Ferguson v. American Stores , 51 State Rptr. 603 ( 1994 )

NO. 94-031
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
HAROLD DALE FERGUSON,
Petitioner and Respondent,
APPEAL FROM: Workers ' Compensation Court State of Montana
The Honorable Michael McCarter, Judge
Robert J. Campbell, Hearing Examiner, presiding
COUNSEL OF RECORD:
For Appellant:
Sara R. Sexe, Marra, Wenz, Johnson & Hopkins, Great
Falls, Montana
For Respondent:
Robert C. Melcher, Billings, Montana
Submitted on Briefs: May 5, 1994
Decided: July 6, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a Workers 1 Compensation Court decision
entitling claimant to thoracic outlet syndrome surgery and
reinstating his total disability benefits. We affirm.
We consider the following issues on appeal:
I. Did the Workers' Compensation Court err in determining
that claimant's current condition was caused by a 1986 injury to
his back?
II. Did the Workers' Compensation Court err in determining
that claimant's request for thoracic outlet syndrome surgery was
reasonable and necessary?
III. Did the Workers' Compensation Court err in reinstating
claimant's temporary total disability benefits?
Harold Dale Ferguson (Ferguson), began his employment with
Buttrey Foods Super Market, Havre, Montana, in March of 1986. He
started by carrying groceries and later moved to stock clerk. On
August 9, 1986, Ferguson was injured when a box of paper towels and
toilet paper fell and hit him in the head, neck, and back. Whi1.e
Ferguson returned to work, he testified that his symptoms did not
go away. He further testified that they grew worse over time and
that he had problems lifting heavier items and working overhead.
Ferguson injured his back again in September of 1989 while he
was restacking flour and sugar. Ferguson testified that the
problems he had after the 1989 injury were the same as those he had
after the 1986 injury.
Ferguson continued to work until December 12, 1991, when his
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treating physicians recommended that he stop working. Ferguson
filed a petition for hearing in September of 1992 when he and
Buttrey Foods could not reach an agreement. During this time he
had been receiving temporary total workers' compensation benefits
which were subsequently terminated on January 4, 1993. On January
28, 1993, Buttrey Foods fired Ferguson because he had taken too
much leave of absence.
A hearing was held on April 26, 1993. Ferguson sought to have
his disability benefits reinstated as well as payment for thoracic
outlet syndrome surgery recommended by Ferguson's main treating
physician but denied by the insurer. Conflicting medical evidence
was presented to the Workers' Compensation Court. Included in the
opinions of medical personnel was an evaluation by a seven-person
Yellowstone Valley Medical Evaluation Panel. After its examination
of Ferguson, the panel determined that Ferguson did not need the
suggested surgery.
The Workers' Compensation Court issued its findings of fact
and conclusions of law on December 15, 1993, granting Ferguson
reinstatement of his benefits and payment for the surgery. Buttrey
Foods appeals the ruling.
Standard of Review
We review the Workers' Compensation Court's decision to
determine whether it is supported by substantial credible evidence.
Plainbull v. Transamerica Insurance (1994), 51 St.Rep. 181. Wher
conflicting evidence is presented, our scope of review will be to
establish whether substantial evidence supports the Workers'
Compensation Court's decision--not whether evidence may support
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contrary findings. Smith-Carter v. Amoco Oil (1991), 248 Mont.
505, 813 P.2d 405. Nor will we substitute our judgment for that of
the Workers' Compensation Court as to weight of evidence on
questions of fact. Mennis v. Anderson Steel Supply (1992), 255
Mont. 180, 841 P.2d 528.
I
Did the Workers' Compensation Court err in determining that
claimant's current condition was caused by a 1986 injury to his
back?
The Workers' Compensation Court found that a preponderance of
evidence existed to show that Ferguson suffered from thoracic
outlet syndrome as a result of the 1986 injury and needed the
requested surgery. Because of Ferguson's need for surgery, the
court determined that he had not been "as far restored as the
permanent character of his injuries will permit" and was entitled
to reinstatement of temporary total disability benefits. As a
result of these determinations, the court concluded that it could
not assess Ferguson's entitlement to rehabilitation or permanent
partial disability benefits at this time.
Buttrey Foods argues on appeal that the Workers' Compensation
Court erred when it determined that the 1986 incident caused
Ferguson's current condition. According to Buttrey Foods, the
court ignored the preponderance of the medical and occupational
evidence which showed that Ferguson's current condition did not
stem from the earlier accident.
Ferguson argues that substantial evidence supports the court's
decision and, therefore, this Court cannot substitute its judgment
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for that of the Workers' Compensation Court.
Following Ferguson's 1986 injury he was treated by two
chiropractors, first Dr. Pardis, and then Dr. Nolan. Both doctors
released Ferguson to return to work without reaching a decision as
to maximum healing. Ferguson testified that he did not complain of
pain to his superiors at work because they encouraged him not to be
like a former injured employee who complained all the time.
Depositions from co-workers at Buttrey Foods indicate that Ferguson
did tell co-workers that he was experiencing pain.
In addition to the depositions of Ferguson and his wife,
several doctors, including Dr. Snider, Dr. Cook, Dr. Kostelecky and
Dr. Kobold, who is a thoracic specialist and Ferguson's treating
physician since 1991, believed or indicated an opinion based on
reasonable probability that Ferguson's current condition stems from
the 1986 accident. Buttrey Foods agrees that Dr. Snider and Dr.
Kobold are Ferguson's treating physicians. Dr. Snider, ar.
orthopedic surgeon, referred Ferguson to Dr. Kobold who engaged in
specific testing to determine whether Ferguson in truth suffered
from the thoracic outlet syndrome. The record contains substantial
evidence for the court's determination that Ferguson's present
condition stems from the 1986 incident. We hold the Workers'
Compensation Court did not err in determining claimant's current
condition was caused by the 1986 injury to Ferguson's back.
II.
Did the Workers' Compensation Court err in determining that
claimant's request for thoracic outlet syndrome surgery was
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reasonable and necessary?
Dr. Kobold is a thoracic specialist. The tests that he
performed on Ferguson were done specifically to determine the need
for thoracic surgery. Dr. Kobold testified in his deposition that
he felt the surgery was necessary to the improvement of Ferguson's
condition.
Although the report of the Yellowstone Medical Panel itself
did not recommend thoracic surgery, it indicated that Ferguson's
symptoms could possibly be due to thoracic outlet syndrome. It is
important to note that the panel of seven doctors on the
Yellowstone Medical Panel consisted of an occupational medicine
coordinator, a neurologist, a general surgeon, an orthopedist, a
psychiatrist, a psychologist, and a vocational rehabilitation
specialist--none a thoracic specialist.
The Workers' Compensation Court attached more weight to the
evaluation of Dr. Kobold, the thoracic specialist and Ferguson's
treating physician, than it did the medical panel. It is clear
that a number of the doctors who saw Ferguson indicated that it was
medically probable that he suffered from thoracic outlet syndrome.
Dr. Snider referred Ferguson to Dr. Kobold with the specific intent
that Dr. Kobold determine whether surgery was necessary. Dr.
Koboldtestified such surgery was needed and therefore, substantial
evidence exists that the Workers' Compensation Court was correct.
We hold that the record clearly indicates that the Workers'
Compensation Court did not err in finding the surgery to be
reasonable and necessary.
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III.
Did the Workers' Compensation Court err in reinstating
claimant's temporary total disability benefits?
The Workers' Compensation Court determined that while earlier
opinions and evidence may have indicated that petitioner had
reached maximum healing, Dr. Kobold believed that Ferguson needed
surgery in order to obtain relief. Because Ferguson would benefit
from surgery, the court determined that he had not been "as far
restored as the permanent character of the injuries will permit."
Section 39-71-116(19), MCA (1985). The court reinstated the
temporary total benefits Ferguson had received during the last
portion of December of 1991. On January 4, 1993, the benefits were
discontinued. They were subsequently reinstated for a brief period
and then stopped again.
Buttrey Foods argues that Ferguson has not proved that a
causal connection exists between his current condition and the twc
incidents that occurred at Buttrey Foods in 1986 and 1989.
Further, Buttrey Foods contends that because Ferguson returned to
work after both incidents, he has not experienced a loss of wages
as required by 3 39-71-116(19), MCA (1985) and 5 39-71-116(20), MCA
(1989), and he is, therefore, not entitled to temporary total
disability benefits.
Ferguson argues that it has never been determined that he has
reached maximum healing. He contends that without that
determination he is entitled to benefits. At the very least, he
argues that he is due a review to determine his entitlement to
rehabilitation or permanent benefits.
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Because this question involves an interpretation of a statute
we review this issue as to whether the Workers' Compensation Court
was correct in its interpretation of the law. Francetich v. State.
Compensation Mut. Ins. Fund (1992), 252 Mont. 215, 827 P.2d 1279.
The law in effect at the time of injury is the proper law to apply
to the case. Crittendon v. Terri's Restaurant & Lounge (1991), 247
Mont. 293, 806 P.2d 534. Because we have determined that
substantial evidence exists to show that the 1986 injury is the
cause of Ferguson's current problems, we use the 1985 statutes.
Buttrey Foods is correct that in describing temporary total
benefits 5 39-71-116(19), MCA (1985), means "total loss of wages"
precludes receipt of any wages by claimant:
llTemporary Total Disability" means a condition resulting
from an injury as defined in this chapter that results in
total loss of wages and exists until the iniured worker
is as far restored as the permanent character of the
injuries will permit. A worker shall be paid temporary
total disability benefits during a reasonable period of
retraining. Disability shall be supported by a
preponderance of medical evidence. (Emphasis added.)
Section 39-71-116(19), MCA (1985); Chagnon v. Tilleman Motor Co.
(1993), 259 Mont. 21, 855 P.2d 1002. However, Ferguson did not
begin to receive benefits until he stopped working in 1991. He is
not now working and has not worked since the end of December 1991.
We have stated that temporary total disability ceases when the
workman's physical condition is as far restored as the permanent
character of the injuries permit. Sharkey v. Atlantic Richfield
Co. (1989), 238 Mont. 159, 777 P.2d 870. Dr. Kobold, Ferguson's
treating thoracic specialist, stated in his deposition that he
believed that the thoracic surgery would improve Ferguson's
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condition. We conclude that the Workers' Compensation Court was
correct in concluding that because the surgery was needed and would
most likely benefit Ferguson, he was not at the time of the hearing
"as far restored as the permanent character of the injuries
permit." Therefore, Ferguson is due temporary total disability
benefits (up to the statutory maximum of 500 weeks total) until the
surgery restores his condition as far as the permanent character of
his injuries will permit.
A determination of "maximum healing" must then be made by
Ferguson's treating physician and will trigger a reevaluation of
the claimant's disability status as either permanently totally
disabled or permanently partially disabled. Jaenish v. Super 8
Motel (1991), 248 Mont. 383, 812 P.2d 1241.
We hold that the Workers' Compensation Court was correct in
reinstating claimant's temporary total disability benefits.
Affirmed.
We Concur:
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July 6, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Sara R. Sexe, Esq.
Marra, Wenz, Johnson & Hopkins, P.C.
P.O. Box 1525
Great Falls, MT 59403-1525
Robert C. Melcher
Attorney at Law
P.O. Box 2315
Billings, MT 59103
ED SMITH
CLERKOFTHE
SUPREME COURT
STATE OF
MONTANA