*1 505 JACK BREWINGTON, Clаimant and Appellant, v. BIRKENBUEL, INC., Employer, Employers’ and Fire Dependant Co., Insurance Respondent. No. 85-87.
Submitted on Briefs March 1986. Aug. Decided 1986. Rehearing Sept. Denied 1986. P.2d Helena, claimant Utick, Grosfield, J. Andrew & Utick *2 appellant. respondent. and Falls, for defendant Baillie, Great L. William Court. the of Opinion the delivered HUNT JUSTICE
MR. order Court a Workers’ appeals Brewington Jack awarded and disabled partially permanently ishe ruled which 29-71-706,MCA. Section under indemnity benefits of weeks him 400 ruling in erred court lower (1) the whether are: appeal on issues the (2) disabled; whether totally permanently is not appellant indemnity of weeks 400 appellant awarding in erred court lower (3) and, maximum; statutory weeks, the 500 than rather appellant’s increase fаiling to in erred lower whether respon- of MCA, 39-71-2907, because Section under by 20% award We benefits. paying in delay or unreasonable allegedly dent’s remand. and reverse education, and grade eighth an age, with of years is 61 Appellant carpenter. or welder millwright, aas worked generally has 1960 since he has and mill paper Missoula in a supervisor aas workеd He also positions. supervisory other in time of periods very short worked days de- but three only two or jobs lasted supervisory other These are mill paper aas worked long he how on tails lacking. during injury compensable suffered 1974, appellant December In col- toDue Birkenbuel, Inc. with his of course ground feet twelve fell appellant scaffolding, sоme of lapse able was Appellant shoulder. and right hand his landing on pain and experienced although he accident his after time some working for stopped Appellant his coordination. with difficulties resumed but injury his of 1975 in March weeks three substantial suffered appellant injury, Due to working thereafter. through After arm. and neck, shoulder pain in his accident industrial аnother suffered 1977, appellant part of and 1976 left his on fingers two of tips off he sawed July 1977 Any accident. second since worked never hand. instant in the issue not at injury second from the disability he has case. Nelson, appellant’s
Dr. treating physician, appellant first examined in August diagnosed Dr. appellant having Nelson brachial neuritis, plexus bilaterally, greater right on the side. Brachial plexus neuritis is an inflammation the nerves the neck and may brought by injuries. shoulders which be on direct blows or other Dr. diagnosis having Nelson later made an additional syndrome; kinking pinching artery thoracic outlet i.e. a nerve as the problems shoulder and arm are elevated. These stem from accident. The doctor stated that stabilized, healing period by had and his was over October September 1982. On by was examined Cahill request respondent. at the agreed Dr. Cahill with Dr. Nelson’s diagnosis. January, 1984,
In problems described his health stem- ming problems from his 1974 accident. He stated that he had with his neck and if lot, it was cold or if he bent over neck would lock pain; and he had a lot pain all the time in his shoulder, ranging pain “like a toothache” most of the time to a burning times; sensation pain time, at other that he had all the *3 time, no arm; coordination most of right any physical in his that worse; work make arm his and shoulder and that he could do wood- working for about right hours before his him arm hurt and he IV2 required was stop. to
Dr. deposition Nelson testified at that arm and shoul- injuries prevent der is, him doing work; from laborious that “over- hand, overhead, climbing, lifting, prolonged, repetitive usage of the arm any degree and shoulder strength.” to The also doctor recom- prolonged mended no by appellant bending long-distance or even driving. Dr. Nelson objections appellant had no attempting work a supervisor. as foreman appellant or He stated that shоuld be “sedentary” in a occupation, something which described edu- supervisory cative or something appellant periodic could take repetitive breaks from if he physical had to do Dr. work. Nelson training recommended appellant long vocational it for as would light outfit him appellant’s disability work. The doctor as a rated impairment 10% body. agreed Dr. Dr. whole Cahill with Nel- impairment son’s rating appellant and conclusion that was limited a sedentary-type occupation. quitting After accident, appellant attempted work after his second to secure work as a with several Lewistown construction firms welding and as a instructor. The firms indicated construction he felt he was that he would have to be a foreman and apparently physically position. Appellant unable to handle such a inquire many jobs as “seden- did into could be classified not accept any job tary” because, stated, unless as he he would not probably $1,000 could a He that he could earn month. concluded his stay if he close to retraining program enter could and find wife, going Respondent blind. hired Rehabilitation who National improve his Consultants to work with consul- of the rehabilitative chances. declined the services try and tants admitted so he had decided and that did because Compensation bene- lump obtain of his Workers’ sum settlement fits, required far acceptance him to travel and would have ailing his Lewistown and wife. injury ini-
Resрondent accepted liability first and Respondent paid tially temporary disability paid him benefits. total January Reha- February In National these benefits until re- had respondent advised bilitation Consultants ap- month, respondent stopped paying fused their services. Within a paying began pellant temporary disability benefits total disability. At permanent partial lеsser benefits for change, respondent reports from Dr. Nelson and time of this point maximum appellant had his Cahill which stated that reached recovery sedentary-type work. return to could pay perma- him Appellant disagreed respondent’s with decision petition partial and, in he filed a disability nent June claiming a Compensation Court hearing for a with the Workers’ disability held The lower court right to benefits. disqualified January hearing who hearing in examiner before stipulated parties himself for reasons and conflict of interest any did hear complete judge judge could the case. The January testimony rather issued decision appellant was 80% based on record. court concluded disabled, rating of upоn impairment partially permanently an based appellant 400 weeks of the whole man. The court awarded benefits, statutory of 500 weeks. 80% of the maximum *4 appeal respondent. This penalty upon impose refused to followed. ap- finding in court erred
The first issue is whether the lower stan- totally The oft-cited partially disabled. pellant rather than that, dard review is of Compensa- of the Workers’ reviewing
“Our in a decision function
509 tion Court is to determine whether there is substantial evidence to support findings and conclusions of that court. We cannot sub- judgment stitute our weight that of the trial court as to the of questions evidence on fact. Where there substantial evidence to findings Court, Compensation of the Workers’ this court (Citations omitted.) cannot overturn the decision.” Metzger Corp. v. Chemetron (Mont. 1984), 351,] Mont. 687 [212 1035, 1033, v. Beaver St.Rep. 1788, 1790; P.2d 41 Nielsen citing Pond, (Mont. Inc. 1983), 47, 49, 339,] P.2d Mont. 661 40 [203 St.Rep. Compensation
But we have also
stated
where the Workers’
Court,
Court
by deposition
received the critical evidence
“this
al
though
review,
sitting
position
good
is in as
as the Workers’
Compensation
judge
weight
given
Court
to be
to such record
tеstimony, as distinguished
testimony,
from oral
where the trial
actually
observed the character and demeanor of the witnesses
Imports,
v.
(Mont.
Lamb Missoula
on the stand.”
Inc.
1984),
[211
360,]
498, 500,
Mont.
Jones v.
St.Rep. 1414, 1416; citing
P.2d
Regis Paper
St.
Co.
(1981),
and Hert
1140;
196 Mont.
639 P.2d
Newberry
v.
J.J.
Co.
(1978),
178 Mont.
In upon definition, statutory adopted we the follow- Metzger. ing test in
“To establish the
prospect
employ
existence of no reasonable
marker,
ment
the normal
labor
a claimant must
sub
introduce
(1)
stantial credible
jobs
evidence of
what
constitute his normаl
la
(2)
market,
bor
complete inability
and duties
jobs
associated
with those
his work-related
injury. Spooner
Sales, Inc.,
v.
Action
III Workers’
1983).”
(January 24,
Court Decisions No. 85
Metzger,
meet on the fact that this burden. The court foreman, again. and could do such work claimant wоrked as a incorrectly mar- that claimant’s normal labor determined above, As work working ket includes a foreman. stated claimant’s limited, days extremely amounting to two or three as a foreman was position qualify not on each of several occasions. This does the so, part market. Even claim- foreman of claimant’s normal labor rehabilitation ser- ant contacted several construction firms foreman, attempt to as a but vices division in an secure only required jobs as a foreman was unsuccessful. The available foreman, position claimant cannot claimant to be a perform.
Further, private of a he refused the services claimant testified he Although respondent’s firm of he аdmitted rehabilitation choice. accept retrained, likely he the services because could be declined wife moving far Lewistown. Claimant’s ance would have meant her in stay close to order going is blind and testified he needed give opinion that weight for her. While to claimant’s care voluntarily declined probably could be retrained and that firm, tеstimony is not de private services of rehabilitation such lifetime well as claimant’s terminative. The medical evidence as per history rendered work the conclusion that claimant was by manently totally disabled his industrial accident. in Metz- met his as defined
We conclude that claimant has burden limita- great concerning injuries and ger. detail He testified shoulder, right pain right in his arm and tions. He suffers constant the condi- Physical worsens pain and intermittent his neck. prevent him from injuries claimant’s tion. Nelson testified that overhead, is, climbing, lifting, work, “overhand, doing laborious any degree of repetitive usage of arm and shoulder prolonged, his life. very done all strength.” work claimant had This is Lewis- supervisor with several attempted He secure work аs a instructor, was unsuc- welding firms and as a town construction inability to an conclusively established cessful. Claimant require- Claimant meets jobs in labor market. his normal MCA, permanent 39-71-116(13), total ments of Section disability. we need not consider first ruling of our on the issue
Because in this case. second issue failing lower court erred final is whether the
Claimant’s issue 39-71-2907, MCA, by to increase under Sеction be- his award 20% respondent’s allegedly delay pay cause of unreasonable penalty. claimant to the benefits. We hold entitled The Worker’s Court concluded: penalty provided “6. facts Under these for under Section 92- R.C.M., (1983), apply. MCA does 824.1 now Section 39-71-2907 Reducing temporary claimant’s benefits from partial private because the claimant refused to work with rehabili- However, record, tation firm ap- is unreasonable. from the it Court’s pears coincidentally the insurer information al- sufficient *6 lowing temporary it to reduce the benefits from total to claimant’s permanent partial. remedy is appro-
“The not without if defendant a rehabilitation is priate participate. procеdure and the claimant proper refuses to is delineated in MCA procedure Section 39-71-1005. This was not followed in the at case bar.” essentially lower court respondent’s concluded that actions
would have supported been the unreasonable had record the not conclusion permanent partial, permanent that claimant was nоt to- tal. It permanent follows that since we hold that now claimant is total, he is penalty. also entitled to Respondent the 20% reduced claimants pri- retaliation his work to with a vate rehabilitation firm. Respondent Such is action unreasonable. should procedure have followed the delineated in Section 39-71- penalty pursuant MCA. is Claimant a 20% entitled to Sec- 39-71-2907, tion MCA.
Reversed and remanded to Workers’ the Court judgment enter permanent for the his claimant on claim of total dis- ability, pursuant and to award claimant a 20% increase his award 39-71-2907, to Section MCA. HARRISON,
MR. JUSTICES MORRISON and concur. SHEEHY GULBRANDSON, MR. JUSTICE dissenting: I respectfully dissent. prove, by probative, preponderance must a credi- evidence, disability
ble permanent he is entitled benе- total Dumont v. Co. (1979), fits. Wickens Bros. Const. 183 Mont. P.2d 1099. This he has not done.
To permanently totally establish he is under the disabled Metzger majority opinion, appellant in the must show test cited complete inability a and duties associ- jobs constituting Although labor market. ated with the his normal disabled, appellant clearly permanently not satisfied Metzger disability. There are three stаndard for problems opinion, simply majority glosses main with the over the voluminous evidence in this case. only expert
First, opinions into evidence tend medical entered totally is permanently Dr. disabled. Nel- show that impairment diagnosed appellant of the whole having son as type body. He should be some of seden- testified supervisory, doing tary employmеnt (primarily educative or something, repetitive, periodi- if which he could take breaks impairment having cally). Dr. as a 10% Cahill also rated body. opinion whole in 1982 was that: Cahill’s patient’s present physical ... has stabi- “The shows recovery. I point do think lized and has reached maximum work, heavy lifting I be think that would able return to writing excessively using upper other than extremitiеs very him.” difficult for desk would be Second, market majority normal labor finds that finding perplexing This does not include foreman. against majority’s it facts and runs recitation of testimony. majority opinion are that: The facts stated paper mill
“[Appellant] in a Missoula also worked as *7 (two days) to three very periods he short of time has worked for long as positions in . . on how he worked supervisory . details other supеrvisor paper lacking.” a mill are appellant’s normal labor majority It can find is unclear how the that majority is position when the market does include a foreman a long as foreman. unsure how he worked testimony Appellant’s was as follows: strictly a any occupations as of these “Q. you Did ever work supervisor? awhile. supervisor paper mill in Missoula for I in the
“A. was a supervisor? strictly as a job, you “Q. did ever work Other than that time, any length “A. Not of no.” as long appellant worked testimony simply to how unclear as The labor what normal supervisor. Appellant not established has attempt employment as a Appellant is. to find did market with three or four firms in Lewistown. This indicates construction supervisory positions сonsiders as within his normal perform that he duties of those labor market and believes can positions.
Third, appellant explicitly accept any job stated that would not $1,000 Although appellant at unless he earn least a month. could laborer, conceded that he had worked as a he had not stated that applied any stores, shops for work at or such hardware stores, stations, gas convenience stores or his hometown of Lewis- complete town. did showing not introduce in- evidence ability perform jobs supervisory these jobs. majority
The conclusively states that has established an inability jobs his normal labor market. The record support does not this assertion. The record does show any $1,000 refuses jоb to even consider paying less than a month. opinion The majority dispensed requirements with the of the Metzger test.
Lastly, I majority’s imposition dissent from penalty of a 20% upon the respondent 39-71-2907, under Section MCA. That section allows the by lower court to increase an award 20% because of an insurer’s delay pay. unreasonable or refusal to
“Whether an аction is ques- ‘unreasonable’ under this is a statute tion fact subject appeal which is on to the review limited (Citation omitted.) substantial evidence test. If there substantial evidence finding ‘unreasonableness’, this Court can- not overturn finding.”
Wight Co., (Mont. Hughes 1981), v. Livestock Inc. 634 P.2d St.Rep. applies same standard of review lower finding court’s of reasonableness. supports
Substantial сredible finding evidence the lower court’s impose penalty. majority “reasonableness” and its refusal to finds respondent unreasonably respondent acted re- appellant’s duced appellant’s benefits in retaliation private opinion with a firm. The cites no rehabilitation evi- directly dence supporting this assertion. McGraw,
Peter manager adjuster a claims who insurance claim, why worked on testified insurer re- duced permanent par- total to tial. McGraw stated that the insurer reduced the benefits because the insurer reports had received medical form Dr. and Dr. Nelson *8 (1) Cahill that stated: stabilized and (2) recovery; was point of had reached his maximum (3) work; sedentary-type go back to a аble body. There was evi- impairment rating of the whole had a 10% appellant which sent a letter to hearing at the that the insurer dence reports. doctor’s was due to the reduction benefits stated that the in- Moreover, specifically suggestion McGraw refuted There is substan- as retaliation. reduced benefits surer im- refusal to tial, the lower court’s credible evidence a reasonable was penalty. The reduction pose the 20% imposed. penalty should be action and no WEBER and MR. JUSTICE CHIEF JUSTICE TURNAGE MR. GULBRANDSON. JUSTICE join foregoing dissent of MR.