NO. 95-551

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

EDWARD KILLOY, JR,

Petitioner and Appellant,

v.

RELIANCE NATIONAL INDEMNITY,

APPEAL FROM: Workers' Compensation Court

State of Montana

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bernard J. Everett, Knight, Dahood, McLean &

Everett, Anaconda, Montana

For Respondent:

Brendon 5. Rohan, Butte, Montana

Filed:

Submitted on Briefs: April 11, 1996

Decided. September 3, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Appellant, Edward Killoy, Jr. (claimant), appeals the Workers'

Compensation Court's order concluding that he was not permanently

totally disabled and, therefore was not entitled to permanent total

disability benefits as a result of his work-related injury.

We reverse and remand.

Appellant raises the following issues for review, which we

restate as follows:

1. Did the Workers' Compensation Court err in finding that

claimant had a reasonable prospect of being able to tolerate his

pain and physically perform at regular employment?

2. Did the Workers' Compensation Court err in failing to award

claimant attorney's fees and costs pursuant to §§ 39-71-611 and 39-

71-2907, MCA?

FACTS

At the time of trial, claimant was 58 years old. He did not

graduate from high school but did obtain a GED while in the Navy.

Claimant has worked since 1962 as a heavy-duty mechanic for various

employers. He went to work full-time for Rhone-Poulenc Basic

Chemicals in 1991.

Claimant was injured in the course and scope of his employment

on August 20, 1993, when a heavy shaker screen fell on his head and

jammed his neck. At the time of the injury, Rhone-Poulenc was

insured by Reliance National Indemnity (Reliance). Reliance

accepted liability for claimant's injury and has paid out his

medical benefits, as well as temporary total disability benefits.

2
Following his injury, claimant was initially examined by Dr.

Knutsen. X-rays showed ’ [dl egenerative disc changes, spurring, and

some narrowing of the lower foramina." Dr. Knutsen prescribed

physical therapy and medication, and directed that claimant be

placed on light-duty.

On August 27, 1993, claimant told Dr. Knutsen that the lightduty work was aggravating his neck. Dr. Knutsen advised him to

take a full week off. He continued to treat claimant

conservatively, prescribing bed rest, physical therapy, cervical

traction, and medication. After his condition deteriorated,

claimant was referred to Dr. Dewey for a second opinion.

Following an examination on October 14, 1993, Dr. Dewey

determined that claimant suffered from "significant cervical canal

stenosis at L4-5, 5-6, and 6-7 [sic]. There is degenerative

disease at these levels, some neuroforaminal encroachment." All

parties agree that the reference to the lumbar disc, however,

appears to be in error, and should refer to the cervical level.

Dr. Dewey examined claimant again on November 9, 1993, at which

time he reported that claimant was much improved and felt that

decompression surgery was unwarranted. Dr. Dewey advised claimant

to continue his stretching exercises and to return for a

examination the following year to determine whether his spinal

stenosis was progressing.

By November 16, 1993, both Dr. Knutsen and Dr. Dewey had

released claimant to work full-time. Dr. Knutsen cautioned

claimant to avoid any trauma to or hyperextension of his neck.

3
Claimant returned to work, but experienced increasing pain. Dr.

Knutsen took claimant back off of work on December 14, 1993, until

his condition improved. Claimant returned again on January 3,

1994.

On February 18, 1994, Claimant was pulling on a cable at work

when the cable slipped and hit him in the face. This incident

resulted in a violent jolting of his head which aggravated

claimant's original injury. After this, claimant felt he could no

longer perform at his heavy labor position. Dr. Knutsen agreed but

again sent claimant to Dr. Dewey for a second opinion.

On March 14, 1994, Dr. Dewey wrote Dr. Knutsen a report

regarding his examination of claimant. Dr. Dewey noted muscular

symptoms in claimant’s neck, shoulder area, and at the base of his

skull. He recommended a month of very aggressive stretching,

supplemented by deep heat,.ultrasound, and massage by a physical

therapist. Dr. Dewey was unable to state whether claimant would be

able to return to his time-of-injury job.

Dr. Dewey saw claimant again on April 18, 1994. Claimant's

condition had not improved, and Dr. Dewey concluded that claimant

could not return to his time-of-injury position. Dr. Dewey

identified several problems:

Cervical spondylosis; radiculopathy not identified;

cervical stenosis, possible but not proven cervical

radiculopathy; bilateral ulnar entrapment neuropathies;

significant cervical myospasm. . .
At this point, Dr. Dewey did not feel that claimant would get any

better, he noted that claimant's condition may in fact worsen over

time.

Both at trial and by deposition, claimant testified that he

experiences constant pain from the base of the skull, down the

middle of the back through his shoulders. He has headaches and

muscle spasms. Claimant's level of pain is aggravated both by

increased activity as well as by remaining stationary for any

length of time. Claimant finds temporary relief from pain by using

a stretching apparatus for his neck and performing stretching

exercises on a daily basis. On "bad" days, he seeks relief through

hot showers and a heating pad. Claimant has not worked since he

re-aggravated his injury in February 1994.

In August 1993, Rhone-Poulenc retained a certified

rehabilitation counselor to perform medical case management

services relative to claimant's injury. The counselor, Patricia

Hink, submitted a preliminary report in which she encouraged

claimant to apply for social security benefits which he

subsequently applied for and received. Later, Hink identified

several jobs as possibly suitable for claimant and submitted job

analyses to Dr. Dewey for review. Dr. Dewey approved of four of

the positions, stating that if a patient such as claimant had

expressed a desire to try one of these positions, that, in his

opinion, these positions could be "safely attempted" without risk.

Dr. Dewey, however, did not offer his opinion as to whether

5
claimant was capable of doing these positions, stating instead that

only the patient was able to answer that question.

Based on Hink's "Employability Assessment Report," the insurer

converted claimant's benefits from temporary total disability to

permanent partial disability on May 27, 1995. On June 9, 1995,

claimant petitioned the Workers' Compensation Court for a hearing.

After the hearing in August 1995, the Workers' Compensation Court

found that claimant's testimony regarding his pain was credible.

However, the court was not persuaded that his pain would

necessarily preclude claimant from working. The court then

concluded that Rhone-Poulenc had met its burden of establishing

that claimant had a reasonable prospect of "physically performing

regular employment." The Workers' Compensation Court concluded

that claimant was not permanently totally disabled and, therefore

was not entitled to corresponding benefits.

Claimant appeals from that decision.

DISCUSSION

Did the Workers' Compensation Court err in finding that

claimant had a reasonable prospect of being able to tolerate his

pain and physically perform at regular employment?

Decisions of the Workers' Compensation Court must be based on

substantial credible evidence. O'Brien v. Central Feeds (1990),

241 Mont. 267, 271, 786 P.2d 1169, 1172. The court's findings of

fact will be upheld if they are supported by substantial credible

evidence. Wunderlich v. Lumbermens Mutual Casualty Co. (1995), 270

Mont. 404, 408, 892 P.3d 563, 566.

6
The law in effect at the time of the injury governs the

claimant's entitlement to benefits. Buckman v. Montana Deaconess

Hospital (1986), 224 Mont. 318, 321, 730 P.Zd 380, 382. Claimant

was injured on August 20, 1993, therefore, the 1993 version of the

Workers' Compensation Act governs this case. The claimant bears

the burden of proving he or she was permanently totally disabled.

Dumont v. Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105.

The definition of permanent total disability reads as follows:

"Permanent total disability II means a 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.

Lack of immediate job openings is not a factor to be

considered in determining if a worker is permanently

totally disabled.

Section 39-71-116(13), MCA (1993) (emphasis added).

In its decision, the Workers' Compensation Court found that

appropriate jobs existed for claimant. The rehabilitation

counselor, Hink, identified several jobs as possibly suitable for

regular employment: lubrication technician, sewer (sewing

backpacks), shoe repair person, cashier, motel clerk, lumber

salesperson, and meter reader. Of these positions, the Workers'

Compensation Court narrowed the list, and determined that claimant

was physically capable of performing as either a motel clerk or a

cashier.

At trial, claimant disputed his ability to perform any of the

suggested positions. According to his testimony, his pain makes

7
him uncontrollably unpleasant. Claimant specifically contended

that because of his pain it would be difficult for him to be

confined to the limited space provided to a cashier, or to carry

luggage if employed as a motel clerk.

The Workers' Compensation Court did not dispute that claimant

was in pain and that activity increased his pain, rather the court

was not convinced that this would prevent him from working.

Instead, the court found claimant to be a positive and up-beat

person who had "worked all his life and has a good work ethic, and

[the court] was persuaded [that claimant] would cope with his pain

if he was forced to do so." Ultimately, the court found that

claimant had a reasonable opportunity for regular employment.

On appeal, claimant argues that the Workers' Compensation

Court erred in this finding. Claimant asserts that it is the law

in Montana that pain can be considered when determining whether a

claimant is permanently totally disabled. Robins v. Anaconda

Aluminum Co. (1978), 175 Mont. 514, 521-22, 575 P.2d 67, 72 and

Jensen v. Zook Brothers Construction Co. (1978), 178 Mont. 59, 63,

582 P.2d 1191, 1193.

In Robins, the claimant fractured his skull and other bones

after falling 16 to 18 feet. He returned to work, then fell a

second time and injured his back. There, one doctor stated that

the claimant could work, if he could endure the pain. The other

doctor testified that the claimant could not work because he could

not take the pain. In affirming the lower court, this Court held
that pain must be considered as a factor when determining

disability. Robins, 575 P.2d at 71.

In Jensen, the claimant crushed his dominant hand. The

claimant testified that he had pain up his arm into his elbow.

Following Robins, this Court held that the evidence showing that

the claimant could not work without pain or endure pain while

working constitutes substantial evidence supporting a finding of

permanent disability. Jensen, 582 P.2d at 1193.

In its decision, the Workers' Compensation Court considered

both Jensen and Robins, nevertheless, the court determined that

under recent revisions to the permanent total disability statute,

pain is only one factor to be considered when determining a

claimant’s disability. Metzger v. Chemetron Co. (1984), 212 Mont.

351, 354, 687 P.2d 1033, 1035. Under 1993 revisions to the

definition of permanent total disability, the court noted that the

claimant must prove that he or she has "no reasonable prospect of

physically performing regular employment." Section 39-71-116 (13),

MCA.

This Court agrees with the Workers' Compensation Court's

conclusion that pain is only one factor to be considered when

reaching a determination of disability. As was also aptly pointed

out by the court in this case, "Pain. . may be so severe for some

individuals that it renders them physically incapable of performing

their job duties. . . .'

1n its order, the Workers' Compensation Court relies on the

"medical evidence concerning permanent total disability." This

9
medical evidence, the court states, was provided by Dr. Dewey, "who

approved of five positions.'1 The court concluded further, that Dr.

Dewey's testimony did not support claimant's claim for disability.

However, where medical testimony is offered by deposition, this

Court is in as good a position as the Workers' Compensation Court

to determine its weight. Caekaert v. State Comp. Ins. Fund (1994),

268 Mont. 105, 110, 885 P.2d 495, 498. Although Dr. Dewey did

approve of several of the suggested positions, this was not the

extent of the medical testimony

In his deposition, Dr. Dewey specifically qualified his

approval and made no determination concerning claimant's ability to

cope with pain. At trial, the court pointed this out:

THE COURT:. . . [Dr. Dewey] basically said medically

[claimant's] not going to be at risk. In other words,

he's not at risk with further injuring himself in these

jobs, but whether or not he performs them is really up to

him.

Dr. Dewey testified that claimant could safely attempt the jobs

without risk, his opinion does not support a finding that claimant

was physically capable of performing regular employment.

Furthermore, Dr. Dewey testified that he considered claimant's

response to his neck injury as "appropriate." Accordingly, Dr.

Dewey testified that he would defer to claimant regarding his

ability to tolerate the pain associated with a suggested position.

Therefore, according to the medical opinion of Dr. Dewey, the

claimant in this case stands in the best position to judge his

abilities

10
Other medical evidence was provided through the records of Dr.

Knutsen. Throughout his records, Dr. Knutsen notes that claimant

experienced chronic neck pain. Following claimant's re-aggravation

in February, Dr. Knutsen noted that he did not think claimant would

be able to return to his regular job. In a letter to the insurer,

Dr. Knutsen wrote that "[slometimes the slightest little neck jolt

or bump on the head will markedly aggravate his chronic neck

pains."

Following Jensen and -Robins, this Court must consider the

evidence regarding claimant's pain when reviewing the Workers'

Compensation Court's determination of disability. In this case,

the medical evidence does not support the court's finding that

claimant was capable of working without pain or that he was capable

of enduring his pain while working. See Jensen, 582 P.2d at 1192.

We conclude that the record does not contain substantial

credible evidence supporting a finding that claimant has a

reasonable prospect of physically performing regular employment.

In this matter, not only did Dr. Dewey testify that he considered

claimant's response to his injury as appropriate, the court also

found that "[claimant's] . testimony regarding his pain was

credible." Considering this, both at trial and in his deposition,

claimant testified that he experiences constant pain from the base

of the skull, down the middle of the back through his shoulders.

He described headaches and muscle spasms. His level of pain

increases if he engages in any increased activity or if he is

11
stationary for any length of time. On "bad" days, he seeks relief

through hot showers and uses a heating pad.

It is evident from thi's testimony that claimant's pain would

prevent him from holding down regular employment. This Court has

held that a trial court may not disregard uncontradicted credible

evidence. Burns v. Plum Creek Timber (1994), 268 Mont. 82, 85,

885 P.2d 508, 510 (citing McGuire v. American Honda Co. (1977), 173

Mont. 171, 566 P.2d 1124.)

In its order denying claimant's motion for rehearing, the

court raises concerns that because pain is subjective, claimants

would unilaterally determine that they cannot work. That may or

may not be the case but that is not the situation here. Claimant's

testimony was corroborated by medical evidence offered by both Dr.

Dewey and Dr. Knutsen. Furthermore, claimant's testimony regarding

his pain was found to be credible by both Dr. Dewey and the court.

In summary, we conclude that uncontroverted testimony

presented at trial supports a finding that claimant is unable to

perform at any of the suggested positions without experiencing

substantial pain. Furthermore, we conclude that the Workers'

Compensation Court erred in concluding that claimant is capable of

tolerating his pain and physically performing at regular

employment.

Having concluded the claimant is entitled to benefits, we

remand this case for a determination of attorney's fees and costs

pursuant to 55 39-71-611 and 39-71-2907, MCA.

Reversed and remanded.

12
We concur:

Chief Justice

Justices

13
Justice Terry N. Trieweiler specially concurring.

I concur with the majority opinion. However, I write in

response to the dissent.

In my opinion it is the dissent which misapplies the standard

of review in this case and the author of that opinion who has

refused to follow the correct standard of review in the past.

In this case, the only medical evidence was the written

reports, which were admitted as exhibits without objection, and the

transcribed deposition testimony of Richard C. Dewey, M.D. We have

repeatedly held, for obvious reasons, that where medical evidence

is submitted by deposition, this Court is in as good a position to

evaluate that evidence as the trial court. Larson v. Cigna Ins. Co. (Mont.

1996), 915 P.2d 863, 53 St. Rep. 3 94 ; Weber v. Public Employees’ Retirement Bd.

(1995), 270 Mont. 239, 8 9 0 P .2 d 12 9 6 ; Simons v. State Comp. Mut. Ins. Fund

(1993) I 262 Mont. 438, 8 65 P .2d 1118 ; White v. Ford, Bacon & Davis Texas, Inc.

(1992), 256 Mont. 9, 843 P.2d 787; Schrappsv.SafewayStores (1989), 238

Mont. 355, 777 P.2d 887; Roadarmelv.Acme Concrete Co. (1989), 237 Mont.

163, 772 P.2d 1259; Hartmanv.StaleyContinental (1989), 236 Mont. 141, 768

P.2d 1380; Hurleyv.Dupuis (1988), 233 Mont. 242, 759 P.2d 996; Brownv.

Ament (1988), 231 Mont. 158, 752 P.2d 171; Snyderv. SanFranciscoFeed&

Grain (1987), 230 Mont. 16, 7 4 8 P .2 d 9 2 4 ; Lauderdale v. Montana Dep’t of Agric.

(19871, 229 Mont. 188, 745 P.2d 690. Larsonv. SquireShops, Inc. (19871,

228 Mont. 377, 742 P.2d 1003; Curreyv. IOMinuteLube (19871, 226 Mont.

14
445, 736 P.2d 113; Brewingtonv.Birkenbuel,Inc. (1986), 222 Mont. 505, 723

P.2d 938; Frostv.AnacondaCo. (1985), 216 Mont. 387, 701 P.2d 987.

Shupertv.AnacondaAluminum Co. (1985), 215 Mont. 182, 696 P.2d 436; Lamb

v. Missoula Imports, Inc. ( 19 8 4 ) , 2 11 Mont . 3 6 0 , 684 P.2d 498; Jonesv. St. Regis

Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140; Hert v. J.J. Newberry Co.

(1978), 178 Mont. 355, 584 P.2d 656.

Our oft-repeated rule regarding medical testimony by

deposition makes practical sense because there is no witness

demeanor for the trial court to observe, nor are there other

intangible aspects to the testimony about which the trial court is

exclusively aware. The problem with this standard of review is

that it does place some additional responsibility on the reviewing

court to independently analyze and evaluate the medical evidence

offered by deposition. The author of the dissenting opinion has

been reluctant to do so. See Larson v. Cigna Ins. Co. (Mont. 1996) , 915

P.2d 863, 53 St. Rep. 394; McIntyre v. Glen Lake Irr. Dist. (1991) , 249 Mont.

63, 813 P.2d 451. I have no similar reservations.

However, in this case, my differences with Justice Gray over

the scope of our review of Workers' Compensation Court decisions

where the medical evidence has been provided exclusively by

deposition is not critical to our decision. Whether we review this

case based on the rule that we have repeatedly articulated, or

simply for substantial evidence, as the dissenters would prefer,

there is absolutely no basis for upholding the Workers'

15
Compensation court ' s finding that Edward Killoy, Jr., is

employable.

The dissent contends that Killoy offered no medical evidence

that he was physically incapable of regular employment. However,

that is not correct. Exhibit No. 4, admitted at the time of trial,

consisted of medical records from Bruce E. Knutsen, M.D., who

initially treated Killoy for his injury. The records included Dr.

Knutsen's February 28, 1994, report, which was issued at the

request of the insurance adjuster shortly after Killoy's

aggravation of his injury. In that report he stated that:

I suspect Mr. Killoy will be disabled from his

laboring type profession as I have attempted to send him

back on two different occasions. He has been able to

work reasonably well, although he continues with neck

pain. Sometimes the slightest little neck jolt or bump

on the head will markedly aggravate his chronic neck

pains.

At this point, I have suggested he go back and get

a second opinion from Dr. Richard Dewey who he saw

previously to see if there is anything else Dr. Dewey may

be able to offer him in the way of surgical correction.

If not, he may be on permanent disability. I just do not

think he can continue in a laboring profession.

Edward Killoy did go back to Dr. Dewey who examined him and

issued a report to Dr. Knutsen regarding his observations on

April 18, 1994. That report was admitted without objection at

trial as Exhibit No. 1. In that report he stated:

Edward is really unchanged. He continues to have

significant muscular symptoms in the back, shoulders,

base of the skull. Hands go to sleep at night although

not in the ulnar distribution and he has not made any

improvement. The symptoms he is having are related to

the amount of heavy work that he does. It is my opinion

that he could not return to his usual occupation with

Rhone Poulene [sic] but could return to a lighter

16
occupation if that can be worked out. If not, I think he

should be medically retired. . .

The options are clear. Surgery will not relieve his

muscular problems and will not relieve problems related

to cervical spondylosis. These are aggravated by heavy

work and lighter work is recommended. In the absence of

that, his only option is medical retirement.

He has the following problems: Cervical spondylosis,

radiculopathynot identified; cervical stenosis, possible

but not proven cervical radiculopathy; bilateral ulnar

entrapment neuropathies; significant cervical myospasm.

I do not feel he will get any better. He may worsen as

time goes on and he cannot return to his usual

occupation.

In response to the recommendations of Dr. Knutsen and Dr.

Dewey that the possibility of lighter work be considered, or in the

alternative, that Killoy be medically retired, his employer's

insurer hired Patricia Hink, a vocational consultant, who reviewed

Killoy's medical records, his educational and work background, and

his physical limitations, and issued a report to his employer's

insurer on June 23, 1994. The report consists of ten pages and

meticulously outlines Killoy's work history, his education, his

medical status, and his physical limitations. That report was

admitted without objection as trial Exhibit No. 3. In that report,

Hink concluded:

Due to the persistent problems that Mr. Killoy has had in

performing even normal daily functions, I felt that it

was appropriate for him to apply for Social Security

benefits. Given his age at 57 years which makes him an

older adult, a 10th grade education, and a heavy to very

heavy occupation which he has performed consistently

since 1956, it would be difficult for Mr. Killoy to

re-enter the work force even at unskilled jobs at this

time.

. . . .

17
At the present time, Mr. Killoy remains off work and has

applied for Social Security Benefits. I have encouraged

him in this direction since his past relevant work has

been heavy, to very heavy physical demand work. . .

These skills do not easily transfer into lighter work,

especially for an individual of his age, which is now 57.

He has a limited formal education, however, he has

obtained his GED through the Navy in 1955. Given the

[severity] of the industrial injury that he has sustained

and his persistent symptoms, he appears to be a favorable

candidate for Social Security Benefits.

Hink's report goes on to state that Killoy had reached maximum

medical improvement but that his employer had no light-duty work

for him and that he was a high risk for re-injury in the work

place. She pointed out that he had difficulty sitting for any

length of time and difficulty sleeping, which made any employment

problematic.

The combination of Dr. Knutsen's report, Dr. Dewey's report,

and Patricia Hink's analysis of the medical records, as they apply

to the field of vocational placement, clearly established by a

preponderance of the medical evidence that Edward Killoy was

unemployable. To suggest, as the dissent does, that he offered "no

medical evidence that he did not have a reasonable prospect of

physically performing regular employment" simply ignores the

record. To suggest that the necessary quantum of medical proof

requires that a doctor testify that in his or her opinion Killoy

was "physically incapable of performing regular employment"

confuses the function of medical evidence and vocational evidence.

Doctors are not qualified to testify regarding vocational

opportunities, they are merely qualified to testify regarding the

nature of a patient's injury and the physical restrictions that

18
result from that injury. In this case, the medical evidence

clearly established the nature of Killoy's injury, that physical

limitations resulted from that injury, and that Killoy's pattern of

pain was consistent with his injury.. Medical evidence can do no

more. Somewhere common sense has to be applied.

The dissent argues that Dr. Dewey approved five positions for

Killoy, and therefore, that the Workers' Compensation Court's

opinion was supported by substantial evidence. However, the

dissent's characterization of Dr. Dewey's testimony is out of

context and incomplete. When specifically asked whether it was his

opinion that Killoy was physically capable of performing the jobs

which had been submitted to him and described for him by Patricia

Hink, Dr. Dewey testified as follows:

No, I didn't say that. I said he could. I didn't

know if he was capable of doing it. I very clearly caged

myself on that record. I said, "Can safely be attempted

without risk."

. . . But if he was caoable of doinq them, I can't

answer that. That's a question that doctors can't

answer; onlv the patient can answer that.

I know that's not the answer you want to get. You

want to get this thing absolutely black and white, but I

can't give you that answer. I can tell you whether

there's risk and no risk. And I can tell you that the

patient should be able to perform those duties. Whether

they can tolerate them or not, that's a different story.

. . . .

. . . I can only give you what is safe and what is

unsafe.

(Emphasis added.)

The dissent criticizes the majority opinion because:

19
Dr. Dewey did not opine that Killoy's pain rendered him

unable to perform the positions and, therefore, the

Court's reliance on our ability to determine the weight

of medical deposition testimony, under Caekmrt, is totally

misplaced; there is simply no medical evidence of pain

too severe to permit the performance of regular

employment.

The dissent apparently did not consider Dr. Dewey's testimony

that neither he nor any other doctor can give the type of testimony

that the dissenters would like to see. Ultimately, however, Dr.

Dewey's testimony is just common sense. The state of medical

science has not yet advanced to the point where it can measure the

degree of an individual's pain, no matter how much the dissenters

would like to reduce the evaluation process to a question of

connecting the dots. For purposes of the result in this case,

though, Dr. Dewey did testify that:

His symptoms were very typical of that kind of an injury,

and aggravation of -- a muscular aggravation of something

which, you know, for reasons we don't quite understand,

are quiet for a long time. . .

.

. . . Whether it's the patient's tolerance or not,

his symptoms are certainly consistent with everything

that happened to him, and he's not alone in having this

kind of problem.

In conclusion, Dr. Dewey gave the following relevant

testimony, which was all the medical proof he could offer:

Q. By approving the job descriptions that were

submitted to Patricia Hink, you were recommending that he

could, without risk, attempt to work in those positions;

is that correct?

A. That is correct. And I will read to you the

paragraph which I specifically signed my name to.

20
"This job is physically compatible with this

worker's physical capabilities." Doesn't say anything

about his tolerance, it says about his capabilities.

Q. We're talking about tolerance, you're referring

to the level of pain that he may have to -- or would

incur if he attempted that?

A. For this patient, yes, that is correct.

Q. And the pain that he suffers is certainly

consistent with the injury he sustained?

A. Yes.

Q. And is it consistent with his medical

condition?

A. Yes

Q. And you would defer to the patient his ability

to tolerate those jobs?

A. Probably, in this case, yes, because I've seen

him a number of times. If someone came in off the street

and told me they couldn't do that, I think I'd want to

get a little bit better feeling for how that patient

responds and whether the patient's an appropriate or

inappropriate responder.

Q. Did you, in this case, feel it is appropriate?

A. Yes.

The dissent's conclusion that "Killoy's subjective view of his

pain does not constitute medical evidence" is therefore directly

contradicted by the only medical evidence which could be offered.

Killoy's subjective view of his pain, as evaluated by his attending

physician, is the best evidence of his physical limitations. To

hold otherwise is to ignore the medical evidence.

Because Dr. Dewey testified that whether Killoy could work

would ultimately depend on whether he could tolerate work, and

because the Workers' Compensation Court found that Killoy's

21
testimony regarding the degree of his pain was credible, it is

appropriate to review what he said in that regard.

He stated that he has pain from the base of his skull to the

middle of his back and in both shoulders. His pain causes

headaches on a continual basis. He has muscle spasms related to

any physical activity. The muscle spasms occur in his neck, back,

shoulders, chest, and throat. Whenever that occurs he has to

change positions. If he is sitting he has to stand; if he is

standing he has to sit.

The pain in Killoy's neck is constant and any kind of

activity, including walking, prolonged sitting, sleeping, or

standing makes the pain worse. Reaching aggravates his condition.

When his pain is aggravated the severity of his headaches

increases.

When Killoy does experience spasms, he has to apply cervical

traction. This occurs an average of two to four times daily for up

to ten minutes at a time. He also has to perform stretching

exercises throughout the day.

During each week Killoy has one or two bad days where he sits

in a recliner chair with a hot pad and "can't do a hell of a lot"

except try to get relief. He has almost quit fishing, he has quit

hunting, and he no longer exercises, although he used to be a

regular participant in programs at the YMCA.

Edward Killoy, who is the best judge of his physical

tolerance, did not think there was any job he could perform for

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eight hours a day. To suggest that he can, demonstrates a total

insensitivity to the requirements of regular employment.

One of the reasons Killoy has not attempted to return to

employment is because, at Patricia Hink's recommendation, he

applied for and received social security disability benefits, which

he would lose if he attempted to return to work that he does not

think he can perform. What is unreasonable about that?

The Workers' Compensation Court specifically found that:

Claimant testified that he experiences pain from the

base of the skull, down the middle of the back and

through his shoulders. He described his pain as

constant. He has headaches and muscle spasm, which are

aggravated by increased activity. He obtains temporary

pain relief by using a stretching apparatus for his neck

and performing stretching exercises on a daily basis. He

has his "bad days" once or twice a week. On those days,

he seeks relief through hot showers and a heating pad.

His level of pain increases if he is stationary for any

length of time. Claimant's testimony regarding his pain

was credible.

In spite of Dr. Dewey's testimony that Killoy's ability.to be

employed would depend on his ability to tolerate the pain, and his

further testimony that Killoy's complaints of continuous pain were

consistent with the nature of his injury, Patricia Hink did not

even bother to submit the job descriptions on which the employer

now relies to Killoy for his consideration before changing her

opinion about his employability. She admitted that she did not

know whether Killoy could tolerate the pain he would have to endure

to perform the jobs she submitted. She did not arrange for him to

attempt to perform any of those jobs. Neither did she arrange for

a work-hardening program which would help him prepare to attempt

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those jobs. She did not even bother to discuss the jobs she was

recommending with him. When asked by the court whether she thought

Killoy was capable of full-time work, as opposed to part-time work,

she simply said, "I would hope that he would be able to work at

full-time work . . . .I' However, when asked whether anyone would

hire him if he explained to a potential employer all the physical

limitations that he had testified to, she admitted that no one

would.

The dissent characterizes the preceding summary of the

evidence in this case as "bits and pieces" of the record. I

disagree. However, the important point is that in spite of a

diligent search I have been unable to find any "bits and pieces" of

the record which support the judgment of the Workers' Compensation

Court or the dissent's strained effort to affirm that judgment.

In summary, even if this Court applies the standard of review

preferred by the dissent, there was no substantial evidence that

Edward Killoy was physically capable of regular employment. All of

the evidence, medical and otherwise, was to the contrary. The

dissent's insistence that there be medical evidence regarding the

degree of Killoy's pain ignores reality and the limitations of

medical science. The dissent's criticism of the majority's

reliance on Killoy's own description of his pain ignores the fact

that his attending physician testified that that was the only way

in which his actual job prospects could be evaluated, and that the

Workers' Compensation Court found Killoy's description of his pain

credible. To suggest that, in light of the combined testimony of

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Dr. Dewey and Killoy, and the Workers' Compensation Court's finding

that Killoy was credible, there is no evidence of total disability

defies common sense.

For these reasons, I conclude that Killoy proved his

entitlement to permanent total disability benefits by a

preponderance of the evidence and that there was not substantial

evidence to support the Workers' Compensation Court's denial of

those benefits.

I concur with the majority opinion.

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Justice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion for the same

reason I recently dissented from part of the Court's opinion in

Larson v. CIGNA Ins. Co. (Mont. 1996), 915 P.2d 863, 53 St.Rep.

394. It is my view that the Court again misapplies our stated

standard for reviewing the Workers' Compensation Court's findings

of fact and I cannot join the Court in doing so.

The Workers' Compensation Court's ultimate finding in this

case is that Killoy has a reasonable prospect of physically

performing regular employment and, therefore, that he did not meet

his burden of proving permanent total disability by a preponderance

of the evidence. Our standard in reviewing that finding is to

determine whether substantial credible evidence supports it.

Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 408,

892 P.2d 563, 566. Our standard is not, as we have stated clearly

and repeatedly, whether evidence supports a finding different from

that made by the Workers' Compensation Court. See, u, Wilson v.

Liberty Mut. Fire Ins. (1995), 273 Mont. 313, 903 P.2d 785. It is

my view that a proper application of our standard of review

mandates a conclusion that substantial credible evidence supports

the Workers' Compensation Court's finding.

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 (Mont. 1996), 913 P.2d 1242,

1245, 53 St.Rep. 201, 202 (citation omitted). With regard to the

Workers' Compensation Court's finding that Killoy has a reasonable

prospect of physically performing regular employment, the record

26
reflects the following. A certified rehabilitation counselor

identified numerous jobs, generally available on both full- and

part-time bases, as possibly suitable for Killoy. On that basis,

she testified that Killoy has a reasonable opportunity for regular

employment. Dr. Dewey opined that Killoy could safely attempt all

but one of those jobs without risk to his physical condition; he

did not opine that Killoy's pain would render him incapable of

performing the jobs.

Killoy described his pain as constant, but testified that his

"bad days" occur once or twice a week and that he seeks relief via

hot showers and a heating pad. His pain is aggravated by both

increased activity and remaining stationary for any length of time.

Killoy spends a typical day reading, walking, watering his lawn and

watching television. He is able to drive, mow his lawn, and

participate in limited outdoor recreational activities.

Killoy does not believe he could perform any of the identified

jobs which Dr. Dewey opined he could safely attempt because of his

pain. He has neither worked nor attempted to work or find

employment since his re-injury in February of 1994, and he

testified that he does not want to work at a minimum wage job.

Based on Killoy's testimony as to substantial difficulties in

lifting his hands over his head, being required to stand for 85% of

a work shift, lifting and carrying up to 15 pounds continuously and

extensive physical activity, the Workers' Compensation Court

determined that Killoy was unable to perform three of the

identified positions because they would increase his pain beyond

what he could reasonably endure. Accepting Killoy's complaints of

pain, the court found that Killoy could perform the jobs of cashier

27
or motel clerk on a full-time or part-time basis.

This record clearly contains substantial credible evidence

supporting the Workers' Compensation Court's finding that Killoy

has a reasonable prospect of physically performing regular

employment. He is physically capable of standing, sitting,

walking, driving a vehicle, mowing his lawn and engaging in

recreational pursuits. Positions involving these, or similar,

activities were identified. Nor was any medical opinion testimony

presented that Killoy was incapable of performing these jobs

because of either physical limitations or pain considerations.

The Court makes much of our conclusions in Robins and Jensen

that pain must be considered as a factor in determining disability.

It is clear, however, and even this Court does not suggest

otherwise, that the Workers' Compensation Court did consider the

pain-related evidence of record. Nothing in Robins or Jensen

supports this Court's implicit conclusion regarding those cases

that a claimant's bare assertion of belief that he cannot tolerate

the pain associated with working mandates a determination that he

is entitled to permanent total disability benefits. Moreover, in

those cases, the Workers' Compensation Court found that the

claimants were permanently totally disabled. What the Court fails

to recognize here is that, in both Robins and Jensen, we discharged

our duty of determining whether substantial evidence sunoorted the

trial court's findings of permanent total disability by recognizing

the pain-related evidence which supported those findings. We are

in the converse situation here and, as noted above, it is not our

duty to determine whether evidence supports findings contrary to

those made by the Workers' Compensation Court. See Wilson, 903

28
P.2d at 788.

In addition, § 39-71-702(2), MCA (1993), requires that a

"determination of permanent total disability must be supported by

a preponderance of medical evidence." The Court does not address

this statutory requirement at all.

The record is clear, however, that Killoy offered m medical

evidence that he did not have a reasonable prospect of physically

performing regular employment. No doctor advanced a medical

opinion that Killoy was physically incapable of performing regular

employment. Indeed, Dr. Dewey approved five positions for Killoy

to the extent that his performance of those positions would not

harm, or risk, his physical condition. Dr. Dewey did not opine

that Killoy's pain rendered him unable to perform the positions

and, therefore, the Court's reliance on our ability to determine

the weight of medical deposition testimony, under Caekaert, is

totally misplaced; there is simply no medical evidence of pain too

severe to permit the performance of regular employment. Dr. Dewey

merely deferred to Killoy's judgment on that question and Killoy

testified that he believed his pain was too great to work through.

Killoy's subjective view of his pain does not constitute medical

evidence.

Moreover, any suggestion that questions relating to the extent

of a person's pain, or the person's ability to tolerate the pain

while working, are not medical issues would be problematic with

regard to the Court's opinion in this case. For example, such a

suggestion would appear to mean that the requirement contained in

§ 39-71-702(2), MCA (1993), that permanent total disability be

established by a "preponderance of medical evidence" could never be

29
met and, therefore, a claimant could never meet the statutory

criteria and could never establish entitlement to permanent total

disability benefits regardless of the extent of his or her pain and

the clear impossibility of working while experiencing it. Such a

result would be anathema to us all.

In addition, it should be noted in this regard that the doctor

in Robins testified to his opinion that the claimant could not

return to his previous position because of the pain that

accompanied working. Robins, 575 P.2d at 71. If that doctor could

give such a medical opinion, why cannot other doctors do so--either

for or against the proposition? The Robins medical testimony would

seem to belie any notion that pain is not a medical question. Yet

the Court's failure to address § 39-71-702(2), MCA (1993), in any

fashion leaves these problems unresolved.

Finally, it is appropriate to comment briefly on portions of

the special concurring opinion in this case. I do not disagree in

any way with that opinion's statement of this Court's standard in

reviewing medical deposition testimony. I agree entirely that our

usual deference to the trial court's ability to observe the

demeanor and, thereby, assess the credibility of witnesses does not

and cannot relate to medical evidence given by deposition. I also

agree that that standard places "some additional responsibility on

the reviewing court to independently analyze and evaluate" medical

deposition evidence; I have not been reluctant to do so in other

cases or in this case.

It appears, however, that Justice Trieweiler views the medical

deposition standard as effectively repealing our overriding

standard of determining whether substantial evidence supports the

30
Workers' Compensation Court's findings and replacing it with a

standard that allows us to choose bits and pieces of such evidence

as might support findings contrary to those made by the trier of

fact. I do not agree. As stated in one of the recent cases

discussing the medical deposition standard which is cited in the

special concurring opinion,

[tlhis de nova standard of review does not extend to a

review of the entirety of the case and the overall

decision. Medical testimony must be harmonized with and

considered in the context of the evidence as a whole.

The substantial credible evidence standard controls the

analysis of the record as a whole.

White v. Ford, Bacon & Davis Texas, Inc. (1992), 256 Mont. 9, 13,

843 P.2d 787, 789 (citation omitted). We have reiterated that

standard on numerous occasions, most recently in Wilson on

September 26, 1995. See Wilson, 903 P.2d at 787-88. Clearly, this

limited de nova review standard does not allow, and was never

intended to allow, this Court to merely substitute its judgment for

that of the Workers' Compensation Court on questions of fact.

Moreover, it is my view that the special concurring opinion

mischaracterizes or overreads the portions of Drs. Knutson's and

Dewey's 1994 reports it cites. Dr. Knutson states that "1 suspect

Mr. Killoy will be disabled from his laboring type of profession.

I! . . . Similarly, Dr. Dewey opines that Killoy "could not return

to his usual [heavy labor] occupation with Rhone Poulene [sic] but

could return to a lighter occupation if that can be worked out. If

not, I think he should be medically retired. .'I These reports

support the uncontroverted and undisputed reality that Killoy

cannot perform the duties of his earlier position as a heavy-duty

mechanic for Rhone-Poulenc; they also support the proposition that

31
Killoy cannot perform heavy labor jobs of any kind. They do not,

however, support or mandate a determination that Killoy "does not

have a reasonable prospect of physically performing regular

employment" as required by the statutory definition of permanent

total disability. See § 39-71-116(19), MCA (1993).

Under the Court's decision in this case, a claimant such as

Killoy can establish entitlement to permanent total disability

benefits, as a matter of law, on the sole basis of his subjective

assertion that he cannot tolerate working at any job because of the

pain he experiences. Physical incapacity to perform is not

required; a good-faith effort--indeed, any effort--is not required;

a supporting medical opinion is not required. I cannot agree with

the Court's displacement of the statutory definition of permanent

total disability, the claimant's burden of proof, the proper role

of the Workers' Compensation Court as the trier of fact and our

standards in reviewing that court's findings.

Chief Justice

the foregoing

I dissent.

J. A. Turnaqe and ce Charles E. Erd

dissent of Justice Karla M. Gray.

Justice

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