No. 90-478 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

ANDREW W. WOOD, 

Claimant and Appellant, 

CONSOLIDATED FREIGHTWAYS, INC, 

Employer, Defendant and 

Respondent. 

APPEAL FROM: Workers' Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James M. Regnier; Regnier, Lewis & Boland; Great 

Falls, Montana 

For Respondent: 

Thomas A. Marra; Marra, Wenz, Johnson & Hopkins; 

Great Falls, Montana 

Filed: 

'L'Fn Submitted on Briefs: February 21, 1991 

.- d 3ww. 

Decided: March 28. 1991 

MAR 2 8 '$997 
Justice R. C. McDonough delivered the Opinion of the Court. 

This appeal involves the termination of an injured worker's 

temporary total disability benefits. The claimant Andrew L. Wood 

appeals an order of the Workers1 Compensation Court. The court 

terminated his temporary total disability benefits and converted 

them to permanent partial disability benefits on the grounds that 

the claimant had reached maximum healing and there was a suitable 

labor market for him to return to work. We reverse and remand the 

case for further proceedings. 

The claimant raises two issues on this appeal: 

(1) Did the Workers1 compensation Court err in determining 

that Wood was permanently partially disabled and not permanently 

totally disabled? 

(2) Did the Workers1 Compensation Court err in determining 

that the defendant/insurerls termination of temporary total 

disability benefits was proper? 

Wood was injured on July 16, 1986 while working for 

Consolidated Freightways (CF). Wood received temporary total 

disability benefits in accordance with § 39-71-701, MCA, from the 

date of the injury until February 4, 1988. CF terminated Wood's 

temporary total disability benefits by letter on January 20, 1988. 

The termination letter did not include copies of any medical or 

vocational reports. On January 29, 1988, CF1s claims examiner 

received a letter from Jeanne Dussault, a vocational rehabilitation 

counselor, which included job descriptions Dussault had identified 

as employment options for Wood. 

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The letter indicated that the job descriptions listed had not 

been approved by Wood's then-treating physician, who had just 

retired, or any other physician. The record reveals no subsequent 

attempts by CF1s claims examiner to attempt to contact Wood's 

physician or any other doctor to seek approval of the job 

descriptions identified by the vocational rehabilitation counselor. 

In its order the Workers' Compensation Court found that the 

medical evidence was overwhelming that the claimant had reached 

maximum healing and was permanently partially disabled rather than 

totally disabled. Indeed, the record indicates that four 

physicians, including Wood's own, examined Wood and testified that 

he should be able to return to some type of employment. While one 

doctor opined that Wood could actually return to his old job as a 

dock worker for CF, the others felt that Wood was able to perform 

only light-duty, sedentary tasks. Based on this medical 

evidence, the vocational rehabilitation counselor was of the 

opinion that she had all the information necessary to make a 

determination as to what type of physical restrictions in 

employment the claimant's treating physician had placed upon Wood. 

On cross-examination, however, she admitted that none of the job 

descriptions which she had identified had been presented to any 

physician for approval although such approval was the normal 

procedure in her profession. Another vocational rehabilitation 

counselor called by the claimant as an expert witness also 

testified that it was normal procedure to obtain a physician's 

approval of potential jobs in an injured worker's job market. 
Finally, the record also reveals that since his injury, Wood has 

made no attempts to go back to work. 

Our standard for reviewing a decision of the Workers' 

Compensation Court is to determine if 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 weight 

of the evidence on questions of fact. Where there is substantial 

evidence to support the Workers' Compensation Court, this Court 

cannot overturn the decision. Coles v. Seven Eleven Stores (1985) , 

217 Mont. 343, 347, 704 P.2d 1048, 1050, Hume v. St. Regis Paper 

Company (1980), 187 Mont. 53, 59, 608 P.2d 1063, 1066. 

There is no dispute in this case that the claimant has reached 

maximum healing. Maximum healing triggers a reevaluation of the 

claimant's disability status; the claimant is then classified as 

either permanently totally disabled or permanently partially 

disabled. See McDanold v. B.N. Transport, Inc. (1984), 208 Mont. 

470, 475, 679 P.2d 1188, 1191. Under the law applicable at the 

time of Wood's injury, permanent total disability is defined 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. (Emphasis added.) 

Section 39-71-116 (13), MCA (1985) . Under this definition, 

disability has non-medical as well as medical components. 
Regarding the non-medical component of permanent total disability, 

this Court has stated: 

"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.I1 

(Citations omitted.) 

Coles, 704 P.2d at 1051; Metzger v. Chemtron Corp. (1984), 212 

Mont. 351, 355, 687 P.2d 1033, 1035. Once a claimant presents 

evidence demonstrating that there is no reasonable prospect of 

employment in his normal labor market, the burden of proof then 

shifts to the employer to show that suitable work is available. 

Coles, 704 P.2d at 1051; Metzqer, 687 P.2d at 1036. 

In its order, the Workers' Compensation Court set forth the 

claimant's work history, which included farm labor, both prior and 

subsequent to a period of military service, and 28 years of heavy 

physical labor as a dock worker and driver for CF. In conclusion 

of law no. 2, the court took 

note of the fact that the claimant's normal labor market 

consists of heavy physical laboring positions, 

particularly, at least for the last 28 years, as a dock 

man/driver for Consolidated Freightways a position which 

required claimant to frequently, arguably, consistently, 

lift, in the process of loading and unloading trucks, in 

excess of 150 pounds. With the exception of Dr. Forbeck, 

none of the [other three] physicians, or indeed the 

claims examiner for the defendant, suggest that the 

claimant should return to his previous employment. 

In the context of the claimant's normal labor market, the court 

then discusses the claimant's ability to return to the "light duty" 

work suggested by the vocational rehabilitation counselor but not 

approved by a physician. This is inconsistent with the court's 
earlier identification of the claimant's ''normal labor market1' as 

one consisting of heavy manual labor, and is also inconsistent with 

the concept of ''normal labor market1' used in previous decisions of 

this Court. See e.g. Wilhelm v. Owens Enterprises, Inc. (Mont. 

In this case, there is substantial credible evidence in the 

record to support a finding that Wood was unable to return to his 

normal labor market of employment involving heavy physical labor. 

Three out of four physicians concluded that Wood could no longer 

perform the heavy physical labor in employment that he had 

performed essentially all of his adult life. Thus, the claimant 

met his burden of demonstrating Itno reasonable prospect of 

employment1' with evidence that his "normal labor market1' consists 

of heavy manual labor and with medical evidence indicating he can 

no longer perform such labor due to his work related injury. 

Thus, the burden shifted to CF to demonstrate that other suitable 

work is available to Wood. Coles, 704 P.2d at 1051, Metzser, 687 

P.2d at 1035-36. In this regard, the Workers1 Compensation Court 

utilized the following test, taken from its decision in Coles, WCC 

No. 2000, decided November 20, 1984, aff'd 217 Mont. 343, 704 P.2d 

1048 (1985), to determine whether the employer had provided the 

minimum information necessary to discharge its duty to investigate 

the extent of claimant's disability. The test requires: 

(1) a physician's determination that the claimant is as 

far restored as the permanent character of his injuries 

will permit; 

(2) a physician's determination of the claimant's 

physical restrictions resulting from an industrial 

6 
accident ; 

(3) a ~hvsician's determination, based on his knowledge 

of the claimant's former employment duties, that he can 

return to work, with or without restrictions, on the job 

on which he was injured or another job for which he is 

fitted bv aqe, education, work experience, and physical 

condition; 

(4) notice to the claimant of receipt of the report 

attached to a copy of the report. (Emphasis added.) 

The record indicates that CF has not met its burden under this 

test. CF presented a list of suggested jobs as I1available suitable 

work1' but lailed to meet its evidentiary burden under Coles 

requiring a phvsician's determination that the claimant can return 

to one of these suggested occupations. There is simply no evidence 

in the record to support the court's conclusion suitable work is 

available to Wood under the third prong of Coles. The Court itself 

noted the lack of evidence: 

Though we conclude, under these facts, that the 

insurer acted properly, we do so primarily based on the 

abundant medical and vocational evidence. The insurer 

has stretched the Coles standards to the limit in this 

instance and we would caution the parties and counsel 

that few cases present themselves with similar 

overwhelming medical evidence; thus, adherence to the 

Coles elements remains vital. 

Despite this attempt to support its conclusions, the evidence 

clearly fails to meet the court's own "vital1' criteria as set forth 

in Coles. Absent a physician's determination that Wood could 

return to work in one of the jobs listed by the vocational 

rehabilitation counselor, there is no substantial credible evidence 

in the record to support the finding that Wood could return to work 

in one of these jobs. Because CF has failed to meet its burden, 

we reverse this case and direct the Workers' Compensation Court to 
enter judgment in favor of Wood. See e.g. Wilhelm, supra, 790 P. 2d 

at 471. 

Because we reverse the Workers' Compensation Court's judgment 

on the first issue, we need not address the second issue raised by 

Wood. 

REVERSED and REMANDED for further proceedings consistent with 

this opinion. 

We Copcur: A 

hief Justice