NO. 92-235 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1992

GLORIAJ. WEAVER,

Claimant andAppellant,-vsBUTTREY FOODANDDRUG,

Employer/Insurer, Respondent and Cross-Appellant,

APPEAL FROM: The Workers' Compensation Court,

The Honorable Timothy Reardon, Judge presiding.

COUNSELOFRECORD:

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, 192Justice 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. Weaffirm. 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 shewasa46-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. Theaccident occurred when acustomer pushed acart piled high with large canned goods through Weaver's checkstand. WhenWeaver opened the front gate of the cart, the cans began to tumble out. Toavoid being struck byacan, Weaver jumped backward and sideways with atwisting motion. Asshedid so, she felt ahot 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 adoctor who diagnosed the injury as ahematoma and recommended elevation and ice packs. Weaver continued to work at the Buttrey store until September 17, 1986. Bythen her leg was bothering her somuch that she took 2

### vacation and then, ontne manager's recommendation, a leave of

absence. Buttrey's insurer paid benefits for temporary total disability from September 17, 1986until April 4, 1987. During this period Weaver consulted Dr. J. W.Bloemendaal, anorthopedic surgeon in Great Falls. Dr. Bloemendaal diagnosed a possible rupture ofthe facia around Weaver's left quadriceps andprescribed physical therapy andexercise to strengthen the muscle. OnMarch 18, 

### 1987, Dr. Bloemendaal wrote to a Workers' Compensation adjuster, stating that in his opinion Weavercould return towork. Buttrey already hadterminated heremployment, however, because the six-month disability leave allowed by her union contract had expired. Weavernever returned to the Buttrey store, which burned downin November 1987, though she did apply for work at the new store in 1988. Weaver considered Dr. Bloemendaal's letter a"release," but shedid not feel that shecould return towork because her legwas weakand she still hadlumps onher thigh andnumbness downthe side of her leg and in her foot. Buttrey's insurer refused to extend hertemporary total disability benefits, however, andafter a hearing in July 1987, the Workers' Compensation Court later denied temporary total disability benefits onthe grounds that her leg injury hadreached maximumhealing onMarch 18, 1987. OnJune4, 1987,Weaver's injured leg "gave out" while shewas climbing ableacher at aLittle League game. Shefell, injuring her left knee andreinjuring her left thigh. Dr. Bloemendaal saw her two weeks later. In his July 1989deposition, hetestified 3that 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

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

ordered magnetic resonance imaging (MFZ), which showeda"moderate disk bulge" in her lower back, andconducted anelectromyograph study (EMG), which showednoevidence of radiculopathy, or nerve root damage. Despite the negative EMGresults, Dr. Stephens wrote in his notes for June 13, 1989that "it is certainly possible that herwork-related injury resulted inthe back problem aswell asit is possible that the alteration in her gait has aggravated this." Dr. Stephens referred Weaverto Dr. JamesMahnke, aKalispell neurologist. Dr. Mahnkeperformed acomplete examination inAugust 1989anddiagnosed a"structural disease ofthe lower spine," which "mayrespond only to surgery." Weaver learned of this diagnosis for the first time whenshesawDr. Stephens again inMay1990. In his notes for that consultation, Dr. Stephens stated that Weaver neededfurther evaluation andtreatment, adding, "I would feel on amoreprobable 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 recommendednerve conduction studies andanother EMG,"in order to definitively rule out or rule in surgery." Dr. Stephens did repeat the EMGin January 1991 and again found no clear evidence of radiculopathy. Inthe meantime, Weaverwasworking atthetavern that sheand her husband hadbought in 1985. By1988shehadtaken over the bookkeeping function, replacing apart time employee whohadbeen
5paid $6.50 anhour. 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 astool at each end sothat she could sit down when not waiting oncustomers. By1989Weaver hadtaken over the duties of three part-time bartenders, and by the time of the trial in December 1991, she andher husband were doing all the work required to run the business, seven days aweek. 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 away 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 andprospectively, aswell asmedical 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 onApril 4, 1987. The court held that although Weaver was not entitled to temporary total disability benefits, Buttrey's insurer was

6responsible 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 wasnot entitled to the 20percent penalty authorized by 539-71-2907, MCA (1985)

. Weaver was awarded costs andattorney's fees onthe issue of medical benefits only. The issues onappeal 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 onJune 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 apenalty for unreasonably withheld temporary total disability and medical benefits? (5) Is Weaver entitled to reasonable costs and attorney's

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### fees for the disability issue aswell asfor the medical benefits

issue? I Thefirst issue is whether the Worker's Compensation Court erred in finding that Weaver's lower back injury wascaused byher accident atthe Buttrey store inJune 1986. Wewill 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), 813P.2d 451, 455, 48St.Rep. 579, 581; Anderson v. Hammer(1992), 826P.2d 931, 934, 49St.Rep. 165, 167. Theimmediate, visible consequences of Weaver's accident had to dowith her left leg. Because she told the physicians who examined her during the next several monthsthat her leg hurt, they focussed exclusively onthe leg. Notuntil May1989, after Weaver hadexperienced pain andweakness in her leg for three years, did adoctor suspect that shemight haveaback problem. Themedical evidence accumulated since then establishes that shehasadamaged disc in her lower spine but does not establish what caused this injury. It may have been a pre-existing condition that was aggravated bythe accident itself or bythe fact that the pain in her left leg caused her to limp. Whether it wascaused ormerely aggravated by the accident, however, it is a compensable disability. Belton v. Carlson Transport (1983), 202Mont. 384, 386, 658 P.2d 405, 407 ("An accident is comepnsable if the traumatic event or unusual strain aggravates a pre-existing 8injury."). SeeJones v. St. Regis Paper Co. (1981), 196Mont. 138,

639 P.2d 1140 (claimant injured his back while working asalogger in 1976 but was entitled to benefits for subsequent disability caused by bending and lifting activities in his work as a lumber grader). Wehold 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, aclaimant must meet the requirements of 539- 71-116(19), MCA (1985), which defines temporary total disability as: acondition 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 ajob as checker in the new Cut Bank Buttrey store. At the trial in December 1991, she stated that she thought she could work as achecker 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 onits previous finding that Weaverhadreached maximumhealing with respect to her leg injury. That finding wasbased onDr. Bloemendaal's "releasel' of March 18, 1987. Weaverargues that Dr. Bloemendaal's opinion referred only toher leg injury, that further evaluation andtreatment wasneeded for the back injury that was discovered in 1989, and that she therefore has not reached maximumhealing and is entitled to temporary total disability benefits. Wedonot address this issue because we hold that Weaver's earnings from the tavern alone disqualified her for those benefits. III Next, wemust decide whether Weaver is entitled to medical benefits for the diagnostic work doneonher backduring the 1989- 91period. TheWorkers' 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 aworker's treating physician or referring aworker to amedical specialist. Carroll v. Wells Fargo Armored Service Corp. (1989), 240Mont. 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
11injury;" 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. Wehold 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. Wedistinguish 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 1986through June

1987. His letter ofMarch 18, 1987wasregarded byboth Weaverand the insurer as a "release" indicating that her leg was healed enoughfor her to return to work. Moreover, Weaverwaited nearly two years after her last visit to Dr. Bloemendaal to consult Dr. Iwersen, while the claimant in Chapmanconsulted the neurologist within amonth after her accident. Weheld, therefore, that the Chapmanclaimant hadonly oneinitial treating physician, for whom the insurer's authorization wasnot required. Here, Weaverchanged her treating physician, which doesrequire authorization. IV Next, weconsider whether Weaveris entitled to apenalty 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 aquestion of fact, andwewill not overturn the trial court's finding if it is supported by substantial evidence. Milender v. Carpenter (1987), 230Mont. 1, 6, 748P.2d 932, 935. Here, Weaver argues that Buttrey's insurer unreasonably withheld payment of disability andmedical benefits for her back injury. Wedisagree. Since it was not self-evident that this injury wascaused byWeaver's accident at Buttrey's inJune 1986, andsince the medical evidence linking the injury to the accident wassubmitted at least three years after the accident occurred and 13was somewhat equivocal, denial of the claim was not unreasonable.

Wehold, therefore, that substantial credible evidence supports the Workers' Compensation Court's denial of the 20percent penalty. V Finally, weaddress the issue of costs and attorney's fees. Under 539-71-611, MCA(1985), aninsurer whodenies 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 nowthis 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 aback injury. The court awarded costs and attorney's fees for litigating the issue of medical benefits only. Weheld 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 onwhich the claimant did not prevail, for the same reason that an attorney would not receive attorney fees in acase where hedid not prevail onany 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, asthe court pointed out, Weaver might beentitled to permanent partial disability benefits if she were to apply for them, she is not entitled to attorney's fees onthis issue now. At

14present, 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 onall issues. -\~d';-;I:&cc,(;~I!.‘ibid ;;:<'j,/i,;&, [)$‘, Justicd ' Wec

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i&ha 54620 406.444-3858

EDSMITH CLERK October29,1,992 CERTIFICATE OFSERVICE Iherebycertifythatthefollowing orderwassentbyUnited Statesmail,prepaid,tothe followingnamed:

Richard.I.Martin ALEXANDER, BAUCUS &LINNELL, P.C. P.O.Box2629 GreatFalls,MT59403 G.CurtisDrake KELLER, REYNOLDS, DRAKE, STERNHAGEN &JOHNSON. P.C. 38SouthLastChanceGulch Helena,MT 59601 EDSMITH CLERK OFTHE SUPREME COURT STATE OFMONTANA

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