No. 85-87 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

JACK BREWINGTON, 

Claimant and Appellant, 

-vsBIRXENBUEL, INC., Employer, 

and 

EMPLOYERS' FIRE INSURANCE CO., 

Defendant and Respondent 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Utick & Grosfield; Andrew J. Utick, Helena, Montana 

For Respondent: 

William L. Baillie, Great Falls, Montana 

Submitted on Briefs: March 13, 1986 

Decided: August 12, 1986 

Filed: AUG 12 1986 

2222 Z?,i7r~ 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Jack Brewington appeals a Workers' Compensation Court 

order which ruled that he is permanently partially disabled 

and awarded him 400 weeks of indemnity benefits under 

S 39-71-706, MCA. The issues on appeal are: (1) whether 

the lower court erred in ruling that appellant is not 

permanently totally disabled; (2) whether the lower court 

erred in awarding appellant 400 weeks of indemnity benefits 

rather than 500 weeks, the statutory maximum; and, 

(3) whether the lower court erred in failing to increase 

appellant's award by 20% under 5 39-71-2907, MCA, because of 

respondent's allegedly unreasonable delay or refusal in 

paying benefits. We reverse and remand. 

Appellant is 61 years of age, with an eighth grade 

education, and since 1960 has generally worked as a 

millwright, welder or carpenter. He also worked as a 

supervisor in a Missoula paper mill and he has worked for 

very short periods of time in other supervisory positions. 

These other supervisory jobs lasted only two to three days 

but details on how long he worked as a supervisor in the 

paper mill are lacking. 

In December 1974, appellant suffered a compensable 

injury during the course of his employment with Birkenbuel, 

Inc. Due to the collapse of some scaffolding, appellant fell 

twelve feet to the ground landing on his right hand and 

shoulder. Appellant was able to work for some time after his 

accident although he experienced pain and difficulties with 

his coordination. Appellant stopped working for three weeks 

in March 1975 because of his injury but he resumed working 
thereafter. Due to the injury, appellant suffered 

substantial pain in his neck, shoulder and arm. After 

working through 1975, 1976 and part of 1977, appellant 

suffered another industrial accident in July 1977 in which he 

sawed off the tips of two fingers on his left hand. 

Appellant has never worked since this second accident. Any 

disability he has from the second injury is not at issue in 

the instant case. 

Dr. Nelson, appellant's treating physician, first 

examined appellant in August 1977. Dr. Nelson diagnosed 

appellant as having brachial plexus neuritis, bilaterally, 

but greater on the right side. Brachial plexus neuritis is 

an inflammation of the nerves in the neck and shoulders which 

may be brought on by direct blows or other injuries. Dr. 

Nelson later made an additional diagnosis of appellant as 

having thoracic outlet syndrome; i.e. a kinking or pinching 

of the artery and nerve as the shoulder and arm are elevated. 

These problems stem from appellant's 1974 accident. The 

doctor stated that appellant's condition had stabilized, and 

his healing period was over by October 1982. On September 7, 

1982, appellant was examined by Dr. Cahill at the request of 

the respondent. Dr. Cahill agreed with Dr. Nelson's 

diagnosis. 

In January, 1984, appellant described his health 

problems stemming from his 1974 accident. He stated that he 

had problems with his neck and if it was cold or if he bent 

over a lot, his neck would lock and he had a lot of pain; 

that he had pain all the time in his shoulder, ranging from 

pain "like a toothache" most of the time to a burning 

sensation at other times; that he had pain all the time, and 

no coordination most of the time, in his right arm; that any 
physical work made his arm and shoulder worse; and that he 

could do woodworking for about 1% hours before his right arm 

hurt him and he was required to stop. 

Dr. Nelson testified at deposition that appellant's arm 

and shoulder injuries prevent him from doing laborious work; 

that is, "overhand, overhead, climbing, lifting, prolonged, 

repetitive usage of the arm and shoulder to any degree of 

strength." The doctor also recommended no prolonged bending 

by appellant or even long-distance driving. Dr. Nelson had 

no objections to appellant attempting to work as a foreman or 

supervisor. He stated that appellant should be in a 

"sedentary" occupation, which he described as something 

educative or supervisory or something appellant could take 

periodic breaks from if he had to do repetitive physical 

work. Dr. Nelson recommended vocational training for 

appellant as long as it would outfit him for light work. The 

doctor rated appellant's disability as a 10% impairment of 

the whole body. Dr. Cahill agreed with Dr. Nelson's 

impairment rating and conclusion that appellant was limited 

to a sedentary-type occupation. 

After quitting work after his second accident, 

appellant attempted to secure work as a supervisor with 

several Lewistown construction firms and as a welding 

instructor. The construction firms indicated that he would 

have to be a working foreman and he felt he was physically 

unable to handle such a position. Appellant apparently did 

not inquire into many jobs which could be classified as 

"sedentary" because, as he stated, he would not accept any 

job unless he could earn $1,000 a month. He concluded that 

he could probably enter into a retraining program and find 

work if he could stay close to his wife, who is going blind. 
Respondent hired National Rehabilitation Consultants to work 

with appellant to improve his employment chances. Appellant 

declined the services of the rehabilitative consultants and 

admitted that he did so because he had decided to try and 

obtain a lump sum settlement of his Workers' Compensation 

benefits, and because acceptance would have required him to 

travel far from Lewistown and his ailing wife. 

R.espondent accepted liability for appellant's first 

injury and initially paid him temporary total disability 

benefits. Respondent paid these benefits until February 

1983. In January 1983, National Rehabilitation Consultants 

advised respondent that appellant had refused their services. 

Within a month, respondent stopped paying appellant temporary 

total disability benefits and began paying appellant lesser 

benefits for permanent partial disability. At the time of 

this change, respondent had reports from Dr. Nelson and Dr. 

Cahill which stated that appellant had reached his maximum 

point of recovery and could return to sedentary-type work. 

Appellant disagreed with respondent's decision to pay 

him permanent partial disability benefits and, in June 1983, 

he filed a petition for a hearing with the Workers' 

Compensation Court claiming a right to permanent total 

disability benefits. The lower court held a hearing in 

January 1984, before a hearing examiner who disqualified 

himself for conflict of interest reasons and the parties 

stipulated that the judge could complete the case. The judge 

did not hear any of the testimony but rather issued his 

decision in January 1985 based on the record. The court 

concluded that appellant was 80% permanently partially 

disabled, based upon an impairment rating of 10% of the whole 

man. The court awarded appellant 400 weeks of benefits, 80% 
of the statutory maximum of 500 weeks. The court refused to 

impose a 20% penalty upon respondent. This appeal followed. 

The first issue is whether the lower court erred in 

finding that appellant is partially rather than totally 

disabled. The oft-cited standard of review is that, 

"Our function in reviewing a decision of the 

Workers' Compensation Court is to determine whether 

there is substantial evidence to support the 

findings and conclusions of that court. We cannot 

substitute our judgment for that of the trial court 

as to the weight of evidence on questions of fact. 

Where there is substantial evidence to support the 

findings of the Workers ' Compensation Court, this 

court cannot overturn the decision." (Citations 

omitted. ) 

Metzger v. Chemetron Corp. (Mont. 1984), 687 ~.2d 1033, 1035, 

41 St.Rep. 1788, 1790; citing Nielsen v. Beaver Pond, Inc. 

(Mont. 1983), 661 P.2d 47, 49, 40 St.Rep. 489, 491. 

But we have also stated that where the Workers' 

Compensation Court received the critical evidence by 

deposition "this Court, although sitting in review, is in as 

good a position as the Workers' Compensation Court to judge 

the weight to be given to such record testimony, as 

distinguished from oral testimony, where the trial court 

actually observes the character and demeanor of the witnesses 

on the stand." Lamb v. Missoula Imports, Inc. (~ont. 1984), 

684 P.2d 498, 500, 41 St.Rep. 1414, 1416; citing Jones v. St. 

Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140; and 

Hert v. J. J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d 

656. The Workers' Compensation judge did not hear any oral 

testimony but decided the case on the same record that we 

have before us. 

Appellant claims that he has a permanent total 

disability, which is defined at § 39-71-116 (13) , MCA, as: 

[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. 

In expanding upon the statutory definition, we adopted the 

following test in Metzger. 

To establish the existence of no 

reasonable prospect of employment in the 

normal labor market, a claimant must 

introduce substantial credible evidence 

of (1) what jobs constitute his normal 

labor market, and (2) a complete 

inability to perform the employment and 

duties associated with those jobs because 

of his work-related injury. Spooner v. 

Action Sales, Inc., I11 Workers' 

Compensation Court Decisions No. 85 

(January 24, 1983) . 

Metzqer, 

The Workers' Compensation Court concluded claimant 

failed to meet this burden. The court placed great emphasis 

on the fact that claimant has worked as a foreman, and could 

do such work again. The court incorrectly determined that 

claimant's normal labor market includes working as a foreman. 

As stated above, claimant's work as a foreman was extremely 

limited, amounting to two or three days on each of several 

occasions. This does not qualify the position of foreman as 

part of claimant's normal labor market. Even so, claimant 

contacted several construction firms and the rehabilitation 

services division in an attempt to secure employment as a 

foreman, but was unsuccessful. The only available jobs as a 

foreman required claimant to be a working foreman, a position 

claimant cannot perform. 

Further, claimant testified he refused the services of 

a private rehabilitation firm of respondent's choice. 
Although he admitted he could likely be retrained, he 

declined the services because acceptance would have meant 

moving far from Lewistown. Claimant's wife is going blind 

and he testified he needed to stay close to her in order to 

care for her. While weight is given to claimant's opinion 

that he could probably be retrained and that he voluntarily 

declined the services of the private rehabilitation firm, 

such testimony is not determinative. The medical evidence as 

well as claimant's lifetime work history support the 

conclusion that claimant was rendered permanently totally 

disabled by his industrial accident. 

We conclude that claimant has met his burden as defined 

in Metzger. He testified in great detail concerning his 

injuries and limitations. He suffers constant pain in his 

right arm and right shoulder, and intermittent pain in his 

neck. Physical work worsens the condition. Dr. Nelson 

testified that claimant's injuries prevent him from doing 

laborious work, that is, "overhand, overhead, climbing, 

lifting, prolonged, repetitive usage of the arm and shoulder 

to any degree of strength." This is the very work claimant 

had done all his life. 

He attempted to secure work as a supervisor with 

several Lewistown construction firms and as a welding 

instructor, but was unsuccessful. Claimant conclusively 

established an inability to perform the jobs in his normal 

labor market. Claimant meets the requirements of § 

39-71-116(13), MCA, for permanent total disability. 

Because of our ruling on the first issue we need not 

consider the second issue in this case. 

Claimant's final issue is whether the lower court erred 

in failing to increase his award by 20% under § 39-71-2907, 
MCA, because of respondent's allegedly unreasonable delay or 

refusal to pay benefits. We hold claimant is entitled to the 

20% penalty. 

The Workers1 Compensation Court concluded: 

6. Under these facts the penalty provided for 

under 5 92-824.1 R.C.M., now MCA 5 39-71-2907 

(1983), does not apply. Reducing claimant's 

benefits from temporary total to permanent partial 

because the claimant refused to work with a private 

rehabilitation firm is unreasonable. However, from 

the Court's record, it appears that the insurer 

coincidentally had sufficient information allowing 

it to reduce the claimant's benefits from temporary 

total to permanent partial. 

The defendant is not without a remedy if 

rehabilitation is appropriate and the claimant 

refuses to participate. The proper procedure is 

delineated in MCA 5 39-71-1005. This procedure was 

not followed in the case at bar. 

The lower court essentially concluded that respondent's 

actions would have been unreasonable had the record not 

supported the conclusion that claimant was permanent partial, 

not permanent total. It follows that since we now hold that 

claimant is permanent total, he is also entitled to the 20% 

penalty. Respondent reduced claimant's benefits in 

retaliation for his refusal to work with a private 

rehabilitation firm. Such action is unreasonable. 

Respondent should have followed the procedure delineated in § 

39-71-1005, MCA. Claimant is entitled to a 20% penalty 

pursuant to § 39-71-2907, MCA. 

Reversed and remanded to the Workers' Compensation 

Court to enter judgment for the claimant on his claim of 

permanent total disability, and to award claimant a 20% 

increase in his award pursuant to 5 39-71-2907, MCA. 

A' 
We Concur: 

Chief Justice 

Justices 
Mr. Justice L. C. Gulbrandson, dissenting. 

I respectfully dissent. 

Appellant must prove, by a preponderance of the 

probative, credible evidence, that he is entitled to 

permanent total disability benefits. Dumont v. Wickens Bros. 

Const. Co. (1979), 183 Mont. 190, 598 P.2d 1099. c his he has 

not done. 

To establish that he is permanently totally disabled 

under the Metzger test cited in the majority opinion, the 

appellant must show a complete inability to perform the 

employment and duties associated with the jobs constituting 

his normal labor market. Although appellant is clearly 

permanently disabled, he has not satisfied the Metzger 

standard for permanent total disability. There are three 

main problems with the majority opinion, which simply glosses 

over the voluminous evidence in this case. 

First, the only expert medical opinions entered into 

evidence tend to show that appellant is - not permanently 

totally disabled. Dr. Nelson diagnosed appellant as having a 

10% impairment of the whole body. He testified that 

appellant should be in some type of sedentary employment 

(primarily educative or supervisory, or doing something, if 

repetitive, from which he could take breaks periodically). 

Dr. Cahill also rated appellant as having a 10% impairment of 

the whole body. Dr. Cahill's opinion in 1982 was that: 

The patient's present physical condition 

shows . . . he has stabilized and has 

reached a maximum point of recovery. I 

do think he would be able to return to 

work, but I think that heavy lifting and 

using his upper extremities excessively 

other than for writing and desk work 

would be very difficult for him. 
Second, the majority finds that appellant's normal 

labor market does not include working as a foreman. This 

finding is perplexing as it runs against the majority's 

recitation of facts and the appellant's testimony. The facts 

stated in the majority opinion are that: 

[Appellant] also worked as a supervisor 

in a Missoula paper mill and he has 

worked for very short periods of time 

[two to three days] in other supervisory 

positions . . . details on how long he 

worked as a supervisor in the paper mill 

are lacking. 

It is unclear how the majority can find that appellant's 

normal labor market does not include a foreman position when 

the majority is unsure how long he worked as a foreman. 

Appellant's testimony was as follows: 

Q. Did you ever work in any of these 

occupations strictly as a supervisor? 

A. I was a supervisor in the paper mill 

in Missoula for awhile. 

9. Other than that job, did you ever 

work strictly as a supervisor? 

A. Not for any length of time, no. 

The testimony is simply unclear as to how long appellant 

worked as a supervisor. Appellant has not established what 

his normal labor market is. Appellant did attempt to find 

employment as a supervisor with three or four construction 

firms in Lewistown. This indicates that appellant considers 

supervisory positions as within his normal labor market and 

that he believes he can perform the duties of those 

positions. 

Third, appellant explicitly stated that he would not 

accept any job unless he could earn at least $1,000 a month. 

Although appellant conceded that he had worked as a laborer, 
he stated that he had not applied for work at any of the 

shops or stores, such as hardware stores, convenience stores 

or gas stations, in his hometown of Lewistown. Appellant did 

not introduce evidence showing a complete inability to 

perform these jobs or the supervisory jobs. 

The majority states that appellant has conclusively 

established an inability to perform the jobs in his normal 

labor market. The record does not support this assertion. 

The record does show that appellant refuses to even consider 

any job paying less than $1,000 a month. The majority 

opinion has dispensed with the requirements of the Metzger 

test. 

Lastly, I dissent from the majority's imposition of a 

20% penalty upon the respondent under § 39-71-2907, MCA. 

That section allows the lower court to increase an award by 

20% because of an insurer's unreasonable delay or refusal to 

Whether an action is "unreasonable" under 

this statute is a question of fact which 

is subject on appeal to the limited 

review of the substantial evidence test. 

[Citation omitted.] If there is 

substantial evidence to support a finding 

of "unreasonableness", this Court cannot 

overturn the finding. 

Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d 

1189, 1192, 38 St.Rep. 1632, 1636. The same standard of 

review applies to a lower court's finding of reasonableness. 

Substantial credible evidence supports the lower 

court's finding of "reasonableness" and its refusal to impose 

the penalty. The majority finds that respondent acted 

unreasonably because respondent reduced appellant's benefits 

in retaliation for appellant's refusal to work with a private 
rehabilitation firm. The opinion cites - no evidence directly 

supporting this assertion. 

Peter McGraw, a claims manager and insurance adjuster 

who worked on appellant's claim, testified as to why the 

insurer had reduced appellant's benefits from permanent total 

to permanent partial. McGraw stated that the insurer reduced 

the benefits because the insurer had received medical reports 

from Dr. Nelson and Dr. Cahill that stated: (1) appellant's 

condition had stabilized and he had reached his maximum point 

of recovery; (2) that appellant was able to go back to a 

sedentary-type of work; and (3) that appellant had a 10% 

impairment rating of the whole body. There was evidence at 

the hearing that the insurer sent a letter to appellant which 

stated that the reduction in benefits was due to the doctor's 

reports. Moreover, McGraw specifically refuted the 

suggestion that the insurer reduced appellant's benefits as 

retaliation. There is substantial, credible evidence which 

supports the lower court's refusal to impose the 20% penalty. 

The reduction of benefits was a reasonable action and no 

penalty should be imposed. A 

Mr. Justice Fred J. Weber: 

I join in the foregoing dissent of Mr. Justice Gulbrandson. 

. d 

Mr. Chief Justice J. A. Turnage: 

I also join in the foregoing dissent of Mr. Justice L. C. 

Gulbrandson.