Total. Disability is not a wholly medical determination. In addition
to claimant's age, education, work history, skills and abilities,
pain is another factor the Court must consider in deciding whether
claimant is permanently totally disabled. Pain may be so severe for
some individuals that it renders them physically incapable of performing
regular employment within section 39-71-116(16) (1991), MCA. Court
credited claimant's pain reports and found him PTD, noting that inability
to work on a regular, sustained basis is not the equivalent to inability
to engage in any sort of activity.
Depression. Where psychologist's testimony indicated claimant's
depression arose from his disability and pain following injury, the
impact of the depression on his experience of pain and on his ability
to work was among the factor's considered by the Court as indicating
PTD. However, the Court noted that treatment of depression may change
claimant's inability to engage in work on a regular, sustained basis.
is not a wholly medical determination. In addition to claimant's age,
education, work history, skills and abilities, pain is another factor
the Court must consider in deciding whether claimant is permanently
totally disabled. Pain may be so severe for some individuals that
it renders them physically incapable of performing regular employment
within section 39-71-116(16) (1991), MCA.
Insurer presented video tapes showing claimant vacuuming a car, working
on a truck, squatting to fill a gas can, walking on a hunting trip,
and involved in some fashion in various outdoor activities. Doctors
who viewed videos agreed claimant could do more than he had portrayed
in office visits, but continued their assessment of restrictions. Court
credited claimant's pain reports and found him PTD, noting that inability
to work on a regular, sustained basis is not the equivalent to inability
to engage in any sort of activity.
¶1 The trial in this matter
was held on February 22, 1999, in Helena, Montana. Petitioner, Robert
E. Winfield (claimant), was present and represented by Mr. Richard J.
Pyfer. Respondent, State Compensation Insurance Fund (State Fund), was
represented by Mr. David A. Hawkins.
¶2 Exhibits: Exhibits
1 through 17, 19 and 20 were admitted without objection. Exhibit 18
¶3 Witnesses and Depositions:
The claimant, Linda Winfield, Joe Winfield, and Bob Harris were sworn
and testified. In addition, the parties agreed the Court may consider
the depositions of claimant, Robert E. Harris, Bill Visser, Herb Keating,
and Dr. Allen M. Weinert.
¶4 Issues Presented:
1. Whether claimant is
permanently totally disabled and, if so, the date when disability
2. Whether claimant is
entitled to costs, attorneys fees and a penalty.
¶5 Having considered the
Pretrial Order, the testimony presented at trial, the demeanor and credibility
of the witnesses, the depositions, and exhibits, the Court makes the
FINDINGS OF FACT
¶6 Claimant is 46 years old.
He resides in Helena, Montana, with his wife, Linda Winfield, and their
¶7 In 1975 claimant received
his B.S. in Zoology from Washington State University. He has also completed
approximately one year of graduate credits in Wildlife Biology.
¶8 In 1978 claimant went
to work for the Montana Department of Fish Wildlife and Parks (Fish
& Wildlife). His employment with Fish & Wildlife was as follows:
1978 to 1985 Game Warden
1985 to 1988 Warden Sergeant
1988 to 1994 Warden Captain
1994 to 1996 Head of Undercover
for the State of Montana
(Ex. 11 at 172.)
¶9 Claimant's work history
prior to Fish & Wildlife consisted of selling boats, construction
labor, and ranch work.
¶10 In the early morning
hours of September 21, 1991, a bull moose ran loose in the city of Great
Falls. Claimant received a phone call to go forth and bring down the
beast, and so he did. He tranquilized and noosed the moose, then attempted
to load him into a trailer. As he loaded the behemoth, claimant strained
¶11 Fish & Wildlife was
insured by the State Fund at the time of claimant's injury. Claimant
filed a claim with the State Fund. (Ex. 1.) The State Fund accepted
the claim and has paid medical and wage-loss benefits. (Pretrial Order
Subsequent Work and Benefits
¶12 After his injury, claimant
took four or five days off of work, then returned to his regular job.
¶13 Claimant's back continued
to bother him but he continued working until June of 1996. He felt he
could no longer perform his job on account of his back pain. (Winfield
Dep. at 7-10.) He has not worked since then.
¶14 The State Fund's record
of benefits paid claimant is found at Exhibit 20 and reflects the following:
04/28/97 to 05/02/97 Permanent
12/08/97 to 02/01/98 Total
02/02/98 to 06/02/98 Temporary
Total Disability Benefits
06/03/98 continuing to
present Permanent Partial Benefits
¶15 In this action, claimant
seeks permanent total disability benefits retroactive to the date he
reached maximum medical improvement.
¶16 Claimant initially sought
treatment for his injury on October 28, 1991, when he was seen by Dr.
Tim Weill. (Ex. 2.) Dr. Weill's office note records that claimant was
"having a flare-up of some chronic lower back pain secondary to lifting
a moose recently." (Id.) Claimant reported "some leg paresthesias
but nothing persistent" and straight leg raising testing elicited "some
sciatica-type pain with radiation into the right buttock at about 75-80
on the right . . . ." (Id.) X-rays were taken and interpreted
as "reveal[ing] some degenerative changes at all disk space levels and
especially a lot [sic] of narrowing at L5-S1." (Id.) Dr. Weill's
assessment was "Degenerative disk disease, lumbar spine, with flare-up
mostly at L5-S1 with right sciatic symptoms." (Id.) On November
5, 1991, the doctor prescribed two to four weeks of physical therapy.
¶17 Dr. Weill referred claimant
to Dr. Ronald M. Peterson, at the Industrial Medicine Clinic at the
Montana Deaconess Medical Center in Great Falls. Dr. Peterson first
saw claimant on March 24, 1992. At that time claimant had constant pain
in his low back and "occasional radiation of the pain from his right
lower back into his right thigh." (Ex. 7 at 98.) Straight leg raising
was positive on the right side. (Id.) Dr. Peterson's impression
was lumbar muscle strain with myofascial pain component. (Id.)
He prescribed physical therapy and medication. (Id.)
¶18 On March 31, 1992, Dr.
Peterson ordered an MRI. (Id. at 101.) The MRI disclosed a
small disk herniation at L5-S1 but no evidence of nerve root impingement.
It also disclosed joint space narrowing. Finally it disclosed a diffuse
bulge at L4-5, along with disk dessication. (Id. at 103.) On
April 9, 1992, Dr. Peterson referred claimant to Dr. Dale M. Schaefer
for a further consultation. (Id. at 104.)
¶19 Dr. Schaefer, a neurosurgeon,
then saw claimant. (Ex. 8 at 109.) His initial examination was on April
27, 1992. (Id.) At that time, claimant was complaining of low-back
pain, pain and tingling in his right buttock and thigh, and intermittent
aching of the right testicle. (Id.) Dr. Schaefer noted that
claimant had not experienced leg pain prior to his encounter with the
wayward moose. In reviewing an MRI of claimant's lumbar spine, Dr. Schaefer
I did review an MRI of
his lumbar spine. He has narrowing of the L5/S1 disc space, but there
appears to be no disc protrusion at this level. He has a broad based
bulging of the annulus at L4/5, which is rather symmetric and does
not seem to favor either side.
It is conceivable, at
least, that in the standing position with axial loading that this
and could become a significant lesion for him.
(Id. at 110.) Dr.
Schaefer referred claimant to Dr. Terry L. Jackson for an epidural steroid
¶20 Dr. Jackson, a physiatrist,
first saw claimant on May 11, 1992, and continued caring for him until
November 1992. (Ex. 6 at 66.) During that time, Dr. Jackson ordered
numerous tests, including additional MRIs, a CT scan, a myelogram, a
bone scan, a discogram, and an EMG. He also treated claimant with epidural
steroid injections. The number of tests and needles which claimant permitted
himself to be subjected to between May and November, while still working,
is strong evidence that claimant was suffering significant pain.
¶21 After seeing little improvement
in his condition, Dr. Jackson referred claimant to Dr. Michael E. Luckett
to obtain a surgical opinion. (Id. at 97.)
¶22 Dr. Luckett is a board
certified orthopedic surgeon. He first saw claimant on October 29, 1992.
Claimant reported low-back and lower right extremity pain. (Ex. 3 at
3.) Dr. Luckett reviewed an MRI scan done in September of 1992, and
interpreted it as showing " a L5, S1 desiccated disc with a narrowed
disc space and a L4,5 desiccated disc with very mild disc space narrowing."
(Id.) He also commented that EMG and nerve conduction studies
were "consistent with a possible mild right S1 radiculopathy and possibly
a mild L5 radiculopathy as well." (Id.; See also Ex.
4 at 61.)
¶23 Dr. Luckett did not consider
claimant a good candidate for surgery and treated claimant conservatively,
prescribing an exercise program and medications for pain (Tylenol #3
and Relafen) and sleep (Elavil, which is an antidepressant). (Ex. 3
at 4.) As of May 30, 1995, Dr. Luckett reported that claimant's symptoms
"were essentially the same as they had been in the past with intermittent
low back and right lower extremity pain." (Id. at 21.)
¶24 In a letter dated September
29, 1995, Dr. Luckett expressed his opinion that claimant had reached
maximum medical improvement (MMI). (Id. at 22.) At that time,
claimant was still working.
¶25 Claimant's next visit
to Dr. Luckett was August 20, 1996. By this visit he was no longer working
and reported that his symptoms had worsened over the past year. (Id.
at 24.) Dr. Luckett reported that claimant's neurological exam remained
normal and observed that "his symptoms are not dramatically changed
over previously." (Id.) He renewed claimant's prescription
for Relafen and rated claimant's impairment at 7%. (Id.)
¶26 In January of 1997, claimant
reported to Dr. Luckett that he felt he could not return to his time-of-injury
employment. Based on claimant's subjective complaints, Dr. Luckett ordered
a functional capacity evaluation (FCE). (Id. at 26.)
¶27 The FCE was conducted
in February 1997, by physical therapist Jeff Swift (Swift). (Ex. 9.)
Swift opined that claimant cannot return to his time-of-injury job but
concluded that claimant is capable of light work with the following
restrictions: frequent position changes (every 30 to 40 minutes), no
sustained walking longer than 10 minutes, and lifting no more than 20
pounds on an occasional basis. (Id.) Swift also noted that
"[s]ymptom magnification behavior was not exhibited"
and that claimant "was consistent in demonstrated and reported symptomatology
throughout the examination." (Id. at 116.)
¶28 Following the FCE, Dr.
Luckett concurred that claimant cannot return to his time-of-injury
job (ex. 3 at 28), and that opinion is not contested by the State Fund.
¶29 In September of 1997,
Dr. Luckett reported that claimant was complaining of worsening symptoms.
His office note records:
He notes his symptoms
are getting worse. He has pain radiation into the S1 dermatone on
the right. He does not note any frank weakness but he is limited in
his ability to walk at a couple of blocks.
(Id. at 30.) Dr.
Luckett ordered a new MRI of the lumbar spine. (Id.) The MRI
showed degenerative disk disease of the lower three lumbar levels, and
a total loss of disk space at L5, S1. (Dr. Weinert's Dep. Ex. 1 at 25.)
The radiology report indicated that the findings were "compatible with
degenerative changes that have advanced very slightly since the prior
exam." (Ex. 3 at 31.) On September 18, 1997, Dr. Luckett reported that
while claimant remained symptomatic, he was "not clearly a candidate
for surgery at this point in time." (Id. at 33.)
¶30 Claimant's next visit
with Dr. Luckett was January 6, 1998. Claimant continued to complain
of the same symptoms. Dr. Luckett recommended that claimant seek a second
opinion regarding surgery. (Ex. 3 at 48.)
¶31 In November 1998, claimant
began treating with Dr. Allen M. Weinert, Jr., a board certified physiatrist,
on a referral from Dr. Luckett.
¶32 Dr. Weinert testified
at his office but with the Court present. His testimony was transcribed.
¶33 In his initial examination
on November 5, 1998, Dr. Weinert noted that claimant had an antalgic
gait (limp) on the right side and exhibited frequent postural changes.
(Weinert Dep. at 8.) Dr. Luckett had earlier observed claimant limping.
(September 5, 1997 examination; Ex. 3 at 30.)
¶34 Dr. Weinert testified
that his examination findings were consistent with those of Dr. Luckett.
(Weinert Dep. at 10.) In comparing the 1992 and 1997 MRIs, Dr. Weinert
concluded that claimant's degenerative disk disease had worsened. (Id.
at 10-11.) He also concluded that claimant was suffering from sleep
dysfunction and depression secondary to his injury, and prescribed Zoloft
and Amitriptyline for these conditions. (Id. at 15-16.) Both
medications are antidepressants. (www.medscape.com.)
¶35 Dr. Weinert saw claimant
on two additional occasions, December 10, 1998 and January 21, 1999.
Claimant's complaints remained the same, although he reported some improvement
in his mood.
¶36 Most recently, claimant
has seen Dr. Max Iverson, who is an orthopedic surgeon practicing in
Helena. Dr. Iverson has raised the possibility that claimant may be
"a candidate for interdisc electro thermal treatment." (Weinert Dep.
Ex. 3.) His report was on February 4, 1999, and the Court has no more
recent information concerning follow-up to the recommendation.
Medical Releases to Return
¶37 Both Drs. Luckett and
Weinert opined that claimant's medical condition does not preclude him
from returning to work and that he is capable, with some restrictions,
of performing sedentary and light work.
¶38 On February 5, 1998,
Dr. Luckett wrote the following to claimant:
Your functional capacity
examination would qualify you for light work. Qualifying for light
work does not mean that you will be able to do light work with no
pain. My responsibility is simply to indicate whether you are able
physically to do this level of work.
(Ex. 3 at 49.) Regarding
claimant's pain complaints and its impact on his personal life, Dr.
Luckett further commented:
The issue of quality of
life, particularly with regard to relationships within the family,
is out of my area of expertise. The only comment that I can make in
this regard as a casual observer is that people choose how they wish
to react to a painful stimulus. This phenomena is known as "suffering"
and people clearly choose to suffer or not to suffer. These are issues
which are best addressed either with a psychologist or a psychiatrist
and if you feel you wish to have a referral, please let me know and
I can make arrangements for this.
¶39 On December 13, 1997,
Dr. Luckett approved a job analysis for insurance claims adjuster on
a "trial basis." He noted that "total sitting time may be too much."
(Id. at 47.) Later, he conditionally approved a "communications
systems operator" position. (The position is better described as a "dispatcher"
for law enforcement.) (See Id. at 55-58.) His approval was
with the following proviso: "as long as can alternately sit and stand
as sx [symptoms] dictate." (Id. 3 at 58.)
¶40 Dr. Weinert testified
that, in his opinion, claimant can work in the sedentary to light jobs
but would require accommodation for "prolonged static posture, sitting
or standing." (Weinert Dep. at 34.) Dr. Weinert was never requested
to review any job analysis relating to the claimant. (Id. at
¶41 Claimant received eight
weeks of vocational rehabilitation counseling from Herb Keating (Keating),
who was assigned to his case in July of 1997. Keating testified by deposition.
¶42 He saw claimant six times
over the course of eight weeks. Their encounters generally lasted half
an hour to an hour. (Keating Dep. at 8-9.) During those visits, Keating
noted that claimant had difficulty maintaining a static position. (Id.
at 22.) He observed that claimant was continually shifting his
position and on occasion had to lie on the floor during their meetings.
(Id. at 21-22.) He testified that he had no reason to question
claimant's manifestation of pain, and that claimant was cooperative
throughout the rehabilitation process. (Id. at 23.) He felt
that claimant was motivated to return to work if he could find an appropriate
job. (Id. at 20.)
¶43 In evaluating claimant's
ability to return to work, Keating relied on the opinions of Dr. Luckett
and the FCE examiner, Jeff Swift. (Id. at 7.) He assumed that
claimant was physically restricted to a sedentary position which allows
for frequent postural changes. (Id.)
¶44 Keating contacted claimant's
time-of-injury employer and learned that there was no sedentary position
available for claimant. He then evaluated alternative positions. On
November 20, 1996, he identified two possible jobs: (1) Meat and poultry
inspector and (2) insurance claims adjuster. (Ex. 11 at 169.) Dr. Luckett
approved only the insurance claims adjuster position, but as noted in
Finding 39 his approval was conditional.
¶45 In April of 1998, Keating
identified an additional job as appropriate for claimant. That job was
as a law enforcement dispatcher (communication systems operator) for
the Montana Highway Patrol. As stated in Finding 39, Dr. Luckett approved
this position with the condition that claimant be able to sit/stand
as his symptoms dictated. (Ex. 3. at 58.)
¶46 Claimant testified that
he applied for a claims adjuster position at the State Fund and never
received a response. He also went to the Highway Patrol dispatch center
to inquire about the position. He was told that employees were required
to work full shifts and that there was a lot of sitting involved. Based
upon the information he obtained from the employer, he did not apply
for the dispatch job.
Pain and Depression
¶47 Claimant testified that
following his industrial injury he was able to control his pain through
medication and physical therapy, and thereby continue working. However,
his condition deteriorated. He testified that he began experiencing
more severe pain radiating down his right leg, pain in his right testicle,
and pain in his buttocks. Since the accident he has also had significant
problems sleeping. On a good night he sleeps five or six hours.
¶48 By 1994 he developed
a limp. In June of 1996 he stopped working. He has not worked since.
¶49 According to claimant,
his wife and his son, claimant's daily activities are restricted. He
wakes around 7:00 a.m. Generally, he has pain in his lower back and
right leg upon waking. He gets breakfast for his younger son and daughter.
He takes his children to school. He may then do household errands or
¶50 Around the house, claimant
dusts and cooks, and generally helps keep things tidy. If he vacuums,
he does one room at a time and then lies down. He occasionally carries
groceries but estimates that he doesn't normally lift more than ten
¶51 Claimant spends much
of his day and evening lying on the floor.
¶52 Claimant's condition
has seriously impacted his interaction and relationship with his family.
Often he is irritable and intolerant. Claimant testified that he is
depressed and has thought about suicide.
¶53 Dr. J. Bailey Molineaux,
a clinical psychologist, relates claimant's depression to his work injury
and chronic back pain. (Ex. 5 at 63-64.)
¶54 Claimant has severely
curtailed his recreational activities. While he continues to hunt and
snowmobile, he does so less frequently, uses a back brace when doing
them, takes extra pain medication, and suffers increased pain the day
¶55 The State Fund hired
a private investigative agency to surveil the claimant. Investigator
Robert Harris conducted the surveillance and videoed the claimant.
¶56 At trial, testimony focused
on five different days of video, which the State Fund contends show
claimant's physical ability exceeds what he has told his doctors and
the Court. The particular days show claimant engaged in the following
1. November 14,
1997. Claimant is seen vacuuming out the inside of his vehicle
for approximately one half hour.
2. January 16,
1998. Claimant is observed squatting down to fuel a gas can.
After he leaves the gas station, claimant is followed and video is
taken of him and his son departing up river in a boat. Approximately
5½ hours later they return, and claimant is observed helping his son
unload the boat.
3. February 14,
1998. Video is taken of claimant driving a vehicle pulling
a trailer with two snowmobiles. Video shows claimant driving from
Helena to the Discovery ski area.
4. March 7, 1998.
Claimant is observed for approximately 50 minutes walking in a field
with his son. Claimant's son is carrying a shotgun; the claimant does
not have a gun.
5. July 22, 1998.
Video of claimant working on his truck. Video shows claimant bending
at the waist numerous times.
¶57 Both Dr. Luckett and
Dr. Weinert were requested to view and comment upon the activities they
saw claimant perform in the video.
¶58 Dr. Luckett felt that
the video surveillance tape refuted claimant's report of his subjective
complaints. (Ex. 3 at 59.) The tape did not, however, significantly
change Dr. Luckett's opinion about claimant's physical restrictions.
In a letter to John Gneckow, the claims adjuster, he stated his opinion:
Based upon my observation
of your tape and Bob's (claimant's) previous functional capacity examination,
he clearly would qualify for light work. I think a lifting restriction
of 30 pounds on an occasional basis would certainly be reasonable.
I think that he needs the opportunity to alternately sit and stand
as his symptoms dictate. He should not be required to do repetitive
bend, lift and twist activities. [Emphasis added.]
(Id.) Thus, even
after viewing the video, Dr. Luckett felt claimant was limited to light-duty
work with specific restrictions.
¶59 Dr. Weinert also viewed
the surveillance video. While Dr. Weinert noted that claimant demonstrated
greater physical abilities on the video than he portrayed in the office,
he testified that the video did not change his opinion regarding the
restrictions he had placed on claimant. (Weinert Dep. at 34.) Dr. Weinert
also commented that in every portion of the video the claimant was "favoring
the right side, limping on his right leg." (Id. at 31.)
¶60 In his testimony, claimant
addressed the activities shown in the surveillance video. He testified
that the activities videoed are not normal, daily activities. The hunting
excursions with his son were one time events for the season. He stated
that he did not carry a gun on either trip and that his son had asked
numerous times that he go with him. Claimant's recollection of snowmobiling
was that he and his wife went two times during the year. His snowmobile
has a cushioned seat and special handlebars so he can sit upright. He
travels only groomed runs. He is very sore the day after.
¶61 This case is a difficult
one. There is no question that claimant has significant back pain and
cannot return to his time-of-injury job. On the other hand, the surveillance
video shows claimant participating in activities that are, at minimum,
somewhat incompatible with the limitations he has related to his doctors
and the Court. Given claimant's advanced education, his relative
youth, and his physicians' releases for him to return to work in sedentary
to light positions (albeit with limitations), it seems extraordinary
that claimant cannot work at all.
¶62 In considering the surveillance
video, and Dr. Weinert's comment that the video showed claimant limping,
I find that the video is not incompatible with the claimant's assertion
of permanent total disability (PTD). Inability to work on a regular,
sustained basis is not equivalent to inability to engage in
any sort of activity. On the other hand the video shows claimant engaged
in activities exceeding what claimant told his doctors he can do. I
find it likely that when distracted and engaged in activities he enjoys,
claimant's tolerance for his pain increases.
¶63 After considering all
of the evidence, I am persuaded that claimant is, and since June 1996
has been, unable to perform regular employment of any sort due to his
back pain. In reaching my decision, I have given significant weight
to the fact that claimant continued to work for almost five years after
his injury despite medical records reflecting that he was suffering
significant pain. His complaints over the years have been consistent.
His medical records do not demonstrate any deliberate exaggeration of
his complaints. Claimant is also depressed as a result of his injury
and his depression may affect the level of his pain and his ability
to deal with it. Finally, only two potential jobs were approved by claimant's
treating physicians, and those approvals were qualified. Even the State
Fund's vocational counselor had doubts about claimant's employability.
¶64 In finding claimant is
presently permanently totally disabled, I do not find that he will never
be able to work or that his pain will be permanently totally disabling.
As Dr. Luckett's note of February 5, 1998 indicates, pain is subjective
and an individual's capacity to cope with pain is variable with the
individual. Additional psychological evaluation and therapy may assist
claimant in dealing with his pain. Moreover, Dr. Iverson's latest report
suggests that surgery might improve claimant's condition. Finally, I
take note that claimant is not following his prescribed schedule for
taking pain medications. While there is insufficient evidence to convince
me that taking his medication on the prescribed schedule will enable
claimant to work, his failure to follow his doctor's advice could be
adversely affecting him. His failure to follow his doctor's advice is
troubling to the Court.
Reasonableness of State
Fund's Denial of Benefits
¶65 The State Fund's denial
of PTD benefits was not unreasonable. Claimant was released to work
in sedentary and light positions. Given his education, and despite the
limited vocational analysis, it is not facially unreasonable to expect
that he can perform all sorts of light and sedentary jobs. Moreover,
two specific jobs were approved for claimant, albeit with limitations.
Claimant failed to persuade me that qualifications were so onerous that
the jobs were plainly outside of his physical capabilities. The video
surveillance, and Dr. Luckett's testimony after viewing the video tapes,
also raise significant doubt as to whether claimant is as disabled as
he claims to be.
¶66 This is also not a case
where the insurer has denied all benefits. The State Fund is not attempting
to "starve claimant." During the pendency of this litigation it has
been paying the claimant permanent partial disability benefits. While
those benefits are less than total disability benefits, they are nonetheless
CONCLUSIONS OF LAW
¶67 Claimant's industrial
injury occurred on September 21, 1991, thus his claim is governed by
the 1991 version of the Workers' Compensation Act (WCA). Buckman
v. Montana Deaconess Hosp., 224 Mont. 318, 321, 730 P.2d 380, 382
¶68 The claimant must prove
by a preponderance of the evidence that he is entitled to compensation.
Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304
(1973); Dumont v. Wicken Bros. Construction Co., 183 Mont.
190, 598 P.2d 1099 (1979).
¶69 Claimant alleges that
he is permanently totally disabled. The benefits are governed by section
39-71-702, MCA (1991), which provides in relevant part:
for permanent total disability. (1) If a worker is no longer
temporarily totally disabled and is permanently totally disabled,
as defined in 39-71-116, the worker is eligible for permanent total
disability benefits. Permanent total disability benefits must be paid
for the duration of the worker's permanent total disability, subject
(2) The determination
of permanent total disability must be supported by a preponderance
of medical evidence.
¶70 The Workers' Compensation
Act defines permanent total disability as follows:
(16) "Permanent total
disability" means a condition resulting from injury as defined in
this chapter, after a worker reaches maximum healing, in which a worker
has no reasonable prospect of physically performing regular employment.
Regular employment means work on a recurring basis performed for remuneration
in a trade, business, profession, or other occupation in this state.
Lack of immediate job openings is not a factor to be considered in
determining if a worker is permanently totally disabled.
§ 39-71-116(16), MCA (1991).
¶71 In this case, uncontradicted
medical evidence establishes that claimant, without consideration for
his level and tolerance of pain, is physically restricted from performing
his time-of-injury job and limited to performing sedentary to light
work, and then with significant restrictions on the jobs. Moreover,
only two jobs have been medically approved, and the approvals are with
significant restrictions. Medical records and documents also establish
that claimant has significant, persistent pain and suffers from post-injury
¶72 Disability is not a wholly
medical determination. In addition to claimant's age, education, work
history, skills, and abilities, pain is another factor the Court must
consider in determining whether claimant is permanently totally disabled,
Killoy v. Reliance Nat'l Indem., 278 Mont. 88, 923 P.2d 531
(1996). Section 39-71-116(16), MCA, as quoted above, requires claimant
to prove that he has no "reasonable prospect of physically performing
regular employment." Pain may be so severe for some
individuals that it renders them physically incapable of performing
¶73 Claimant has carried
his burden of proving that at the present time he is unable to perform
and Attorneys Fees
¶74 Because claimant has
prevailed, he is entitled to his costs.
¶75 Attorney's fees and a
penalty may be awarded only if the insurer's conduct is unreasonable.
§§ 39-71-612 and -2907, MCA. The Court has found that the State Fund's
position was not unreasonable, therefore, claimant is not entitled to
attorney's fees or a penalty.
¶76 1. Claimant is entitled
to permanent total disability benefits retroactive to June 3, 1998,
the date on which his temporary total disability benefits were terminated.
The State Fund is entitled to a credit for permanent partial benefits
it has paid since that date.
¶77 2. Claimant is entitled
to costs in an amount to be determined in accordance with the Court's
¶78 3. Claimant is not entitled
to attorney's fees or a penalty.
¶79 4. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.
¶80 5. Any party to this
dispute may have 20 days in which to request a rehearing from these
Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana,
this 20th day of July, 1999.
c: Mr. Richard J. Pyfer
Mr. David A. Hawkins
Date Submitted: June 2, 1999