Rollins v. Liberty Northwest Ins. , 2001 MT 14N ( 2001 )

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No. 00-276
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 14N
CHARLES ROLLINS,
Petitioner and Appellant,
v.
LIBERTY NORTHWEST INSURANCE,
Respondent/Insurer and Respondent,
and
BRUCE WALTER TRUCK SERVICES, INC.,
Respondent and Respondent.
APPEAL FROM: Workers' Compensation Court, State of Montana
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randall O. Skorheim; Skorheim Law Office, Great Falls, Montana
For Respondent:
Larry W. Jones, Senior Attorney, Liberty Northwest Insurance Corporation, Missoula, Montana
Submitted on Briefs: November 2, 2000
Decided: February 15, 2001
Filed:
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__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. It shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 The Workers' Compensation Court denied Charles Rollins' claim to reopen his
settlement agreement with his employer and for permanent total disability benefits. Rollins
appeals. We affirm.
¶3 The dispositive issue is whether the Workers' Compensation Court erred in finding that
Rollins was not permanently and totally disabled as a result of his June 1, 1995 injury.
¶4 As a workers' compensation claimant, Rollins bore the burden of proving he was
permanently totally disabled. Dumont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190,
201, 598 P.2d 1099, 1105. Rollins asserts that his testimony, along with that of his
vocational counselors and one of his treating physicians, constituted substantial credible
evidence that he was permanently and totally disabled and that the Workers'
Compensation Court ignored his evidence.
¶5 Our standard of review of the Workers' Compensation Court's findings of fact is
whether they are supported by substantial credible evidence. Wilson v. Liberty Mut. Fire
Ins. (1995), 273 Mont. 313, 317, 903 P.2d 785, 787-88. Our standard is not whether
sufficient evidence exists to support findings which were not made. Where there is
conflicting evidence in the record, this Court will not substitute its judgment for that of the
trial court in resolving those conflicts. Smith v. United Parcel Service (1992), 254 Mont.
71, 75, 835 P.2d 717, 720.
¶6 Rollins' subjective testimony about the extent of the pain he continued to suffer in his
leg as a result of his work injury would support a finding that he was permanently and
totally disabled. Rollins' testimony was contradicted, however, by six surveillance
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videotapes introduced into evidence by his employer's workers' compensation insurer. The
Workers' Compensation Court found, based on its review of the entire record and its
observation of Rollins' demeanor at trial, that Rollins had exaggerated and misrepresented
his pain and disability to physicians, vocational counselors, and the court. The court found
credible the opinions of two physicians and a vocational counselor who testified that
Rollins was physically capable of working full time and identified jobs he was capable of
performing.
¶7 We conclude that the Workers' Compensation Court's findings that Rollins was not
permanently and totally disabled as a result of his June 1, 1995, injury are supported by
substantial credible evidence. Having done so, it is unnecessary for us to address Rollins'
second argument on appeal, premised on a successful resolution of the first, that there was
a mutual mistake of fact as to the extent of his disability when he entered into a settlement
agreement with the insurer.
¶8 Affirmed.
/S/ KARLA M. GRAY
We Concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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