No. 92-094 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

CLARENCE MENNIS, 

Claimant and Appellant, 

ANDERSON STEEL SUPPLY, 

Employer, 

and 

EBI/ORION GROUP, 

Insurer and Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Randall 0. ~korheim, Overfelt Law Firm, Great Falls, 

Montana 

For Respondent: 

Susan J. Rebeck, Attorney at Law, Great Falls, 

Montana 

Submitted on Briefs: August 20, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Workers' Compensation Court, the 

Honorable Timothy W. Reardon presiding. The Workers' Compensation 

Court adopted the Findings of Fact and Conclusions of Law and 

Proposed Judgment of the hearing examiner granting claimant 

Clarence Mennis (Mennis) permanent total disability benefits and 

reasonable attorney's fees and costs, but denying domiciliary care 

benefits. Mennis appeals from that part of the judgment which 

denied domiciliary care benefits. We affirm. 

The issue on appeal is whether the Workersr Compensation Court 

erred in denying Mennis' claim for domiciliary care benefits 

pursuant to 5 39-71-704, MCA (1983) , and the five part test adopted 

in Carlson v. Cain (1985), 216 Mont. 129, 700 P.2d 607. 

Mennis worked in the metal fabrication shop at Anderson Steel 

Supply (Anderson Steel) as a fabricator and welder. His duties 

included producing orders, building door frames, fabricating doors, 

and modifying doors. On February 22, 1985, three steel door frames 

fell on him and fractured his cheek bones, broke several teeth, 

separated his right shoulder, and inflicted atraumatic closed head 

injury. At the time of the accident Anderson Steel was enrolled 

under Compensation Plan Two of the Workers' Compensation Act and 

EBI Insurance Company (EBI) was its insurer. 

When his shoulder had healed satisfactorily, his doctor 

released him to return to work. Mennis returned to Anderson Steel 

on April 24, 1985, in the same position he had before the accident. 
In August 1985, Mennis complained of lightheadedness and headaches 

to Dr. Person. Dr. Person referred Mennis to Dr. Labunetz, a 

neurologist at the Great Falls Clinic, who diagnosed Mennis' 

condition as "muscle contraction/vascular headaches, post 

concussive as well as post concussive syndrome.lr By March 1986, 

Dr. Labunetz felt that this condition basically had been resolved. 

In July 1986, Dr. Labunetz referred Mennis to Dr. Shubat, a 

clinical psychologist, for biofeedback relaxation therapy to help 

control some continuing pain and for neuropsychological evaluation. 

Dr. Shubat diagnosed Mennis as suffering from mixed organic brain 

syndrome. Dr. Shubat referred Mennis to Charles Bock, a speech 

pathologist, for cognitive retraining. Mennis also received 

treatment from Dr. David Bush, a psychologist, from March through 

June of 1987 for what Mennis perceived as personality changes and 

declining cognitive performance. 

In January 1988, Mennis transferred from the fabricating and 

welding shop to the sales force at Anderson Steel. The noise, 

dust, and heat of the shop aggravated Mennisf problems caused by 

the injury. Anderson Steel did not create this position to 

accommodate Mennis; rather, the position came open and Mennis 

received a transfer. 

In September 1988, Mennis did not return to work at Anderson 

Steel after undergoing a septoplastyto correct a nasal obstruction 

that was secondary to the injury caused by the accident. Anderson 

Steel had informed Mennis that it could not hold his job open 

because it did not know when he would return after the surgery. He 
has been unemployed since September 13, 1988. 

In July 1989, Mennis' wife Beverly also quit working full 

time, reducing her hours to six hours a week. She is employed as 

a legal secretary. Mennis claims she quit working full time at the 

direction of Drs. Labunetz and Shubat. However, Jeanne Dussault, 

an independent living specialist who met with the Mennises in March 

1990, testified that Beverly had indicated that she wanted to quit 

working before Mennis' accident to spend more time with the 

children, and that she reduced her hours because of her needs and 

to alleviate the stress she felt from working full time and being 

a full time homemaker. 

In order to investigate Mennis' claim, EBI hired Allstate 

Professional Investigators to observe Mennis. Larry Alexander, the 

investigator assigned to the case, testified at trial that he first 

observed Mennis on December 19, 1989. On that day he saw Mennis 

drive his vehicle to his home, pick up the mail, and enter his 

home. He again observed Mennis on January 11, 1990. On that day 

he watched Mennis drive his children to and from school and drive 

his wife to work. Mr. Alexander also observed Mennis depart in his 

vehicle and later return on foot. 

EBI later hired Putman and Associates to do further 

surveillance of Mennis. Rick Hawk testified that he first observed 

Mennis from February 21 to February 24, 1990. During that time he 

observed Mennis driving his vehicle on numerous occasions, washing 

the interior and exterior of his vehicle, buying groceries for his 

children's lunch, and cleaning a storage shed beside his house. 
Mr. Hawk testified that he never observed a problem with Mennis' 

driving. Mr. Hawk also observed Mennis from April 15 to April 18, 

1990, and saw him drive with no difficulty on those occasions. 

Mennis claims that it is necessary for his wife to stay home 

to provide domiciliary care and that he should receive benefits to 

pay for her services. The Workers' Compensation Court denied 

Mennisl claim for domiciliary care benefits finding that he failed 

to meet the five point test adopted in Carlson for allowing 

domiciliary care. The issue on appeal is whether the Workers' 

Compensation Court erred in denying Mennisl claim for domiciliary 

care pursuant to 5 39-71-704, MCA (1983), and the five part test of 

Carlson. 

This Court will not overturn the findings and conclusions of 

the Workers1 Compensation Court where there is substantial credible 

evidence to support them. Nor will this Court substitute its 

judgment for that of the Workers1 Compensation Court as to the 

weight of evidence on questions of fact. EBI/Orion Group v. State 

Compensation Mut. Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d 

1070, 1072 (citing Steffes v. 93 Leasing Co., Inc. (1978) 177 Mont. 

83, 86, 580 P.2d 450, 452-453). In this case we are asked to 

determine whether there is substantial credible evidence to support 

the Workers' Compensation Courtls determination that Mennis is not 

entitled to domiciliary care benefits under Carlson. 

Initially, Mennis' claim to domiciliary care arises out of 

§ 39-71-704(1)(a), MCA (1983), which states: 

Payment of medical, hospital, and related services. 

(1) In addition to the compensation provided by this 
chapter and as an additional benefit separate and apart 

from compensation, the following shall be furnished: 

(a) After the happening of the injury, the employer 

or insurer shall furnish, without limitation as to length 

of time or dollar amount, reasonable sewices by a 

physician or surgeon, reasonable hospital sewices and 

medicines when needed, and such other treatment as may be 

approved by the division for the injuries sustained. 

Domiciliary care comes within the l'such other treatment" language 

of the statute. This Court adopted a five point test in Carlson to 

determine whether in-home services are compensable. Those factors 

are: 

(1) The employer knows of the employee's need for medical 

sewices at home resulting from the industrial injury; 

(2) the preponderance of credible medical evidence 

demonstrates that home nursing care is necessary as a 

result of accident, and describes with a reasonable 

degree of particularity the nature and extent of duties 

to be performed by the family members; (3) the services 

are performed under the direction of a physician; (4) the 

services rendered are of the type normally rendered by 

trained attendants and beyond the scope of normal 

household duties; and (5) there is a means to determine 

with reasonable certainty the approximate value of the 

services performed. 

Carlson, 700 P.2d at 614. 

We subsequently reaffirmed the use of that test in Larson v. 

Squire Shops, Inc. (1987), 228 Mont. 377, 742 P.2d 1003. 

Although the Workers1 Compensation Court found that Mennis was 

permanently totally disabled, it also found that he failed to meet 

any part of this test, so it denied domiciliary care. As EBI 

correctly points out, the evidence required to prove permanent 

total disability is different than that required to justify 

domiciliary care. 

The first element of the Carlson test requires that the 
employer know of the employee's need for medical services at home 

as a result of the accident. In his Petition For Hearing and 

Amended Petition For Hearing, Mennis sought domiciliary care 

benefits from the date of his injury. The first indication 

Anderson Steel had that Mennis claimed a need for domiciliary care 

came in June of 1989 when EBI1s attorney received a letter from 

Mennis' attorney. That letter included copies of letters from Drs. 

Labunetz and Shubat. In a letter dated May 22, 1989, Dr. Labunetz 

claimed: 

Domiciliary care or supervision would be important and in 

fact essential. This would be required constantly unless 

or until he developed a rigid enough program to function 

with only spot supervision, though this seems unlikely. 

In a letter dated May 24, 1989, Dr. Shubat claimed: 

It is clearly apparent that Beverly Mennis's presence in 

the home is absolutely paramount. . . . [I]t is still 

going to require the presence of Beverly in the home to 

implement these programs in an integrated and consistent 

manner. 

Up to this point, Anderson Steel was justifiably unaware of any 

need for full time care. As noted previously, Mennis returned to 

work approximately two months after the accident and worked for 

approximately two and a half years before not returning after the 

nasal surgery. His supervisor, Dan Sayre, testified at trial that 

Mennis had a noticeable sinus problem and complained of the noise, 

dust, and heat in the shop. These symptoms did not give any 

indication that Mennis required domiciliary care. Apart from those 

two problems, Sayre testified that Mennis was a reliable, 

conscientious worker whose quality of work did not suffer after the 

accident and who did not require help from others. Nor did Mennis 
receive any reprimands for his work after the accident. 

As evidence that Anderson Steel knew that he needed care, 

Mennis cites the testimony of his brother-in-law and co-worker, 

Phillip Warmath, who testified that Mennis became forgetful and 

needed correcting. Warmath's statements, however, show only 

occasional difficulty with the job; they are irrelevant to Anderson 

Steel's knowledge of a need for domiciliary care. 

Mennis' return to work and his thirty months of continued 

employment distinguish this case from Carlson, Larson, and Hilbig 

v. Central Glass Co. (1989), 238 Mont. 375, 777 P.2d 1296, where 

the claimants were unable to return to work due to the severity of 

injuries caused by an industrial accident. Although Mennis may 

have suffered a permanent total disability, that did not 

automatically put the employer on notice that he also required 

domiciliary care. Anderson Steel had no knowledge of any need for 

domiciliary care during the two and a half years Mennis continued 

to work or for another nine months after that until the doctors 

made the claim. 

The second element of the test requires that the preponderance 

of credible medical evidence demonstrate that home nursing care is 

necessary and that the nature and extent of the duties to be 

performed by the family members be described with a reasonable 

degree of particularity. There was much testimony regarding 

whether Mennis needs care. Mennis argues that the opinions of Drs. 

Shubat and Labunetz establish his need for domiciliary care. Dr. 

Shubat's main concerns were that Mennis have structure, have 
someone to administer his medications, and have someone present 

during emergencies. However, he admitted that he did not know how 

Mennis would react in an emergency and that Mennis should be tested 

and should practice responding to emergencies. Dr. Labunetz 

admitted that Beverly Mennis could see that Mennis took his 

medication as directed by administering it in the morning, at 

lunch, and in the evening when she returned from work. 

Dr. Charles Bock found no significant malingering on Mennis' 

behalf. He felt that even though Beverly's personality is such 

that other people could provide better therapy for Mennis, she had 

provided an environment on a day-to-day basis that was optimum for 

dealing with such problems as his short attention span, 

distractibility, and limited ability to plan and carry out tasks. 

Jeanne Dussault, an independent living specialist, stated that 

a domiciliary caretaker might have helped Mennis learn some basic 

homemaking skills during the year that she worked with him (March 

1989 to February 1990). 

Mennis also retained the services of Dr. Lloyd Cripe, a 

clinical neuropsychologist, to test him and evaluate the other 

information gathered on him. Dr. Cripe testified in his 

deposition that a person with the degree of brain dysfunction 

Mennis suffered typically does not need attendant care. He stated 

that on the basis of the neuropsychological test results alone, 

Mennis would not need attendant care. He did add, however, that 

Mennis* depression and headaches complicate the situation. In the 

end, Dr. Cripe deferred to Drs. Shubat and Labunetz on the issue of 
domiciliary care. 

On the other hand, even Dr. Shubat testified that Mennis' 

"badaf days only meant that he did not have a good day with his 

children or with himself. Although Dr. Tompkins of the Montana 

Medical/Legal Panel did not have an opinion as to whether Mennis 

needed full time care, he did find that Mennis possessed some 

functional skills, was purposeful, motivated, cooperative, and able 

to initiate action. 

Dr. Bock felt that it is easier for Mennis to sit back and not 

deal with the complexities of the day, but he did not order 

domiciliary care. He testified that Mennis could draw up a 

schedule for the day with his computer program which broke down 

chores and activities into small tasks. EBI plausibly argues that 

structuring the day does not require a trained nursing attendant. 

Dr. Bush, a psychologist who treated Mennis from March through 

June of 1987, testified that at that time Mennis was capable of 

maintaining himself in the home during the day, and that he found 

it hard to believe that a person with the type of injury Mennis 

suffered would decline to the point of total invalidism unless he 

had medical complications leading to severe damage of the central 

nervous system. In his June 5, 1989, deposition, Dr. Bush was 

surprised to learn that Mennis requested domiciliary care. 

Dr. Lees-Haley, the expert retained by EBI, evaluated Mennis 

on March 12, 1991, and testified at trial. We note that Mennis 

made a great effort to discredit Dr. Lees-Haleyfs credentials and 

testing. However, Dr. Lees-Haley's extensive curriculum vitae was 
entered into evidence. Dr. Lees-Haley is a board certified 

vocational expert, a fellow of the American College of Forensic 

Psychology, and a diplomate of the American Board of Professional 

Psychology and the American Board of Vocational Experts. Dr. 

Tompkins testified in his deposition that he felt Dr. Lees-Haley 

chose reasonable tests. This Court will not substitute its 

judgment forthat of the Worker's Compensation Court concerning the 

credibility of witnesses or the weight of their testimony. SmithCarter v. Amoco Oil Co. (1991), 248 Mont. 505, 510, 813 P.2d 405, 

Dr. Lees-Haley found Mennis' claim that he could not do a 

number of things implausible because of his objective performances 

on the tests he and other doctors administered and because of 

Mennis' observable behavior on the day he tested him. As part of 

his evaluation of Mennis' claim, Dr. Lees-Haley viewed the video 

surveillance tapes. He testified as follows regarding what he 

learned from the tapes: 

Q. Do you have an opinion on whether or not the 

videotape behavior of Clarence Mennis was consistent with 

the cognitive deficits identified by Dr. Shubat? 

A. Yes. 

Q. What is your opinion? 

A. Number one, that he is functioning superior to his 

functioning as opined by Dr. Shubat. Number two, that he 

was behaving in a way that was different than Dr. Shubat 

appears to have believed, based on his own observations 

and what Mr. Mennis told him. There's a discrepancy 

between what you learn about Mr. Mennis from Dr. Shubat 's 

record and what you learn from the videotape, and my 

viewing of the videotape is that he is able to move 

about, ride a bicycle, drive a car, talk with people, 

read from a loose-leaf notebook. Apparently he takes a 
car to the doctor's office [referring to the fact that 

Mennis took a cab to the Dr.'s office on the day that he 

was videotaped even though he drove his own car on 

numerous other occasions that same day]. Putting a 

variety of things together. But he drove a vehicle with 

no assistance in the videotape, and he appears to be 

monitoring children. 

I feel that it's inconsistent. That to say a man is 

so incapacitated he can't be left alone himself without 

a babysitter for him and see him, in fact, supervising 

children. He drove a car with a child and assumed 

responsibility for driving a car with a child in the car, 

and a woman that I correctly or incorrectly interpreted 

as being Mrs. Mennis. . . . The ability to move around, 

ride a bicycle, and drive a car, things like that have 

some relevance. 

Dr. Lees-Haley also found Mennis able to initiate and sustain 

purposeful activity. He testified as follows: 

Q. Do you have an opinion as to whether Clarence Mennis is 

able to initiate and sustain purposeful activity? 

A. Yes, ma'am. 

Q. (By Ms. Rebeck) What is your opinion? 

A. That he is able to do so. 

Q. On what is your opinion based? 

A. Broadly on two things. One is that complete lack of 

evidence that he can't, and he's an adult man of normal 

intelligence. Number two, that when he came with me and 

met with me in the evaluation, when I met him in person, 

he walked in and did all sorts of things that are 

consistent with being able to engage in purposeful 

activity, ranging from little spontaneous things to selfcare things like we ordered lunch. He decided what he 

wanted, he ate, and he answered the questions. He was 

able to monitor my questions and bring out information. 

He was able to go to the phone and call for information 

unassisted. He was able to maintain his train of thought 

when I interrupted him to see if he was capable of 

maintaining his train of thought. He was able to take 

written tests. He was able to ask appropriate questions 

about the instructions, to clarify things. He was able 

to accomplish the tests, to begin and continue and 
complete the tests, answer my complicated and simple 

questions, understand the questions, and give answers 

when he needed to. He didn't always know them. There 

were a few times when he said that he didn't know or 

didn't remember or didn't understand, but I see no reason 

to believe this gentleman can't engage in purposeful 

activity, initiate his own activity. I think he's doing 

it. I consider the videotape, driving a child in the 

car, is hardly the inability to do purposeful and 

dangerous activity. 

We note that the surveillance occurred almost a year after 

Drs. Shubat and Labunetz claimed in their letters that Mennis 

required domiciliary care. There is substantial credible evidence 

supporting the Workers' Compensation Court's determination that the 

need for domiciliary care was not established. 

Nor did the request for domiciliary care describe with a 

reasonable degree of particularity the nature and extent of the 

duties to be performed by the family members. The Workers' 

Compensation Court in its Findings of Fact and Conclusions of Law 

noted that Dr. Labunetz did not prepare a specific plan stating the 

medical assistance Mennis needed. We find nothing in the record to 

the contrary. 

As we hold that substantial credible evidence exists to 

justify the Workers' Compensation Court's decision on the first two 

requirements of the Carlson test, we need not discuss the other 

elements. The test is clearly a conjunctive test requiring that 

all elements be satisfied. 

Affirmed. 
We concur: