No. 86-217 IN THE SUPREME COURT OF THE STATEOF MONTAIVk 1986

DARRELLGIERKE, Claimant and Appellant,

-vsBILLINGSGAZETTE,Employer and ASSOCIATED INDEMNITY CORPORATION, Defendantand Respondent.

APPEAL FROM: TheWorkers' CompensationCourt,The Honorable Timothy Feardon,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Lynaugh, Fitzgerald,Hingle & Eiselein; Thomas J. Lynaugh.,Billings,Montana

For Respondent: Neil S. Keefer,Billings,Montana

Filed: Submitted on Briefs: Aug. 21, 1986 Decided: December 30, 1986

- ClerkMr. Chief Justice ,T. A. Turnage delivered the Opinion of the Court.Gierke appeals from a March 6, 1986, decision of the Workers' Compensation Court which denied Gierke's claim for additional disabilitybenefits. We affirm. Gierke raises four issues for our review: 1. Did substantial evidence support the court's decision that Gierke is not entitled to additional benefits? 2. Did the court fail t.oconsider Gierke's pain, age, education andwork experience? 3. Did the court err when it characterized. Gierke's retirement asvoluntary? 4. Did the court err when it placed the burden on Gierke toprove thathe had no reasonableprospect of employment in the normal labormarket? On August 17, 1983, Gierke injured his right shoulder when he tripped while pullinq a park bench off a street in Worland, Wyoming. All parties agree that Gierkewas injured within the scope and course of his employment with the Billings Gazette. Gierke's orthopedic surgeon,Dr. James Scott, diagnosed Gierke as having a rotator cuff tear to his right shoulder. At the time of the injury, Gierke was fifty-six years old. He had been employed at t.heBillings Gazette for eighteen years. Before his injury and thereafter, he worked as county circulation and transportation manager. His duties consisted primarily of supervising four district managers in eastern Montana. These duties required Gierke to drive several hundred miles per week. Gierke testified that he spent 80 percent of his time on the road. On occasion, he also performed physical work, such as stacking papers.Gierke worked full-time from the date ofhis injuryuntil the first operation on his right shoulder on January 16, Ia84. Dr. Scottperformed the operation. Dr. Scott operated again onGierke's shoulder on February 6, 1984. Associated Indemnity accepted liability and paid Gierke temporary total disability benefits for January 16 and 17 and February 6 through 12, 1984. On September 16, 1985,Associated Indemnity also paid Gierke $13,850 for one hundred weeks of permanent partial disability. The payment

was based upon Dr. Scott's 35 percent impairment rating of Gierke's upper extremity, which converted to a 20 percent impairment of thewholeman. In April., 1985, the Gazette offered a voluntary early retirement program to all of its 175 employees. Eighteen employees accepted the early retirement, including .Gierke. Gierke's effective date of retirement was April 17, 1985, when he received a lump-sum separation payment of $12,180. Four months later, Gierke filed a petition to increase his disabil-itybenefits.

Issue 1 Does substantial evidence support the court's decision that Gierke is not entitled to additional disability benefits? Judge Reardon of the Workers' Compensation Court heard the testimony and observed the demeanor of all witnesses at trial. He reviewed all pleadings, exhibits and depositions. JudgeReardon concluded that the evidence failed to establish

a causal relationship between the 

### industrial accident and Gierke's current complaints about his left shoulder pain.On appeal, Gierke first contends that he was permanently totally disabled as a result of the injury tohis right shoulder, which he claims has now spread to his left shoulder. Section 39-71-116(13), MCA, defines permanent totaldisability 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 injuredworker is as far restored as the permanent characterof 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 medica1- evidence. Gierke's contention that he is permanently totally disabled is disputed by his own t-estimony,where Gierke discussedhisplans to continueworking: 

### Q. What did you plan to do at the time you retired, if anything? A. I had no plans other than certainly the necessity to find employment, or to be employed some way some time. You know, I always enjoyed working. Ihave no intentions of discontinuing work. Gierke elaborated on these employment plans later in his testimony: Q. What type of work do you feel you could do? I mean, all things considered,your training,experience. A. My training and experience, I think the strong suit would be sales of some nature. As further evidence of his ability to work, both Gierke a.nd his Gazette supervisor testified that Gierke asked the -Gazette for an "independent-haul contract'' on the day of his retirement. Under this independent contract, Gierke would load bundles of newspapers at the Gazette each night and deliver them tc elected dro~ points.F7e also note that in December, 1984, Gierke was adequately performing his job, according to a job perf0rman.c~ review by his supervisor. Gierke supported the reviewwith his own testimony: "I felt that I was still in the same category of exceeding job standards." Furthermore, Gierke has consulted two doctors, Dr. Scottand Dr. Gary Ray, an osteopath. Both doctors testified that Gierke cando just aboutany type of work,as long ashe avoids certain motionswjth his right shoulder on a prolonged basis.Dr. Scott testified: Q. Basically, Doctor, so far as the right shoulder is concerned, he should avoid.an activity where he has to have the right arm above the head, or the right armworking straight out? A. Yes. Q. And, other than that, he can do about anything that he would be capable ofdoing? A. That is a generous statement, but generally Iwould agree. Dr. Ray testified: Q. Now, Doctor, let's get on the positive side of things a littlebit. P7hat can Mr. Gierke do, I would like your comments on that, I mean so far as day-to-day physical activities that would relate to work and the jobmarket. A. The simple way of answering that would be to do everything that I have not mentioned, and, in fact, that is, there is an awful lot of things that can be done. If Ihad these two conditions, I would want an inside job, to begin with. And, of course, that gives us about eighty percent of the jobs available in Yellowstone County would be indoors. The limitations of the arm would be really very minor in terms of what things that you could not do

# .

# .. But any sort of desk work, any sort of saleswork that did not require overhead work would be fine.TheWorkers' Compensation Courtproperly concluded that Gierke was not permanently totally disabled as a result of his industrial accident. The conclusion was based on Dr. Scott's medical evidence that Gierke had reached maximum recovery and that his symptomswere chronic. The conclusior also noted that both Gierke's supervisor and Gierke himself testified that Gierke satisfactorilyperformed his empl-oyment duties from the date of his industrial injury until his retirement twentymonths later. In the alternative,Gierke contends that he is permanently partially d-isabled. Section 39-71-116(12), MCA, definespermanent partial disability as:



# ... a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured worker is as far restored as the permanent character of the injurieswill.permit. Disability shall be supportedby apreponderance of medical evidence. Gierke has failed to meet the statute's "preponderance of medical evidence" test. From the date of his injury to the date ofhis retirement,Gierke never reported.any pain to his Gazette supervisor. Furthermore, Gierke did not tellDr. Scott abouthis left shoulderpain until August, 1984, ayear after the original injury to his right shoulder. Gierke's pain claim j.s also disputed by Dr. Scott. In both a letter to Gierke and inhis deposition,Dr. Scott concluded that the left shoulder pain was unrelated to Gjerke's industrial i.n jury: Q. Now, Doctor, Ibelieve you state on page four, which would be the January 21st letter, that you don't see any connection between his left shoulder

### -- left neck pain and the accident that he had in August of '83,when he dislocated his riqht sho~llder,is that corr~ct?A. Yes, sir. Q. And thatwould be your opinion,that the two were unrelated? A. Yes, sir. &. Now is this consistent,Doctor,with his lack of reportingpain anywhereelse for six or eight months, well, a year really,after thedislocation inAugust, of 1983? A. Yes. Q. And this is stillyour opinion as of today? A. Yes, it is. Dr. Scott also testified that Gierke's new pain in both shoulders is distinct from the pain resulting from Gierke's industrial injury: Q. Now, prior to his hospitalization, his pain was in his right shoulder,and it came from the rotator cuff tear, I take it. A. Yes, sir. Q. And the pain that we are talking about on January 8th, of 1985,nearly a year later, is different, and it is in both shoulders? A. Well, yes sir. Q. And at thispoint at leastyou still don't have it diagnosed? A. No, sir. In reviewing Gierke's case, the substantial evidence test was defined in Steffes

### v. 93 Leasing Co., Inc. (1978)

### , 177Mont. 83, 86-87, 580 P.2d 450, 452-453. We held: Our function in reviewing a decision of the Workers' Compensation Court is to determine whether 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 the weight of the evidence on questions of fact. Where there is substantial evidence to support the findinqs of the Workers' Compensa-tion Court, this Court cannot overturn thatdecision. Gierke failed to establish a causal connection between his right shoulder injury and his newpain inboth shoulders. Gierke failed to support his claim that he is additionally disabled by his right shoulder injury. On the contrary,the abundance of evidence from Gierke's doctor and from Gierke himself indicates that his right shoulder is not greatly disabling. Gierke testified that he wants towork, and both doctors testified thathe is able towork. In view of such substantialevidence,and applying the Steffes test,we hold that the evidence fully supports the decision of theWorkers' CompensationCourt.

IssueNo. 2 Did the court fail to consider Gierke's pain, age, education andwork experience? Gierke contends that the Workers' Compensation Court ignored testimony by Gierke, Gierke's wife and Gierke's co-worker about his pain and insomnia. Gierke also claims that the court failed to considerGierke's age,education and work experience. We find no merit in Gierke's contentions. In its Findingsof Fact, theWorkers' compensationCourt specifically notes Gierke's age and education under a section entitled "Claimant":2. Claimant was born on January 2, 1927. At the time of the hearing, he was 58years of age. 3. He is married and has one minor child living athome. 4. Claimant did not complete high school.The Workers1 Compensation Court further dischsses Gierke's '.-work experience in a section entitled "Claimant's Employment

With The Gazette": 

### -- 5. Claimant went to work for the Fillings Gazette in January, 1967. After a series of promotions, he became the County Circulation and Transportation Manager for the Gazette. His job entailed supervising four district managers and all independent-haul contracts. Claimant testified thathis job included many differentduties, includinghauling papers from the Gazette to the delivery area if the responsible contractor was una-bleto do so. In its Conclusions of Law, the Workers' Compensation Court. refers to Gierke's overall condition, includinghis newpain: Both Dr. Scott and Dr. Ray testified as to the types ofwork claimant cando and which types he should avoid. This testimony takes into account claimant's overall physical condition, including any and all pains not related.to the industrial injury of August 17, 1983. Even so, both doctors testified that claimant can do just about any type of work, so long as he avoids certain motions with his riqht shoulder on a prolonged basis. In sum, the right shoulder, standing alone, is not greatly disabling. Even when other factorsare considered,there is a great deal that claimant can do. Gierkels assertion that the court failed to consider all factors is directly rebutted by the evidence and the well-written decision of the Workers

### ' Compensation Court.. The court carefully consideredall factors and fully supported its conclusions. Gierke's contentionon this issuehas no merit.

IssueNo. 3 Did the court err when it characterized Gierke's retirement asvoluntary?Gierke argues that his retirement was not voluntary because the Gazette created and offered the plan to its employees, rather than the plan being inspired by Gierke himself. Gierke further contends that the plan was not voluntary because the Gazette encouraged the plan and thus exerted subtle pressure. In his brief, Gi-erkeomits any mention of the $12,180 lump-sum payment he received in consideration forhis early retirement. The Gazette contends that Gierke retired of his own free will and that his job did not seriously aggravate the pain in his shoulder. As we discussed in the first issue, Gierke's injury did not prevent him from performing his job at the Gazette. The Workers1 Compensation Court denied permanentdisabil-itybenefits to Gierke becausehe could have continued to work for the Gazette if he had not voluntarily retired. As the court stated: "Hewas adequately performing his duties and was under no threat of being fired when he elected to take an early retirement." Both Dr. Scott and Dr. Ray concluded that Gierke could continue to drive his company pick-up truck, which was equipped with power options, air conditioning and tilt-wheel steering. Although Gierke contends that the Gazette forcedhim to retire, his contention is directly rebutted by his own testimony: Q. Now, Iam going to ask you this,Mr. Gierke: Were you fired by the Gazette, ordid you quit? A. Idon't feel Iwas fired. Definitely not. Later in his testimony,Gierke stated: Q. Okay. Did Michel or anyone else ever say, "Darrell,eitheryou retireor we're going to fireyou?"A. No, sir,they did not. Gierke alleges that his retirement was made under duress. However, the voluntary retirement program was offered to every Gazette worker, with no special focus on Gierke. The Workers1Compensation Court properly concluded, based upon testimony by Gierke and his Gazette supervisor, that Gierke voluntarily retired. In consideration for his retirement,he received the $12,180payment. We affirm the Workers' Compensation Court's judgment. Gierke's retirementwas not related to any failure in his job performance. His retirement WPS voluntary and uncoerced.

IssueNo. 4 Did the court err when it placed the burden on Gierke to prove that he has no reasonable prospect of employment in the normal labormarket? In the sixmonths following his retirementonApril 17, 1985, until the compensation hearing on October 29, 1985, Gierke never looked for a job. Fe testified: 

### Q. Now, have you worked at all since you left the Gazette? A. No, sir, Ihave not. Q. Have you registered at the employment office? A. No, sir, 1 have not. In its decision, the Workers' Compensation Court out-- lined the burden of proof on Gierke, citing Metzger v. Chemetron Corp. (Mont. 1P84), 687 P.2d 1033, 1035, 41 St.Rep. 1788, 1790: "To establish the existence of no reasonable prospect of employment in the normal labormarket, a claimant must introduce substantial credible evidence of (1)what jobs constitute hip normal labor market, and (21 a completeinability to perform the employment duties associated with those jobs because of his work-related injury." Gierke failed to introduce such substantial credible evidence. On the contrary, Gierke voluntarily retired from one segment of his normal labor market and then failed to look for work in the remainder. As we have repeatedly held, the general rule is that the claimantbears the burden of establishing a right to compensation. Dumont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105. Gierke repeatedly testified about his desire to work. Both doctors testified about his ability to work. When such evidence is combined with Gierke's failure to seek employment, Gierke's claim of "no reasonable prospect of employment" iswithout merit. We affirm the jud.qment of the Workers' Compensation Court on all issues.

ChiefJustice

We concur:



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