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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1996 MTWCC 44
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH
Summary: A 27 year old laborer injured her right shoulder, neck, right hand, back and right food when falling from cooling tower. After DOL hearing officer determined that claimant was capable of working as a self-service gas station attendant, and that the first appropriate return-to-work option under section 39-71-1012, MCA (1987), was return to a related occupation, claimant appealed, alleging the decision was not supported by substantial evidence. Insurer cross-appealed, regarding hearing officer's alleged failure to take notice of a deposition. Claimant contended, among other things, that hearing officer failed to give weight to letter from treating physician read by claimant at hearing.
evidence supported hearing officer's findings and conclusions. Although
claimant argues hearing officer did not give deference to treating physician's
letter, a treating physician's opinion is not conclusive. Where the treating
physician's letter contradicted his earlier opinions, which earlier opinions
were consistent with other medical opinion and the results of a functional
capacity evaluation, the hearing officer did not err in finding claimant
could return to work under option (c). Given this conclusion, it is unnecessary
to reach insurer's appeal.
This is an appeal and a cross-appeal from a decision of the Department of Labor and Industry that option (c) of section 39-71-1012, MCA (1987) -- return to a related occupation suited to claimant's education and marketable skills -- is the first appropriate rehabilitation option for Michelle Chapman, the claimant in this matter. Chapman appeals on the ground that the findings of fact issued by the Department's hearing officer are not supported by substantial evidence. (Notice of Appeal, 1/8/96.) The insurer/respondent, National Union Fire Insurance Company of Pittsburgh (National), cross-appeals. It alleges that the "findings of fact identified (1)do not comport with the evidence in the record. . . that the hearing officer was required and failed to take judicial notice of Ms. Chapman's prior deposition testimony as required by Mont. R. Evid. 201."(Amended Notice of Appeal, 1/24/96 at 2.)
Claimant is 27 years old. She is a high school graduate and has attended one year of college. She has worked as counter person, salad maker and cashier, a flagger, a laborer, and a hostess/cashier at JB's. Her last job was as a laborer with Research Cottrell. She was injured on that job on May 16, 1989, and has not worked since.
This case arises out of claimant's May 16, 1989 injury. At the time of the injury claimant's employer was performing work at the Colstrip power plant. Claimant was working on a cooling tower at the plant when she fell. Initially, she fell approximately eight feet, grabbing a 2x4 cross member to stop her fall. She dangled momentarily, then fell another eight feet to a concrete floor, landing on her right shoulder and side. Claimant has provided conflicting reports as to which hand she used to catch onto the cross member. However, the fact that she injured her right shoulder, neck, right hand, back and right foot is not disputed.
At the time of claimant's injury Research Cottrell was insured by National, which accepted liability for the injury.
Since her injury claimant has been seen by numerous doctors and physical therapists. Her primary treating physician is Dr. Richard A. Nelson. She was also seen by Dr. William Anderson at the Colstrip Medical Clinic, three different emergency room doctors between the dates of May 18, 1989 and May 22, 1989, Dr. William Shaw in an IME requested by National, Dr. Thomas Johnson, Dr. John Cook, Dr. Donald See, Dr. Robert K. Snider, Dr. Joseph Rich (a psychiatrist), and Dr. Thomas L. Schumann in another IME requested by National. Claimant has also been treated by physical therapists Mary Mistal and Stacy Padden and by occupational therapist Susan Zimmerman.
Dr. Robert K. Snider, an orthopedic surgeon, treated claimant during 1990. On November 8, 1990, he assigned claimant a 15% whole person impairment rating.
Thereafter, claimant underwent a functional capacity evaluation (FCE) at St. Vincent Health and Fitness Center beginning on December 11, 1990. Stacy Padden, the physical therapist who supervised the evaluation summarized the results and her recommendations:
(Ex. 15 at 11; underlining in original.) The FCE Form indicated the claimant was able to lift 10 pounds frequently and up to 24 pounds occasionally. She could carry up to 10 pounds frequently and up to a maximum of 25 pounds occasionally. On the basis of an eight-hour work day, with two fifteen minute breaks and a half-hour for lunch, the claimant could be expected to tolerate sitting for two to three hours-with rest, standing for five to six hours-with rest, and walking for five to six hours-with rest. (Id.)
In January of 1991, Crawford & Company Healthcare Management was retained by National to perform a rehabilitation assessment. Patricia Murray, a certified rehabilitation counselor, was assigned by Crawford to do the actual assessment. She identified three jobs that the claimant might be able to perform given her education, transferrable skills and physical restrictions. Job analyses for those jobs were submitted for review to Dr. Thomas Johnson, an orthopedic surgeon and associate or partner of Dr. Snider, who had treated the claimant beginning on October 25, 1989, through at least March 14, 1990. The job analyses were also provided to physical therapist Stacy Padden. On January 16, 1991, both Dr. Johnson and Ms. Padden approved the positions of host/hostess and cashier II (courtesy booth). They disapproved fast food worker.
On November 4, 1992, Dr. Nelson reviewed and without comment signed the Estimated Functional Capacity (EFC) Form. He also reviewed and approved the job analyses for the positions of hostess and courtesy booth cashier. In the comment portion of the job analyses forms he wrote "as per restrictions previously cited." Dr. Nelson's records prior to November 4, 1992, do not reveal any restrictions other than those set forth on the EFC Form which he had signed. As did Dr. Johnson and Ms. Padden, he disapproved fast food worker.
Over a year and a half later, in January of 1994, Dr. Nelson was again asked to review job analyses prepared by Crawford. Once more, he approved Ms. Chapman's return to work as a restaurant hostess and as a courtesy booth cashier. Additionally, he approved the job description for attendant in a self-service gas station. Finally, for a second time he reviewed and signed the EFC Form.
In November 1994, the insurer requested a rehabilitation panel be convened to determine the first appropriate return-to-work option for the claimant.(2) The panel met on December 20, 1994. Claimant and her counsel telephonically participated in the meeting.
In anticipation of the panel meeting, the claimant's attorney sent claimant to be examined by Dr. Richard A. Nelson on December 14, 1994. (Appellant's Reply Brief at 3.) On December 16, 1994, Dr. Nelson wrote a letter addressed "To Whom It May Concern." Claimant's attorney mailed the letter to the Rehabilitation Panel for its consideration. The letter did not reach the Rehabilitation Panel members prior to its meeting on December 20, 1994. However, National states, and the claimant does not dispute, that claimant's counsel read Dr. Nelson's letter to the panel members during the meeting.
In his December 16th letter Dr. Nelson noted:
(Ex. 13 at 5.) Dr. Nelson went on to repudiate, without any explanation whatsoever, his prior approvals of two jobs and his concurrence in the prior FCE:
Notwithstanding Dr. Nelson's December 16th letter, on January 9, 1995, the Panel recommended "option (c), return to a related occupation suited to the claimant's education and marketable skills. . . ." (Ex. 1 at 2, underlining in original.) On January 18, 1995, the Department then issued its Initial Order of Determination, adopting the Panel recommendation. (Ex. 2.) Two of the three members of the panel approved three positions as appropriate, those being hostess, hostess/cashier, and self-service gas station attendant. One member felt that the gas station attendant was not typically available because he identified only two current openings.
Claimant requested a hearing. A hearing was then held on May 24, 1995, in Billings, Montana. Twenty-two exhibits, primarily consisting of medical records, were admitted into evidence. The only witnesses were the claimant and Dr. Thomas L. Schumann. Dr. Nelson did not testify either by deposition or at the hearing.
Dr. Schumann specializes in occupational medicine. At the request of National, he conducted an independent medical examination (IME) of claimant on February 27, 1995. In addition to examining claimant he reviewed the medical records of Drs. Cook, Hart, Johnson, Nelson, See, Shaw, and Snider, and the records of chiropractor Howard Norris and physical therapist Mary Mistal. He also reviewed the notes of Sue Zimmerman, occupational therapist, reports from Health Partners, and correspondence from Crawford & Co., including the EFC Form and the job analyses previously mentioned.
In his testimony at hearing, Dr. Schumann agreed that claimant had reached maximum medical improvement. He gave a total combined impairment rating of 10% of the whole person. The discrepancy between his rating and that of Dr. Snider was due to the difference in the edition of the AMA Guide used by the doctors. He reported that claimant had told him that she is unable to lift over 5-10 pounds and had to change position frequently. Finally, he reviewed and approved the job analysis for the car wash attendant. The position was actually for self-service gas station attendant, the same position previously approved by Dr. Nelson, but was based on a job audit of a position at Don's Car Wash. (Ex. 22 at 5.) Based on the claimant's report of "not feel[ing] that she could do the hostess/cashier job due to the requirement for waitressing at times," Dr. Shumann disapproved the job analysis for that position until further functional observations could be made. (Ex. 4 at 4.) However, at hearing he testified that she could perform the job of hostess/cashier, although he also felt that she should undergo a work-hardening program to determine if in fact she could carry plates. (Tr. at 16-17.)
On cross-examination the doctor was questioned closely about the basis of his opinion that claimant could do the job of a self-service gas station attendant, which is primarily a cashier position:
(Tr. at 25.)
Dr. Shumann's observations of claimant during his February 1995 examination differed significantly from what Dr. Nelson had reported in his December letter. In his letter Dr. Nelson described the limitations of claimant as follows:
(Ex. 13 at 5.) Dr. Schumann observed and reported:
(Ex. 4 at 2-3.) At the time of the hearing the doctor explained the term "antalgic gait pattern."
(Tr. at 12-13.) In a similar vein when questioned about how the Adson's maneuver was performed, the doctor explained:
(Id. at 14.) The claimant was able to perform this maneuver.
In her testimony the claimant testified she has good and bad days, that she now uses her left hand when writing, and that she frequently lies down and uses the heating pad. She testified that if she does too much on one day, the next day she will have to take extra rest and use a heating pad. At the time of the hearing claimant was in her third trimester of a pregnancy, a fact, as noted by Dr. Shumann, which could affect her back pain and make her uncomfortable. Nonetheless, claimant testified that although her symptoms remain the same, she feels that she is currently managing her pain better than she was at the time of the FCE in 1990. (Tr. at 42.) She also indicated that her capacities have remained about the same since 1990. (Tr. at 52.) Finally, she acknowledged that she was uncertain about her ability to do certain tasks and stated "I guess I could try."
The hearing officer issued his Findings of Fact, Conclusions of Law, and Order on December 29, 1995. In his decision the hearing officer found that option (c) is the first appropriate option under the 1987 rehabilitation provisions. He discounted Dr. Nelson's December 1994 opinions, pointing out that they sharply contrasted with his prior opinions and his approval of three jobs. The hearing officer further noted that claimant by her own testimony stated that her limitations are essentially the same now as at the time of the 1990 FCE, which indicates that the FCE is a valid measure of her current abilities. Finally, although he observed that "claimant certainly does not appear to be the type to exaggerate her symptoms in order to avoid returning to work," he went on to point out that her responses to many questions suggested that she is not truly sure of her functional limitations. (Findings of Fact, Conclusions of Law, and Order at 16.)
Following the hearing officer's decision, the claimant appealed to this Court, alleging that the hearing officer's findings of fact are not supported by substantial evidence. National then filed a cross-appeal concerning certain evidentiary matters and the omission of findings which it believes the hearing officer should have made.
The claimant was injured on May 16, 1989. Under the general rule that the law in effect at the time of injury must be applied in determining a claimant's entitlement to benefits, Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986), the 1987 version of the Montana Workers' Compensation Act applies to this case. Under the 1987 laws, a procedure for determining a claimant's ability to return to work was established.
Initially, section 39-71-1012, MCA (1987), set forth the purpose of the provisions and a prioritized list of options, as follows:
Where the injured worker has not returned to work, the matter must be referred to a rehabilitation panel for it to recommend a first appropriate option. § 39-71-1-15(3), MCA. The Department of Labor and Industry must then review the panel recommendation and issue an initial order of determination. § 39-71-1018, MCA. It may reject the panel's recommendation, but if it does so it must state reasons for the rejection. § 39-71-1018(1), MCA. Then if either the injured worker or the insurer disagree with the initial determination, a hearing may be requested, section 39-71-1018(2), MCA, as was done in this case. After the hearing officer issues the Department's final decision, either party may appeal to the Workers' Compensation Court. § 39-71-1018(4), MCA.
Section 39-71-1018, MCA (1987), provides for an appeal to the Workers' Compensation Court from the Department's final order. Review of that Order is governed by section 2-4-704 (2), MCA. As relevant to the present appeal, it provides:
As a general rule, when reviewing a decision under the clearly erroneous standard of review, the hearing officer's findings of fact may be overturned only where they are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. State Compensation Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 97, 102, 827 P.2d 85, 88 (1992). The Court will not reweigh the evidence; the findings will be upheld if they are supported by substantial credible evidence in the record. Nelson v. Semitool, Inc., 252 Mont. 286, 289, 829 P.2d 1, 3 (1992).
Relying heavily on Dr. Nelson's December 1994 letter, the claimant argues on appeal that the hearing officer's option (c) finding is not supported by substantial evidence. (Notice of Appeal, January 8, 1996; Appellant's Opening Brief.) As noted in the previous paragraph, this Court may not reweigh the evidence or substitute its own view of the facts for those of the hearing officer. The findings must be upheld "if they are supported by substantial credible evidence in the record."
Claimant argues that the hearing officer improperly disregarded the opinions of her physician, Dr. Nelson, and in particular Dr. Nelson's December 16, 1994 letter. The Supreme Court in its recent decision in Kloepfer v. Lumbermens's Mutual Casualty Co., 53 St. Rep. 486, 487 (Mont. 1996), discussed the evidentiary weight of a treating physician's testimony.
(Finding of Fact, Conclusions of Law, and Order at 16-17; emphasis added.)
On the other hand, the hearing officer heard testimony from Dr. Schumann, who testified as to claimant's ability to perform at least one of the jobs approved by the panel. Under the circumstances of this case, the hearing officer was justified in rejecting Dr. Nelson's December 16th opinions.
Moreover, other medical evidence supported his determination. Dr. Nelson, as noted, had previously approved the job of self-service gas station attendant. The 1990 FCE also supported a conclusion that claimant has residual physical abilities which are compatible with the position, and claimant herself testified that her physical condition is little different now than at the time of the 1990 FCE. She also indicated that she manages her pain better now than in 1990 and expressed uncertainty as to what she can truly do.
The hearing officer's finding that claimant is capable of working as a self-service gas station attendant, and his corollary conclusion that option (c) is the first appropriate option, are supported by substantial evidence and are not clearly erroneous.
Since National does not argue that option (a) or (b) is appropriate in this case, it is unnecessary to address its assignments of error.
1. The December 29, 1995 decision of the hearing officer is affirmed.
2. Any party to this dispute may have 20 days in which to request an amendment or reconsideration of this decision.
3. This ORDER is certified as final for purposes of appeal pursuant to ARM 24.5.348.
Dated in Helena, Montana, this 25th day of June, 1996.
c: Mr. Don Edgar Burris
1. Respondent does not specifically identify the findings of fact to which it objects. Apparently they include #2 and #27, but the reference to claimant's credibility is not found in the findings. There is a reference in the conclusions of law which is merely an observation that she "certainly does not appear to be the type to exaggerate her symptoms in order to avoid returning to work."
2. There is no explanation why it took so long to request rehabilitation panel review.
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