No. 86-217 

IN THE SUPREME COURT OF THE STATE OF MONTAIVk 

1986 

DARRELL GIERKE, 

Claimant and Appellant, 

-vsBILLINGS GAZETTE, Employer 

and 

ASSOCIATED INDEMNITY CORPORATION, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Feardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 

- Clerk 
Mr. 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 disability benefits. 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.o consider Gierke's pain, age, 

education and work experience? 

3. Did the court err when it characterized. Gierke's 

retirement as voluntary? 

4. Did the court err when it placed the burden on 

Gierke to prove that he had no reasonable prospect of employment in the normal labor market? 

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 Gierke was 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.he Billings 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 of his injury until the 

first operation on his right shoulder on January 16, Ia84. 

Dr. Scott performed the operation. 

Dr. Scott operated again on Gierke'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 the whole man. 

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-ity benefits. 

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. 

Judge Reardon 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 to his 

right shoulder, which he claims has now spread to his left 

shoulder. Section 39-71-116(13), MCA, defines permanent 

total disability 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 

medica 1- evidence. 

Gierke's contention that he is permanently totally 

disabled is disputed by his own t-estimony, where Gierke 

discussed his plans to continue working: 

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. I have 

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 review with 

his own testimony: "I felt that I was still in the same 

category of exceeding job standards." 

Furthermore, Gierke has consulted two doctors, Dr. 

Scott and Dr. Gary Ray, an osteopath. Both doctors testified 

that Gierke can do just about any type of work, as long as he 

avoids certain motions wjth 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 arm working straight out? 

A. Yes. 

Q. And, other than that, he can do 

about anything that he would be capable 

of doing? 

A. That is a generous statement, but 

generally I would agree. 

Dr. Ray testified: 

Q. Now, Doctor, let's get on the positive side of things a little bit. 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 job market. 

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 I had 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 

sales work that did not require overhead 

work would be fine. 
The Workers' Compensation Court properly 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 symptoms were chronic. The conclusior 

also noted that both Gierke's supervisor and Gierke himself 

testified that Gierke satisfactorily performed his empl-oyment 

duties from the date of his industrial injury until his 

retirement twenty months later. 

In the alternative, Gierke contends that he is permanently partially d-isabled. Section 39-71-116 (12), MCA, 

defines permanent 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 injuries will. permit. Disability 

shall be supported by a preponderance 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 of his retirement, Gierke never reported. any pain to 

his Gazette supervisor. Furthermore, Gierke did not tell Dr. 

Scott about his left shoulder pain until August, 1984, a year 

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 in his deposition, Dr. Scott concluded that the 

left shoulder pain was unrelated to Gj erke' s industrial 

i.n j ury : 

Q. Now, Doctor, I believe 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 that would be your opinion, that 

the two were unrelated? 

A. Yes, sir. 

&. Now is this consistent, Doctor, with 

his lack of reporting pain anywhere else 

for six or eight months, well, a year 

really, after the dislocation in August, 

of 1983? 

A. Yes. 

Q. And this is still your 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 this point at least you 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) , 

177 Mont. 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 

that decision. 

Gierke failed to establish a causal connection between 

his right shoulder injury and his new pain in both 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 to work, and both 

doctors testified that he is able to work. 

In view of such substantial evidence, and applying the 

Steffes test, we hold that the evidence fully supports the 

decision of the Workers' Compensation Court. 

Issue No. 2 

Did the court fail to consider Gierke's pain, age, 

education and work 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 consider Gierke's age, education and 

work experience. 

We find no merit in Gierke's contentions. In its 

Findings of Fact, the Workers' compensation Court 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 58 years of age. 

3. He is married and has one minor 

child living at home. 

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 that his job included 

many different duties, including hauling 

papers from the Gazette to the delivery 

area if the responsible contractor was 

una-ble to do so. 

In its Conclusions of Law, the Workers' Compensation Court. 

refers to Gierke's overall condition, including his new pain: 

Both Dr. Scott and Dr. Ray testified as 

to the types of work claimant can do 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 factors are 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 considered all factors and fully supported its conclusions. Gierke's contention on this issue has no 

merit. 

Issue No. 3 

Did the court err when it characterized Gierke's retirement as voluntary? 
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-erke omits any 

mention of the $12,180 lump-sum payment he received in consideration for his 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 

permanent disabil-ity benefits to Gierke because he could have 

continued to work for the Gazette if he had not voluntarily 

retired. As the court stated: "He was 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 forced him to 

retire, his contention is directly rebutted by his own 

testimony: 

Q. Now, I am going to ask you this, Mr. 

Gierke: Were you fired by the Gazette, 

or did you quit? 

A. I don't feel I was fired. Definitely not. 

Later in his testimony, Gierke stated: 

Q. Okay. Did Michel or anyone else 

ever say, "Darrell, either you retire or 

we're going to fire you?" 
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 Workers1 Compensation Court properly concluded, 

based upon testimony by Gierke and his Gazette supervisor, 

that Gierke voluntarily retired. In consideration for his 

retirement, he received the $12,180 payment. 

We affirm the Workers' Compensation Court's judgment. 

Gierke's retirement was not related to any failure in his job 

performance. His retirement WPS voluntary and uncoerced. 

Issue No. 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 labor market? 

In the six months following his retirement on April 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, I have not. 

Q. Have you registered at the employment off ice? 

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 labor market, a claimant 

must introduce substantial credible evidence of (1) what jobs 

constitute hip normal labor market, and (21 a complete 
inability 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 claimant bears 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" is without merit. 

We affirm the jud.qment of the Workers' Compensation 

Court on all issues. 

Chief Justice 

We concur: 

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i L .+dm 2 /&xX 

Justices J