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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA 1999 MTWCC 32 WCC No. 9811-8096 GERALD SHARP Petitioner vs. MONTANA MUNICIPAL INSURANCE AUTHORITY Respondent/Insurer for TOWN OF TERRY, MONTANA, Employer. Summary: 57-year old Injured worker claimed he was permanently totally disabled. Held: In a bench ruling reported by transcript, WCC found claimant permanently totally disabled. Factors considered by the Court included (1) claimant had steady employment throughout his life; (2) claimant worked despite having pain over the years; (3) the Court was convinced claimant had serious pain despite taking heavy-duty pain medication; (4) Court was convinced claimant followed medical advice and tried to alleviate his pain; (5) chances were not good that an employer would hire claimant, even if he could work, given his limitations due to pain. Penalty and attorneys fees were not awarded where the case also contained facts pointing away from finding permanent total disability status making the insurer's position reasonable. Topics:
¶1 The trial in his matter was held on April 28, 1999, in Billings, Montana. Petitioner, Gerald Sharp (claimant), was present and represented by Mr. Marvin L. Howe. Respondent was represented by Mr. G. Andrew Adamek. Exhibits 1 through 10 were admitted into evidence without objection. Claimant, claimant's wife (Velva Jean Sharp), and Dennis McLuskie were sworn and testified. In addition the Court reviewed and considered depositions of claimant, Robert Zadow, and Dr. Roger S. Williams. ¶2 After all evidence had been presented, the Court deemed the matter submitted for decision and rendered its decision from the bench, holding that claimant is permanently totally disabled. It further held that the insurer's denial of his claim for permanent total disability was not unreasonable and accordingly declined to award attorney fees or a penalty. ¶3 The parties have agreed that a transcript of the Court's oral decision shall constitute its findings of fact and conclusions of law. A copy of the transcript is attached. ¶4 Accordingly, JUDGMENT is hereby entered as follows: ¶5 1. Since claimant is presently permanently totally disabled, Montana Municipal Insurance Authority (MMIA) shall pay him permanent total disability benefits retroactive to the date his temporary total disability benefits were terminated. The insurer is entitled to credit any permanent partial disability benefits, other than the impairment award, it has paid against its liability under this paragraph. ¶6 2. MMIA has not acted unreasonably, therefore claimant is not entitled to attorney fees or a penalty. §§ 39-71-611 and -2907, MCA (1995). ¶7 3. Claimant is entitled to his costs in an amount to be determined by the Court. He shall submit his memorandum of costs as provided in ARM 24.5.342. ¶8 4. This judgment is certified as final for purposes of appeal pursuant to ARM 24.5.348. ¶9 5. Any party to this dispute may have 20 days in which to request an amendment or reconsideration of this judgment. DATED in Helena, Montana, this 5th day of May, 1999. (SEAL) \s\ Mike
McCarter c: Mr. Marvin L. Howe 1 WORKERS' COMPENSATION COURT
2GERALD SHARP, WCC No. 9811-8096 3 Claimant, 4 v. 5 MONTANA MUNICIPAL INSURANCE 6 AUTHORITY/TOWN OF TERRY MONTANA, 7 Insurer/Employer. 8
9The above-entitled matter came on for hearing before the 10 HONORABLE MIKE MCCARTER, Judge of the Workers' Compensation Court, commencing on Wednesday, April 28, 1999, at 8:00 a.m. 11 12 APPEARANCES 13 For the Claimant: MARVIN L. HOWE 14
15 For the Insurer: G. ANDY ADAMEK 16
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21 Reported by 22 STEPHANIE A. MICHELS,Registered Professional Reporter 23 P.O. Box 20577, Billings, MT 59104-0577 24 406-656-3355
25 1 (Excerpt of Proceedings.) 2 THE COURT: I will tell counsel right now I'm 3 prepared to render a bench ruling in this case. I don't know 4 if that will shock either of you, but -- 5 MR. ADAMEK: Ask me, am I shocked? 6 THE COURT: Do you want to take five minutes to 7 prepare yourself? 8 MR. HOWE: No. But I take it then if I ask the 9 Court if we can submit findings and conclusions, the Court 10 would say, no, you can't do that or -- 11 THE COURT: Well, first off, you're late, because 12 the pretrial order required you to submit them in advance of 13 trial. And, secondly, I don't think they are going to be -- 14 MR. HOWE: Well, for future reference then, let me 15 ask you this. There aren't any times you can submit them 16 afterwards? 17 THE COURT: Only with my permission, and generally I 18 do not grant that unless the case is unusual. I have in a 19 couple of cases allowed it, or I think one case I have even 20 requested it because the facts were so complicated, there is 21 so much information, I have asked for it more for my purposes 22 of a opinion writing to make sure that I have covered 23 everything. But in most cases, I don't allow them unless they 24 are provided to me in advance. 25 MR. HOWE: I guess this is mostly for future 1 reference then, because I guess I'm just used to unfortunately 2 divorce-type cases where we actually have to submit them 3 beforehand and revamp them afterwards. 4 THE COURT: Right. 5 MR. HOWE: But what you are saying is, if you want 6 them, you better get them in beforehand, which is fine. 7 THE COURT: Well, I'm a bit more active of a writer 8 than a lot of district court judges. So, you know, if I have 9 a -- if I have a good -- if the parties have set out their 10 positions and they have identified where they think the case 11 ought to go and why, I can fill in the details pretty much 12 myself. 13 MR. HOWE: Your Honor, I'm sure my client wants to 14 go ahead and have the bench ruling now rather than a 15 five-minute break or -- 16 MR. ADAMEK: If you are ready to rule, I don't 17 intend to offer any additional information. 18 THE COURT: Okay. Yeah. You know, in the beginning 19 of the trial I sort of set out some of the stuff that I look 20 for. And I am going to find him permanently totally disabled. 21 Like I said at the beginning, you know, pain -- pain 22 is a factor that I have to consider, and it's a factor that 23 the docs, like Dr. Williams acknowledged that it's an 24 individualistic thing, he can't judge. 25 I have seen cases in which we have psychological 1 evaluations where there is a serious question as to whether or 2 not the pain is of the degree that the claimant tenders, or 3 trying to get at the root of why there is this much pain. 4 And I have listened to psychological testimony on it 5 in other cases, we don't have any in this case, we haven't had 6 any in any of the cases that I have heard this week. But I do 7 know that, you know, it's highly individualistic. I don't 8 really need a psychologist to tell me that. But when they 9 have testified, they have testified to that. Dr. Williams in 10 this case certainly testified to that. 11 Different individuals tolerate different degrees of 12 pain. Some of that has to do with motivation, very highly 13 motivated people, especially people with missions, can 14 tolerate pain that other individuals don't or can't pain, and 15 the pain threshold for different people is different. 16 If it's a question of just they lack motivation, 17 that is a different issue. If they -- you know, if they are 18 just saying I hurt and they are -- they have a level of pain, 19 but the real reason they are not working is because they are 20 not motivated, I'm not going to be too sympathetic with that. 21 And I think I have probably indicated that in prior cases. 22 So motivation does play a role in my decision. If that is 23 what is driving it as opposed to the pain, then they don't 24 gain my sympathy. 25 There is always the possibility of exaggeration and 1 malingering as well in pain cases, because it's subjective and 2 it's individualistic. There is also psychological factors 3 that come into play, things like depression, things like that. 4 Of course, we don't have a psychological work-up, so I can't 5 comment on whether his pain is extraordinary for what he has 6 got. 7 Obviously, he has some pretty serious conditions 8 with his back. I think, you know, medically, there is ample 9 evidence to verify that he ought to have some significant 10 pain. You know, whether he can live with it, I think is -- 11 only he can say. He has said he can't live with it on a basis 12 where he can handle an eight-hour a day job, or any job at 13 all, because activities -- you know, he gets a spin-off from 14 activities. 15 The real question, you know, is his credibility, 16 and, you know, I think I said at the very beginning I look for 17 outside verification. We look for -- I look for internal 18 consistency and I also look for external indications. 19 You know, when I have talked about how I judge 20 credibility, I refer to it as a Gestalt, which is a great 21 psychological term, some psychologist created that term, but 22 it means you look at the whole picture and sometimes the whole 23 picture is greater than the sum of the parts. 24 I mean, you can't, you know, fit the pieces together 25 necessarily like a specific puzzle, but when you look at 1 everything that you have heard and you have seen at trial, you 2 get a clear picture. In this case I have a pretty clear 3 picture. 4 And let me comment on a number of these things. 5 Forgive me because, you know, I have made a number of notes, 6 but I ramble a little bit when I issue these bench rulings, 7 and that is why written findings are little bit better because 8 I organize better when I write and it becomes a little more 9 coherent, but at least you will know when you leave today what 10 is going through my mind when, you know, when I find him 11 permanently totally disabled. 12 One of the factors that influences me is the fact 13 that he has had steady employment over his work life. 14 And the another factor is that he has worked despite 15 having pain over the years. Andy, you tried to make that into 16 a negative factor against him because he had, but I think that 17 also operates as a positive factor because he was able to work 18 in pain, with those levels of pain, would indicate to me 19 that -- particularly an absence of anything else, that the 20 pain has now reached a level where he just can't tolerate it. 21 And I think that is in fact what is happening here. 22 His -- the number of medications that he is taking 23 is an indication that he has got some pretty heavy-duty pain. 24 He he is into pretty heavy-duty medication, painkillers. 25 And, you know, I compare that, because I've heard a 1 lot of these cases, and I hear, you know, claimants who come 2 in and I can see different -- you know, every case is 3 different. And, you know, I have had cases where they have 4 come in and they are taking a couple aspirin or four Ibuprofen 5 in a day or something like that and claiming they are in 6 intractable pain. Well, those two things are a little bit 7 incompatible. Although, I have heard them say, Well, I hate 8 medication. Apparently they like -- you know, some people 9 like pain more than they like medication. I don't know. But, 10 anyway, his medication levels are consistent with his 11 complaint levels. 12 His statement about the Social Security disability, 13 this is a negative factor for him, does bother me, did bother 14 me. And there is some other things that I think raise 15 legitimate issues about -- legitimate questions about, Does he 16 hurt as bad as he says he does? Is his pain level 17 incompatible with employment? Or is something else going on 18 here? 19 I think there is enough here to raise legitimate 20 questions about those matters. One was the Social Security 21 matter. He did lie about the Social Security matter. He -- 22 we don't have anything to refute the phone call that he had 23 with the Social Security person. And I don't know what to 24 make of that. You know, it doesn't sound like somebody would 25 tell him that, but I also have seen studies where Internal 1 Revenue -- the people, when you call them, make mistakes in 80 2 percent of the cases. So I don't know think that is all that 3 far fetched. 4 And I note, and this is a thing that is very 5 positive in his favor, that after he talked to McKluskie, he 6 immediately called Paula Patrine (phonetic) to tell her about 7 it. McKluskie confirmed that she had told him that. So I 8 don't have any doubt about that. 9 So I think that was probably more of a 10 misunderstanding on his part than it was some sort of 11 intention to defraud or conceal or to get benefits that he 12 wasn't entitled to or something like that. 13 In looking at the medical records in this case, I 14 don't see any significant evidence of symptom magnification. 15 We don't have any witnesses, witness testimony to contradict 16 his accounts about what he can and he can't do, or his 17 particular pain levels. 18 We talked a little bit about videos. And I think 19 Andy said that there is no rototilling incident in this case. 20 And video is -- it has good things and it has bad things that 21 I have seen. Sometimes they are absolutely worthless. You 22 have to look at each of them individually. Sometimes they 23 boomerang and actually support the claimant's case, as it 24 did -- and it may have been in that Disjardin's (phonetic) 25 case that that occurred, where you see pain activity, where 1 the claimant is unaware that he is being filmed and shows 2 clear pain activity. That sort of operates in the claimant's 3 favor. And sometimes it shows activities that are completely 4 inconsistent with what a claimant says he can do and what he 5 has told other people that he can do. 6 So, you know, those are sort of double-edged swords 7 in a way, but we don't have that in any event, and we don't 8 have any eyewitness testimony indicating that his daily 9 activities are anything different than what he says they are. 10 There is some -- perhaps some internal 11 inconsistencies. Andy, you have picked up on some nits here 12 as far as what he has reported, but my impression of this is, 13 you know, you never -- never have anything that is perfect in 14 any event. If you have everything lining up perfectly in a 15 case, then somebody is probably lying. 16 MR. ADAMEK: No one would be here. 17 THE COURT: Or no one would be here, one or the 18 other. 19 MR. ADAMEK: Right. 20 THE COURT: But, basically, in looking at the 21 medical records and looking at his reports to his physicians 22 and what he said, my impression is, is that they are pretty 23 consistent with what he has testified. They are more 24 consistent than inconsistent. And cumulatively the nits don't 25 change my mind about that in the ultimate assessment. 1 His declining the work hardening concerned me a 2 little bit, it does concern me. I guess from my point of view 3 I think people ought to try. And if I was -- if I was 4 convinced that there was some value in trying, I might just 5 send him back and say, Before you come to me and ask for 6 permanent total disability, you've got to go out there and try 7 that work hardening program and then we will see. 8 In this case I am persuaded that that is probably a 9 waste of time. I just don't see it. I don't see any evidence 10 from the medical point the view that the work hardening 11 program presents some sort of special, unique activity that he 12 could do that would alleviate his pain, given the -- what the 13 level is. I think it's a good idea. I think the doctors had 14 good intentions about it, and I think it's generally good 15 advice. But I think in this case that it would be a waste of 16 time. 17 I understand his reaction. I would have preferred 18 that he tried it and failed than his not trying it at all. 19 But I think his pain level is such that I can understand that 20 he did refuse it. 21 His receiving more being disabled than when he works 22 is always a concern because it always creates the potential 23 that it decreases motivation, and maybe that decrease in 24 motivation is what is driving the case. 25 And I don't know how our system works to do that, 1 because it doesn't seem to make any sense to me that if you 2 can't work you get paid more than -- you know, taking home 3 more than what you got when you were working. It's almost a 4 penalty to work. And yet the system in some cases may create 5 that. But that is not his fault. It is not our fault. It's 6 just a fact of life. And I do have to factor it in in making 7 my determination of whether that is driving the case. And I'm 8 convinced it's not. 9 I don't think he is doing this just to get money. I 10 think he's indeed -- and, you know, this fellow is -- Mr. 11 Sharp, you are 57 years old. He has had a long work life. 12 And as I said, it has been steady work. It has been 13 consistent work. He has had a lot of jobs, but that is the 14 nature of what he has undertaken to do and what his skill 15 level has been during his lifetime, except for breaks between 16 employment. And for various reasons he has gone from one job 17 to another job, and he has been consistently employed and 18 supported his family. 19 And in the process of that his overall physical 20 condition at his age and given the problems he has, isn't that 21 great. And we have superimposed a fairly bad back at multiple 22 levels. It is not just a singular problem, it's a 23 multiple-level problem. 24 And there is a little bit of disagreement, I 25 suppose, about the motion segments, the motion and various 1 segments about that, but I don't think there is any 2 disagreement that he has a really bad back. And I think that 3 makes it a lot more difficult. 4 The relocation issue, I know he made some statements 5 about relocation, that certainly raises a bit of a red flag. 6 But Dennis McKluskie confirmed that he was saying, I can't 7 work, before that issue ever came up. And, again, you know, 8 if it was just a matter, I'm not going to work because I don't 9 want to relocate, I wouldn't be sympathetic to that, but I 10 think this is a case that has a lot more than that. 11 I guess the standard I have to look at is whether or 12 not there is a reasonable prospect of regular employment. And 13 the pattern that he has laid down, and I think he -- I think 14 realistically he has tried. I mean, he had the exercise 15 bicycle, he is going for walks. 16 This isn't a person who, you know, hasn't tried to 17 do anything to help himself out. He attempted the exercises. 18 And by the way, there is some medical support for a couple of 19 those exercises when he went to one of the physicians, I 20 remember, I remember when he was describing bringing his legs 21 up when he is laying on his back and that hurt. There is a 22 medical note in there verifying that, that -- in the doctor -- 23 when they tried that in the doctor's office, that that 24 produced some pretty severe pain. 25 So, you know, I think he has tried, and I think he 1 continues to try to keep his physical condition as best he can 2 and I think he is having a real problem doing it. 3 I think he does have to lay down periodically. I 4 think he has to change position. I did watch him today during 5 the trial, he did exhibit pain behavior and he exhibited pain 6 behavior that I did not think was exaggerated and I did not 7 think it was being consciously produced. 8 And I think I am fairly perceptive of that. I have 9 had some cases where I'm absolutely persuaded that some of the 10 pain behavior in this courtroom is for my benefit. And I 11 didn't see any of that in this case at all. 12 I think his discomfort -- I think he was 13 uncomfortable. I noted that he got irritated as the 14 examination progressed, I didn't think that was entirely 15 because of Andy's questions, I think he was uncomfortable. It 16 may have been in part because he was getting irritated at 17 Andy's questions, but I also think he was becoming 18 uncomfortable as well. 19 So I just -- you know, I think McKluskie, as I said, 20 I think he was honest and frank in his answers to the Court, 21 and I think he was. I mean, I think he was honest when he 22 said if he has to lay down as much as he had, having those 23 kinds of problems, no employer is going to take him. I think 24 that is an honest answer. And I think that is the bottom line 25 in the case. I just don't -- I don't think he can do it. 1 I'm not going to award penalty, I'm not going to 2 award attorneys fees. We have got -- you know, all the docs 3 have basically medically released him and said from a medical 4 point of view he can do it. There is enough internal 5 inconsistencies in this case and enough questions to question, 6 you know, whether or not the pain level is, he did not keep -- 7 he refused the work hardening program when it was offered. 8 He could -- I mean it's agruable that, you know, he 9 didn't really cooperate with the physical therapy. I think he 10 didn't because I think -- I think he was in too much pain, and 11 I credit that, but again, that goes to his credibility. 12 And we had jobs that were identified that with the 13 medical releases he could do unless his pain was everything as 14 he claims it is. And I am finding it is. But still I think 15 there were legitimate questions that were raised by the 16 insurer. So this isn't a case where it was an absolute 17 slam-dunk, the insurer should have looked at this case and 18 said, Benefits right now. I think they had a legitimate 19 argument. I'm not persuaded by their arguments, but I think 20 nonetheless they are entitled to their day in court. 21 Have I said enough? 22 THE COURT REPORTER: Yes. 23 (Laughter.) 24 THE COURT: I guess, I think I've exhausted it. And 25 unless counsel have any questions, we will just adjourn the 1 trial. 2 MR. ADAMEK: The decision regarding permanent total 3 disability benefits, do you envision that that can be 4 revisited in the future, or is that just a finding now that he 5 is permanently totally disabled? 6 THE COURT: Well, it can only be a finding that he 7 is presently permanently totally disabled, but if his 8 condition doesn't change. You know, in order to challenge 9 that, his condition would have to change. If you can find a 10 way to alleviate his pain, he will be happy, I will be 11 delighted, and everybody will be better off. 12 MR. ADAMEK: The world will be a better place. 13 THE COURT: That's right. Okay? 14 MR. ADAMEK: Thank you. 15 THE COURT: All right. Thank you. 16 (Proceedings concluded.) 17 --oo0oo-- 18 19 20 21 22 23 24 25 1 2 CERTIFICATE OF REPORTER 3 4 I, STEPHANIE MICHELS, Registered Professional Reporter 5 and a Notary Public of the State of Montana, 6 Do hereby certify that I reported in machine shorthand 7 the foregoing proceedings at the time, place and with the 8 appearances of counsel hereinbefore noted. 9 I further certify that the transcript transcribed from my 10 original shorthand notes by means of computer-assisted 11 transcription, is a full, true, and correct transcript of the 12 oral testimony adduced therein, to the best of my ability. 13 I further certify that I am not of counsel for, nor in 14 any way related to, any of the parties in this matter, nor am 15 I in any way interested in the outcome thereof. 16 IN WITNESS WHEREOF, I have hereunto set my hand and 17 affixed my Notarial Seal this 29th day of April, 1999. 18 19 20 21 22 \s\STEPHANIE MICHELS 23 Registered Professional Reporter, and Notary Public of the State of 24 Montana, residing at Billings, Montana. My commission expires 25 September 26, 2002. |
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