No. 90-629 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

CARLA J. SMITH-CARTER, 

Petitioner and Appellant, 

AMOCO OIL COMPANY, (Cyprus Industrial 

Minerals Beaverhead Mine), 

Employer, 

and 

AMOCO OIL COMPANY, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. Lewis Brown, Jr.; Butte Legal Center, Butte, 

Montana 

For Respondent: 

Paul C. Meismer; Garlington, Lohn & Robinson, 

Missoula, Montana 

Filed: 

Submitted on Briefs: May 2, 1991 

Decided: June 4, 1991 
Justice John Conway Harrison delivered the opinion of the Court. 

Petitioner, Carla Smith-Carter, appeals from the judgment of 

the Workerst Compensation Court of the State of Montana which found 

petitioner permanently partially disabled and entitled to 500 weeks 

of permanent partial disability benefits. We affirm the Workers1 

Compensation Court. 

On appeal petitioner raises five issues which this Court has 

consolidated into one issue: whether the judgment of the Workers' 

compensation Court is supported by substantial credible evidence. 

This complaint was originally heard by the Workers' 

Compensation Court on October 9, 1986. In that complaint 

petitioner alleged a dispute between the parties regarding the 

nature, degree, and extent of injuries from a February 6, 1981, 

industrial accident which occurred while petitioner was employed 

by Cyprus Industrial Minerals (Cyprus). 

As the result of the 1986 hearing, the Workers1 Compensation 

Court found that petitioner was not permanently totally disabled, 

but was permanently partially disabled, although the degree of 

disability could not be determined because an impairment rating of 

petitioner's left wrist was lacking. 

On April 10, 1989, Smith-Carter filed another petition in the 

Workers1 Compensation Court, seeking to adjudicate the nature, 

duration, and extent of her injuries. 

After a hearing on November 1, 1989, and upon consideration 

of depositions taken before and after the hearing, the court on 

August 21, 1990, issued an order adopting the findings of fact and 
conclusions of law of the hearing examiner and entered judgment 

determining that petitioner is permanently partially disabled, but 

not permanently totally disabled. The judgment awarded her 500 

weeks of permanent partial disability payments. Petitioner 

requested a rehearing on September 11, 1990, and upon denial by 

the Workers1 Compensation Court, appealed to this Court. 

Petitioner was employed by Cyprus in October of 1979 at its 

Beaverhead Mine near Ennis, Montana, as a l1talc sorter.I1 Her 

duties with Cyprus entailed picking and sorting talc rocks from a 

conveyor belt; the rocks weighed anywhere from a few ounces to two 

hundred pounds. 

On February 6, 1981, petitioner left her job because the pain 

she had been experiencing in her right wrist became too great. She 

returned to work on May 4, 1981, with a brace on her right wrist. 

The addition of the brace forced petitioner to use her left arm 

more than usual in the performance of her duties, and petitioner 

began to notice pain in her left wrist. 

Because of increased difficulties in her right arm and pain 

in her left wrist, petitioner sought medical assistance from 

several doctors. Petitioner initially consulted Dr. Wilkins, who 

sent her to Dr. Losee in Ennis, Montana. Dr. Losee ultimately 

referred her to Dr. Thomas Johnson in Billings, Montana. 

In view of the importance of the testimony of Dr. Johnson and 

other experts, we will summarize the opinions of each of the 

principal witnesses. 
Medical evidence 

Petitioner first saw Dr. Johnson, who became her attending 

physician, in August 1981. Dr. Johnson diagnosed carpal tunnel 

syndrome in both wrists, eventually performing two surgeries on her 

right wrist. Despite the surgeries, petitioner continued to 

experience problems with her right wrist. Dr. Johnson concluded 

that surgery on her left wrist would be futile in view of the poor 

results with the other wrist. 

In April 1989, petitioner began complaining of neck pain. 

Dr. Johnson requested nerve-conduction studies which were performed 

by Dr. Donald H. See of Billings on May 3, 1989. The test results 

indicated that nerve velocity was normal without any delay. On May 

26, 1989, petitioner received an MRI scan which showed no physical 

abnormalities, such as a pinched nerve, in her neck. Although Dr. 

Johnson was unable to explain the neck pain, he did not relate the 

neck pain to petitioner's carpal tunnel syndrome. 

Dr. Johnson stated that petitioner's strength has remained 

constant since 1987. Using American Medical Association 

guidelines, Dr. Johnson determined that petitioner's left wrist was 

ten percent impaired. Her two wrist impairments converted to a 

thirteen per cent "whole man" impairment. 

Dr. Johnson reviewed three occupations, pharmacy cashier, 

self-service gas station cashier, and bartender, submitted by Pete 

Sesselman, a rehabilitation counselor. Dr. Johnson felt that 

petitioner would be unable to perform the duties of a bartender 

because of the lifting involved and the temperatures of the 
coolers. Dr. Johnson agreed that if the job entailed only working 

on four or five customers a day without stocking shelves or a 

cooler, as described by Sesselman, then petitioner could work as 

a bartender. In Dr. Johnson's opinion, although petitioner would 

experience some pain during an eight-hour workday, the pain would 

not prevent her from doing the tasks required by the other 

suggested occupations. 

At Dr. Johnson's request, Dr. See, a neuromuscular and 

musculoskeletal specialist, examined petitioner. After extensive 

examination and testing, Dr. See completed a physical capacities 

form used by his office. In addition to some restriction in 

grasping, pushing-pulling, and fine manipulation, Dr. See found 

that petitioner should limit frequent lifting to ten pounds and 

occasional lifting to twenty-five pounds. Dr. See also advised 

that petitioner refrain from driving more than one to three hours 

without a break. According to Dr. See, petitioner had the ability 

to sit, stand, or walk for an eight-hour day and could operate foot 

controls repetitively. 

In Dr. See's opinion, petitioner was not totally disabled and 

could perform the jobs recommended by Sesselman. 

Vocational and rehabilitation evidence 

A rehabilitation counselor employed by Cyprus, Pete Sesselman, 

who had not interviewed or tested petitioner because she refused 

to meet with him in 1986, testified that in his opinion petitioner 

had the skills to perform the occupations of self-service gas 
station cashier, pharmacy cashier, and bartender. Sesselman 

reviewed the depositions and reports of medical experts and 

vocational counselors, as well as the testimony taken at the 1989 

hearing. In addition, in June 1989 Sesselman sat in on 

petitioner's deposition. Based on this information and several 

types of vocational criteria, Sesselman submitted to Dr. Johnson 

and Dr. See descriptions of the three occupations in the Ennis 

area. Sesselman admitted that he did not consider petitioner's 

pain in his assessments because the degree of pain was a medical 

determination which physicians could weigh when evaluating job 

descriptions. 

In Sesselmanls opinion, petitioner was capable of completing 

her GED and acquiring vocational training. 

Petitioner's vocational expert, Ian Steel, was of the opinion 

that she could not perform even entry level, sedentary occupations, 

because of pain, limited education, and lack of skills. He stated 

that petitioner could not sit, stand, or use her hands for 

prolonged periods of time. 

A professional vocational evaluator employed by the Butte 

Sheltered Workshop, Robert McGuire, tested petitioner six hours a 

day for four days in 1986. In reaching his conclusions, McGuire 

had analyzed earlier medical reports, but had not reviewed recent 

depositions of the physicians who had treated petitioner. McGuire 

testified that "depending on the training, how long, intense the 

training is . . . [petitioner] could get into some sort of training 

and job." He felt that petitioner could probably handle the 
bartender's job at the Silver Dollar Bar if not overburdened with 

customers. 

The Workers' Compensation Court concluded that petitioner was 

capable of performing particular jobs in her labor market and noted 

that college training after completion of her GED could provide her 

with the skills to enter a number of additional occupations. 

I 

Petitioner claims that she is permanently totally disabled, 

rather than permanently partially disabled as determined by the 

Workers' Compensation Court, because her medical condition prevents 

her from finding regular employment of any kind in her normal labor 

market. 

This Court will not substitute its judgment for that of the 

Workers' Compensation Court concerning the credibility of witnesses 

or the weight of their testimony. When conflicting evidence is 

presented, the scope of review is to establish whether substantial 

evidence supports the lower court's findings, not whether evidence 

may support contrary findings. B'Brien v. Central Feeds (1990), 

241 Mont. 267, 271-72, 786 P.2d 1169, 1172. In sum, this Court's 

role is not to redetermine all issues presented to the lower court, 

but rather to examine whether the findings of the lower court are 

based upon substantial credible evidence. 

When critical medical testimony is presented through 

depositions, this Court can assess the evidence as well as the 

lower court. Stangler v. Anderson Meyers Drilling Co. (1987), 229 

Mont. 251, 255-56, 746 P.2d 99, 101-02; Dunn v. Champion 
International Corp. (1986), 222 Mont. 142, 147-48, 720 P.2d 1186, 

1189. 

Here, medical testimony does not conflict. Dr. Johnson was 

the treating physician of petitioner's choice, and his involvement 

in this case spans a time period of over ten years from 1981 to 

the present time. Dr. See had less involvement with the patient, 

but his conclusions have not been challenged at any stage in the 

proceedings below. Both physicians approved, without restriction, 

the jobs in Ennis, Montana, of pharmacy cashier and cashier at two 

self-service gas stations. In addition, both physicians accepted 

the job of daytime bartender with limitations on lifting as 

described by Sesselman. 

The Workers' Compensation Court had the opportunity to 

personally observe petitioner and her husband testify on more than 

one occasion. The court was in the best position to determine 

petitioner's credibility. According to our standard of review, the 

court's findings based on her testimony are to be accorded great 

weight. 

Petitioner sought to be determined permanently totally 

disabled pursuant to 5 39-71-116(13), MCA (1979). To establish the 

existence of no reasonable prospect of employment in the normal 

labor market, a claimant must introduce substantial evidence of (1) 

what jobs constitute her normal labor market; and (2) a complete 

inability to perform the duties associated with those jobs because 

of the work-related injury. Metzger v. Chemetron Corp. (1984) , 212 

Mont. 351, 355, 687 P.2d 1033, 1035; Spooner v. General Insurance 
Co. of America (1983), I11 Workers1 Compensation Court Decisions 

No. 85. 

Petitioner failed to satisfy the test found in Spooner and 

Metzser. Although petitioner's physical condition prevents her 

from returning to the type of work in which she was engaged before 

she was injured, she is not precluded from a reasonable prospect 

of employment in her normal labor market. 

Petitioner attempts to rebut the uncontroverted medical 

testimony of her treating physician and Dr. See through testimony 

of her expert, Robert McGuire, who was not a practicing physician 

or certified by any medical review board in Montana. We note that 

McGuire did not take issue with the medical findings. McGuire 

agreed that petitioner could perform the work of bartender and 

cashier at self-service gas stations. His main concern was whether 

petitioner had difficulty standing and operating the cash register 

with her fingers for extended periods of time, although he conceded 

that if the job descriptions were accurate she could perform the 

physical tasks required. McGuire questioned whether petitioner 

could perform ncompetitivelylt over a forty-hour work week. 

McGuire admitted that petitioner could be retrained for other 

jobs and could perform them competitively. McGuire was unable to 

comment upon Sesselmanls descriptions of specific job tasks since 

he had not reviewed Sesselmants reports. He concluded that any 

disagreement he had with Dr. Johnson, Dr. See, or Mr. Sesselman 

would have no medical basis. 

Finally, Ian Steel's June 1989 evaluation of petitioner was 
questionable because Steel had drawn conclusions about petitioner's 

physical capacities without reviewing the June 1989 reports of Dr. 

Johnson and Dr. See. After Steel read the medical depositions and 

reports, he still refused to modify his conclusion that petitioner 

had the skills, but not the physical capacity, to perform the jobs. 

The Workers' Compensation Court properly discounted Steel's 

testimony as unfounded and of little assistance in evaluating 

petitioner's claim. 

Substantial, credible evidence supports the findings of the 

court below. We do hereby affirm the judgment of the Workers1 

Compensation Court. 

We co cur: 

Chief Justice 

Justices