Weaver v. Buttrey Food and Drug

NO. 92-235
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
GLORIA J. WEAVER,
Claimant and Appellant,
-vs-
BUTTREY FOOD AND DRUG,
Employer/Insurer, Respondent
and Cross-Appellant,
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Martin, Alexander, Baucus & Linnell,
Great Falls, Montana
For Respondent:
G. Curtis Drake, Keller, Reynolds, Drake, Stemhagen
& Johnson, Helena, Montana
Submitted on Briefs: September 10, 1992
Decided: October 29, 192
Filed:
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. Claimant Gloria Weaver
(Weaver) appeals the Workers ' Compensation Court judgment that she
is not entitled to past and present temporary total disability
benefits for certain injuries incurred during the course and scope
of her employment at Buttrey Food and Drug. Respondent Buttrey
Food and Drug (Buttrey) cross-appeals the Workers' Compensation
Court judgment that Weaver's back condition is causally related to
her work injury. We affirm.
Weaver was injured on June 15, 1986, while working as a
checker at the Buttrey store in Cut Bank, Montana. At the time of
the accident she was a 46-year old high school graduate and married
with two dependent children. She had been working at the same
Buttrey store for approximately twenty-one years.
The accident occurred when a customer pushed a cart piled high
with large canned goods through Weaver's checkstand. When Weaver
opened the front gate of the cart, the cans began to tumble out.
To avoid being struck by a can, Weaver jumped backward and sideways
with a twisting motion. As she did so, she felt a hot searing pain
in her left thigh. She finished her shift, but by that time two
large lumps had formed on her thigh. Her supervisor immediately
took her to a doctor who diagnosed the injury as a hematoma and
recommended elevation and ice packs.
Weaver continued to work at the Buttrey store until September
17, 1986. By then her leg was bothering her so much that she took
2
vacation and then, on tne manager's recommendation, a leave of
absence. Buttrey's insurer paid benefits for temporary total
disability from September 17, 1986 until April 4, 1987. During
this period Weaver consulted Dr. J. W. Bloemendaal, an orthopedic
surgeon in Great Falls. Dr. Bloemendaal diagnosed a possible
rupture of the facia around Weaver's left quadriceps and prescribed
physical therapy and exercise to strengthen the muscle. On March
18, 1987, Dr. Bloemendaal wrote to a Workers' Compensation
adjuster, stating that in his opinion Weaver could return to work.
Buttrey already had terminated her employment, however, because the
six-month disability leave allowed by her union contract had
expired. Weaver never returned to the Buttrey store, which burned
down in November 1987, though she did apply for work at the new
store in 1988.
Weaver considered Dr. Bloemendaal's letter a "release," but
she did not feel that she could return to work because her leg was
weak and she still had lumps on her thigh and numbness down the
side of her leg and in her foot. Buttrey's insurer refused to
extend her temporary total disability benefits, however, and after
a hearing in July 1987, the Workers' Compensation Court later
denied temporary total disability benefits on the grounds that her
leg injury had reached maximum healing on March 18, 1987.
On June 4, 1987, Weaver's injured leg "gave out" while she was
climbing a bleacher at a Little League game. She fell, injuring
her left knee and reinjuring her left thigh. Dr. Bloemendaal saw
her two weeks later. In his July 1989 deposition, he testified
3
that she would not have fallen "if she had had a good strong
quadriceps" and that even after the June 4 accident she still
should be able to work if she kept that muscle "in tone and
function." Weaver continued to experience pain, weakness, and
numbness in her leg, and at the time of trial in December 1991 she
still limped, found it difficult to drive a car, and had curtailed
her homemaking and recreational activities.
In August 1988, Weaver petitioned the Workers' Compensation
Court for a determination of permanent partial disability benefits
under g 39-71-703, MCA (1985). At the hearing in November 1988,
the former manager of the Cut Bank Buttrey store testified that
Weaver had worked for him for nearly ten years, that she was an
"excellent employee," and that he would rehire her if she had a
release to return to work and he had a position available.
Weaver's vocational rehabilitation counselor testified that Weaver
would be physically capable of half-time work as a checker. The
court found that Weaver was permanently partially disabled but held
that "measurement of her post-injury earning capacity is impossible
because of [Weaver's] failure to introduce evidence necessary for
such determination."
Weaver interpreted the court's order as a request for
additional proof of disability. Accordingly, she consulted Dr.
Lawrence Iwersen of the Kalispell Orthopedic Clinic in May 1989,
without seeking approval from Buttrey's insurer. Dr. Iwersen
recommended "nerve testing" and referred her to Dr. John Stephens,
a rehabilitation specialist in Kalispell. Dr. Stephens saw Weaver
4
twice in June 1989, without approval from Buttrey's insurer. He
ordered magnetic resonance imaging (MFZ), which showed a "moderate
disk bulge" in her lower back, and conducted an electromyograph
study (EMG), which showed no evidence of radiculopathy, or nerve
root damage. Despite the negative EMG results, Dr. Stephens wrote
in his notes for June 13, 1989 that "it is certainly possible that
her work-related injury resulted in the back problem as well as it
is possible that the alteration in her gait has aggravated this."
Dr. Stephens referred Weaver to Dr. James Mahnke, a Kalispell
neurologist. Dr. Mahnke performed a complete examination in August
1989 and diagnosed a "structural disease of the lower spine," which
"may respond only to surgery." Weaver learned of this diagnosis
for the first time when she saw Dr. Stephens again in May 1990. In
his notes for that consultation, Dr. Stephens stated that Weaver
needed further evaluation and treatment, adding, "I would feel on
a more probable than not basis that her problem is related to her
work-related injury."
In August 1990, Dr. Stephens referred Weaver to another
neurologist, Dr. Stephanie Herder in Great Falls. Dr. Herder
recommended nerve conduction studies and another EMG, "in order to
definitively rule out or rule in surgery." Dr. Stephens did repeat
the EMG in January 1991 and again found no clear evidence of
radiculopathy.
In the meantime, Weaver was working at the tavern that she and
her husband had bought in 1985. By 1988 she had taken over the
bookkeeping function, replacing a part time employee who had been
5
paid $6.50 an hour. Thiswork occupied Weaver for three hours each
weekday morning. During the summer of 1988, she began to assume
afternoon and evening bartending duties as well. The bar was
equipped with a stool at each end so that she could sit down when
not waiting on customers. By 1989 Weaver had taken over the duties
of three part-time bartenders, and by the time of the trial in
December 1991, she and her husband were doing all the work required
to run the business, seven days a week.
In September 1991, the Weavers sold the tavern to Weaver's
sister and her husband. At her deposition in October 1991, Weaver
said that the "anticipated arrangement" for running the tavern
would include herself and her husband, "mainly to give us a way to
earn a living until things [her Workers' Compensation claim] are
resolved." At the time of the trial in December 1991, Weaver and
her husband were paying themselves, as they had in the past, by
"taking cash out of the bar."
Weaver petitioned the Workers' Compensation Court for the
third time in May 1991, seeking reinstatement of her temporary
total disability benefits retroactively and prospectively, as well
as medical benefits, costs and attorney's fees. The basis of her
claim was her lower back condition, which had not been reported as
an injury at the time of her accident at the Buttrey store in 1986
and therefore had not been considered when her benefits were
terminated on April 4, 1987.
The court held that although Weaver was not entitled to
temporary total disability benefits, Buttrey's insurer was
6
responsible for the medical expenses related to her "low back pain"
because Dr. Stephens had related the back pain to the June 15, 1986
injury. The court found that "a preponderance of the medical
evidence" supported the conclusion that Weaver's lower back injury
was caused by the June 15, 1986 accident or by the change in her
gait due to her left leg pain. The insurer was held liable only
for future medical bills for Weaver's lower back condition,
however, because Weaver had not obtained its approval for the
examinations performed by Drs. Iwersen, Stephens, Mahnke, and
Herder. The court also found that because Buttrey had not
unreasonably refused payment of disability benefits, Weaver was not
entitled to the 20 percent penalty authorized by 5 39-71-2907, MCA
(1985) . Weaver was awarded costs and attorney's fees on the issue
of medical benefits only.
The issues on appeal are:
(1) Did the Workers' Compensation Court err in finding that
Weaver's back condition was caused by her 1986 work injury?
(2) Did the Workers' Compensation Court err in refusing to
reinstate Weaver's temporary total disability benefits for injuries
sustained at the Buttrey store on June 15, 1986?
(3) Did the Workers' Compensation Court err in denying Weaver
medical benefits for the diagnostic work done on her lower back
during the 1989-91 period?
(4) Is Weaver entitled to a penalty for unreasonably withheld
temporary total disability and medical benefits?
(5) Is Weaver entitled to reasonable costs and attorney's
7
fees for the disability issue as well as for the medical benefits
issue?
I
The first issue is whether the Worker's Compensation Court
erred in finding that Weaver's lower back injury was caused by her
accident at the Buttrey store in June 1986. We will not substitute
our judgment for that of the Workers' Compensation Court when
substantial, credible evidence supports the court's conclusion, as
it does here. McIntyre v. Glen Lake Irrigation Dist. (1991),
813 P.2d 451, 455, 48 St.Rep. 579, 581; Anderson v. Hammer (1992),
826 P.2d 931, 934, 49 St.Rep. 165, 167.
The immediate, visible consequences of Weaver's accident had
to do with her left leg. Because she told the physicians who
examined her during the next several months that her leg hurt, they
focussed exclusively on the leg. Not until May 1989, after Weaver
had experienced pain and weakness in her leg for three years, did
a doctor suspect that she might have a back problem. The medical
evidence accumulated since then establishes that she has a damaged
disc in her lower spine but does not establish what caused this
injury. It may have been a pre-existing condition that was
aggravated by the accident itself or by the fact that the pain in
her left leg caused her to limp. Whether it was caused or merely
aggravated by the accident, however, it is a compensable
disability. Belton v. Carlson Transport (1983), 202 Mont. 384,
386, 658 P.2d 405, 407 ("An accident is comepnsable if the
traumatic event or unusual strain aggravates a pre-existing
8
injury."). See Jones v. St. Regis Paper Co. (1981), 196 Mont. 138,
639 P.2d 1140 (claimant injured his back while working as a logger
in 1976 but was entitled to benefits for subsequent disability
caused by bending and lifting activities in his work as a lumber
grader). We hold that substantial, credible evidence supports the
Worker's Compensation Court's award of medical benefits for
Weaver's lower back condition.
II
Given that Weaver's back injury is compensable, the second
question is whether she is entitled to temporary total disability
benefits for that injury. To be entitled to temporary total
disability benefits, a claimant must meet the requirements of 5 39-
71-116(19), MCA (1985), which defines temporary total disability
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.
To demonstrate "total loss of wages," a claimant must establish
what jobs constitute her normal labor market and prove complete
inability to perform the duties associated with those jobs.
Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355, 687 P.2d
1033, 1035. Here, Weaver failed to meet her burden of proving a
complete inability to perform the jobs within her normal labor
market. She had been working for at least three years as a
bookkeeper and bartender, and she had applied for a job as checker
in the new Cut Bank Buttrey store. At the trial in December 1991,
she stated that she thought she could work as a checker and would
9
"give it a good try," but that she was waiting for a resolution of
her Workers' Compensation claim before applying at the new Cut Bank
IGA store. As the Workers' Compensation hearing examiner put it,
"[t]he evidence of her ability to work is overwhelming."
Weaver asserts that she has not been "gainfully employed"
since her temporary benefits were terminated in March 1987. She is
paid no money as a direct wage for her work at the tavern, she
says, and receives no benefits. This Court, however, has adopted
the "economic gain" standard for determining eligibility for total
disability benefits. Anderson v. Hammer (1992), 826 P.2d 931, 936,
49 St.Rep. 165, 168. Under the Workers' Compensation Act, "wages"
simply means gross earnings, or "anything of value received as
consideration for work . . . constituting real economic gain to the
employee." Scyphers v. H & H Lumber (1989), 237 Mont. 424, 426,
774 P.2d 393, 394.
Here, Weaver and her husband took a "draw" on the tavern
income to meet their living expenses. Weaver's contribution to the
effort that generated this income was at least equal to her
husband's. In her October 1991 deposition, for example, she stated
that she worked in the bar "three or four nights a week" in
addition to her daily bookkeeping duties, and that "I can't handle
it by myself, but my husband is not a bookkeeper and he's not a
bartender. He don't like it and he's not good." Whether Weaver's
share of the tavern receipts is described as a "draw" or "wages,"
it has covered her living expenses for at least four years.
Indubitably, it is "real economic gain."
10
The Workers' Compensation Court also based its denial of
temporary total disability benefits on its previous finding that
Weaver had reached maximum healing with respect to her leg injury.
That finding was based on Dr. Bloemendaal's "releasel' of March 18,
1987. Weaver argues that Dr. Bloemendaal's opinion referred only
to her leg injury, that further evaluation and treatment was needed
for the back injury that was discovered in 1989, and that she
therefore has not reached maximum healing and is entitled to
temporary total disability benefits. We do not address this issue
because we hold that Weaver's earnings from the tavern alone
disqualified her for those benefits.
III
Next, we must decide whether Weaver is entitled to medical
benefits for the diagnostic work done on her back during the 1989-
91 period. The Workers' Compensation Court found that Buttrey's
insurer is not responsible for Weaver's medical expenses during
this period because Weaver neither requested nor obtained
authorization from the insurer for her visits to Drs. Iwersen,
Stephens, Mahnke and Herder. Rule 24.29.1403, ARM, requires
authorization from the insurer for changing a worker's treating
physician or referring a worker to a medical specialist. Carroll
v. Wells Fargo Armored Service Corp. (1989), 240 Mont. 151, 783
P.2d 387.
Weaver argues that under Rule 24.29.1403 the injured worker
selects the initial treating physician; that Drs. Iwersen and
Stephens were the "initial treating physicians for her back
11
injury;" and that under § 39-71-704(l), MCA (1985), Buttrey's
insurer is required to pay for reasonable services provided by
those doctors. Further, Weaver argues, because Drs. Mahnke and
Herder were neurological consultants for Dr. Stephens, Buttrey's
insurer should pay for their services too.
Weaver did not, however, consult Dr. Iwersen about her back
problem. Her purpose in calling him was to find support for her
Workers' Compensation claim, for which Dr. Bloemendaal was the
initial treating physician. It is undisputed that she did not ask
for authorization to consult Dr. Iwersen or Dr. Stephens and that
she also did not seek approval for Dr. Stephens' subsequent
referrals to other doctors. We hold that the Workers' Compensation
Court applied Rule 24.29.1403 correctly in denying medical benefits
for the 1989-91 period while awarding future benefits for medical
expenses incurred in compliance with the rules.
We distinguish our holding here from our holding in Chapman v.
Research Cottrell (1991), 248 Mont. 353, 811 P.2d 1283. In
Chapman, the Workers' Compensation Court denied medical benefits to
a claimant who had consulted a neurologist without authorization
from her employer's insurer. We reversed on the grounds that the
doctor designated by the insurer as the initial treating physician
was not selected by the claimant and had performed no treatment
other than to prescribe medication, while the neurologist was
selected by the claimant and was the first doctor to diagnose her
injury correctly. Here, Dr. Bloemendaal, who was considered by
Buttrey's insurer to be Weaver's initial treating physician,
12
treated Weaver's leg extensively from October 1986 through June
1987. His letter of March 18, 1987 was regarded by both Weaver and
the insurer as a "release" indicating that her leg was healed
enough for her to return to work. Moreover, Weaver waited nearly
two years after her last visit to Dr. Bloemendaal to consult Dr.
Iwersen, while the claimant in Chapman consulted the neurologist
within a month after her accident. We held, therefore, that the
Chapman claimant had only one initial treating physician, for whom
the insurer's authorization was not required. Here, Weaver changed
her treating physician, which does require authorization.
IV
Next, we consider whether Weaver is entitled to a penalty for
unreasonably withheld benefits. Section 39-71-2907, MCA (1985),
provides that the Workers' Compensation Court may increase a
claimant's benefit by 20 percent if it finds that payment of
compensation has been unreasonably delayed or refused by an
insurer. Unreasonableness is a question of fact, and we will not
overturn the trial court's finding if it is supported by
substantial evidence. Milender v. Carpenter (1987), 230 Mont. 1,
6, 748 P.2d 932, 935.
Here, Weaver argues that Buttrey's insurer unreasonably
withheld payment of disability and medical benefits for her back
injury. We disagree. Since it was not self-evident that this
injury was caused by Weaver's accident at Buttrey's in June 1986,
and since the medical evidence linking the injury to the accident
was submitted at least three years after the accident occurred and
13
was somewhat equivocal, denial of the claim was not unreasonable.
We hold, therefore, that substantial credible evidence supports the
Workers' Compensation Court's denial of the 20 percent penalty.
V
Finally, we address the issue of costs and attorney's fees.
Under 5 39-71-611, MCA (1985), an insurer who denies liability for
a claim that is later adjudged compensable by the Workers'
Compensation Court is liable for reasonable costs and attorney's
fees. Here, Buttrey's insurer has consistently denied liability
for Weaver's back injury, which the Worker's Compensation Court and
now this Court have adjudged compensable. Weaver argues that she
therefore is entitled to all costs and attorney's fees incurred in
connection with this claim for a back injury. The court awarded
costs and attorney's fees for litigating the issue of medical
benefits only.
We held in Buckman v. Montana Deaconess Hospital (1989), 238
Mont. 516, 521, 776 P.2d 1210, 1213, that attorney's fees should
not be awarded for issues on which the claimant did not prevail,
for the same reason that an attorney would not receive attorney
fees in a case where he did not prevail on any issue. Here, Weaver
is not entitled to attorney's fees and costs associated with the
issue of disability benefits because the Workers' Compensation
Court found that she is not entitled to disability benefits at this
time. Although, as the court pointed out, Weaver might be entitled
to permanent partial disability benefits if she were to apply for
them, she is not entitled to attorney's fees on this issue now. At
14
present, the court has ~found only the medical benefits to be
payable. Therefore, Weaver is entitled to costs and attorney's
fees only for that claim.
Affirmed on all issues.
-\~d';-;I:&cc, ( ;~I!.‘ ibid;;: <'j ,/i,;&, [ )$‘,
Justicd '
We c
4
15
State nf montann
QBfficn of (IUerk of the Supreme Mourt
i&ha 54620
406.444-3858
EDSMITH
CLERK
October 29, 1,992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Richard .I. Martin
ALEXANDER, BAUCUS & LINNELL, P.C.
P.O. Box 2629
Great Falls, MT 59403
G. Curtis Drake
KELLER, REYNOLDS, DRAKE,
STERNHAGEN & JOHNSON. P.C.
38 South Last Chance Gulch
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA _