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No. 00-734 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2002 MT 11N 

PHILLIP DAVIS, 

Petitioner and Appellant,

v.

CREDIT GENERAL INSURANCE COMPANY,

Defendant and Respondent,

and

UNITED STAFFING, INC.,

Employer.

APPEAL FROM: Montana Workers' Compensation Court 

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Marvin L. Howe; Navratil & Herring, Glendive, Montana

For Respondent:

Joe C. Maynard, James R. Hintz; Crowely, Haughey, Toole 

& Dietrich, Billings, Montana

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Submitted on Briefs: August 16, 2001 

Decided: January 29, 2002

Filed:

__________________________________________

Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent. It shall be filed as a public 

document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Phillip Davis (Davis) appeals from the Findings of Fact, Conclusions of Law and 

Judgment entered by the Workers' Compensation Court (WCC) in his claim against Credit 

General Insurance Company (Credit General). We affirm. 

¶3 We address the following issues:

¶4 1. Did the WCC err in finding Credit General did not wrongfully terminate Davis' 

temporary total disability benefits?

¶5 2. Did the WCC err in finding that Davis is not permanently totally disabled and not 

entitled to treatment at a pain clinic?

¶6 3. Is Davis entitled to attorney fees and a statutory penalty?BACKGROUND

¶7 On August 29, 1995, Davis sustained an injury to his right shoulder after he fell while 

tightening straps that secured a load he was carrying on his truck. At the time of the 

accident, Davis was employed by United Staffing, Inc. which was insured for workers' 

compensation purposes by Credit General. Credit General accepted liability for the 

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accident and immediately began paying Davis temporary total disability and medical 

benefits. Davis' primary treating physician, Dr. Lawrence Toder (Dr. Toder), diagnosed a 

torn rotator cuff and operated on Davis' right shoulder in November of 1995. 

¶8 After the surgery, Davis underwent physical therapy with Richard Smith (Smith) and 

demonstrated steady improvement in his right shoulder. In April of 1996, Smith concluded 

Davis was able to return to light-duty work, but Davis did not return to work. In 

September of 1996, at Credit General's request, Davis saw Dr. Stephen G. Powell (Dr. 

Powell) for a second opinion. Dr. Powell expressed concern about another possible rotator 

cuff tear that was hindering Davis' recovery. Dr. Toder concurred and recommended Davis 

undergo a second surgery. Davis declined. 

¶9 In December of 1996, Credit General consulted Dr. Powell and ascertained Davis had 

reached maximum medical improvement because he was unwilling to undergo further 

surgery. Davis reconsidered surgery and consulted Dr. Toder and Dr. Robert Seim (Dr. 

Seim), eventually scheduling the second surgery for February of 1997. Davis subsequently 

cancelled this surgery and did not see Dr. Toder again until shortly before a determination 

of his disability status in 1999. In March of 1997, the Social Security Administration 

awarded Davis disability benefits retroactive to April 1996. Smith examined Davis again 

in June of 1997 and found that his condition had deteriorated, but approved various jobs 

that were within Davis' capabilities. Dr. Powell reviewed the jobs recommended by Smith 

and determined Davis was capable of employment. 

¶10 In August of 1997, Davis moved to Jamestown, North Dakota. In November of that 

year Credit General sent Davis a 14-day notice of termination of temporary total disability 

benefits and conversion to permanent partial disability benefits based on Dr. Powell's 

earlier conclusion that Davis had reached maximum medical improvement. 

¶11 Davis filed his first petition in the WCC in July of 1998. In August of 1998, Credit 

General hired a private agency to conduct video surveillance of Davis. The surveillance 

tape shows Davis working in his garden using his right arm to shovel, pull-start a 

rototiller, rototill, carry water, and pull weeds. Shortly thereafter, in August of 1998, he 

submitted to a medical examination by Dr. Thomas L. Schumann (Dr. Schumann). After 

examining Davis and viewing the video surveillance tape, Dr. Schumann concluded Davis 

might be exaggerating his pain and limited mobility symptoms. Dr. Schumann considered 

Davis to be at maximum medical improvement without further surgery and approved nine 

jobs recommended by a rehabilitation counselor.

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¶12 In November of 1998, Davis saw Dr. Howard T. Berglund (Dr. Berglund), an 

orthopedic surgeon in Fargo, North Dakota. Dr. Berglund feared there might be another 

tear in Davis' rotator cuff and recommended a second surgery on Davis' shoulder. In a 

deposition taken in April of 1999, shortly before trial, Dr. Toder continued to recommend 

further surgery for Davis, stating the procedure was safe and had a sixty to seventy-five 

percent chance of improving Davis' condition. Dr. Toder also concluded Davis was 

capable of performing sedentary work.

¶13 Davis' petition proceeded to trial in the WCC on April 26, 1999. On the second day of 

trial, Davis informed the court he was willing to consider additional surgery with Dr. 

Berglund. The court subsequently granted Davis' motion to dismiss his petition without 

prejudice, and Dr. Berglund performed the second surgery on Davis' shoulder in June of 

1999. Davis continued to report pain thereafter, but Dr. Berglund opined that the surgery 

had been successful and no medical explanation for Davis' pain was evident.

¶14 Davis filed a second petition in the WCC in July of 1999 on the grounds he was 

permanently totally disabled and Credit General had wrongfully terminated his temporary 

total disability benefits in November of 1997. Dr. Berglund referred Davis to Dr. Michael 

Webster (Dr. Webster) in Jamestown, North Dakota, for follow-up treatment in October of 

1999, after the second surgery. Both Dr. Berglund and Dr. Webster subsequently 

recommended Davis seek treatment at a pain clinic to learn to cope with his chronic pain.

¶15 In March of 2000, at Credit General's request, Davis was examined by Dr. Gregory 

Peterson (Dr. Peterson). After reviewing Davis' medical records, watching the video 

surveillance tape and physically examining Davis, Dr. Peterson concluded Davis' 

complaints of pain and disability were markedly out of proportion to objective medical 

findings. Dr. Peterson also found Davis' statements regarding pain and his behavior during 

the examination were exaggerated, and that Davis lacked motivation to obtain 

improvement and likely would not benefit from a comprehensive pain program or further 

rehabilitation. Dr. Peterson also noted Davis was capable of employment with his physical 

limitations.

¶16 Davis was evaluated at a pain clinic in March of 2000. Dr. Steven Berndt found his 

overall symptoms seemed to be somewhat exaggerated. Davis was given an injection to 

alleviate his pain which he later claimed "didn't do much for the pain."

¶17 A second trial was held in the WCC on April 26, 2000. The court subsequently 

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entered its Findings of Fact, Conclusions of Law and Judgment. It determined Davis to be 

"not credible" and found he is not entitled to permanent total disability benefits, further 

temporary total disability benefits, treatment at a pain clinic or further rehabilitation 

benefits. Davis appeals. 

STANDARD OF REVIEW

¶18 We review the WCC's findings of fact to determine whether they are supported by 

substantial credible evidence and its conclusions of law to determine whether the 

interpretation of the law is correct. Schimmel v. Montana Uninsured Employers Fund, 

2001 MT 280, ¶ 5, 307 Mont. 344, ¶ 5, __P.3d__, ¶ 5. In workers' compensation cases, the 

law in effect at the time of the claimant's injury establishes the claimant's substantive right 

to benefits. Ness v. Anaconda Minerals Co. (1996), 279 Mont. 472, 478, 929 P.2d 205, 

209. As a result, the 1995 statutes and cases interpreting those statutes apply in the present 

case. 

DISCUSSION

¶19 1. Did the WCC err in finding Credit General did not wrongfully terminate Davis' 

temporary total disability benefits? 

¶20 The WCC found that Davis' temporary total disability benefits were not improperly 

terminated because he reached maximum medical healing prior to their termination. Davis 

advances alternative arguments that he had not reached maximum medical improvement 

by the time Credit General terminated his temporary total disability benefits in late 1997 

and, therefore, that the termination of his benefits was improper. 

¶21 Davis' main assertion is that Credit General was obligated to seek a maximum medical 

improvement determination from his primary treating physician, Dr. Toder, and, 

consequently, that Dr. Powell's determination was not adequate. Davis fails to advance 

any authority, as required by Rule 23(a)(4), M.R.App.P., to support his contention, 

however. Accordingly, we refuse to consider this matter further. See In re Estate of 

Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶ 19.

¶22 In his opening brief, Davis also fleetingly mentions his temporary total disability 

benefits should not have been terminated in November of 1997, even though he was 

reluctant to have surgery on his shoulder at that time. Pursuant to Rule 23(a)(4), M.R.App.

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P., in order for Davis to properly raise an issue in his opening brief he must list his 

contentions with respect to the issues presented and the reasons therefor, with citations to 

the authorities relied on. Davis' argument fails to comply with Rule 23(a)(4), M.R.App.P. 

"[I]t is not this Court's obligation to conduct legal research on appellant's behalf, to guess 

as to his precise position, or to develop legal analysis that may lend support to his 

position." Estate of Bayers, ¶ 19 (citation omitted). We decline, therefore, to address this 

contention further.

¶23 Substantial credible evidence of record supports the WCC's finding that Davis' 

temporary total disability benefits were not improperly terminated. Substantial evidence is 

"more than a mere scintilla of evidence but may be less than a preponderance of the 

evidence." Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432, 437, 913 P.2d 

1242, 1245 (citation omitted). Here, the evidence of record, including Dr. Powell and Dr. 

Toder's testimony, indicates Davis had reached maximum medical improvement prior to 

the termination of his temporary total disability benefits. In addition, Dr. Powell 

determined that Davis could return to work as a forklift operator or a toll booth operator 

with some modifications. Smith, Davis' physical therapist, also concluded Davis could 

return to work as a transport driver, a bus driver or a toll booth operator with some 

modifications. Accordingly, we conclude the WCC's finding was supported by substantial 

credible evidence. 

¶24 We hold, therefore, the WCC did not err in finding Credit General did not wrongfully 

terminate Davis' temporary total disability benefits. 

¶25 2. Did the WCC err in finding that Davis is not permanently totally disabled and not 

entitled to treatment at a pain clinic? 

¶26 The WCC found Davis is not permanently totally disabled based on record evidence 

that Davis is physically capable of performing regular work and has a reasonable prospect 

of finding regular work within his physical capabilities. Davis contends that, as a result of 

his pain, in combination with his low education level, age and exclusive work as a truck 

driver, he is unable to perform regular employment and is, therefore, permanently totally 

disabled.

¶27 In this regard, Davis correctly argues pain is one factor that can be considered when 

determining whether a claimant is permanently totally disabled and that, in some 

instances, pain may be so severe that it renders a claimant physically incapable of 

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performing job duties. He relies on Killoy v. Reliance National Indemnity (1996), 278 

Mont. 88, 923 P.2d 531, which is factually distinguishable from the present case. There, 

the claimant's testimony regarding pain was corroborated by medical evidence given by 

two of his treating physicians and was found to be credible by his doctor and by the WCC. 

See Killoy, 278 Mont. at 96, 923 P.2d at 535, 536. 

¶28 In the present case, Davis' treating physicians have not been able to find any objective 

medical reason for his on-going reports of pain. More importantly, the WCC found Davis 

to be "not credible" with respect to the pain he claimed to be experiencing. The record 

contains suggestions from several doctors that Davis' pain reactions were exaggerated. In 

addition, the court noted the inconsistency between Davis' claims of constant pain and 

inability to work and his garden work as depicted on the video surveillance tape. We will 

not substitute our judgment for that of the trial court with respect to the credibility of a 

witness. See Walls v. Travelers Indemnity Co. (1997), 281 Mont. 106, 111, 931 P.2d 712, 

715 (citation omitted). 

¶29 Pursuant to § 39-71-116(23), MCA (1995), 

Permanent total disability means "a physical condition resulting from injury as 

defined in this chapter, after a worker reaches maximum medical healing, in which a 

worker does not have a reasonable prospect of physically performing regular 

employment. Regular employment means work on a recurring basis performed for 

remuneration in a trade, business, profession, or other occupation in this state." 

¶30 Here, substantial credible evidence of record supports the WCC's finding that Davis is 

capable of regular employment and, consequently, not permanently totally disabled. Dr. 

Toder testified in his deposition that Davis was capable of performing sedentary work "at 

bench level" and specifically agreed Davis could work as a floral delivery driver. In 

addition, Dr. Berglund agreed that Davis is capable of both full-time and part-time 

employment. The record further indicates Dr. Peterson, Dr. Schumann and Davis' physical 

therapist, Smith, all determined that Davis is capable of returning to work in some 

capacity. Accordingly, we conclude substantial credible evidence of record exists to 

support the WCC's finding that Davis is capable of regular employment and, therefore, not 

permanently totally disabled.

¶31 The WCC further found Davis was not entitled to treatment at a pain clinic. Davis 

contends the WCC erroneously relied on a report from Dr. Peterson in which Davis was 

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represented as being unmotivated. Davis argues the report was in direct contradiction to 

the opinions of his treating physicians and was influenced by allegations in a letter to Dr. 

Peterson from Credit General's counsel. 

¶32 Davis bases his assertion of entitlement on § 39-71-704, MCA (1995), quoted at the 

beginning of his argument. Section 39-71-704(1)(a) and (b), MCA (1995), with regard to 

primary and secondary medical services to be provided separate and apart from other 

compensation benefits provided, states as follows: 

(a) After the happening of a compensable injury and subject to other provisions of 

this chapter, the insurer shall furnish reasonable primary medical services for 

conditions resulting from the injury for those periods as the nature of the injury or 

the process of recovery requires.

(b) The insurer shall furnish secondary medical services only upon a clear 

demonstration of cost-effectiveness of the services in returning the injured worker to 

actual employment.

Davis fails to assert which subsection he is arguing under; indeed, he fails to present any 

legal analysis or advance any legal authority substantiating his entitlement to benefits 

under this statute on the facts of this case as required by Rule 23(a)(4), M.R.App.P.

¶33 Accordingly, we decline to address this issue further and we hold that Davis has failed 

to establish error in this regard. 

¶34 3. Is Davis entitled to attorney fees and a statutory penalty?

¶35 Davis' request for attorney fees clearly is premised on holdings in his favor on the 

issues discussed above. We have held that the WCC did not err. Therefore, an award of 

attorney fees pursuant to § 39-71-611, MCA (1995), is not appropriate in this case.

¶36 Additionally, Davis' argument in favor of a statutory 20% penalty against Credit 

General is also premised on holdings in his favor on the issues above. Our affirmation of 

the WCC's judgment is fatal to his request for a penalty under § 39-71-2907, MCA (1995). 

Accordingly, we conclude Davis is not entitled to attorney fees or a statutory penalty in 

this matter.

¶37 Affirmed.

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/S/ KARLA M. GRAY

We concur:

/S/ PATRICIA COTTER

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ JIM RICE

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