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

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## MAR2

### 41993 Decided: March 24, 1993Justice 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,conclusionsof law, and judgment were entered onAugust 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 courtlsorder denying claimant's petition for a new trial, the claimant appeals. We reverse the judgment of the Workers1Compensation 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
2included 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, claimantwas 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 conclusionthat claimanthad 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 3commenced paying partial disability benefits which were continued until November 18, 1987. On August 2, 1989, after claimantlspetition 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 onAugust 30, 1989. ~uring thatmeeting, Dr. Murphy advised Anderson that claimant could return to light-duty work on a part-time basis, and specificallyapprcwedthejobdescriptions for a sewing machine operator and a parking lot attendant, Although Anderson apparentlyprepared 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. Murphytsonly opinion regarding claimant's capacity for employmentprior 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 claimantto return to any of his former occupations, It was his opinion that claimant could do no 4heavy 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 5preceded 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 toperform those jobs. Therefore,according to the defendant,claimant failed to carryhis burden of proving total disability. InRachv.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 Workers1Compensation 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 ValleyLabor&Contractors (1990)

### , 243 Mont. 363, 365, 792 P.2d 1094,1095. ~onclusions of law, "whetherthe conclusions are made by 

### an agency,Workers1 compensation Court, or trial court," will be upheld 

### if the tribunal's interpretationof the law is correct. Steer V.

### DOR (1990), 245 Mont. 470, 803 P.2d 601, 603. In Woodv. CoitsolidatedFreighhuays,Inc. (1991 ) 248Mont

# . 26

### , 808 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 furtherheld 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 EleveflStores,
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 itsduty to investigate the extent of claimant's disability. The test requires:(1) aphysician'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) aphysicianlsdetermination,based on his knowledge of the claimant s former employment duties,that hecanreturntowork, with or without restrictions,onthe job onwhich he wasinjured oranotherjobfor whichhe isfitted byage, education,work experience,and physicalcondition;

(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 restrictionsuntil his July 17, 1989, letter to the Disability Determination Bureau. Dr. Murphy has never released claimant to returntohis former occupations,and did not indicate thathe could returnto 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 isno 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 reportwas ever provided to the claimant or his attorney.We conclude, however, that therewas substantialevidence 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 theWorkers CompensationCourt is,therefore, reversed,and this case isremanded 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 attorneywere provided with notice of the report completed by Dr. James P. Murphy on August 30, 1989. At that point, claimant's disability statusmay be changed from total disability topartial disability. Thepartial 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 durationof 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 insurerdenies 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 fromthe conclusionof themajority opinionthat the claimantproved by apreponderance 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 themajority that claimant is entitled to a Ifreinstatement"of total disability benefits retroactive to December 8, 1982. Themajority has confused the issuesby holding that claimant is entitled to a reinstatement of his total disability benefits retroactive to 1982. The only total disability benefits which claimant has receivedare temporarytotaldisability benefitswhich 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 themajority using 

### Wood as its foundationwas neither presented nor arguedby theparties. In 

### Wood the appeal involved the terminationof theworker's temporary total disability benefits and the award of permanent partial disabilitybenefits. Theappealwas taken fromthatdetermination. This Court reversed the lower court. Contrast this to the present case where the temporary total disabilitybenefitswere 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 yearsbefore raisingany issue. The issuewas raisedby apetition 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 issuegrounded 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 supporta finding thatWood wasunable to returntohis 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 Ivnoreasonable prospect of employmentvt in his labormarket. 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 claimantwas 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 andpaid temporary total disability benefits from October 15, 1981through 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'spermanentwartialdisabilitybenefits were terminated on November 18. 

### 1987. 

# (a) Claimantdid not mestion the termination of such benefits for a~vroximatelv one andone-halfvears,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 courtwith instructions to "reinstate claimant's total disability benefits retroactive 

### to December 8,1982. This isa contradiction in terms. Theonly total disabilitybenefitswhich could havebeen '*reinstatedN are the temporary total benefits. TheHearing Examiner set forththe following standard ofproof which was to be applied in this case: The claimant must prove, by a preponderance of the credible evidence, thathe has no reasonable prospect of employment in his normal labormarket. 

# . ..

### Toestablishtheexistence ofnoreasonable prospect of employment inthenormal labor market, a claimant must introduce substantial credible evidence of (1)

### what jobs constitute his normal labor market, and (2) a complete inabilitytoperformthe employmentanddutiesassociated with those jobsbecause of his work related injury. 

# . . Inholding that claimant demonstrated an inability to return to his prior occupations, and therefore met the initial test of Wood, 

### themajority did not analyze the findingsand conclusions of the examiner and the court. The examiner made extensive findings of fact which included the following: 3. 

### Claimant'sprior work history consists of work as a delivery person, store clerk, forest service employee, hod carrier, structural ironworker, 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 ashe 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 fromDr. Murphy for five years after the October 19, 1982 visit. On September 9, 1987, Dr. Murphy examined the claimant and found him tobe essentiallythe 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 

### thinkhemay be able to returnto some type of work, but it would certainly have to be light-duty pr~file.'~In such letterDr. Murphy also stated: "1 do

### thinkhe should be restricted from any prolongedbending, crawling, stooping or heavy lifting." 3. 

### OnAugust 30, 1989,Dr. Murphymet withMichael Anderson, a certified rehabilitation counselor. Dr. Murphy filled out a physical capacities form inwhich he stated that the claimant could returnto light-dutywork 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 workers1compensationpurposes. There is no medical evidence relating any of the claimant's other physical difficulties, except for his lowback 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 depositionsand transcriptof this case. He reviewed the medical records and the vocational consultant's report of Michael Anderson. 

# . . . 17. Mr. Steel concludedthat, at this timewith the claimant's physical limitations, itwould bedifficultto place the claimant inemployment which limitshim tovery 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. Lookingback to claimant's maximumhealingdate 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. (Emphasisadded.) 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 reachedmaximum 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. Inhis conclusions of law, the Hearing Examiner stated as follows: The claimant's normal labor market consistsof 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. 

# . .

# . Auulvinatheabove criteriatoclaimant'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 sewinamachine o~erator/insuector. a radial arm orpower 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.Claimanthas failed tomeet hisburden ofprovina bv a ~reponderanceof 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. (Emphasisadded.) It is at thispoint that I strongly disagree with themajority conclusion. Iwould hold that the examiner established theproper 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 labormarket. Themajority statesthat claimant demonstratedan inabilityto 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, therefore, 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 inhis normal labor market and thenproceeded to apply the fourpart test established inWood. 

### In 

### Wood it was appropriate to suggest that the burden should shift to the insurerand to analyze the evidence submittedby the insureras being insufficient to meet the burden placed upon the insurer. Thatwas of course not true here where no appealwas taken from the original determination. Now, close to seven years after the determination by the Workers8Compensation Court, claimant filed his petition and relief is granted to him because the insurer failed topresent evidence on a theory notpresented at the time of the 1982

### hearing, not consideredby appeal from that determination in 1982, 

### and adoptedby 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 "reinstate88claimant'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 thathe is entitledtopermanent total disability benefits retroactive to October 8, 1982.

ChiefJustice Jean A. Turnag in the foregoing dissent.

Chief JusticeMarch24, 

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