NO. 92-235 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

GLORIA J. WEAVER, 

Claimant and Appellant, 

-vsBUTTREY FOOD AND DRUG, 

Employer/Insurer, Respondent 

and Cross-Appellant, 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Martin, Alexander, Baucus & Linnell, 

Great Falls, Montana 

For Respondent: 

G. Curtis Drake, Keller, Reynolds, Drake, Stemhagen 

& Johnson, Helena, Montana 

Filed: 

Submitted on Briefs: September 10, 1992 

Decided: October 29, 192 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Workers' Compensation Court, the 

Honorable Timothy W. Reardon presiding. Claimant Gloria Weaver 

(Weaver) appeals the Workers ' Compensation Court judgment that she 

is not entitled to past and present temporary total disability 

benefits for certain injuries incurred during the course and scope 

of her employment at Buttrey Food and Drug. Respondent Buttrey 

Food and Drug (Buttrey) cross-appeals the Workers' Compensation 

Court judgment that Weaver's back condition is causally related to 

her work injury. We affirm. 

Weaver was injured on June 15, 1986, while working as a 

checker at the Buttrey store in Cut Bank, Montana. At the time of 

the accident she was a 46-year old high school graduate and married 

with two dependent children. She had been working at the same 

Buttrey store for approximately twenty-one years. 

The accident occurred when a customer pushed a cart piled high 

with large canned goods through Weaver's checkstand. When Weaver 

opened the front gate of the cart, the cans began to tumble out. 

To avoid being struck by a can, Weaver jumped backward and sideways 

with a twisting motion. As she did so, she felt a hot searing pain 

in her left thigh. She finished her shift, but by that time two 

large lumps had formed on her thigh. Her supervisor immediately 

took her to a doctor who diagnosed the injury as a hematoma and 

recommended elevation and ice packs. 

Weaver continued to work at the Buttrey store until September 

17, 1986. By then her leg was bothering her so much that she took 

2 
vacation and then, on tne manager's recommendation, a leave of 

absence. Buttrey's insurer paid benefits for temporary total 

disability from September 17, 1986 until April 4, 1987. During 

this period Weaver consulted Dr. J. W. Bloemendaal, an orthopedic 

surgeon in Great Falls. Dr. Bloemendaal diagnosed a possible 

rupture of the facia around Weaver's left quadriceps and prescribed 

physical therapy and exercise to strengthen the muscle. On March 

18, 1987, Dr. Bloemendaal wrote to a Workers' Compensation 

adjuster, stating that in his opinion Weaver could return to work. 

Buttrey already had terminated her employment, however, because the 

six-month disability leave allowed by her union contract had 

expired. Weaver never returned to the Buttrey store, which burned 

down in November 1987, though she did apply for work at the new 

store in 1988. 

Weaver considered Dr. Bloemendaal's letter a "release," but 

she did not feel that she could return to work because her leg was 

weak and she still had lumps on her thigh and numbness down the 

side of her leg and in her foot. Buttrey's insurer refused to 

extend her temporary total disability benefits, however, and after 

a hearing in July 1987, the Workers' Compensation Court later 

denied temporary total disability benefits on the grounds that her 

leg injury had reached maximum healing on March 18, 1987. 

On June 4, 1987, Weaver's injured leg "gave out" while she was 

climbing a bleacher at a Little League game. She fell, injuring 

her left knee and reinjuring her left thigh. Dr. Bloemendaal saw 

her two weeks later. In his July 1989 deposition, he testified 

3 
that she would not have fallen "if she had had a good strong 

quadriceps" and that even after the June 4 accident she still 

should be able to work if she kept that muscle "in tone and 

function." Weaver continued to experience pain, weakness, and 

numbness in her leg, and at the time of trial in December 1991 she 

still limped, found it difficult to drive a car, and had curtailed 

her homemaking and recreational activities. 

In August 1988, Weaver petitioned the Workers' Compensation 

Court for a determination of permanent partial disability benefits 

under g 39-71-703, MCA (1985). At the hearing in November 1988, 

the former manager of the Cut Bank Buttrey store testified that 

Weaver had worked for him for nearly ten years, that she was an 

"excellent employee," and that he would rehire her if she had a 

release to return to work and he had a position available. 

Weaver's vocational rehabilitation counselor testified that Weaver 

would be physically capable of half-time work as a checker. The 

court found that Weaver was permanently partially disabled but held 

that "measurement of her post-injury earning capacity is impossible 

because of [Weaver's] failure to introduce evidence necessary for 

such determination." 

Weaver interpreted the court's order as a request for 

additional proof of disability. Accordingly, she consulted Dr. 

Lawrence Iwersen of the Kalispell Orthopedic Clinic in May 1989, 

without seeking approval from Buttrey's insurer. Dr. Iwersen 

recommended "nerve testing" and referred her to Dr. John Stephens, 

a rehabilitation specialist in Kalispell. Dr. Stephens saw Weaver 

4 
twice in June 1989, without approval from Buttrey's insurer. He 

ordered magnetic resonance imaging (MFZ), which showed a "moderate 

disk bulge" in her lower back, and conducted an electromyograph 

study (EMG), which showed no evidence of radiculopathy, or nerve 

root damage. Despite the negative EMG results, Dr. Stephens wrote 

in his notes for June 13, 1989 that "it is certainly possible that 

her work-related injury resulted in the back problem as well as it 

is possible that the alteration in her gait has aggravated this." 

Dr. Stephens referred Weaver to Dr. James Mahnke, a Kalispell 

neurologist. Dr. Mahnke performed a complete examination in August 

1989 and diagnosed a "structural disease of the lower spine," which 

"may respond only to surgery." Weaver learned of this diagnosis 

for the first time when she saw Dr. Stephens again in May 1990. In 

his notes for that consultation, Dr. Stephens stated that Weaver 

needed further evaluation and treatment, adding, "I would feel on 

a more probable than not basis that her problem is related to her 

work-related injury." 

In August 1990, Dr. Stephens referred Weaver to another 

neurologist, Dr. Stephanie Herder in Great Falls. Dr. Herder 

recommended nerve conduction studies and another EMG, "in order to 

definitively rule out or rule in surgery." Dr. Stephens did repeat 

the EMG in January 1991 and again found no clear evidence of 

radiculopathy. 

In the meantime, Weaver was working at the tavern that she and 

her husband had bought in 1985. By 1988 she had taken over the 

bookkeeping function, replacing a part time employee who had been 

5 
paid $6.50 an hour. Thiswork occupied Weaver for three hours each 

weekday morning. During the summer of 1988, she began to assume 

afternoon and evening bartending duties as well. The bar was 

equipped with a stool at each end so that she could sit down when 

not waiting on customers. By 1989 Weaver had taken over the duties 

of three part-time bartenders, and by the time of the trial in 

December 1991, she and her husband were doing all the work required 

to run the business, seven days a week. 

In September 1991, the Weavers sold the tavern to Weaver's 

sister and her husband. At her deposition in October 1991, Weaver 

said that the "anticipated arrangement" for running the tavern 

would include herself and her husband, "mainly to give us a way to 

earn a living until things [her Workers' Compensation claim] are 

resolved." At the time of the trial in December 1991, Weaver and 

her husband were paying themselves, as they had in the past, by 

"taking cash out of the bar." 

Weaver petitioned the Workers' Compensation Court for the 

third time in May 1991, seeking reinstatement of her temporary 

total disability benefits retroactively and prospectively, as well 

as medical benefits, costs and attorney's fees. The basis of her 

claim was her lower back condition, which had not been reported as 

an injury at the time of her accident at the Buttrey store in 1986 

and therefore had not been considered when her benefits were 

terminated on April 4, 1987. 

The court held that although Weaver was not entitled to 

temporary total disability benefits, Buttrey's insurer was 

6 
responsible for the medical expenses related to her "low back pain" 

because Dr. Stephens had related the back pain to the June 15, 1986 

injury. The court found that "a preponderance of the medical 

evidence" supported the conclusion that Weaver's lower back injury 

was caused by the June 15, 1986 accident or by the change in her 

gait due to her left leg pain. The insurer was held liable only 

for future medical bills for Weaver's lower back condition, 

however, because Weaver had not obtained its approval for the 

examinations performed by Drs. Iwersen, Stephens, Mahnke, and 

Herder. The court also found that because Buttrey had not 

unreasonably refused payment of disability benefits, Weaver was not 

entitled to the 20 percent penalty authorized by 5 39-71-2907, MCA 

(1985) . Weaver was awarded costs and attorney's fees on the issue 

of medical benefits only. 

The issues on appeal are: 

(1) Did the Workers' Compensation Court err in finding that 

Weaver's back condition was caused by her 1986 work injury? 

(2) Did the Workers' Compensation Court err in refusing to 

reinstate Weaver's temporary total disability benefits for injuries 

sustained at the Buttrey store on June 15, 1986? 

(3) Did the Workers' Compensation Court err in denying Weaver 

medical benefits for the diagnostic work done on her lower back 

during the 1989-91 period? 

(4) Is Weaver entitled to a penalty for unreasonably withheld 

temporary total disability and medical benefits? 

(5) Is Weaver entitled to reasonable costs and attorney's 

7 
fees for the disability issue as well as for the medical benefits 

issue? 

I 

The first issue is whether the Worker's Compensation Court 

erred in finding that Weaver's lower back injury was caused by her 

accident at the Buttrey store in June 1986. We will not substitute 

our judgment for that of the Workers' Compensation Court when 

substantial, credible evidence supports the court's conclusion, as 

it does here. McIntyre v. Glen Lake Irrigation Dist. (1991), 

813 P.2d 451, 455, 48 St.Rep. 579, 581; Anderson v. Hammer (1992), 

826 P.2d 931, 934, 49 St.Rep. 165, 167. 

The immediate, visible consequences of Weaver's accident had 

to do with her left leg. Because she told the physicians who 

examined her during the next several months that her leg hurt, they 

focussed exclusively on the leg. Not until May 1989, after Weaver 

had experienced pain and weakness in her leg for three years, did 

a doctor suspect that she might have a back problem. The medical 

evidence accumulated since then establishes that she has a damaged 

disc in her lower spine but does not establish what caused this 

injury. It may have been a pre-existing condition that was 

aggravated by the accident itself or by the fact that the pain in 

her left leg caused her to limp. Whether it was caused or merely 

aggravated by the accident, however, it is a compensable 

disability. Belton v. Carlson Transport (1983), 202 Mont. 384, 

386, 658 P.2d 405, 407 ("An accident is comepnsable if the 

traumatic event or unusual strain aggravates a pre-existing 

8 
injury."). See Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 

639 P.2d 1140 (claimant injured his back while working as a logger 

in 1976 but was entitled to benefits for subsequent disability 

caused by bending and lifting activities in his work as a lumber 

grader). We hold that substantial, credible evidence supports the 

Worker's Compensation Court's award of medical benefits for 

Weaver's lower back condition. 

II 

Given that Weaver's back injury is compensable, the second 

question is whether she is entitled to temporary total disability 

benefits for that injury. To be entitled to temporary total 

disability benefits, a claimant must meet the requirements of 5 39- 

71-116(19), MCA (1985), which defines temporary total disability 

as: 

a condition resulting from an injury as defined in this 

chapter that results in total loss of wages and exists 

until the injured worker is as far restored as the 

permanent character of the injuries will permit. 

To demonstrate "total loss of wages," a claimant must establish 

what jobs constitute her normal labor market and prove complete 

inability to perform the duties associated with those jobs. 

Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355, 687 P.2d 

1033, 1035. Here, Weaver failed to meet her burden of proving a 

complete inability to perform the jobs within her normal labor 

market. She had been working for at least three years as a 

bookkeeper and bartender, and she had applied for a job as checker 

in the new Cut Bank Buttrey store. At the trial in December 1991, 

she stated that she thought she could work as a checker and would 

9 
"give it a good try," but that she was waiting for a resolution of 

her Workers' Compensation claim before applying at the new Cut Bank 

IGA store. As the Workers' Compensation hearing examiner put it, 

"[t]he evidence of her ability to work is overwhelming." 

Weaver asserts that she has not been "gainfully employed" 

since her temporary benefits were terminated in March 1987. She is 

paid no money as a direct wage for her work at the tavern, she 

says, and receives no benefits. This Court, however, has adopted 

the "economic gain" standard for determining eligibility for total 

disability benefits. Anderson v. Hammer (1992), 826 P.2d 931, 936, 

49 St.Rep. 165, 168. Under the Workers' Compensation Act, "wages" 

simply means gross earnings, or "anything of value received as 

consideration for work . . . constituting real economic gain to the 

employee." Scyphers v. H & H Lumber (1989), 237 Mont. 424, 426, 

774 P.2d 393, 394. 

Here, Weaver and her husband took a "draw" on the tavern 

income to meet their living expenses. Weaver's contribution to the 

effort that generated this income was at least equal to her 

husband's. In her October 1991 deposition, for example, she stated 

that she worked in the bar "three or four nights a week" in 

addition to her daily bookkeeping duties, and that "I can't handle 

it by myself, but my husband is not a bookkeeper and he's not a 

bartender. He don't like it and he's not good." Whether Weaver's 

share of the tavern receipts is described as a "draw" or "wages," 

it has covered her living expenses for at least four years. 

Indubitably, it is "real economic gain." 

10 
The Workers' Compensation Court also based its denial of 

temporary total disability benefits on its previous finding that 

Weaver had reached maximum healing with respect to her leg injury. 

That finding was based on Dr. Bloemendaal's "releasel' of March 18, 

1987. Weaver argues that Dr. Bloemendaal's opinion referred only 

to her leg injury, that further evaluation and treatment was needed 

for the back injury that was discovered in 1989, and that she 

therefore has not reached maximum healing and is entitled to 

temporary total disability benefits. We do not address this issue 

because we hold that Weaver's earnings from the tavern alone 

disqualified her for those benefits. 

III 

Next, we must decide whether Weaver is entitled to medical 

benefits for the diagnostic work done on her back during the 1989- 

91 period. The Workers' Compensation Court found that Buttrey's 

insurer is not responsible for Weaver's medical expenses during 

this period because Weaver neither requested nor obtained 

authorization from the insurer for her visits to Drs. Iwersen, 

Stephens, Mahnke and Herder. Rule 24.29.1403, ARM, requires 

authorization from the insurer for changing a worker's treating 

physician or referring a worker to a medical specialist. Carroll 

v. Wells Fargo Armored Service Corp. (1989), 240 Mont. 151, 783 

P.2d 387. 

Weaver argues that under Rule 24.29.1403 the injured worker 

selects the initial treating physician; that Drs. Iwersen and 

Stephens were the "initial treating physicians for her back 

11 
injury;" and that under § 39-71-704(l), MCA (1985), Buttrey's 

insurer is required to pay for reasonable services provided by 

those doctors. Further, Weaver argues, because Drs. Mahnke and 

Herder were neurological consultants for Dr. Stephens, Buttrey's 

insurer should pay for their services too. 

Weaver did not, however, consult Dr. Iwersen about her back 

problem. Her purpose in calling him was to find support for her 

Workers' Compensation claim, for which Dr. Bloemendaal was the 

initial treating physician. It is undisputed that she did not ask 

for authorization to consult Dr. Iwersen or Dr. Stephens and that 

she also did not seek approval for Dr. Stephens' subsequent 

referrals to other doctors. We hold that the Workers' Compensation 

Court applied Rule 24.29.1403 correctly in denying medical benefits 

for the 1989-91 period while awarding future benefits for medical 

expenses incurred in compliance with the rules. 

We distinguish our holding here from our holding in Chapman v. 

Research Cottrell (1991), 248 Mont. 353, 811 P.2d 1283. In 

Chapman, the Workers' Compensation Court denied medical benefits to 

a claimant who had consulted a neurologist without authorization 

from her employer's insurer. We reversed on the grounds that the 

doctor designated by the insurer as the initial treating physician 

was not selected by the claimant and had performed no treatment 

other than to prescribe medication, while the neurologist was 

selected by the claimant and was the first doctor to diagnose her 

injury correctly. Here, Dr. Bloemendaal, who was considered by 

Buttrey's insurer to be Weaver's initial treating physician, 

12 
treated Weaver's leg extensively from October 1986 through June 

1987. His letter of March 18, 1987 was regarded by both Weaver and 

the insurer as a "release" indicating that her leg was healed 

enough for her to return to work. Moreover, Weaver waited nearly 

two years after her last visit to Dr. Bloemendaal to consult Dr. 

Iwersen, while the claimant in Chapman consulted the neurologist 

within a month after her accident. We held, therefore, that the 

Chapman claimant had only one initial treating physician, for whom 

the insurer's authorization was not required. Here, Weaver changed 

her treating physician, which does require authorization. 

IV 

Next, we consider whether Weaver is entitled to a penalty for 

unreasonably withheld benefits. Section 39-71-2907, MCA (1985), 

provides that the Workers' Compensation Court may increase a 

claimant's benefit by 20 percent if it finds that payment of 

compensation has been unreasonably delayed or refused by an 

insurer. Unreasonableness is a question of fact, and we will not 

overturn the trial court's finding if it is supported by 

substantial evidence. Milender v. Carpenter (1987), 230 Mont. 1, 

6, 748 P.2d 932, 935. 

Here, Weaver argues that Buttrey's insurer unreasonably 

withheld payment of disability and medical benefits for her back 

injury. We disagree. Since it was not self-evident that this 

injury was caused by Weaver's accident at Buttrey's in June 1986, 

and since the medical evidence linking the injury to the accident 

was submitted at least three years after the accident occurred and 

13 
was somewhat equivocal, denial of the claim was not unreasonable. 

We hold, therefore, that substantial credible evidence supports the 

Workers' Compensation Court's denial of the 20 percent penalty. 

V 

Finally, we address the issue of costs and attorney's fees. 

Under 5 39-71-611, MCA (1985), an insurer who denies liability for 

a claim that is later adjudged compensable by the Workers' 

Compensation Court is liable for reasonable costs and attorney's 

fees. Here, Buttrey's insurer has consistently denied liability 

for Weaver's back injury, which the Worker's Compensation Court and 

now this Court have adjudged compensable. Weaver argues that she 

therefore is entitled to all costs and attorney's fees incurred in 

connection with this claim for a back injury. The court awarded 

costs and attorney's fees for litigating the issue of medical 

benefits only. 

We held in Buckman v. Montana Deaconess Hospital (1989), 238 

Mont. 516, 521, 776 P.2d 1210, 1213, that attorney's fees should 

not be awarded for issues on which the claimant did not prevail, 

for the same reason that an attorney would not receive attorney 

fees in a case where he did not prevail on any issue. Here, Weaver 

is not entitled to attorney's fees and costs associated with the 

issue of disability benefits because the Workers' Compensation 

Court found that she is not entitled to disability benefits at this 

time. Although, as the court pointed out, Weaver might be entitled 

to permanent partial disability benefits if she were to apply for 

them, she is not entitled to attorney's fees on this issue now. At 

14 
present, the court has ~found only the medical benefits to be 

payable. Therefore, Weaver is entitled to costs and attorney's 

fees only for that claim. 

Affirmed on all issues. 

-\~d';-;I:&cc, ( ;~I!.‘ ibid ;;: <'j ,/i,;&, [ )$‘, 

Justicd ' 

We c 

4 

15 
State nf montann 

QBfficn of (IUerk of the Supreme Mourt 

i&ha 54620 

406.444-3858 

EDSMITH 

CLERK 

October 29, 1,992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Richard .I. Martin 

ALEXANDER, BAUCUS & LINNELL, P.C. 

P.O. Box 2629 

Great Falls, MT 59403 

G. Curtis Drake 

KELLER, REYNOLDS, DRAKE, 

STERNHAGEN & JOHNSON. P.C. 

38 South Last Chance Gulch 

Helena, MT 59601 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA _