FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT

¶1 The trial in this matter was held on April 27 and 28, 1999, in Billings, Montana. Petitioner, Louis Nielson (claimant), was present and represented by Mr. Marvin L. Howe. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. David A. Hawkins. A transcript of the trial has not been prepared.

¶2 Exhibits: Exhibits 1 through 6 and 8 through 20 were admitted without objection. Exhibit 7 was objected to by petitioner and refused.

¶3 Witnesses and Depositions: Claimant, Cynthia Nielson, Dennis McLuskie and Dr. Scott Ross were sworn and testified. The parties agreed the Court may consider the depositions of Louis Nielson, Bob Zadow and Dr. Lotfi Ben-Youssef, M.D.

¶4 Issues: As set forth in the Pre-trial Order, the following issues are presented for determination:

¶5 Having considered the Pre-trial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, and exhibits, the Court makes the following:

FINDINGS OF FACT

¶6 Claimant is 49 years old. He is a high school graduate and attended junior college for a short time. (Nielson Dep. at 6; Trial Test.)

¶7 Claimant has worked pumping gas, performing minor car repairs, selling cars, stocking shelves for a retail store, as a ranch hand, a timber faller, a timber skidder, and a logging truck driver. He has also worked as a truck driver, driving dump trucks and hauling salt water in the oil fields. (Trial Test.)

¶8 Claimant's last job was with TNT Well Servicing, Incorporated (TNT) as a hot oiler. (Ex. 1.) This job entailed servicing oil wells and included working with a heavy hose at well sites.

¶9 On or about April 18, 1995, the claimant experienced bilateral numbness in his hands and arms. On that date he saw Dr. Lotfi Ben-Youssef, an orthopedic surgeon practicing in Sidney, Montana. Dr. Ben-Youssef recorded a "three weeks history of sudden onset of numbness of the left hand, radiating upward to the posterior medial aspect of the left elbow." (Ex. 9 at 9.) Claimant was also experiencing numbness in his right arm, headaches, and dizziness. Dr. Ben-Youssef's impression at the time of the first appointment was "[b]ilateral cubital tunnel syndrome." (Id. at 9.)

¶10 At the time of his complaints, TNT was insured by the State Fund.

¶11 Claimant filed a Claim for Compensation in May 1995. (Ex. 1.) The State Fund has accepted liability for his left hand and arm complaints under the Occupational Disease Act. It has accepted liability for his right arm complaints under the Workers' Compensation Act. (Paragraphs A and B, Statement of Uncontested Facts.)

¶12 Claimant has not worked since being taken off work at TNT four years ago. He asserts in this proceeding that he suffers debilitating pain which precludes him from any regular employment. He seeks permanent total disability (PTD) benefits.

¶13 Claimant testified that over the past four years he has suffered constant pain in both hands and arms. He characterized the pain as like a toothache at times, at other times it involves numbness. He was unable to recall a day without pain. On a ten point scale, he graded his pain on a good day at one to three, on a bad day at seven to eight, on average at three to five. He testified that any activity involving his hands increases his pain and that the pain starts in one or both elbows, then migrates to his forearms, wrists, and hands.

¶14 Claimant asserts he is unemployable. He testified that there is no point in looking for work because he cannot work even two or four hours a day. He described his daily activities after arising in the morning as helping his daughters get ready for school, sometimes making breakfast; driving them four blocks to school (which, according to claimant, increases his pain); then sitting in a chair for much of the morning on account of pain, watching TV. He testified that sitting in his chair helps his pain and that on some days he spends most of his day in his chair. Three days every week he cooks the evening meal, consisting of pizza or TV dinners, but, according to claimant, the cooking increases his pain. After supper he sits in his chair until bedtime. He sometimes vacuums but usually stops when his arms hurt too much, and testified that if he ignores his pain while vacuuming he is unable to do anything the next day because of pain.

¶15 Claimant did admit to some recreational activities. He has a camper and a boat. He testified that he goes camping and fishing but that his pain limits his activities.

Medical Findings and Diagnoses

¶16 Dr. Ben-Youssef is the claimant's treating physician. He saw claimant on a monthly basis from April through November of 1995, twice in 1996, five times in 1997, three times in 1998 and once, so far, in 1999. Claimant has also been examined by numerous other physicians and undergone four separate EMG/NCV (electromylograhy/nerve conduction velocity) studies of his arms.

¶17 The medical opinions of the doctors who have examined claimant are conflicting both as to his current medical condition and his ability to work. But ultimately, the disability claimed by claimant rests on his reports of his subjective pain, not on his medical diagnosis.

¶18 The physicians who have tested and examined claimant have reached different conclusions concerning the cause and nature of claimant's arm complaints.

¶19 Dr. Ben-Youssef's initial diagnosis was bilateral cubital tunnel syndrome. (Ex. 9 at 9.) He referred claimant to Dr. Peterson in Glendive for an EMG but claimant was a no-show for his appointment. (Id.) He was then referred to Dr. Roger S. Williams in Sidney.

¶20 Dr. Williams examined claimant and did nerve conduction testing in May 1995. On May 15, 1995, he reported to Dr. Ben-Youssef. (Ex. 13.) In his report he concluded that "the exact etiology for his left upper extremity discomfort remains somewhat obscure." (Id. at 2.) He commented that claimant's reported symptoms were suggestive of carpal tunnel syndrome "but he does not have overt neurophysiological abnormalities at the present time." (Id.) Dr. Williams recommended a splint be worn, that the claimant stay off work for a time and finally, "If all else fails, I would recommend consideration of surgical exploration of the left carpal tunnel." (Id. at 3.) Dr. Williams did not comment concerning claimant's right arm and hand complaints. Apparently, those complaints were not significant at that time.

¶21 Following Dr. Williams' report, Dr. Ben-Youssef took claimant off work for five weeks and prescribed physical therapy (PT). (Ex. 9 at 10.) Claimant reported increased soreness after PT. (Ex. 19 at 3; Ex. 9 at 10.) On July 11, 1995, Dr. Ben-Youssef provided the following impression:

(Id.) He referred claimant to Dr. Curtis R. Settergren, an orthopedic surgeon in Billings.

¶22 Dr. Settergren examined claimant on July 26, 1995. Dr. Settergren's impression was "left lateral epicondylitis and some signs and symptoms of cubital tunnel syndrome without much for medial epicondylitis." (Ex. 16 at 2.) He recommended a trial steroid injection, which the claimant refused, then referred claimant to Dr. Mary Gaddy, a neurologist practicing in Billings, for a repeat nerve conduction study using an inching method. (Id.)

¶23 Dr. Gaddy performed EMG and nerve conduction testing on August 3, 1995. Based on the testing, her impression was as follows:

(Ex. 18 at 1.)

¶24 At the insurer's request, on April 18, 1996, Dr. Thomas L. Schumann, who specializes in occupational and preventive medicine, performed an independent medical examination (IME). In addition to examining claimant and taking a medical history, Dr. Schumann reviewed the records of Drs. Ben-Youssef, Gaddy, Settergren, and Williams, and physical therapy notes. His diagnosis was:

(Ex. 15 at 3.) Dr. Schumann found "no current indication that surgery is mandatory at this time" but indicated that claimant might choose surgery in the future if his symptoms worsened. (Id.) The doctor also ordered additional lab work for the purpose of ruling out an underlying metabolic contributor. The results of the additional lab tests showed some abnormalities and Dr. Schumann recommended follow-up testing and evaluation. (Id. at 5.)

¶25 Dr. Bill S. Rosen, a physiatrist at Saint Vincent Hospital in Billings, conducted a second IME on January 10, 1997. In addition to examining claimant and taking a history, Dr. Rosen reviewed medical records of Drs. Ben-Youssef, Williams, Settergren, Gaddy, and Schumann. (Ex. 10 at 6-7.) Dr. Rosen found the evidence for prior diagnoses inconclusive, and found objective evidence for a previously undiagnosed condition. His impression, in relevant part was as follows:

(Id. at 8.) Dr. Rosen also noted that claimant was severely deconditioned. Among other things, Dr. Rosen recommended further EMG testing and medications appropriate for chronic pain syndrome. (Id. at 9.)

¶26 In follow-up to Dr. Rosen's recommendation, Dr. Donald H. See, who specializes in electromyography and IMEs, examined claimant on February 26, 1997, and did electrodiagnostic studies of both arms. (Ex 12 at 1.) His impressions as a result of the tests were as follows:

(Id. at 1-2.)

¶27 Finally, on September 4, 1998, the claimant was seen by a medical panel consisting of Dr. Patrick Cahill, a neurologist; Dr. Robert S. Schultz, an orthopedic surgeon; and Dr. Scott Ross, who specializes in occupational medicine. A consensus report was prepared along with the individual reports of each doctor.

¶28 Dr. Cahill preformed additional electrodiagnostic tests (EMG/NCV). The studies were normal. (Ex. 14 at 8.) Dr. Cahill's overall findings are summarized in his impression, as follows:

(Id. at 9.)

¶29 Dr. Schultz reported his findings as follows:

(Id. at 4-5, emphasis added.) Dr. Schultz further commented that he "would be interested in knowing the outcome of the nerve conduction studies." (Id.)

¶30 Dr. Ross' physical examination of claimant was essentially normal. His diagnosis was:

(Id. at 16.)

¶31 The consensus report noted that claimant's "neurological examination showed no objective abnormalities." (Id. at 1.) It then repeated the separate findings of the three physicians without further resolution. (Id. at 2.)

Medical Opinions Regarding Return to Work

¶32 While initially recommending that claimant be retrained for sedentary work (Office notes of 8/22/95 and 2/8/97, ex. 9 at 11 and 13), claimant's treating physician, Dr. Ben-Youssef, opined that claimant is incapable of working. His opinion is based on claimant's reports of his pain. On May 11, 1998, he disapproved proposed jobs as a salesperson, video store rental clerk, and auto salesperson. He wrote:

(Ex. 9 at 7, emphasis added; and see also Id. at 5-6.) In his deposition, Dr. Ben-Youssef testified:

(Id. at 35-36.)

(Id. at 38, emphasis added.)

¶33 At Dr. Ben-Youssef's request, Ron O'Neill (O'Neill), a physical therapist in Sidney, performed a functional capacities evaluation (FCE) and oversaw a work hardening program in November 1998. He was skeptical of claimant returning to work but, as did Dr. Ben-Youssef, based his opinions on claimant's reports of pain. In his initial note on November 2, 1998, O'Neill observed:

(Ex. 20 at 2, emphasis added.) On November 16, 1998, at the end of the work hardening program, O'Neill wrote:

(Id. at 11.) He concluded:

(Id.) Mr. O'Neill was given the job analyses for the positions of sales clerk, video rental clerk, and auto salesman and asked to compare the description of each job with the actual performance by Mr. Nielson at the time of the FCE. He isapproved all three jobs. (Id. at 18-22.)

¶34 In April 1996, Dr. Schumann reviewed job analyses for several positions, approving only the job of video rental clerk. He disapproved the jobs of front-end loader and heavy equipment operator, and the jobs of customer service employee and sales clerk stating the need for a work hardening program to explore what accommodations would be needed in the performance of those jobs. (Ex. 15 at 4.) However, the Court notes that in evaluating the proposed jobs, Dr. Schumann relied on claimant's subjective reports concerning his pain and restrictions:

(Id. at 4, emphasis added.)

¶35 On March 25, 1997, Dr. Rosen approved claimant's return to work as a video rental clerk (ex. 5 at 83), sales clerk (id. at 85), heavy equipment operator (id. at 87), customer service employee (id. at 89), and front-end loader operator (id. at 91). On September 17, 1997, he responded to the claims adjusters request that he review three jobs. He wrote:

(Ex. 10 at 15.)

¶36 Todd Jones, claims adjuster for the insurer, sent Dr. See copies of three alternative jobs to review based on his examination of the claimant. On September 15, 1997, Dr. See approved without restriction the positions of sales clerk, video rental clerk, and automobile sales person. (Ex. 5 at 92-122.) Dr. See emphasized in his letter of September 15^th that:

(Ex. 12 at 6.)

¶37 The Schumann - Cahill - Ross medical panel did not specifically release claimant to return to work in any job, however, they recommended a two week work conditioning program. (Ex. 14 at 16-17.) Their expectation was that with an aggressive work hardening program, claimant might even be able to return to his time-of-injury job. At the time of their evaluation, Dr. Ross wrote:

(Id. at 17.) Dr. Ross' recommendation and evaluation were adopted by the full panel. (Id. at 2.) On October 31, 1998, Dr. Ross approved sales clerk, auto sales person, and video rental clerk based on the information available at that time. (Id. at 18.) At trial he testified that he placed no physical restrictions on claimant.

MMI

¶38 Both claimant and the insurer agree that claimant has reached maximum medical improvement (MMI) and that agreement is supported by the medical opinions set forth in claimant's medical records.

Resolution

¶39 This case comes down to a matter of claimant's credibility regarding his pain. After evaluating all of the testimony, the exhibits, and claimant's demeanor, I find that claimant's reports of pain are exaggerated and not credible. I simply do not believe that he hurts as much as he claims, or that he is as disabled as he claims, or that he cannot work.

¶40 My decision is based in part on my observation and perception of claimant when he testified. He struck me as inappropriately angry and aggressive. On the morning of the trial he drove 270 miles from Sidney to Billings, a trip of about four hours, but exhibited few signs of real discomfort. One piece of his testimony struck me as pure fabrication, deliberately calculated to undermine Dr. Ross' opinions. Claimant testified that during Dr. Ross' examination, Dr. Ross told him that the EMG results from the testing to be done by Dr. Cahill would come back negative. Dr. Ross flatly denied claimant's assertion and I believed Dr. Ross. Claimant also impressed me as unmotivated to find and hold employment.

¶41 In evaluating claimant's credibility, I have not relied solely on my perception of his testimony at trial. I have looked at all the evidence for indicators which would support or undermine my perception. Especially, I have considered the medical testimony and the fact that it is conflicting. While I note that three of the four electrodiagnostic tests fail to confirm either carpal tunnel syndrome, cubital tunnel syndrome, or any other neurological disease or injury of claimant's arms, I need not make a final diagnosis in deciding this case as the case for disability rests on subjective pain.

¶42 In reviewing other evidence, I have found numerous indicators that claimant reports regarding his pain which are not credible.

¶43 In summary, claimant has failed to persuade me that his pain is so severe as to preclude him from holding regular employment, including jobs as a video rental clerk, retail sales person, and auto sales person.

Insurer's Conduct

¶44 The insurer's refusal of claimant's demand for PTD benefits was reasonable. Even had I held for claimant, the refusal was reasonable as there is substantial evidence supporting the insurer's denial.

CONCLUSIONS OF LAW

¶45 Claimant's request for PTD benefits is governed by the 1993 versions of the Workers' Compensation Act and Occupational Disease Act. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).

¶46 Permanent total disability benefits are governed by section 39-71-702, MCA (1993), which provides in relevant part:

Permanent total disability is defined as: