No. 91-008 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

HARRY A. NESS, 

Petitioner and Appellant, 

ANACONDA MINERALS COMPANY, 

a division of ATLANTIC 

RICHFIELD COMPANY, INC., 

Ernployer/Defendant and 

Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. Lewis Brown, Jr., Butte Legal Center, 

Butte, Montana 

For Respondent: 

Andrew J. Utick, Utick & Grosfield, 

Helena, Montana - 

D -- Submitted on Briefs: September 24, 1991 

MAR 2 4 1993 Decided: March 24, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Claimant Harry A. Ness filed a petition in the Workers' 

Compensation Court claiming a right to total permanent disability 

benefits from the date of his injury on October 14, 1981. Those 

benefits had been terminated and partial disability benefits 

commenced on December 8, 1982. Claimant's case went to trial 

before a hearing examiner of the Workers1 Compensation Court on 

September 5, 1989, and the court's findings of fact, conclusions of 

law, and judgment were entered on August 25, 1990. The trial court 

concluded that claimant was not totally disabled and the extent of 

his partial disability was not an issue in that proceeding. From 

that judgment, and the trial courtls order denying claimant's 

petition for a new trial, the claimant appeals. We reverse the 

judgment of the Workers1 Compensation Court. 

The issues are: 

1. Was there substantial, credible evidence to support the 

decision of the Workers1 Compensation Court? 

2. Did the Workers' Compensation Court err when it denied 

claimant's request for attorney fees and costs? 

Claimant was born on February 21, 1929, and was 60 years old 

at the time of his trial in the Workers1 Compensation Court. He 

had 12 years of formal education. His only specialized training 

related to the job of welding. 

Claimant testified that all of his work experience had 

involved heavy labor. Other evidence indicated that past jobs 

2 
included stocking shelves, janitorial work, fire fighting, trail 

work, and hod carrying. From 1965 until the date of his injury on 

October 14, 1981, he worked as a boiler maker for the defendant. 

On the date of the accident which gave rise to his claim for 

disability benefits, claimant was working for his employer welding 

and repairing heavy-duty equipment. At the time of his accident, 

he was burning a center bolt off of a belly pan which was attached 

to the frame of a D-8 Caterpillar. When he completed the cut, the 

belly pan, which weighed from 1000 to 1200 pounds, fell on top of 

the claimant, As a result of that incident, he sustained various 

injuries, including severe compression fractures of his twelfth 

thoracic vertebra and his first lumbar vertebra. At the time of 

his accident, claimant was 52 years old. 

Following his accident, claimant was taken to the Veterans 

Administration Hospital at Fort Harrison where he was examined and 

treated by James P. Murphy, an orthopedic surgeon. Dr. Murphy 

diagnosed the fractures in claimant's back and treated him with a 

back brace, rest, physical therapy, and anti-inflammatory 

medication. He concluded that claimant's healing period ended on 

October 19, 1982, and rated the extent of his physical impairment 

as 25 percent of the whole man. 

Based on Dr. Murphy's conclusion that claimant had reached the 

end of his healing period, but without any release from Dr. Murphy 

for claimant to return to employment, claimant's total disability 

benefits were terminated on December 8, 1982. Defendant then 

3 
commenced paying partial disability benefits which were continued 

until November 18, 1987. 

On August 2, 1989, after claimantls petition to reinstate 

total disability benefits had been filed, the defendant retained 

Michael Anderson, a vocational rehabilitation consultant, to 

evaluate the claimant's employability. He first met with Dr. 

Murphy on August 30, 1989. ~uring that meeting, Dr. Murphy advised 

Anderson that claimant could return to light-duty work on a 

part-time basis, and specifically apprcwedthe job descriptions for 

a sewing machine operator and a parking lot attendant, Although 

Anderson apparently prepared a report as a result of this interview 

with Dr. Murphy, the record does not disclose when or if that 

report was ever provided to the claimant or his attorney. 

Dr. Murphy is the only physician who was consulted by the 

defendant regarding the claimant's employability, and the only 

physician who expressed an opinion on that subject in testimony 

before the Workersg compensation Court. 

Dr. Murphyts only opinion regarding claimant's capacity for 

employment prior to his meeting with Anderson was a July 17, 1989, 

letter that he wrote to Dr. William Hoopes at the Disability 

Determination Bureau in which he advised that claimant might be 

able to return to some type of work, but that it would certainly 

have to be limited to light duty. 

Dr. Murphy has never released claimant to return to any of his 

former occupations, It was his opinion that claimant could do no 

4 
heavy lifting, no bending, no stooping, and no crawling; and his 

prognosis for claimant's ability to return to any type of 

employment on a five-day-a-week, eight-hour-a-day basis, was 

guarded. 

Claimant has not worked since the date of his accident in 

1981, and at the time of trial had qualified for social security 

disability benefits. 

At trial, claimant offered testimony from Ian Steel, a 

vocational consultant, who evaluated claimant at the request of his 

attorney. It was his opinion that for all practical purposes, 

because of his age, lack of training, and physical impairment, 

claimant was not employable. 

Defendant offered testimony from Michael Anderson, who 

expressed the opinion that claimant had the ability to work as a 

sewing machine operator, a parking lot attendant, a dispatcher, or 

several other light-duty jobs. 

After listening to the evidence, the hearing examiner of the 

Workers1 Compensation Court concluded that regardless of the 

availability of the jobs described by Mr. Anderson, claimant had 

the capacity to perform them, and therefore, has not been totally 

disabled since October 19, 1982. 

On appeal, claimant contends that there was insufficient 

evidence to support the trial court's decision. Specifically, 

claimant cites Dr. Murphy's testimony that his return to the work 

place would initially have to be limited to part-time work, or be 

5 
preceded by a work-hardening program, and that therefore, Dr. 

Murphy's release was conditional. 

Defendant responds that claimant failed to prove which jobs 

constitute his normal labor market, and failed to demonstrate a 

complete inability to perform those jobs. Therefore, according to 

the defendant, claimant failed to carry his burden of proving total 

disability. 

In Rachv. StateFund (1991), 249 Mont. 433, 439, 816 P.2d 1061, 

1064, we established the following standard for reviewing findings 

of fact and conclusions of law of the Workers1 Compensation Court: 

This Court will not overturn findings of fact of the 

Workers1 Compensation Court if there is substantial 

evidence in the record to support them. fiaft v. Flathead 

Valley Labor & Contractors (1990) , 243 Mont. 363, 365, 792 P. 2d 

1094, 1095. ~onclusions of law, "whether the conclusions 

are made by an agency, Workers1 compensation Court, or 

trial court," will be upheld if the tribunal's 

interpretation of the law is correct. Steer V. DOR (1990), 

245 Mont. 470, 803 P.2d 601, 603. 

In Wood v. Coitsolidated Freighhuays, Inc. ( 19 9 1 ) 2 4 8 Mont . 2 6 , 8 0 8 P -2 d 

502, we held that maximum healing does trigger a re-evaluation of 

the claimantls disability status, but that disability has 

nonmedical, as well as medical components. In other words, Dr. 

Murphy's conclusion that claimant had reached maximum healing by 

October 19, 1982, and that he had sustained a 25 percent physical 

impairment, was not a sufficient basis for terminating claimant's 

total disability benefits. 

We further held in Wood that: 
Once a claimant presents evidence demonstrating that 

there is no reasonable prospect of employment in his 

normal labor market, the burden of proof then shifts to 

the employer to show that suitable work is available. 

Wood, 808 P.2d at 504. 

In this case, whether you accept the testimony of claimant 

that all of his prior work experience involved heavy labor, or the 

testimony of Anderson which sets forth the specific jobs claimant 

had previously performed, claimant demonstrated an inability to 

return to his prior occupations based on the testimony of Dr. 

Murphy which limited him to light-duty work and precluded 

activities such as heavy lifting, bending, stooping, or crawling. 

Since Dr. Murphy testified that claimant's condition had not 

changed since 1982, presumably that would have also been his 

opinion, if asked, at that time. 

Therefore, it was necessary for the defendant to comply with 

the four-part test previously established by the Workers' 

Compensation Court prior to terminating claimant's disability 

benefits. That test was established in Coles v. Seven Elevefl Stores, 

WCC No. 2000, decided November 20, 1984, aSfld 217 Mont. 343, 704 

P.2d 1048 (1985), and was approved by this Court in Wood as a 

proper basis for determining whether the employer had provided the 

minimum information necessary to discharge its duty to investigate 

the extent of claimant's disability. The test requires: 
(1) a physician's determination that the claimant is as 

far restored as the permanent character of his injuries 

will permit; 

(2) a physician's determination of the claimant's 

physical restrictions resulting from an industrial 

accident ; 

(3) aphysicianls determination, based on his knowledge of the 

claimant s former employment duties, that he can return to work, 

with or without restrictions, on the job on which he was injured 

or another job for which he is fitted by age, education, work experience, and 

physical condition; 

(4) notice to the claimant of receipt of the report 

attached to a copy of the report. 

Wood, 808 P.2d at 505. 

In this case, the only element of the test satisfied by 

December 8, 1982, was the first element. 

There was no record of Dr. Murphy's determination of 

claimant's physical restrictions until his July 17, 1989, letter to 

the Disability Determination Bureau. 

Dr. Murphy has never released claimant to return to his former 

occupations, and did not indicate that he could return to any other 

specific job for which he was fitted by age, education, and work 

experience until his meeting with Anderson on August 30, 1989. 

Finally, there is no record of the date on which the defendant 

provided claimant with any notice that it had received a report 

from Dr. Murphy releasing claimant to the two jobs which he had 

approved, or whether in fact, that report was ever provided to the 

claimant or his attorney. 
We conclude, however, that there was substantial evidence that 

as of August 30, 1989, the first three elements of the Coles test 

had been satisfied. When there is proof of the date on which the 

fourth element of the Coles test has been satisfied, there will be 

substantial evidence for the termination of claimant's total 

disability benefits, and the commencement of partial disability 

benefits. 

The judgment of the Workers Compensation Court is, therefore, 

reversed, and this case is remanded to that court with instructions 

to reinstate claimant's total disability benefits retroactive to 

December 8, 1982, and continuing until the date on which claimant 

or his attorney were provided with notice of the report completed 

by Dr. James P. Murphy on August 30, 1989. At that point, 

claimant's disability status may be changed from total disability 

to partial disability. The partial disability benefits paid during 

that time shall be credited against the amount due. The rate for 

partial disability benefits was stipulated by the parties to be 

$120.50 per week, and shall continue throughout the duration of his 

partial disability, not to exceed 500 weeks. 

Attorney fees in workers' compensation cases are recoverable 

under 5 39-71-611, MCA (1981), when an insurer denies liability for 

a claim for compensation or terminates compensation benefits and 

the claim is later adjudged compensable by the Workers' 

Compensation Judge, or on appeal. Hartman v. Staley Continental (1989) , 
236 Mont. 141, 768 P.2d 1380. In addition to the benefits set 

forth above, claimant is entitled to an award of attorney fees and 

costs, to be determined by the Workers' Compensation Court 

Reversed and remanded. 

We concur: 

Chief Justice 

Justices 
Justice Fred J. Weber dissents as follows: 

I dissent from the conclusion of the majority opinion that the 

claimant proved by a preponderance of credible evidence that he had 

no reasonable prospect of employment in his normal labor market. 

As a result I also dissent from the judgment of the majority that 

claimant is entitled to a Ifreinstatement" of total disability 

benefits retroactive to December 8, 1982. 

The majority has confused the issues by holding that claimant 

is entitled to a reinstatement of his total disability benefits 

retroactive to 1982. The only total disability benefits which 

claimant has received are temporarytotal disability benefits which 

the majority agrees were properly terminated on December 8, 1982. 

Claimant also received permanent partial disability benefits from 

December 8, 1982 to November 18, 1987. As a result, there are no 

total disability benefits to be "reinstated." 

The contradictions I find are best illustrated by comparing 

this case to Wood v. Consol. Freightways, Inc. (1991), 248 Mont. 

26, 808 P.2d 502, which is the key case used by the majority to 

reach its conclusions. The analysis of the majority using Wood as 

its foundation was neither presented nor argued by the parties. In 

Wood the appeal involved the termination of the worker's temporary 

total disability benefits and the award of permanent partial 

disability benefits. The appeal was taken from that determination. 

This Court reversed the lower court. Contrast this to the present 

case where the temporary total disability benefits were terminated 

on December 8, 1982 and partial disability benefits commenced on 
the same date. No appeal was taken from the termination of 

temporary total benefits or the granting of permanent partial 

benefits. Here, the claimant waited more than six and one-half 

years before raising any issue. The issue was raised by a petition 

claiming a right to permanent total disability benefits which was 

filed after the partial disability benefits had expired. I 

emphasize this because of the essential unfairness of the 

presentation of an issue grounded on facts, including medical facts 

which took place almost seven years prior to the filing of the 

petition. The contrast between this case and Wood is that all 

parties in Wood had a reasonable opportunity to present their 

questions of both fact and law upon an appeal from the 1982 

determination. Here, that was not done, and the absence of that 

procedure has been disregarded by the majority. 

The next contrast between this case and Wood is that the 

majority in Wood pointed out there was substantial credible 

evidence to support a finding that Wood was unable to return to his 

normal labor market, emphasizing that three out of four physicians 

concluded that Wood could no longer perform the heavy physical 

labor employment he had performed. Thus, claimant had met his 

burden of demonstrating Ivno reasonable prospect of employmentvt in 

his labor market. In contrast, as will be subsequently emphasized 

in our review of the facts, in this case the substantial evidence 

is to the contrary, with very limited evidence submitted on the 

part of the claimant--and most important, with a failure on the 
part of the claimant here to meet the evidentiary standard which 

was to be applied in his case. 

In reaching his conclusion that claimant was not entitled to 

permanent total disability benefits, the Hearing Examiner made 

extensive findings and conclusions. Of significance are the 

following findings with regard to the date of injury and dates of 

claim. 

5. Defendant accepted liability for claimant's 

injury and paid temporary total disability benefits from 

October 15, 1981 through December 8, 1982. At that time 

such benefits were converted to permanent partial 

disability benefits. (Uncontested fact No. 4) Claimant 

took no action reaardina such conversion for 

a~rxoximatelv six and one-half vears. until he filed the 

petition herein on June 28. 1989. 

6. Claimant's permanentwartial disability benefits 

were terminated on November 18. 1987. (a) Claimant did 

not mestion the termination of such benefits for 

a~vroximatelv one and one-half vears, until the filing of 

this petition. (Emphasis added.) 

The Hearing Examiner concluded there was no dispute between the 

parties that the claimant's entitlement to temporary total 

disability benefits ended when maximum healing was reached on 

October 19, 1982. Nonetheless the majority remands to the lower 

court with instructions to "reinstate claimant's total disability 

benefits retroactive to December 8, 1982. This is a contradiction 

in terms. The only total disability benefits which could have been 

'*reinstatedN are the temporary total benefits. 

The Hearing Examiner set forth the following standard of proof 

which was to be applied in this case: 

The claimant must prove, by a preponderance of the 

credible evidence, that he has no reasonable prospect of 

employment in his normal labor market. . . . 
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 his normal labor market, and (2) a complete 

inabilityto perform the employment and duties associated 

with those jobs because of his work related injury. . . 

In holding that claimant demonstrated an inability to return 

to his prior occupations, and therefore met the initial test of 

Wood, the majority did not analyze the findings and conclusions of 

the examiner and the court. The examiner made extensive findings 

of fact which included the following: 

3. Claimant's prior work history consists of work 

as a delivery person, store clerk, forest service 

employee, hod carrier, structural iron worker, wireman, 

welder, maintenance engineer and boilermaker. . . . Medical Evidence ... 

7. Claimant's treating physician for his low back 

condition has been Dr. James P. Murphy. . . . 

9. Dr. Murphy regularly treated the claimant as he 

improved to a point that Dr. Murphy reported that the 

claimant had reached maximum healing as of October 19, 

1982 and rated his permanent partial impairment as 

twenty-five percent of the whole person. 

10. Claimant did not return for treatment from Dr. 

Murphy for five years after the October 19, 1982 visit. 

On September 9, 1987, Dr. Murphy examined the claimant 

and found him to be essentially the same as he was at the 

October 19, 1982 examination. . . . 

12. claimant was last examined by Dr. Murphy for 

his back condition on July 10, 1989, for purposes of a 

disability evaluation for Social Security purposes. As 

a result of this examination, Dr. Murphy wrote to Dr. 

William Hoopes at the Disability Determination Bureau 

stating "1 think he may be able to return to some type of 

work, but it would certainly have to be light-duty 

pr~file.'~ In such letter Dr. Murphy also stated: "1 do 
think he should be restricted from any prolonged bending, 

crawling, stooping or heavy lifting." 

3. On August 30, 1989, Dr. Murphy met with Michael 

Anderson, a certified rehabilitation counselor. Dr. 

Murphy filled out a physical capacities form in which he 

stated that the claimant could return to light-duty work 

at that time, but starting out part-time. He released 

the claimant to return to work as a sewing machine 

operator and a parking lot attendant. . . . 

15. There is no medical evidence relating any of 

the claimant's other physical difficulties, except for 

his low back problems, to his industrial injury of 

October 14, 1981. 

It is important to note that the July 10, 1989 examination by Dr. 

Murphy was for Social Security disability evaluation purposes, and 

not specifically for workers1 compensation purposes. There is no 

medical evidence relating any of the claimant's other physical 

difficulties, except for his low back problems, to his industrial 

injury of October 14, 1981. The findings of the Hearing Examiner 

included the following: 

Vocational Evidence 

16. Claimant retained Ian Steel, a vocational 

rehabilitation consultant, who interviewed the claimant 

and read the depositions and transcript of this case. He 

reviewed the medical records and the vocational 

consultant's report of Michael Anderson. . . . 

17. Mr. Steel concluded that, at this time with the 

claimant's physical limitations, it would be difficult to 

place the claimant in employment which limits him to very 

light work. At sixty years old, retraining was not 

feasible and Mr. Steel concluded that the claimant is 

basically unemployable at this time. . . . 

18. On cross-examination, Mr. Steel conceded that 

claimant could perform the job of a dispatcher assuming 

that he could find a job opening. . . . 
19. Looking back to claimant's maximum healing date 

of October 19, 1982, Mr. Steel testified as follows: 

Q. In other words, if in Mr. Ness's cases he 

tried to go back to work back when he reached 

maximum healing, it would be a lot better 

situation than it would be attempting 

something, for example, now. 

A. Definitely. (Emphasis added.) 

20. Claimant has failed to prove, by a 

preponderance of the credible evidence, that he has no 

reasonable prospect of employment in his normal labor 

market. 

21. Claimant is employable and has been employable 

since the time he was determined to have reached maximum 

medical improvement on October 19, 1982. Specific 

positions have been approved by Dr. Murphy, claimant's 

treating physician. No other medical evidence was 

presented by the claimant to dispute his medical 

opinions. 

22. Michael Anderson's report concludes that the 

positions appraised by Dr. Murphy and within the 

capability of the claimant include sewing machine 

operator, inspector, radial arm or power saw operator, 

parking lot attendant, picture framer or dispatcher. 

In his conclusions of law, the Hearing Examiner stated as follows: 

The claimant's normal labor market consists of those 

jobs at which he has already worked and any other jobs 

for which his prior formal education and vocational 

experience, when coupled with his age and physical 

condition, directly qualify him. . . . Auulvinathe above criteria to claimant's situation. 

it is clear that the medical evidence and preponderance 

of the vocational evidence suuuort the conclusion that 

the claimant does have emulovment opportunities as a 

sewina machine o~erator/insuector. a radial arm or power 

saw operator, a uarkina lot attendant or a receptionist 

at a car rental aaencv. Even claimant's rehabilitation 

counsellor, Mr. Steel, admitted that the claimant could 

probably uerform the iob of dispatcher. His concern 

about the actual availability of iobs in Butte is not a 

valid concern. The test is whether a iob exists in the 

market and whether the claimant can uerform that job. 
Claimant has failed to meet his burden of provina bv 

a ~reponderance of the credible evidence that he is 

entitled to permanent total disabilitv benefits 

retroactive to October 19, 1982. 

Claimant's counsel did not raise the issue as to 

what, if any, permanent partial disability benefits the 

claimant may be entitled and this decision does not 

consider that issue. (Emphasis added.) 

It is at this point that I strongly disagree with the majority 

conclusion. I would hold that the examiner established the proper 

standard of proof to be applied. I would further hold that there 

clearly is substantial evidence to support the findings of the 

examiner and the court. Because of that analysis of the facts, we 

would not even get to the Wood analysis which was relied upon by 

the majority, because the precondition to the application of the 

Wood tests is the proof that the claimant was unable to return to 

his normal labor market. 

The majority states that claimant demonstrated an inability to 

return to his prior occupations based on the testimony of Dr. 

Murphy which precluded activities such as heavy lifting, bending, 

stooping, or crawling. That disregards the conclusion of the 

examiner that there were a number of jobs which claimant could 

perform, including a job such as a dispatcher. It is also 

significant to emphasize that even the claimant's expert conceded 

that if claimant had tried to go back to work in 1982 rather than 

seven years later in 1989, there would have been a much better 

situation for attempting other types of work. I, theref ore, 

emphasize Findings 20 through 22 where the examiner in substance 

had concluded that claimant had failed to prove that he had no 
reasonable prospect of employment in his normal labor market, and 

that he was employable on October 19, 1982. At that point the 

Hearing Examiner correctly concluded that claimant had failed to 

meet his burden of proving by a preponderance of credible evidence 

that he was entitled to permanent total disability benefits. At 

that point, the majority takes a unique twist. Instead of 

discussing at length the evidence showing whether or not claimant 

had met the tests properly promulgated by the examiner, the 

majority almost casually concluded that claimant had proved he had 

no reasonable prospect of employment in his normal labor market and 

then proceeded to apply the four part test established in Wood. In 

Wood it was appropriate to suggest that the burden should shift to 

the insurer and to analyze the evidence submitted by the insurer as 

being insufficient to meet the burden placed upon the insurer. 

That was of course not true here where no appeal was taken from the 

original determination. Now, close to seven years after the 

determination by the Workers8 Compensation Court, claimant filed 

his petition and relief is granted to him because the insurer 

failed to present evidence on a theory not presented at the time of 

the 1982 hearing, not considered by appeal from that determination 

in 1982, and adopted by this Court a number of years subsequent to 

the 1982 determination. I conclude that is essentially unfair to 

all parties. 

I again emphasize that the majority has incorrectly stated 

that it requires the Workers' Compensation Court to "reinstate88 
claimant's total disability benefits retroactive to December 8, 

1982. There are no such benefits to be reinstated. 

I would affirm the conclusion of the Workers' Compensation 

Court that claimant has failed to meet his burden of proving by a 

preponderance of credible evidence that he is entitled to permanent 

total disability benefits retroactive to October 8, 1982. 

Chief Justice Jean A. Turnag 

in the foregoing dissent. 

Chief Justice 
March 24, 1993 

CERTIFICATE OF SERVICE 

1 hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

R. Lewis Brown, Jr. 

Butre Legal Center 

305 E. Front St. 

Butte, MT 59701 

Andrew J. Utick 

Utick & GrosfieId 

P.O. Box 512 

HeIena, MT 59624-05 12 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF .MONTANA 

BY: 

Depu