workers' Compensation Court
determined and this Court affirmed that Mrs. Hash suffered a
compensable Workers1 Compensation injury, microtrauma to her hands,
on July 31, 1986. Hash, 810 P.2d at 1177. In the present
proceeding, the Workers1 Compensation Court evaluated testimony
from three physicians before determining that Mrs. Hash did not
qualify for further Workers1 Compensation benefits because she did
not meet the statutory requirements for flpermanent total
disability." Medical testimony included depositions from Dr, Shaw,
Dr. Susan English and Dr. Phillip Griffin. Dr. Griffin was Mrs.
Hash's treating physician in 1986. Dr. English initially examined
Mrs. Hash at the request of the State Fund and later became Mrs.
Hash's treating physician after her initial evaluation for the
State Fund. Dr. riffi in and Dr. ~nglishare certified internal
medicine specialists with sub-specialties in rheumatology.
A11 three physicians testified that Mrs. Hash's condition, for
which she seeks permanent total disability benefits, is naturally
occurring and progressive osteoarthritis and that her job with
Montana Silversmith at most only temporarily aggravated the
symptoms of her condition without either contributing to or causing
its onset or progression. Dr. English opined that the microtrauma
suffered by Mrs. Hash aggravated her osteoarthritis for a period of
several months, and that after several months, Mrs. Hash achieved
maximum healing of her temporary aggravation of her cornpensable
Workers' Compensation injury.
Although her osteoarthritis continued to degenerate and Mrs.
Hash could not return to work, the medical experts testified that
she would have the same osteoarthritis problems regardless of her
employment. The Workers' Compensation Court concluded that the
injury did not produce permanent disability and the employment-
related aggravation of her naturally progressing osteoarthritis was
temporary.
The Workers1 Compensation Court determined that the benefits
paid to Mrs. Hash, when calculated correctly without deducting an
offset for Social Security Disability payments received by Mrs.
Hash, were sufficient to pay benefits for 59.74 weeks at her
temporary total disability rate, a period in excess of the '#several
monthst1Dr. English testified it took to reach maximum healing.
However, the Workersg Compensation Court did not require Mrs. Hash
to repay any overpaid benefits, noting that the State Fund did not
seek reimbursement for any overpayment to her.
The Workers' Compensation Court also refused to allow Mrs.
Hash's attorney to incorporate time expended by him in litigating
her prior petition before the Workers' Compensation Court and this
Court with time and costs expended on this action because no
benefits were awarded in excess of those already paid by the State
Fund.
Whether Mrs. Hash is permanently totally disabled as a result
of her industrial injury.
The previous appeal in this matter affirmed the Workers'
Compensation Court's finding that Mrs. Hash suffered a compensable
injury. Hash, 810 P.2d at 1177. However, the issue of permanent
benefits was not litigated in that proceeding. The Workers'
Compensation Court subsequently resolved that question by denying
permanent disability benefits.
The Workers' Compensation Court stated that the issue was not
whether Mrs. Hash was disabled, but whether her work was the cause
of the disability. The court then found that Mrs. Hash failed to
prove that her work was the cause of her disability, as required by
§ 39-71-116(13), MCA (1985). Section 39-71-116(13), MCA (1985),
provides :
(13) "Permanent total disability" means a condition
resultina from iniury 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. (Emphasis supplied)
The Workers' Compensation Court stated, "[hlere, no permanent
disability was proved to be caused by claimant's employment, and
she has already been compensated for the temporary total loss which
resulted from her employment's aggravation upon her naturally
progressing osteoarthritis."
Mrs. Hash contends that this is error for two reasons: (1) she
previously established the existence of a causal relationship
between the job and her injury, and (2) S39-71-116(13) does not
require proof that the injury produced permanent disability before
an analysis need be made of loss of actual earnings or earning
capability. By proving that the microtrauma to her hands
aggravated her pre-existing osteoarthritis, Mrs. Hash established
a causal relationship entitling her to temporary total disability
benefits. Her pre-existing condition, however, requires her to
further establish that the microtrauma to her hands proximately
caused permanent total disability if she is to qualify for
permanent total disability benefits under the Workers' Compensation
Act.
Causation is an essential element to benefit entitlement. The
claimant has the burden to prove a causal connection by a
preponderance of the evidence. Grenz v. Fire and Casualty of Conn.
(1991), 250 Mont. 373, 380, 820 P.2d 742, 746. In Grenz, the
claimant similarly argued that microtrauma caused him to develop
his degenerative joint disease. w, 820 P.2d at 745-46. Mrs.
Hash notes that she does not challenge the Workers' Compensation
Court's conclusion that she achieved maximum medical healing by the
fall of 1987. However, she does contend that such a finding
triggers a reevaluation of her disability status, requiring a
classification as either permanently totally disabled or
permanently partially disabled. She claims that the court avoided
doing this by holding that she had failed to establish a causal
connection between her injury and disability.
Our standard for reviewing the findings and conclusions of the
Workers' Compensation Court is to determine whether there exists
substantial credible evidence to support them. White v. Ford,
Bacon & Davis Texas, Inc. (Mont. 1992), - P.2d -, 49 St.Rep.
1117, 1118. Conclusions of law, whether made by an agency,
Workers' Compensation Court, or other trial court will be upheld if
the interpretation of the law is correct, regardless of the reasons
given for the conclusion. Steer Inc. v. Department of Revenue
(1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
All three medical experts here testified that Mrs. Hash's hand
condition is naturally occurring and progressing osteoarthritis and
that her occupation temporarily aggravated the symptoms of her
condition without either contributing to or causing its onset or
progression. Dr. English testified that within several months
after Mrs. Hash quit her job in April 1987, any aggravation in her
underlying symptoms caused by her employment should have been "back
to what would have been there without the job;" and that the
condition would be the same as the doctor had observed on July 2,
1987, regardless of claimant's employment. Dr. English further
testified that although it was possible that Mrs. Hash's work could
have aggravated her symptoms of osteoarthritis, the underlying
condition would have progressed in the same manner regardless of
her activities.
Dr. Griffin testified that people with such a condition get
arthritis regardless of their occupations and that he knew of no
occupation that would make a change in the time of onset of the
disease or make it worse. Dr. Shaw testified to his opinion that
Mrs. Hash was not suffering an occupational disease. Both Dr.
Griffin and Dr. Shaw concurred with Dr. English's opinion that the
microtrauma to Mrs. Hashfs hands could have aggravated her
condition, but that such aggravation would be temporary in
character and would not cause permanent damage over that caused by
the basic progression of the disease.
After a thorough review of the medical evidence presented in
this case, we conclude that there is substantial credible evidence
to support the Workers1 Compensation Court's finding that Mrs. Hash
failed to establish a causal connection between her current
condition and the 1986 injury. Mrs. Hash has failed to demonstrate
by a preponderance of the evidence that her current condition is
attributable to her employment with Montana silversmith.
Mrs. Bash further contends that if a claimant asserts an
entitlement to permanentbenefits, the law requires a determination
of whether the claimant has suffered the loss of actual earnings or
earning capability. While Mrs. Hash may well be able to establish
an actual loss of earnings or earning capacity, to do so would be
irrelevant here. Mrs. Hash has not proved that her injury caused
her present condition. Without that causal connection, she does
not meet the criteria of 9 39-71-116(13), MCA (1985), which would
qualify her to receive permanent disability benefits, We conclude
that the Workers' Compensation Court correctly refused to address
whether Mrs. Hash lost actual earnings or earning capacity.
We affirm the District Court's finding that Mrs. Hash is not
permanently totally disabled as a result of her industrial injury.
11.
Whether Mrs. Hash is entitled to retroactive payment of
temporary total disability benefits and retroactive payment of all
benefits withheld by respondent as an offset due to her receipt of
Social Security Disability benefits.
Mrs. Hash argues that she is entitled to additional benefits
for the period previously found compensable by the Workers'
Compensation Court because the State Fund was not entitled to
offset those benefits because of her receipt of Social Security
Disability benefits. The total amount Mrs. Hash received is in
excess of what she would have received at the full rate with no
offsets for the time for which compensation was allowed for
temporary disability. As argued by the State Fund, the net effect
is that Mrs. Hash is not entitled to additional benefits over those
previously paid. She has received substantially more than the
Workers1 Compensation Court found she was entitled to receive. We
conclude that Mrs. Hash is not entitled to a lump sum in the amount
of the total withheld Social Security Disability offset.
We affirm the Workers' Compensation Court's holding that Mrs.
Hash is not entitled to retroactive payment of temporary total
disability benefits and retroactive payment of all benefits
withheld by respondent as an offset due to her receipt of Social
Security Disability benefits.
111.
Whether Mrs. Hash is entitled to an award of a reasonable
attorney's fee and costs.
Mrs. Hash did not succeed in her attempt to obtain permanent
total disability benefits here. Therefore, the Workers'
Compensation Court correctly denied further payment for attorney
fees. We conclude that she is not eligible for attorney fees under
§ 39-71-611 or 612, MCA (1985). We further conclude that Mrs.
Hash may not incorporate time expended by her attorney litigating
her prior petition with those of this action because she is not
entitled to any further benefits in excess of those already paid by
the State Fund.
We affirm the Workers' Compensation Court's holding that Mrs.
Hash is not entitled to an award of a reasonable attorney's fee and
costs for expenses incurred relating to her unsuccessful claim for
permanent total disability benefits.
Affirmed.
We Concur: h
\
Justices -
February 2, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
LLOYD E. HARTFORD
Attorney for Claimant
P.O. Box 1517
Billings, MT 59103-1517
Richard E. Bach, Legal Counsel
State Compensation Mutual Insurance Fund
P.O. Box 4759
Helena, MT 59604-4759
ED SMITH
CLERK OF THE SUPREME COURT
STATE QF MONTANA