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 

., .: ,% 1 - 1981 Decided :LJ t LJ 

rJEC 1 - '198 

Filed: - 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Employer, Cyprus Industrial Materials, appeals from a 

judgment in Workers' Compensation Court awarding claimant 

permanent partial disability benefits for an injury amounting 

to a 100 percent loss of use of his arm at or near the 

shoulder. 

The sole issue on appeal is whether there is sufficient 

evidence to support the award. 

We affirm the Workers' Compensation Court. 

Claimant is a man in his late thirties with a high 

school education, who had been employed by Cyprus Industrial 

Materials for fifteen years and had worked his way up to the 

position of boilerman at the time of the accident. He 

severely injured his left arm in a fall onto a catwalk on 

February 20, 1977. His employer was enrolled at the time of 

claimant's injury under Compensation Plan I1 of the Workers' 

Compensation Act. The parties agreed that the injury arose 

out of and in the 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 future benefits arising from a permanent 

partial disability rating. 

Claimant has suffered recurrent pain in his arm since 

the accident. He has been treated by several physicians and 

has traveled to Seattle four times for diagnosis and treatment 

at a pain clinic there. He has been supplied with electric 

transcutaneous nerve stimulators (TNS), which help relieve 
the pain in his arm. Claimant is purchasing a truck, attempting 

to rehabilitate himself, but is not able to work regularly 

because any prolonged activity causes him severe, debilitating 

pain in his left arm. 

A dispute arose between claimant and defendant about 

the extent of claimant's disability. The parties agreed 

that the disability is permanent, but defendant alleged that 

claimant's arm is not 100% disabled and claimant is only 

entitled to disability benefits equal to a percentage of the 

amount claimed. On February 8, 1980, claimant filed a 

petition for a hearing with the Workers' 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 to permanent partial disability 

benefits equal to total or 100% loss of use of his arm at or 

near the shoulder." On August 5, 1980, in a separate order, 

the court ordered a lump sum advance of $6,700 to be credited 

toward benefits to which claimant is entitled. Defendant's 

petition for rehearing was denied and defendant appeals to 

this Court. 

Defendant maintains that there was insufficient evidence 

before the Workers' 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 to which 

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 claimant was 

capable of driving a truck and using his left arm to some 

extent on "good days," four or five days a week. Defendant 

refers to the testimony of claimant's wife that claimant has 

"some usage" of his left arm. Finally, defendant refers to 

the Workers' Compensation Court's findings of fact No. 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 this Court should find that 

claimant is not entitled to benefits calculated on the basis 

of total loss of his left arm, but only to benefits calculated 

on a 40% loss of use of his arm. 

We cannot agree. Defendant has not considered the 

debilitating effect of the pain suffered by the claimant 

when he is active; nor has defendant considered that the 

"good days" are not necessarily days in which claimant is 

free from pain and capable of doing the work a sound man 

could do. The fact that claimant is capable of using his 

arm to some extent does not automatically mean he is not 

entitled to benefits equal - to those granted for 100% loss of 

the use of an arm. Nor is the testimony of the physicians a 

necessary yardstick for determining the extent of claimant's 
disability. 

This Court has repeatedly stated that medical impairment 

ratings alone are not conclusive proof of a particular 

degree of disability: 

" 'Many factors in addition to medical impairment ratings may be properly considered by 

the court in determining a claimant's disability. For this reason, impairment ratings 

do not conclusively establish limits on 

compensation awards i n a l l cases; rather, 

such medical impairment ratings by physicians 

are simply expert opinion evidence constituting but one item of evidence to be considered 

along with other evidence presented.' Ramsey 

v. Duncan (1977), Mont., 571 P.2d 384, 385, 

34 St.Rep. 1277. 

"Here, the Workers' 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), 

178 Mont. 59, 64, 582 P.2d 1191, 1194. 

In determining claimant's degree of disability, another 

factor must be considered, and that is pain. Robins v. 

Anaconda Aluminum Co. (1978), 175 Mont. 514, 521, 575 P.2d 

67, 71. Furthermore, this Court has upheld the award of 

permanent and even total disability benefits when the injury 

is grievous or the pain severe, regardless of the fact that 

a claimant has been able to do some work. Thus, in Jensen 

v. Zook Bros. Const. Co., 178 Mont. 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 is permanently 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 or badly weakened eye will presumably 

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 permanent 
physical injuries, for which the exclusive 

remedy clause has abolished all possibility 

of common-law damages, it is not justifiable 

to tell him he has undergone no impairment 

of earning capacity, solely on the strength 

of current pay 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 short periods of time does not preclude 

a finding that claimant is totally and permanently disabled. This k especially true 

where, as here, the evidence shows -- that the 

claimant must ---- 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 

cannot work without pain and he cannot endure 

the pain to work. 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; that he could endure the pain 

in his hand when he was not using it; but 

that when he used it, the pain increased and 

went up his arm. To do any job, claimant 

would have to use his hand and would be in 

pain. The evidence shows that he cannot work 

without pain and he cannot endure the pain 

to work. " (Emphasis added. ) 

Claimant has testified that he suffers from substantial 

pain, which becomes disabling when 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 his pain, although claimant 

usually wears four of them and carries a battery pack to run 

them. Claimant also testified that he cannot hold a steady 

job because, when the pain in his 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 in Montana that there is no 

abuse of discretion in the Workers' Compensation Court's 
considering the contents of medical reports contained in the 

case file before 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 

file include physicians' statements that the claimant's pain 

is "persistent," "constant," and not likely to respond 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 in his left arm is a fraction 

of that in the other arm. The reports further state that, 

without activity, the patient is in pain once or twice a day 

for three to four hours; that claimant must keep the arm 

away from sunlight and heat or extreme cold, and that the 

TNS is ineffective in controlling the pain when claimant is 

active. The reports refer to claimant as indicating that 

the pain is at a "level which leaves him unable to work and 

that he consequently spends his days doing chores around the 

home that are possible using one hand only." 

The Workers' Compensation Court judge had the medical 

reports before him, as well as the testimony of claimant and 

his wife. The standard of review in Workers' Compensation 

cases is well settled in Montana: 

". . . [Tlhis Court has consistently held the 

test of sufficiency of the evidence to be 

whether there is substantial evidence to 

support the court's findings of fact. See 

Stamatis v. 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; 

S trandberg 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 that where 

the findings are based on conflicting evidence, 

this Court's function on review is confined to 
determining whether there is substantial evidence to support the findings and not to determine whether there is sufficient evidence to 

support contrary findings." Little v. 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 the Workers' Compensation Court in this 

case. Under the standards of review articulated above, we 

decline to disturb the determination of that court. 

Affirmed. @+dw 

Justic 

We Concur: 

PA4 $ C 

Chief ~uscice