### No. 81-250 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

CURTIS CLEVELAND, Claimant and Respondent,

-vsCYPRUS INDUSTRIAL MINERALS, and FARMERS INSURANCE GROUP, Defendants and Appellants

Appeal from: Workers' Compensation Court, The Honorable William 

### E. hunt, Judge presiding.

Counsel of Record: For Appellant: Lyman 

### H. Bennett, 111, Bozeman, Montana

For Respondent: 

### Landoe, Brown, Planalp, Komrners & 

### Lineberger, Bozeman, Montana

Submitted on Briefs: September 11, 

### 1981

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# - 1981 Decided:LJ tLJ 

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# 1- '198 Filed: -Mr. Justice Fred J. Weber delivered the Opinion of the Court. Employer, Cyprus Industrial Materials, appeals from a judgment inWorkers' Compensation Court awarding claimant permanent partial disability benefits for an injury amounting to a 100percent loss of use of his 

### arm ator near the shoulder. The sole issue on appeal 

### iswhether there 

### is sufficient evidence to support the award. Weaffirm the Workers' Compensation Court. Claimant 

### is a man inhis late thirties with a high school education, who had been employed by Cyprus Industrial Materials for fifteen years and had worked hisway up to the position of boilerman atthe 

### timeof the accident. He severely injured his left

### armin a fall onto a catwalk on February 20, 1977. Hisemployer was enrolled atthe 

### timeof claimant's injury under Compensation Plan I1 of the Workers' Compensation Act. The parties agreed that the injury arose outof and inthe course of claimant's employment. The defendant accepted liability and paid claimant the appropriate amount for temporary total disability through July 

### 24, 1979, after which defendant has paid claimant bi-weekly benefits for a permanent partial disability. On July 24, 1977, defendant paid claimant $2,000 as a lump sum payment to be credited against futurebenefits arising from a permanent partial disability rating. Claimant has suffered recurrent pain inhis 

### arm since the accident. He has been treated by several physicians and has traveled to Seattlefour 

### times for diagnosis and treatment ata pain clinic there. He has been supplied with electric transcutaneous nerve stimulators (TNS), which help 

### relievethe pain inhis arm. Claimant 

### ispurchasing a truck, attempting torehabilitate himself, but 

### isnot able towork regularly because any prolonged activity causes him severe, debilitating pain inhis leftarm. A dispute arose between claimant and defendant about the extent of claimant's disability. The parties agreed that the disability 

### ispermanent, but defendant alleged that claimant's arm 

### isnot 100%disabled and claimant 

### isonly entitled to disability benefits equal to a percentage of the amount claimed. On February 8, 1980, claimant filed a petition for a hearing with theWorkers' Compensation Court. A hearing was held on July 22, 1980, and findings of fact, conclusions of law and judgment 

### were entered for the claimant

on March 4, 1981. The Workers' Compensation Court found that claimant was "entitled topermanent partial disability benefits equal to total or 100%loss of use of his arm ator

near the shoulder." On August 5, 1980, in a separate order, the court ordered a lump sum advance of $6,700 tobe credited toward benefits towhich claimant 

### is entitled. Defendant's petition forrehearing was denied and defendant appeals to this Court. Defendant maintains that there was insufficient evidence before theWorkers' Compensation Court to support 

### its award, arguing that, without a showing that there has been a total loss of usage of the injured arm, the benefits towhich claimant is entitled should be proportionately reduced. Defendant urges that, if after review of the record, this Court concludes that the evidence supports a finding of only partial loss of use of his arm by the claimant, this Court should require a proportionate reduction of benefits due claimant.Defendant 

### relies upon medical evidence supplied by an orthopedic physician from Bozeman, who estimated an impairment to the whole man of 40-50%, and a neurosurgeon from Billings, who reported that impairment of the extremity

### was approximately 40%,equaling a 24%impairment of the who1.e man. Defendant also relied upon claimant's own testimony that claimantwas capable of driving a truck and using his leftarm to some extenton "good days," four or five days a week. Defendant 

### refers to the testimony of claimant's wife thatclaimant has "some usage" of his leftarm. Finally, defendant refers to theWorkers' Compensation Court's findings of factNo. 11 and No. 12 which mention claimant's extremely limited and painful use of his arm. These findings, together with the medical reports and testimony, according to defendant, are proof that claimant 

### is capable of using his arm, does use it, and 

### is therefore not suffering from total loss of use of his arm. Defendant argues that thisCourt should find that claimant 

### is not entitled tobenefits calculated on the basis of total loss of his leftarm, but only tobenefits calculated

on a 40%loss of use of his arm. We cannot agree. Defendant has not considered the debilitating effectof thepain sufferedby the claimant when he 

### is active; nor has defendant considered that the "good days" arenot necessarily days inwhich claimant 

### is free from pain and capable of doing thework a sound man could do. The fact thatclaimant is capable of using his

arm to some extentdoes not automatically mean he 

### is not entitled tobenefits equal 

## - to those granted for 100%loss of theuse of an arm. Nor 

### is the testimony of thephysicians a necessary yardstick for determining the extent of claimant'sdisability. This Court has repeatedly stated thatmedical impairment ratings alone arenot conclusive proof of a particular degree of disability: 

### "'Many factors inaddition tomedical impairment ratings may be properly considered by the court indetermining a claimant's disability. For this reason, impairment ratings do not conclusively establish 

### limitson compensation awards i n a l lcases; rather, such medical impairment ratings by physicians are simply expert opinion evidence constituting but one 

### itemof evidence tobe considered along with other evidence presented.' Ramsey v. Duncan (1977),Mont., 571 P.2d 384, 385, 34 St.Rep. 1277. "Here, theWorkers' Compensation Court considered this rating along with the other medical evidence and claimant's testimony about his pain and inability to do the same kind of work since the injury, and found claimant's testimony more weighty and credible than the impairment rating." Jensen v. Zook Bros. Const. Co. (1978), 178Mont. 59, 64, 582 P.2d 1191, 1194. In determining claimant's degree of disability, another factor must be considered, and that 

### ispain. Robins v. Anaconda Aluminum Co. (1978), 175Mont. 514, 521, 575 P.2d 67, 71. Furthermore, thisCourt has upheld the award of permanent and even total disability benefits when the injury 

### isgrievous or the pain severe, regardless of the fact that a claimant has been able to do some work. Thus, inJensen

v. Zook Bros. Const. Co., 178Mont. 

### at 62-63, 582 P.2d 

### at

"We hold that this evidence 

### is sufficient to support the finding of the Workers' Compensation Court that claimant ispermanently and totally disabled despite the fact that he can and has done various odd jobs. 

# ..

II I

# . . . a man with a stiffened arm or damaged back orbadly weakened eye

### willpresumably have a harder time doing his work 

### well and meeting the competition of young and healthy men. When 

### a man stands before the Workers' Compensation Court with proven permanentphysical injuries, for which the exclusive remedy clause has abolished allpossibility of common-law damages, 

### it isnot justifiable to tell him he has undergone no impairment of earning capacity, solelyon the strength of currentpay checks.' Fermo v. Superline Products (1978), Mont., 574 P.2d 251, 253, 35 St.Rep. 22. "Because claimant can perform a few odd jobs for shortperiods of 

### timedoes notpreclude a finding thatclaimant 

### is totally and permanently disabled. This

## k especially true where, 

# as here, 

# the evidence shows that the 

## -- claimantmust work with a substantial degree 

## ---- of pain. 

### -- "Where there 

### is evidence of continuing pain from the injury, 

### we have stated the rule: "'The evidence shows that

# . . . claimant cannotwork without pain and he cannot endure thepain towork. This constitutes substantial evidence supporting a finding of total permanent disability.' Robins v. Anaconda Aluminum Co. (1978),Mont., 575 P.2d 67, 72, 35 St.Rep. 213. "Here, claimant testified that he was suffering from pain; thathe could endure the pain inhishand when he was not using 

### it;but thatwhen he used 

### it, thepain increased and went up his arm. To do any job, claimant would have touse his hand and would be in pain. The evidence shows that he cannot work without pain and he cannot endure thepain to work.

### " (Emphasis added.) Claimant has testified thathe suffers from substantial pain, which becomes disablingwhen he 

### is active for any length of 

### time. He has been informed that his condition 

### is permanent and could even deteriorate. When he 

### is active

even the TNS's fail to alleviate hispain, although claimant usually wears four of them and carries a battery pack to run them. Claimant also testified thathe cannot hold a steady job because, when thepain inhis arm 

### is severe, he must take hours, even days, off, doing nothing until the pain subsides sufficiently that he 

### is capable of working again. It 

### is

### well settled inMontana that there is no abuse of discretion intheWorkers' Compensation Court'sconsidering the contents of medical reports contained in the

case filebefore the court. Stevens v. Glacier General Assurance Co. (1978), 176 Mont. 61, 66, 575 P.2d 1326, 1329; Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 420, 571 P.2d 372, 374. The medical reports contained in this case fileinclude physicians' statements that the claimant's pain 

### is "persistent," "constant," and not likely torespond to normal therapy; that claimant can scarcely go an hour without the TNS before experiencing severe pain, even on "good days;" and that the strength inhis leftarm 

### is a fraction of that inthe other arm. The reports further state that, without activity, the patient 

### is inpain once or twice a day for three to four hours; thatclaimantmust keep the arm away from sunlight and heat or extreme cold, and that the TNS 

### is ineffective incontrolling the pain when claimant 

### is active. The reports refer to claimant as indicating that the pain 

### is ata "levelwhich leaves him unable to work and that he consequently spends his days doing chores around the home that arepossible using one hand only." The Workers' Compensation Court judge had the medical reports before him, aswell as the testimony of claimant and hiswife. The standard of review inWorkers' Compensation

cases 

### iswell settled inMontana: 

# ".

. .[Tlhis Court has consistently held the testof sufficiency of the evidence to be whether there 

### is substantial evidence to support the court's findings of fact. See Stamatisv. Bechtel Power Co. (1979),Mont., 601 P.2d 403, 36 St.Rep. 1866; Head v. Larson (1979) Mont.

## , 592 P.2d 507, 36 St.Rep. 571; Strandberg v. Reber Company (1978)

## ,Mont.

## , 587 P.2d 18, 35 St.Rep. 1742; Jensen v. Zook Brothers Construction Company (1978)

## ,Mont. 

## , 582 P.2d 1191, 35 St.Rep. 1066. In Stamatis and Jensen, this Court further held thatwhere the findings arebased on conflicting evidence, this Court's function on review 

### is confined todetermining whether there 

### is substantial evidence to support the findings and not to determine whether there 

### is sufficient evidence to support contrary findings." Littlev. Structural Systems (1980), Mont. 

## , 614 P.2d 516, 518-519, 37 St.Rep. 1187, 1189. We do find substantial evidence to support the findings and conclusions of theWorkers' Compensation Court inthis

case. Under the standards of review articulated above, 

### we decline to disturb the determination of that court. Affirmed. 

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Justic

WeConcur: 

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C Chief ~uscice