Dennis O. Best, Sr.

IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

1995 MTWCC 62

WCC No. 9407-7095

DENNIS O. BEST, SR.

Petitioner

vs.

STATE COMPENSATION INSURANCE FUND

Respondent/Insurer for

STOCKMAN'S BAR AND CAFE

Employer.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

AFFIRMED in Best v. State Fund, 276 Mont. 302, 916 P.1d 108 (1996)

Summary: Claimant has experienced low back pain with radiation into his legs since 1986, diagnosed that year as L4-5, L5-S1 disk degeneration and dysfunctional lumbar disk syndrome, which remains his diagnosis. He quit employments during 1988 and 1990 due to back pain and experienced numerous exacerbations of low-back pain between 1986 and 1991. In 1991, on a claim for social security benefits, he stated that he has constant and severe pain in his back and legs. In 1993, while working at a bar and cafe, claimant hit his hip on a table and fell, leading to an acute flare-up of his low-back condition. He quit employment shortly before he was about to be fired for drinking. When he filed a claim for workers’ compensation, the insurer paid medical benefits relating to the flare-up but denied compensation benefits. Claimant seeks permanent total disability benefits.

Held: Noting that claimant’s wife had been hired jointly with him at the cafe and performed 95% of the work, the Court found that a chiropractor’s opinion that claimant was worse off after the 1993 incident to be based on a misunderstanding of the facts. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.

Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-116(16), MCA (1991). Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant’s wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability within the statute where his permanent total disability predated the 1993 incident and was not caused by that incident.

Benefits: Permanent Total Disability: Generally. Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant’s wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.

Causation: Medical Condition. Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant’s wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.

Injury and Accident: Causation. Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant’s wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.

The trial in this matter was held on November 16, 1994, in Billings, Montana. The petitioner, Dennis O. Best (claimant), was present and represented by Mr. Don Edgar Burris. The respondent, State Compensation Insurance Fund, was represented by Mr. Daniel J. Whyte. Claimant testified on his own behalf. Noel Woodrich and JoAnn Piehl also testified. The post-trial deposition of Dr. Richard Vande Veegaete was submitted for the Court's consideration. Exhibits 1 through 9 were admitted into evidence. While Exhibit 2, which consists of Social Security Administration documents generated in connection with claimant's request for social security disability benefits, was admitted in its entirety, the only documents deemed relevant and considered by the Court are medical records and statements and representations made by or on behalf of the claimant. Finally, claimant offered Exhibits 10 through 16 after trial. The exhibits are untimely and are refused.

Issues Presented: The statement of issues set out in the Pretrial Conference Order have been modified as the result of colloquy with counsel at trial and are rephrased as follows:

1. Whether claimant is entitled to compensation benefits on account of an industrial accident he suffered on June 18, 1993, and if so, the proper rate of his benefits.

2. Whether claimant is entitled to expenses for travel incidental to chiropractic treatment by Dr. R. Vande Veegaete.

3. Whether claimant is entitled to attorney fees, costs and a penalty.

Issue number 2 concerns travel by claimant, who now lives in Harlowton, to Billings, for treatment by Dr. Vande Veegaete. The amount in controversy is approximately $500. (Tr. at 77.) Dr. Vande Veegaete treated claimant for his back problems for a number of years prior to his industrial accident of June 18, 1993. Neither party knew whether chiropractic care is available in Harlowton. In view of the small amount at issue, the Court recommended to the parties that the State Fund consider paying for previous travel and that the parties then address the question of future chiropractic care by determining whether any chiropractor practices in or visits Harlowton, and if so, whether Dr. Vande Veegaete's services are unique and necessary such that claimant is justified in continuing to travel to Billings for treatment. Claimant's proposed findings of fact indicate that the parties have resolved this issue, and the State Fund does not mention the matter in its proposed findings. The Court therefore deems the matter resolved and will not address it.

Having considered the Pretrial Conference Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition, exhibits, and the parties' proposed findings of fact and conclusions of law, the Court makes the following:

FINDINGS OF FACT

1. Claimant is approximately 55 years of age. He is presently married to Linda Best.

2. Over the years he has worked as a cook, carpenter, truck driver and welder, and characterized himself as a "jack of all trades but a master of none." (Tr. at 52.) He has a history of chronic alcoholism and other physical ailments.

3. Claimant injured his low back in an industrial accident in September of 1986, in Issaquah, Washington. He was on temporary total disability benefits from that time until April 19, 1991. (Tr. at 26.) He settled his workers' compensation claim in 1991.

4. Dr. Vande Veegaete has treated claimant with respect to is low-back condition since September 12, 1986. (Vande Veegaete Dep. at 7.) In 1986, Dr. Vande Veegaete diagnosed claimant's condition as L4-5, L5-S1 disk degeneration and dysfunctional lumbar disk syndrome; his current diagnosis is the same. (Id. at 7, 21, 30.)

5. Since 1986 claimant has experienced low-back pain which frequently radiates into his legs (Id. at 8-9, 30; Dep. Exs. 8, 10, 11, 14-16.) On several occasions between 1986 and 1991, Dr. Vande Veegaete's records and correspondence reflect that claimant was limping and that his legs buckled. (Id. Exs. 12, 13, 14, 16.) As of March 1, 1991, Dr. Vande Veegaete reported:

He still has periodic numbness in his left leg (feels like he is dragging it and he limps), has frequent reactivation of severe low back pain, at times is unable to get out of bed by himself, periodically walks with a cane, and sometimes needs help to do simple daily activity (comb hair or put on his shoes). He still cannot stand in any one place for any prolonged time (15-20 minutes), cannot lift more than 5 pounds, and cannot carry 5 pounds for more than 10 feet. He complains that he cannot lift his own infant baby.

(Id. Ex. 16 at 1.) There is then no record of treatment by Dr. Vande Veegaete until July 12, 1993. (See id. Ex. 17 at 1.) However, claimant testified that the doctor provided periodic chiropractic treatment from December 1986 until shortly before the June 18, 1993 Stockman's Bar injury. (Tr. at 30-31.)

6. On August 1, 1988, claimant went to work as a cook at American Legion Post 4 in Billings, Montana. On August 30, 1988, he quit that employment "because of my back - couldn't stay on my feet." (Ex. 2 at 203.)

7. On August 7, 1990 he made a second attempt to work when he hired on as a cook at the Argonaut Supper Club located at the Corral Motel in Harlowton, Montana. (Ex. 2 at 203; Tr. 31, 52.) Claimant worked approximately 60 days, however, he then quit because of severe back pain and numbness in his legs. (Tr. at 36-37; Ex. 2 at 163, 203.) A March 1, 1991 letter of Dr. Vande Veegaete provides the following information concerning this attempt to work:

Within the last two years or so I have stated my opinion that Mr. Best might be able to do light duty work. Since that time he has tried to follow my instruction and work. One job that he tried was that of a dinner cook. He told me that special arrangements were made for him so that he would not have to lift, carry, bend or stoop and he was able to sit down when he felt it was necessary. For the most part, he did the cooking and supervised others. Despite the precautions taken, he continued to suffer severe reoccurring low back pain from his efforts and had to quit.

(Vande Veegaete Dep. Ex. 16.)

8. The claimant's work at the American Legion and at the Argonaut were his only attempts to work between 1986 and 1992. (Tr. at 52.)

9. Between 1986 and 1991 claimant experienced numerous exacerbations of his low-back condition.

10. In the spring of 1988 he attempted to lift a sofa and developed acute low back pain which caused him to drop to his knees. (Vande Veegaete Dep. at 46; Dep. Ex. 10 at 4.)

11. On August 22, 1989, he was helping a friend can beets when he bent over, heard a pop in his back, and dropped to his knees. (Id. at 55-56; Dep. Ex. 13.) As of the time of this episode, Dr. Vande Veegaete wrote, "His current episode underscores the weakness, degeneration and limiting effect of his dysfunctional low back. This is a chronic reoccurring problem." (Id.)

12. On June 27, 1990, Dr. Vande Veegaete wrote that claimant "reported that his low back is sore all the time." Claimant further reported that his "low back becomes acute whenever he does any physical labor (changing a tire, bowling, bending over a stove or a sink to cook, kneeling in the garden or any bending from the waist)" and that his "[l]eft leg has 'given out on me for no reason three times this year and caused me to fall.'" (Id. at 58; Dep. Ex. 14.) Dr. Vande Veegaete characterized claimant as having "numerous exacerbations for minor incidents involving normal daily activity of a mild physical nature." (Id. at 59.) As of that time, however, the doctor still felt that claimant was capable of light duty work. (Id. at 60-61; Dep. Ex. 14.)

13. By early 1991, Dr. Vande Veegaete changed his opinion concerning claimant's ability to perform any sort of work. On January 18, claimant suffered yet another acute exacerbation of his low-back pain after lifting 20 pounds. (Vande Veegaete Dep. at 61; Dep. Ex. 15.) On January 27, 1991, the doctor wrote:

He [claimant] has a chronic low back and permanent impairment from his former work injury. Simple daily tasks now cause serious and acute reactivation of his symptoms and limitation.

(Id. at Dep. Ex. 15.) He concluded, "It is anticipated that he will recover from his pain, but it is not anticipated that he will be able to return to useful work." (Id., emphasis added.) On March 3, 1991, the doctor wrote, "Given his longstanding difficulties and pain when sitting, standing, walking, lifting, carrying, bending, and stooping, I do not feel he is capable of even sedentary work or a sedentary job." (Id. at 66; Dep. Ex. 16.) At his deposition, Dr. Vande Veegaete confirmed that, in his opinion, claimant has been unable to work since 1991. (Id. at 24, 69.) His understanding of claimant's work at Stockman's was that claimant's sole job was to "boss" his wife, who did the actual work. (Id. at 77.)

14. On January 30, 1991, claimant filled out an application for social security disability benefits. (Ex. 2 at 162.) (This was his second application.) In response to a question about his disabling condition, claimant wrote, " I injured the lower disks in my back while working as a carpenter in the State of Washington. It progressively worsened. I have constant and severe pain all the time in the back, legs, etc." (Id.)

15. In a Disability Report prepared in conjunction with his application, claimant stated that his disabling condition was his "lower back, my legs go numb on me." (Ex. 2 at 208.) When asked how his condition keeps him from working, claimant wrote, "I can't stand more than 15 or 20 minutes at a time and I have continuous low back pain & cannot lift or carry more than 5 pounds without experiencing severe low back pain." (Id.) He reported that his condition made him stop working on October 7, 1990. (Id.)

16. On November 12, 1992, claimant and his wife were hired jointly to operate the Stockman's Bar & Cafe in Rapelje, Montana. (Tr. at 33-34, 57-58, 61.) They were hired to purchase supplies, cook, tend bar and wait on tables. (Tr. at 58, 61.) They began on November 12, 1992, and quit work on June 30, 1993. (Tr. at 55-56.)

17. Claimant testified at trial that some days he performed 90% of all the work at Stockman's and that on other days he only performed 60% to 70% of the work, his wife performing the remainder. (Tr. at 39-40.) His testimony was not credible. He prepared written statements for others to sign in which he represented that his wife did 90% to 95% of the work at Stockman's:

a. On June 28, 1993, claimant typed a letter for his employer, Noel Woodrich, to sign. (Tr. at 43.) That letter stated in part:

Dennis would usually come in early in the morning and open up. He would be there an hour or so to get things started for Lunch, [sic] then Linda would come in and take over and Dennis would go home to lay down and rest. Linda did most of the cooking, serving, bartending and whatever else needed to be done. . . .

Dennis was not on the job very long before it became clear that he could not do much in the way of work and that he was dangerous to himself and other people. On several occasions I personally saw him almost fall. Around Mid-December [sic] 1992, Dennis and I were standing by the coffee machine talking when Dennis actually fell against me. The best way to describe what happened is while we were talking, he let out a cry of pain and fell against me. I caught him and helped to [sic] a chair to sit down. It was then he told me that without any warning he would get these sharp pains in his back and his legs would give out on him.

. . . .

. . . During the months of Jan. [sic] through May I noticed that many occasions Dennis was having extreme difficulty in walking and could hardly bend at all. He would also walk with a limp . . . .

It is also a fact that if Linda had not been a part of the deal for $12,000.00 a month and did 90% or more of the work, the Club would never have permitted Dennis to remain even one month, because he could not do the job and was not worth the Salary [sic]. . . .

. . .

. . . There is no question but that Dennis was much worse than before [June 18th injury]. For example, his limp was much worse, he would sit down in a chair and not be able to get up without some kind of support and it was clearly more painful for him to walk and he could not bend at all. . . .

(Ex. 2 at 221-222.) Although Woodrich never signed the letter, at trial he testified that he agreed with its contents with the exception of the last portion about claimant's condition after June 18th. (Tr. at 60.) He testified that claimant was not any worse after June 18, 1993, than he was before. (Id.) Woodrich's testimony was credible.

b. Claimant also typed up a letter for Peggy Cumin, an employee at Stockman's, to sign. (Tr. at 41-42.) The letter, which Cumin signed, states that claimant was having great difficulty doing his job. The last paragraph of reads:

As time went on I couldn't help but notice that Dennis was having more and more trouble walking and standing. Linda was doing 95% of the work, so in June, 93, [sic] Dennis decided to resign as Manager because he couldn't do anything anymore and it was far to [sic] hard on Linda to do all the work. [Emphasis added.]

(Ex. 2 at 380.)

18. On August 14, 1993, claimant's attorney wrote a letter to the Administrative Law Judge for the Social Security Administration, which reads in pertinent part:

Likewise, it is unequivocally clear that Mrs. Best did at least 95% or more of the work. From the evidence, about the only thing Mr. Best did was open up and then try to survive. He was at home more than he was at work.

. . . .

From the evidence, it is clear that Mr. Best was not able to work, and, in fact, did not work. Mrs. Best did the work for the Stockman's as between Mr. Best and Mrs. Best. [Emphasis added.]

(Ex. 2 at 381-82.)

19. On June 18, 1993, at Stockman's, the claimant hit his hip on a table and fell. (Ex. 4; Tr. 27-28.) He thereafter experienced an acute flare-up of his low-back condition. (Tr. 28; Vande Veegaete Dep. Ex. 17.)

20. Claimant resigned on June 30, 1993. At that time his employer, Mr. Noel Woodrich, was about to fire him for drinking on the job. (Tr. at 56.) Claimant did not tell Woodrich that he was quitting because of the June 18, 1993 injury.

21. Claimant filed a claim for compensation. (Ex. 4.)

22. At the time of claimant's industrial accident, Stockman's was insured by the State Fund.

23. The State Fund accepted liability for medical benefits payable on account of the injury but denied payment of compensation benefits.

24. Claimant has not worked since he resigned at Stockman's.

25. Following his reinjury, claimant saw Dr. Vande Veegaete on July 12, 1993. (Vande Veegaete Dep. Ex. 17.) At that time claimant was limping and complaining of acute low-back pain radiating into his left leg and calf. (Id.) Upon examination of claimant, the doctor's findings were very similar to his findings in 1986. (Vande Veegaete Dep. at 30-31.) The reinjury caused Dr. Vande Veegaete to conclude that claimant "totally unable" to work. (Id. at 24, 75.) In the doctor's opinion, claimant was worse after the June 18, 1993, incident than before. (Id. at 24, 75.)

26. From the foregoing evidence, I make the following ultimate findings of fact:

a. Claimant has been permanently totally disabled and unable to perform even sedentary work since 1991.

b. Since 1991 he has been unable to perform or hold any employment on his own. His employment at Stockman's was part of a package deal involving his wife, who performed most of the actual work.

c. Claimant's wife performed 95% of the work for Stockman's.

d. Claimant left the employment of Stockman's just at the time he was about to be fired on account of his drinking and did not leave on account of the aggravation he suffered on June 18, 1993.

e. While Dr. Vande Veegaete testified that claimant was worse off after the June 18, 1993 aggravation, he did so on the basis of his understanding that claimant was able to do some work prior to June 18th but none thereafter. He did not identify any material change in the claimant's physical condition. The Court is not persuaded that after June 18, 1993, claimant was unable to continue in the sort of situation he had at Stockman's and is not persuaded that he suffered any permanent aggravation of his existing low-back condition.

27. Based on his performing 5% of the work at Stockman's, claimant's wage at Stockman's was $13.81 weekly ($1,200 x 12/52.14 x .05). Thus, even if he were entitled to compensation benefits, his permanent total disability rate is $9.20 weekly.

CONCLUSIONS OF LAW

1. The law in effect at the time of the injury governs the claimant's entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986). Consequently, the 1991 version of the Workers' Compensation Act applies in this case.

2. Claimant contends that he is permanently totally disabled as the result of his June 18, 1993 injury and that he is therefore entitled to permanent total disability benefits. He bears the burden of proving that he is entitled to benefits, Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973), and he must prove his entitlement by a preponderance of the probative, credible evidence, Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).

3. Permanent total disability is defined in section 39-71-116(16), MCA, as follows:

. . . 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. [Emphasis added.]

Claimant does not meet the definition of permanent total disability. Although he is permanently totally disabled, his disability antedated his June 18, 1993 injury. And while he did some minimal amount of work at Stockman's, he failed to persuade me that his condition was materially worse after the 1993 flare-up or that it prevented him from continuing at Stockman's. It appears more likely that he left in the realization that the employment of he and his wife was about to be terminated on account of his drinking.

4. Claimant is not entitled to costs, attorney fees, or a penalty.

JUDGMENT

1. Claimant is not permanently totally disabled as a result of the June 18, 1993 injury.

2. Claimant is not entitled to disability benefits.

3. Claimant is not entitled to an award for attorney's fees, costs or a penalty.

4. This Judgment is certified as final for purposes of appeal pursuant to ARM 24.5.348.

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 23rd day of August, 1995.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Don Edgar Burris
Mr. Daniel J. Whyte