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, Judgepresiding.

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 

### .-d3ww. Decided: March 28. 1991 

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

This appeal involves the termination of an injured worker's temporary total disabilitybenefits. 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 benefitsby letter on January 20, 1988. The termination letter did not include copies of any medical or vocational reports. On January 29, 1988, CF1sclaims examiner receiveda letter fromJeanneDussault,avocational rehabilitation counselor,which included job descriptions Dussaulthad identified

as employment options for Wood. 2The 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 CF1sclaims examiner to attempt to contact Wood's physician or any other doctor to seek approval of the job descriptionsidentifiedby thevocationalrehabilitationcounselor. 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, examinedWood 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'streating 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 istodetermine 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 cannotoverturnthedecision. Colesv. SevenEleven 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 inthis casethat theclaimanthas 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. SeeMcDanold 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. (Emphasisadded.) Section 39-71-116(13), MCA (1985)

# . Under this definition, disability has non-medical as well as medical components.Regarding thenon-medical component of permanent total disability, this Court has stated: "To establishthe 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 inabilitytoperformtheemploymentandduties associated with those jobs because of his work related injury.I1

(Citationsomitted.) 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'swork 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 labormarket consists of heavy physical laboring positions, particularly, at least for the last 28 years, as a dock man/driver for Consolidated Freightwaysaposition which required claimantto frequently, arguably,consistently, lift, in theprocess of loading and unloading trucks, in excess of 150pounds. 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 thendiscusses the claimant'sabilitytoreturnto the "lightduty" work suggestedby the vocational rehabilitation counselorbut not approved by a physician. This is inconsistent with the court'searlier identification of the claimant's ''normal labormarket1'as

one consisting of heavymanual labor,and isalso inconsistentwith the concept of ''normal labormarket1' 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 labormarket1'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 217Mont. 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 6accident; (3) a ~hvsician's determination,based on his knowledge of the claimant's former employment duties, that he can return towork,with orwithout 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. (Emphasisadded.) The record indicates that CF has not met its burden under this test. CF presented a list of suggested jobsas I1availablesuitable work1' but lailed to meet its evidentiary burden under Coles requiringaphvsician's determinationthat theclaimant can return to one of these suggestedoccupations. There is simplyno evidence in the record to support the court's conclusion suitable work is available toWood under the third prong of Coles. TheCourt itself noted the lack of evidence: Though we conclude, under these facts, that the insurer acted properly, we do soprimarily 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 remainsvital. Despite this attempt to support its conclusions, the evidence clearly fails tomeet 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,thereis no substantialcredibleevidence in the record to support the findingthatWood could returntowork in one of these jobs. Because CF has failed to meet its burden,

we reverse this case and direct theWorkers' Compensation Court toenter judgment in favor of Wood. See e.g. Wilhelm, supra, 790 P.2d at 471. Becausewe reverse theWorkers' Compensation Court's judgment

on the first issue,we need not address the second issue raised by Wood.REVERSED and REMANDED for furtherproceedings consistentwith this opinion.

We Copcur: 

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hief Justice