No. 91-488 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

LEROY G. MEIDINGER, Claimant, Respondent and cross-~ppellant, -vs- c 22, WESTERN ENERGY COMPANY, vd . ' ,L

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Robert T. OrLeary,Attorney at Law, Butte, Montana For Respondent: James E. Gardner, Attorney at Law, Billings, Montana

Filed: Submitted on Briefs: May 28, 1992 Decided: July 9, 1992

# Clerk

### Justice John Conway Harrison delivered the Opinion of 

### the Court.

This is an appeal from a July 12, 1991 judgment of the Workerst compensation Court reinstating Leroy G. ~eidingerto temporary total disability benefits 

### from the date of termination and continuing until maximum healing is reached, past due benefits

are to be paid 

### in a lump sum. In addition, Meidinger 

### is entitled to ongoing medical care including physical therapy and massage as well as psychological therapy. The Workerst Compensation Court found that the claimant, Meidinger, is not entitled to a twenty percent penalty, but that he was entitled to reasonable costs and attorney's fees as provided by 5 39-71-611,MCA. To this judgment Meidinger cross-appealed. 

### We affirm. The following issues are presented for review: 1. Whether Western Energy Company properly terminated Meidingerlstemporary total disability benefits in January 1989 and, accordingly,he isnot entitled to restoration of benefits as of that date nor costs and attorney's fees. 2. Whether the Workers1 Compensation Court erred when it determined that Meidinger was entitled to reinstatement of temporary 

### total disability benefits, physical and psychological therapy and massage, costs and attorney's fees. Meidinger is a thirty-four-year-old employeeofWesternEnergy Company (Western)whose

### work history includestruckdriving,shovel oiler and construction. In 1983, he

### beganwork 

### as a field mechanic for Long construction 

### at the Colstrip power plant site. In 1985, 

### Western took 

### over the tasks 

### performed by Long 

### Construction andclaimant continued 

### his employment as a shop mechanic for the next two years forWestern. Prior to June 11, 1986, Meidinger took and passed a physical examination. On June 11, 1986,Meidinger and two co-workers were assigned to rebuild 

### an oar crusher that had recently been repaired. Meidinger was injured while attempting to cross from one side of the crusher bin to the other while stepping on an iron bar 

### which bisected the rectangular bin. His foot slipped and he fell, striking his leg on the cross-bar while grabbing the side of the bin with his hands. Meidinger experienced immediate pain in his left leg and low back. He timely reported the injury to Western and claims forcompensation andmedicalbenefits were completed and filed. For the next two and one-half years, Meidinger received medical benefits relating toalleged injurieshe sustained fromthe above-described accident. Meidinger began medical treatment with chiropractor 

### Dr. Roger Dahl who saw him three days after the accident. Over the course of the two and one-half years after the accident, and 

### in addition to 

### Dr. Dahl, Meidinger was treated by three chiropractors, three orthopedic surgeons, one neurosurgeon, six neurologists, one psychiatrist, and one physical therapist. Meidinger has undergone diagnostic procedures including three CT scans, 

### two myleograms, three MRIs, multiple plain x-rays, and one EMG study; all of which were negative 

### for organic, objective findings to verify any back or disc problems. Following the accident, Meidinger received temporary total disability benefits for the week following his injury. 

### He worked 3for 

### the next six months until sometime 

### in December 1986, when he discontinued work complaining of low back and leg problems; he again began receiving temporary total disability benefits until January 25, 1989. In a report toWestern dated December 23, 1988, Drs. Shaw and Williams, reported that they could find no objective evidence of structuraldiseaseofMeidingerfsspine,could not find evidenceof damage 

### to the nerves, 

### nor could they find 

### any neurological abnormalities. Dr. Shawls report advised Western that he could find no objective medical explanation for Meidinger's pain, that any medical conditions attributed to the accident of June 11 

### were at that time stableand thatMeidinger had reached maximum healing. Dr. Shaw imposed no restriction onMeidinger's activitiesand could find no reason why he could not return to full normal activity. Based upon the examinations of Drs. Shaw and Williams, Western, as required by law, gave Meidinger a fourteen-day notice of terminationofbenefits and advised him to return tohismechanicfs job at the Rosebud Mine on January 23, 1989. Meidinger failed 

### to return to 

### work thereby terminating his 

### seniority with Western 

### in accordancewith the collectivebargaining agreement under which he

was employed. Meidinger continued tobe treatedby Dr. Nelson, aneurologist in Billings, after the termination of his bi-weekly compensation benefits. Western continued topay medical benefits for subsequent examinations and treatment as well as for any prescription drug charges Meidinger incurred. Western argues that it justifiably terminated Meidingerls

4benefits on 

### thebasis that there was nomedical evidence introduced at the hearings by either Meidinger or Western that disclosed any objectivemedical reason forMeidinqerlscomplaints, includingwhy he favoredhis left legwhile standing orwalking. It isWestern's contentionthat it retained twoacknowledgedBillings

### experts,Drs. Williams and 

### Shaw,to conduct independent medical examinationsand additional tests in order to determine if there were any medical reasons forMeidingerlscomplaints; the doctors found no reason why Meidinger could not return to 

### work.

That Meidinger failed to prove by a preponderance of the evidence that any physical or psychological injury he now suffers is caused by his occupational injury on June 11, 1986. Western objects to the Workers' Compensation Courtlsfinding thatMeidinger suffers froma

### mixture of psychological andphysical problems related to his injury and that he is entitled to the restorationofbenefits fromJanuary 1989,thedate oftermination, until 

### maximum healing is reached. Western cites Hutchinson v. Pierce Packing Co. (l985), 219 Mont. 18, 710 P.2d 64; Frost 

### v. Anaconda Co. (1985)) 216 Mont. 387, 701 P.2d 987;Ricks

### v. Testlow Consolidated (l973), 162 Mont. 469, 512 P.2d 1304; Currey 

### v. 10 Minute Lube (19871, 226 Mont. 445, 736 P.2d 113. See also Dumont


### v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 598 P.2d 1099. We note that in view of the fact that Western relied on Dr. Shawlsreportof Meidingerlscondition,we concur with theWorkers1 Compensation Judge's finding that the report does not justify termination of benefits. In his December 1988 report to Western,

### Dr. Shaw stated in part: I believe that any medical conditions directly attributable to [Meidinger's]accident of 

### June 11, 1986 are at this time stable and have reached a 

### maximum medical benefit. No further medical workup appears indicated. No further medical treatment appears warranted. Iwould anticipate no need for any surgical interventions now or 

### in the foreseeable future. 

### Iwould not anticipate any conditions directly related to that accidentwould progress ordeteriorateinthe foreseeable future. Strictly as it relates to conditions directly attributable to that accident, I would assess no impairment rating in accordance with theAmerican Medical Association, I would impose no restrictions 

### on his activity. I can find no medical reason which would prevent him from safely returning to full normal activity. I would note that this man may have a psychologic condition which warrants evaluation and treatment. I cannot clearly attribute such apsychologic condition to his accident of June 11, 1986. 

### In addition 

### we note that two doctors reviewed the record of ~eidinger'semployability as of January 1989, Dr. Dahl, a chiropractor and the firstprofessionalwho treated Meidinger, and Dr. Cooney, a neurologist,disapproved of Meidinqerfsreturning to his previously-held job with Western. Dr. Cooney 

### in his report of September 1989 stated: 

### Ibelieve 

# . . . [Meidinger] 

### is experiencing and has been experiencing significant pain in the low back and left leg,which resulted inhis abnormalgait andposture. In view of the longstanding nature of that problem, he subsequently developed significant flexion contractures of the left lower extremity which preclude 

### him [from] standing or walking 

### in a normal fashion. Further, the abnormalities of stance and gait have likely aggravated 

### his 

### low back pain. This appears 

### to be 

### a vicious cycle. I do not expect to see rapid improvement in these symptoms even with appropriate and effective physical therapy for the low back and left lower extremity. I suspect that he will require at least 6 months of intensive physical therapy beforesiqnificantimprovement in these conditions occur. I 

### would emphasize that Mr. Meidinger has the potential to be returned to his preinjury state, 

### I think that he is quite frustrated atthispoint, inview ofhispain andphysical limitations. 

### I have attempted to reassure him that with appropriate therapy, that Iwould expect these conditions 

### to improve substantially. He appears to be 

### a very candid and credibleman. I do not believe that he is exaggerating 

### his symptoms, or their effect on his life. The Workers1Compensation Court 

### in Conclusions of LawNumbers 2, 3, and 4 noted: 2. Claimant is presently temporarily totally disabled and entitledtoreinstatementoftemporarytotal disability benefits from the date of termination and continuing until maximum hearing is reached. Section 39-71-116(19), MCA, as it read at the time of claimant's injury was as follows:

(19) I1Temporarytotal disabilityn means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence. Given the reports of 

### Dr. Cooney and Dr. Nelson as well as thephysical therapist, 

### it is clear to the Court that claimant's physical condition as it relates to his low back and leg 

### is treatable with physical therapy and massage. Dr. Shaw, who provided what amounted to an unequivocal release based on claimanttsphysical exam, nonethelessnoted the ongoing psychological component of his condition and did not question its authenticity or re2ationship to the June 1986 injury. Inour reviewof this record,the Court 

### is convinced that much of claimant's physical condition relative to his muscle contraction and pain in the leg is psychological in origin. However, the claimantls psychological condition 

### is equallycompensableasrelated 

### to the injury. (See Schumacher v. Emplovers Mutual Liability Ins. Co., 175 Mont. 411, 574 P.2d 987 (1977).) The conversion reaction recognized by Doctors Lovitt, See,Robinson, Shaw, Nelson,andNewman is compensableas it 

### is related to the physical injury of June 11, 1986. Because 

### of that psychological response, claimant has developed a seriousphysical problem with his 1eg and low back.What is significant as it pertains to temporary

### total disability benefits is that the psychiatrist Dr. Newman believes thepsychological condition is treatable and Dr. Cooney and others believe the physical component is equally treatableby therapy and massage. Indeed, it appears that according to Dr. Cooney, six months of therapymay be sufficient. When thedefendant terminated benefits in January 1989, it relied on the report of Dr. Shaw and others. However,we conclude that the mixture of thepsychological componentand thephysical problems manifested in response, are not at maximum healing and are compensable. The claimant

### must cooperateand participate in both the physical therapy program prescribed as well as treatment for hispsychological disorder. Any failureto do somay result in a suspension of benefits per section 39-71-605,MCA. [Emphasis in original.] 3. 

### The medical benefits are to continue and shall include the payment of the psychological and physical therapy treatments discussed herein. 4. Theclaimant is not entitled to a twenty percent penalty per section 39-71-2907,MCA. Given the disparity of accident descriptions, the multiple medical exams and reports which all proved essentially negative, we do not believe a penalty is warranted [under 5 

### 39-71-2907,MCA]. 

# . . 

# .

The question of unreasonableness is considered on a case by case basis. Up 

### until Dr. Cooney's report, the medical evidence preponderated in favor of a conclusion that claimant had minimal or no objective evidence to preclude him from working. As such, a genuine dispute existed which the Court believes does not warrant a penalty. Wiaht v. lHucrhes Livestock Co.1 [I94 

### Mont. 1091, 634 P.2d 1189 

# . . 

# . (1981).

The WorkerstCompensation Court is affirmed.We concur: