No. 85-581 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

RICHARD A. LINTON, 

Claimant and Appellant, 

-vsCITY OF GREAT FALLS, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bottomly & Gabriel; Joe Bottomly, Great Falls, 

Montana 

For Respondent : 

Marra, Wenz, Johnson & Hopkins; David A. Hopkins, 

Great Falls, Montana 

Submitted on Briefs: Jan. 13, 1987 

Dee ided : January 15, 1988 

Filed: BAN 1 5 1988 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

This is an appeal by the claimant, Richard Linton, and 

the State Compensation Insurance Fund from the judgment of 

the Workers ' Compensation Court awarding Linton permanent 

partial disability payments retroactive to October 19, 1984, 

and ordering the State Fund to pay rehabilitation in the form 

of a pain clinic. Both Linton and the State Fund appeal. 

We affirm in part, reverse in part and remand with 

instructions. 

Each party raises three issues on appeal. Linton' s 

are : 

1. Whether the Workers ' Compensation Court erroneously 

excluded health insurance, retirement contributions and 

vacation time which were earned pursuant to union contract 

from the claimant's compensation rate. We hold that it did 

not err and affirm on this issue. 

2. Whether the Workers' Compensation Court erroneously 

required the claimant to show a total loss of earning 

capacity, as opposed to loss of wages, in order to receive 

temporary total benefits. We hold that the court erred and 

reverse on this issue. 

3. Whether the Workers' Compensation Order permitting 

the defendants to have private interviews and correspondence 

with the claimant's physicians was erroneous. We hold that 

the court erred and reverse on this issue. 

The State Fund cross-appeals. Its three issues are: 

1. Whether the Workers' Compensation Court improperly 

awarded the claimant retroactive disability benefits despite 

the testimony of two neurologists, two orthopedic surgeons 

and the treating chiropractor that the claimant was able to 
continue working as a water meter reader for the City of 

Great Falls. We hold that the court did not err in awarding 

benefits and affirm this issue. 

2. Whether the Workers1 Compensation Court improperly 

ordered the State Compensation Insurance Fund to pay for the 

expenses of a "pain clinic" at the cost of $4,000 to $4,500 

when the treatment was not authorized by the defendant and no 

physician had referred the claimant to the "pain clinic." We 

hold that the court did not err and affirm on this issue. 

3. Whether the Workers1 Compensation Court improperly 

ordered the State Compensation Insurance Fund to pay the 

claimant's attorneys fees. We hold that there is substantial 

evidence in the record for the court to award attorneys fees 

and remand for a determination of attorneys fees by the 

court. 

At the time this appeal was filed, Richard Linton was a 

36-year-old divorced father of two who worked as a meter 

reader for the City of Great Falls. His job entailed driving 

a truck to various neighborhoods where he would walk around 

and read the meters with a TTR gun and record the results. 

The TTR gun weighs approximtely 10 pounds. The job required 

walking approximately six miles a day. 

On December 13, 1983, Linton slipped and fell on the ice 

injuring his right knee, neck, back and shoulder. The day 

after the accident he went to the emergency room at Columbus 

Hospital and had x-rays taken. He took three days off work 

after the accident, then returned to work until March 15, 

1984, when he went to see Dr. Trosper, a chiropractor. The 

injuries to his knee and lower back had cleared, but because 

his shoulder and neck were painful Dr. Trosper felt it 

advisable to remove Linton from work. Claimant applied for 

and was accepted for Workers I compensation. Dr. Trosper 

treated Linton until July 2, 1984, when the doctor released 
him to return to work on a limited basis. Linton asked the 

State Fund to change doctors. State Fund referred him to Dr. 

Forbeck, a neurologist. Dr. Forbeck found no neurological 

abnormalities, but recommended an orthopedic examination. 

Linton was then examined by Dr. Jacobson, an orthopedic 

surgeon, in September, 1984. Dr. Jacobson found that the 

symptoms suggested muscle-ligament discomfort but his 

examination was entirely normal. He found nothing that would 

prevent Linton from returning to work, except the subjective 

complaint of pain. 

Because Linton did not return to work following Dr. 

Jacobson's examination, on October 5, 1984, the State Fund 

advised him that his benefits would be discontinued as of 

October 19, 1984. Linton returned to work on October 15 and 

16. He testified that he got stiff from working and after 

two days he could not even turn his head. He took sick leave 

for the next four days. 

On October 18, 1984, the City of Great Falls wrote 

Linton and asked him to provide them with medical 

verification by October 23, 1984, of his inability to work. 

When Linton did not produce the verification within the time 

period specified, he was terminated by the City for abuse of 

sick leave. 

Linton made an appointment to see Dr. Power, an 

orthopedic surgeon. Dr. Power found that the original injury 

could have torn some ligaments that healed with a scar. He 

suggested heat and exercises and felt the pain should 

disappear with time. Linton also saw Edward Shubat, a 

clinical psychologist in January, 1985. Dr. Shubat gave 

Linton a psychological evaluation in order to determine if he 

was a good candidate for a chronic pain management program. 

Dr. Shubat determined that Linton was an excellent candidate 

for such treatment, which includes biofeedback training, 
formal relaxation training, and stretching mobility 

exercises. 

Linton was also examined by Dr. Nelson, a neurologist, 

who gave Linton a thermogram. The thermogram showed trigger 

points in the claiment's shoulder girdle. The trigger points 

are damaged muscles and fibrous tissue that show up on 

thermograms as hot spots. Dr. Nelson recommended an exercise 

and therapy program and vocational rehabilitation. 

Linton also saw Dr. Tacke who specializes in 

rehabilitation. He stated Linton would be a good candidate 

for a chronic pain management program. 

The Workers' Compensation Court found that Linton was a 

credible witness, and that he should be reinstated with 

permanent partial disability payments retroactive to the date 

his benefits were terminated. It also ordered the State Fund 

to pay for rehabilitation services in the form of a pain 

clinic and awarded Linton his attorney fees. 

The first issue raised on appeal by Linton is whether 

the Workers' Compensation Court erred in excluding health 

insurance, retirement contributions, and vacation time from 

the calculation of Linton's wages. The Workers' Compensation 

Court calculated Linton's wages based on 5 39-71-116(20), 

MCA, (1983). That statute defines wages as: 

. . . the average gross earnings received by the 

employee at the time of the injury for the usual 

hours of employment in a week, and overtime is not 

to be considered. Sick leave benefits accrued by 

employees of public corporations, as defined by 

subsection (16) of this section, are considered 

wages. 

Because the definition of public corporations in 5 

39-71-116(16) includes cities, the Workers' Compensation 

Court calculated wages by adding Linton's gross weekly 

earnings to his weekly sick leave benefits and excluded all 
other benefits. Linton contends the term "average gross 

earnings" should be construed broadly to include health 

insurance, retirement fund contributions and vacation time 

accrued. Linton argues that these benefits are all items 

that were negotiated as part of a union contract and earned 

in exchange for his labor. 

It is our intention to examine federal cases to assist 

us, but consistent with our often stated position, we will 

initially examine adequate and independent state grounds to 

resolve issues and cite federal cases for their analytical 

persuasiveness and not to mandate our decision. We proceed 

here on that basis. 

Benefits to employees increasingly serve as a substitute 

for wage demand in collective bargaining agreements. West 

Winds, Inc. v. M.V. Resolute (9th Cir. 1983), 720 F.2d 1097, 

1102, cert. den. (1984), 467 U.S. 1242, 104 S.Ct. 3513, 82 

L.Ed.2d 822. Fringe benefits offer to the employee tax-free 

benefits that he would otherwise have to buy with after-tax 

dollars, and often at a substantially higher cost. 

Morrison-Knudsen Const. Co . v. Director, Office of Workers ' 

Compensation Programs (1983), 461 U.S 624, 103 S.Ct. 2045, 76 

L.Ed.2d 194. While we may agree with the theory presented by 

the claimant that the wording of our statute indicates the 

legislature intended calculations for Workers' Compensation 

benefits to be based on wages plus the fringe benefit of sick 

leave and not other benefits, the legislature did not mention 

other benefits that it might have included. The general rule 

is that if a statute lists specific exceptions to the general 

rule, then other exceptions are excluded. Stephens v. City 

of Great Falls (1946), 119 Mont. 368, 381, 175 P.2d 408, 415. 

The United States Supreme Court was faced with the same 

question of whether wages as defined in the Longshoremen's 

and Harbor Workers' Compensation Act includes a contribution 
made by the employer to union trust funds under the terms of 

a collective bargaining agreement. Morrison-Knudsen Const. 

Co. v. Director, Office of Workers ' Compensation Programs, 

supra. The trust funds were used for health and life 

insurance, unemployment benefits, disability payments, and 

pensions for the members. The statute in question, 33 U.S.C. 

S 902 (13), stated: 

"Wages" means the money rate at which the service 

rendered is recompensed under the contract of 

hiring in force at the time of the injury, 

including the reasonable value of board, rent, 

housing, lodging, or similar advantage received 

from the employer, and gratuities received in the 

course of employment from others than the employer. 

The United States Supreme Court held that while board, 

rent, housing, or lodging are benefits with a present value 

that can be readily converted into a cash equivalent on the 

basis of their market values, the trust funds could not. The 

Court stated the employer's cost is irrelevant because it 

does not measure the employee's benefit nor his compensation. 

The employer's cost does not measure the benefit to the 

employee because it would cost the employee substantially 

more to purchase those policies on the open market. The 

employer's cost also does not measure compensation because it 

does not tie costs to the employee's labor. The Court 

refused to value the funds by the employee's expectation in 

them because the employee's interest is speculative at best. 

The Court also stated that while fringe benefits were 

virtually unknown when the Compensation Act was passed, they 

have since become quite common. Although the Act has been 

amended several times, the Court found no indication that 

Congress intended to expand the definition of wages to 

include fringe benefits. The Court also refused to expand 

the definition of wages because it would alter the balance 
between the employers and the employees and dramatically 

alter the cost factor on which employers have ordered their 

affairs. 

The Ninth Circuit recently adopted the rationale of 

Morrison-Knudsen in West Winds. In that case, the Ninth 

Circuit, held the phrase "wages of the crew" under the Ship 

Mortgage Act of 1920, 5 30 (M) , 46 U.S.C. 5 953 (1976) did not 

include contributions to a trust fund to provide health, 

retirement, pension, training, vacation and similar benefits 

to the seamen. The Court noted the anomaly that money given 

to an employee which is spent on benefits is treated as 

"wages" while money given to a fund that bestows identical 

benefits upon the employee are not. 

In this case the definition of ''wages" in S 

39-71-116(20), MCA, is even more narrow than the definition 

in Morrison-Knudson. We specifically adopt the rationale of 

Morrison-Knudson and West Winds and hold the term "wages" 

under the Workers' Compensation Act does not include employer 

contributions to funds that provide health or life insurance, 

retirement, training, vacation, pension or disability 

payments. We affirm the Workers' Compensation Court on its 

finding that health insurance, retirement contributions and 

vacation time, which were earned pursuant to union contract, 

are excluded from the claimant's compensation rate. 

The second issue raised by Linton on appeal is whether 

the Workers' Compensation Court erred in denying him 

temporary total benefits instead of awarding him permanent 

partial disability. Temporary total disability is defined in 

5 39-71-116 (19), MCA, (1983) as: 

. . . a condition resulting from an injury as 

defined in this chapter that results in total loss 

of wages and exists until 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. 

The Workers' Compensation Court held that two conditions 

must be satisfied in order to award temporary total benefits. 

First, a total loss of wages, and second, the claimant not be 

restored as far as the permanent character of his injuries 

permit. The Workers' Compensation Court held: 

Claimant has satisfied the second condition by 

demonstrating by a preponderance of the medical 

evidence that there is room for improvement in his 

physical condition as far as tolerance for pain is 

concerned. However, he did not demonstrate a total 

loss of wages. There was no evidence presented to 

demonstrate that claimant had looked for other 

employment or that claimant was unable to perform 

other jobs. 

However, the Workers' Compensation Court determined that 

Linton was entitled to permanent partial disability as 

defined in 5 39-71-116 (12), MCA, (1983), as: 

. . . a condition resulting from injury as defined 

in this chapter that results in the actual loss of 

earnings or earning capacity 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. 

The Workers' Compensation Court held: 

Claimant is medically as far restored as his injury 

will permit. His ongoing problem is an inability 

to tolerate the pain that accompanies use of his 

injured shoulder. For this reason, claimant should 

be referred to a pain clinic. Referral to a pain 

clinic is not inconsistent with an award of 

permanent partial disability benefits. 

Linton contends the lower court erred in requiring him 

to show a loss of earning capacity in order to get temporary 

total benefits, and that all that 5 39-71-116(19), MCA, 

requires for an award of temporary total d.isability is an 
injury that results in total loss of wages and exists until 

the injured worker is as far restored as the permenant 

character of his injuries will permit. He also argues that 

he is not restored as far as the permanent character of his 

injuries will permit. The State Fund contends the Workers' 

Compensation Court erred in awarding retroactive permanent 

partial benefits because he was not entitled to further 

benefits. The State Fund advances two arguments. First, the 

evidence showed the wage loss was not due to the injury but 

was caused by Linton's misconduct which led to his being 

fired from his job. The Workers' Compensation Court found 

Linton to be a credible witness. No findings or conclusions 

were made relevant to misconduct as the reason for Linton's 

wage loss. Our decision in this case does not require a 

further discussion of this contention. 

Second, the State Fund argues that the statutes required 

a showing by a preponderance of the evidence that the injury 

caused the wage loss and that Linton has failed to show there 

was any impairment that prevented his return to work. 

We begin with whether Linton was entitled to benefits at 

all. The State Fund contends that Linton should not have 

been awarded retroactive benefits because he was fired due to 

misconduct. The State Fund relies on 2 Larson, Workmen's 

Compensation Law, 5 57.64 (a) , (1985) , which states: 

If the record shows no more than that the employee, 

having resumed regular employment after his injury, 

was fired for misconduct, with the impairment 

playing no part in the discharge, it will not 

support a finding of compensable disability. 

Linton resumed regular employment after the injury and 

worked two days then stopped because of pain. We affirm the 

court's award of retroactive benefits. 

Next the State Fund contends Linton did not show by a 

preponderance of the evidence an impairment that prevented 
his return to work. In reviewing workers ' compensation 

cases, the standard for factual findings is whether there is 

substantial evidence to support the court's findings. 

Flansburg v. Pack River Co. (1977), 172 Mont. 163, 561 P.2d 

1329. This is especially true in issues of credibility where 

the lower court has had the opportunity to observe the 

witnesses. Lamb v. Missoula Imports, Inc. (Mont. 1984), 684 

P.2d 498, 41 St.Rep. 1414. However, in reviewing deposition 

testimony we may examine the findings more closely because we 

are in as good a position to assess the evidence as is the 

lower court. Jones v. St. Regis Paper Co. (1981), 196 Mont. 

138, 639 P.2d 1140. There is substantial evidence in the 

record to show that Linton was unable to return to work. 

In reviewing the record on appeal, we have found 

evidence, including medical evidence, that at the time this 

claim was filed Linton was still experiencing pain due to his 

injuries a.nd has been unable to return to work. We hold that 

Linton is entitled to benefits. We therefore turn to the 

issue of the disability payments which he should receive. 

The trial court concluded that the claimant must 

demonstrate an inability to "perform other jobs" before being 

entitled to temporary total benefits and awarded claimant 

permanent partial disability benefits under S 39-71-116 (12) , 

MCA, (1983) . (Cited previously.) 

We cannot agree. The applicable statute is S 

39-71-116 (19) , MCA, (1983) , (cited previously), which defines 

temporary total disability. 

Claimant is suffering from a condition resulting from an 

injury that has resulted in the total loss of his wages and, 

as the evidence shows, he is not yet as far restored as the 

permanent character of the in juries will permit. Linton 

cannot work because of the inability to tolerate the pain 

that accompanies the use of his injured shoulder. The 
Workers' Compensation Court recognized that fact when it 

ordered the defendant to provide treatment by the pain 

clinic. After treatment and evaluation another determination 

can be then be made as to whether claimant is eligible for 

permanent partial disability benefits under § 39-71-116 (12), 

MCA, or will continue to receive temporary total disability 

benefits under the provisions of § 39-71-116(19), MCA. 

As the facts are before this Court, the award of 

permanent partial benefits to claimant is in error as a 

matter of law. Temporary total benefits should be reinstated 

as of the date of Linton's termination from work. Because of 

a significant time lapse between that date and this decision, 

we remand to the Workers' Compensation Court to determine 

Linton's present level of pain and ability to work. 

The State Fund contends the Workers' Compensation Court 

erred in awarding Linton the cost of a pain clinic because 

Linton had been referred to Dr. Tacke and the pain clinic by 

Linton's lawyer and he had not sought the prior approval of 

the State Fund. Section 24.29.1403, A.R.M. states: 

The injured worker may select the physician to 

provide initial treatment. Authorization is 

required to change treating physicians.. . . 

In Garland v. Anaconda Co. (19781, 177 Mont. 240, 244, 

581 P. 2d 431, 433, this Court stated " [t] he proper result of 

the claimant failing to comply with this rule is that the 

employer cannot be charged for the services of the 

unauthorized second doctor, however the Workers' Compensation 

Court must consider the medical reports and diagnosis of the 

second doctor." In this case the Workers' Compensation Court 

obviously did consider the medical reports and diagnosis of 

the other doctors, and found Linton should be referred to a 

pain clinic. The court did not err in concluding that Linton 

should be referred to a pain clinic. 
The final issue raised by Linton is whether the Workers' 

Compensation Court erred in allowing State Fund to have 

private interviews and correspondence with Linton's 

physicians. Linton contends that 5 26-1-805, MCA, which 

creates the doctor-patient privilege, and Japp v. ~istrict 

Court (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 280, prevent 

the State Fund from having private interviews with the 

claimant's physician. (Emphasis added.) We agree with the 

claimant. 

The doctor-patient privilege is set forth in S 26-1-805, 

MCA, (1983): 

Except as provided in Rule 35, Montana Rules of 

Civil Procedure, a licensed physician or surgeon 

cannot, without the consent of his patient, be 

examined in a civil action as to any information 

acquired in attending the patient which was 

necessary to enable him to prescribe or act for the 

patient. 

Rule 35 (b) (2) , M.R.Civ.P. states, among other things, 

that the privilege is waived by commencing an action or 

asserting a defense which places in issue the mental or 

physical condition of a party to the action. The waiver does 

not apply to any treatment or condition not related to the 

action. In Japp, we ruled that the District Court did not 

have the power under the Rules of Civil Procedure to order 

private interviews between counsel for one party and a 

possible adverse witness in a contested case. The issue here 

is whether an employer or insurer can communicate with 

physicians in order to determine the nature and extent of a 

workers' injury for purposes of compensating him for that 

in jury. The Workers ' Compensation Act is withdrawn from 

private controversies because of the unique status of the Act 

as a humanitarian, quasi-judicial legislative creation of 

several special provisions applicable only to injured workers 
covered by the law. Section 50-16-311 (2) (e) , MCA, (1983), 

provides : 

(2) Consent is not required for release or 

transfer of confidential health care information: 

(e) to an employer as may be reasonably necessary 

in the administration of a group insurance plan or 

to a workers' compensation insurer, the division of 

workers' compensation, or the workers' compensation 

judge, as is necessary in the administration of 

Title 39, chapters 71 and 72; 

This lanuage is restated in S 39-71-604(1), MCA, (1983), 

which provides in part: 

Where a worker is entitled to benefits under this 

chapter, the worker shall file with the insurer or 

the division all reasonable information needed by 

the insurer to determine compensability. It is the 

duty of the workers' attending physician to lend 

all necessary assistance in making application for 

compensation and such proof of other matters as may 

be required by the rules of the division without 

charge to the worker. The filing of forms or other 

documentation by the attending physician does not 

constitute a claim for compensation. 

and § 24.29.1404(3), A.R.M. which states: 

The rule of privileged comn~unication is waived by 

the injured worker seeking benefits under the 

workers' compensation or occupational disease acts. 

Workers' Compensation Court rules provide for an 

exchange of all medical records prior to trial S 2.52.317, 

A.R.M. Depositions, interrogatories and motions to produce 

are available. Sections 2.52.322 to -324, A.R.M. Further, 

the insurer may have the claimant examined by a physician of 

his choice. Section 39-71-605, MCA, (1983). What the Act 

does not contemplate are private interviews between the 

employer or insurer without the knowledge or opportunity of 

the claimant to be present. Claimant does not argue, and 

cannot argue, for a physician-patient privilege. Clearly, 
the insurer or employer is entitled to all medical 

information pertaining to claimant1 s claim through the usual 

methods of discovery as well as exchanges between the parties 

and personal interviews with those who have treated the 

claimant. 

A claimant waives any privilege of confidentiality and 

health care information which - is relevant to the subject 

matter involved in his claim. See Bowen v. Super Valu 

Stores, Inc. (Mont. 1987), 745 P.2d 330, 44 St.Rep. 1799. 

However, a personal interview between defendant 

insurance company and claimant's treating physician must be 

done openly to allay any suspicion that there is something 

available to one party and not to the other. 

For the reasons stated we reverse the Workers1 

Compensation Court on the issue of private interviews. 

Respondent cross-appeals and raises three issues. 

First, whether the Workers1 Compensation Court improperly 

awarded the claimant retroactive permanent partial disability 

benefits despite the testimony of two neurologists, two 

orthopedic surgeons and the treating chiropractor that the 

claimant was able to continue working as a water meter reader 

for the City of Great Falls. Dr. Tacke, a rehabilitation 

specialist, examined Linton after he attempted to return to 

work. Dr. Tacke recommended that Linton receive additional 

treatment at the pain clinic. Again, we conclude that there 

was substantial credible evidence for the Workers1 

Compensation Court" award of disability benefits. 

Next, respondent contends the court improperly ordered 

the State Fund to pay expenses for a pain clinic which was 

not authorized by the respondent. We have already ruled on 

this issue. 

Finally, respondent argues the Workers1 Compensation 

Court erred in awarding claimant his attorneys fees. The 
court found that the claimant was entitled to attorneys fees 

in the successful pursuit of this matter. There is 

substantial evidence in the record to support this finding 

and we will not disturb it on appeal. We remand the case to 

the Workers ' Compensation Court for determination of the 

amount of attorneys fees due. 

Affirmed in part, reversed in,part and remanded with 

instructions. 

We Concur: