IN THE SUPREME COURT
OF THE STATE OF MONTANA
1998 MT 5
Plaintiff and Appellant,
NATIONWIDE MUTUAL FIRE INSURANCE
CEREAL FOOD PROCESSORS,
APPEAL FROM: Workers'
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
James G. Edmiston,
III, The Law Firm of Edmiston & Schermerhorn,
Peter J. Stockstad,
Garlington, Lohn & Robinson, Missoula, Montana
Submitted on Briefs: August 7, 1997
Justice William E.
Hunt, Sr., delivered the Opinion of the Court.
¶1 Raymond Kuntz appeals from the Workers' Compensation Court's
denial of his
claim for permanent partial disability benefits for a January 1987 industrial
injury. We affirm.
¶3 1. Whether substantial credible evidence supports the Workers'
Court's finding that Kuntz does not have a permanent partial disability
caused by his January 1987 back injury.
¶4 2. Whether the court's conclusion is correct that Kuntz failed
to prove by a
preponderance of the evidence that his January 1987 injury caused his
¶5 Raymond Kuntz worked at a flour mill in Billings, Montana, for
years, most of that time as an assistant miller. The assistant miller
monitors and adjusts milling machinery during the milling process, performs
routine maintenance on machinery, collects and tests flour samples,
puts in additives, and clears ducts of "chokeups." While he
worked at the flour mill, Kuntz earned a degree in business administration.
Although he applied for several management positions at the mill after
obtaining his degree, his attempts to move into a management position
mill was owned by Cereal Food Processors from 1984 through Kuntz's
termination from employment there in 1994. Nationwide Mutual Fire Insurance
Company was Cereal Food Processor's workers' compensation insurer for
employees at the flour mill.
the years, Kuntz sustained a number of injuries to his back, some work-
related and others non-work related. His initial back injury occurred
in 1974 and was diagnosed as a herniated disk at L5-S1. Kuntz reinjured
his back in 1977, 1980, and 1981. Of these, the 1981 injury was the
worst, requiring him to be hospitalized for a week. That injury was
diagnosed as a herniated nucleus pulposus on the right.
¶8 In the
fall of 1982, Kuntz suffered a non-work related recurrence of low back
after dragging an antelope while hunting. Dr. Peter Teal, who began
treating Kuntz at that time, diagnosed Kuntz as having a herniated disc
at L5-S1 on the right side.
¶9 In the
incident at issue in this case, Kuntz injured his low back at work on
20, 1987, when he tried to catch a 100-pound sack of flour that slipped
from a stack
which he was taking up the "manlift" (the open elevator in
the flour mill). Kuntz
reported left leg pain to his supervisor and missed two weeks of work
as a result of this injury. He went to a hospital emergency room a few
weeks later complaining of left leg pain. He was not hospitalized, however,
and he did not consult his treating physician, Dr. Teal, until nearly
two months later. As of that time, March 1987, Dr. Teal did not note
any ongoing leg pain, nor did he think further treatment was indicated.
was again reinjured at work in November 1988, while pulling a lever.
sought treatment from Dr. Teal two weeks later, at which time Dr. Teal
noted that Kuntz had reinjured his back at work "and developed
aching pain mostly in the left calf." Dr. Teal stated in his deposition
that Kuntz had reached maximum healing from his 1987 injury before the
1988 injury. Kuntz sought treatment for periodic left leg pain following
the November 1988 injury, once in 1989, twice in 1990, and once in 1991.
Kuntz did not seek medical care for his back again until November 1994.
1993, Kuntz began suffering from severe anxiety and depression. He obtained
mental health counseling, during which he was advised to stop working
the rotating shifts which he was required to work as an assistant miller.
Kuntz applied for a transfer to a day shift job at the flour mill, but
he did not get the position for which he applied. The flour mill then
offered Kuntz another day shift position, in an entry-level job which
required heavy lifting. Kuntz obtained a letter from Dr. Teal stating
that such a job would be inadvisable due to his back condition. The
mill subsequently advised Kuntz not to report back to work because it
did not have a suitable day shift job available for him.
this proceeding, Kuntz asserts that his 1987 back injury precludes him
physically performing the assistant miller job at the flour mill. He
partial disability benefits under §§ 39-71-705 through -708,
MCA (1985), based upon his possible prospective future loss of earning
the hearing was held on the present claim, Kuntz settled with the insurer
for his work-related injuries in 1977, 1980, and 1981. At the time of
the hearing on this claim, he also had claims pending for work-related
injuries in 1974 and 1988.
the hearing, Kuntz offered Dr. Teal's deposition testimony. Nationwide
presented live testimony by Dr. William Shaw, a specialist in occupational
medicine who conducted an independent medical examination of Kuntz in
January 1996. Then, and at the time of trial, Kuntz was working as a
custodian for the Billings public schools at about half his annual earnings
at the flour mill. Kuntz testified in person at the hearing before the
Workers' Compensation Court, as did two vocational experts, five of
Kuntz's co-workers and a supervisor at the flour mill, and Kuntz's custodial
supervisor at the schools.
substantial credible evidence support the Workers' Compensation
Court's finding that Kuntz does not have a permanent partial disability
caused by his January 1987 back injury?
Court reviews findings of fact made by the Workers' Compensation Court
to determine whether they are supported by substantial credible evidence.
Kloepfer v. Lumbermen's Mut. Cas. Co. (1996), 276 Mont. 495, 497, 916
P.2d 1310, 1311. The finding which Kuntz here disputes was that his
1987 injury "was not material or
significant on a permanent basis and did not increase his disability
over what existed prior to the injury."
asserts that the Workers' Compensation Court erred in essentially
determining that his right leg and low back pain "belonged to"
the early 1980 injuries, but only the left leg pain "belonged to"
the January 1987 injury. He further contends that the Workers' Compensation
Court improperly concluded that because his left leg pain decreased
after 1991, the effects of the 1987 injury were completely gone. Instead,
he maintains, the court should have found that his January 1987 injury
was an aggravation of a previous condition and that under Belton v.
Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405, the risk for
the entire condition passed to Nationwide as the insurer for Cereal
issue in Belton was whether the healing period from a previous injury
ended for purposes of workers' compensation only when the injured worker
was "completely healed." This Court clarified that the insurer
at the time of a second injury is at risk for the injury if the previous
injury covered by another insurer has reached maximum healing, maximum
recovery, or a medically stable condition; complete recovery from the
previous injury is not necessary for the second insurer to be responsible.
Belton, 202 Mont. at 389-90, 658 P.2d at 407-08. The burden of proof
is on the insurer at the time of the second injury.
¶19 A limitation
not at issue in Belton, but clearly set forth therein, is that the second
injury must be "an aggravation of a pre-existing injury."
Belton, 202 Mont. at 391, 658 P.2d at 409. In the present case, although
Dr. Teal opined by deposition that Kuntz's 1987 injury was either a
"new injury" or an "aggravation of a previous condition,"
and that Kuntz's injuries of 1977, 1980, and 1981 had reached maximum
healing before 1987,Dr. Shaw testified that the 1987 injury did not
aggravate or materially change Kuntz's underlying condition. In Dr.
Shaw's opinion, the 1987 incident represented an exacerbation, or temporary
alteration in symptoms, but not an aggravation, or material and permanent
alteration, in Kuntz's condition.
further alleges that the Workers' Compensation Court ignored the legal
principle set forth in Tiedeman v. Cooper Logging, Inc. (1985), 218
Mont. 312, 708
P.2d 255, that "each new compensable injury, though successive,
begins a new benefit consideration beginning at zero." Tiedeman,
218 Mont. at 316, 708 P.2d at 257. Kuntz maintains that the rule established
in Tiedeman applies here.
rule from Tiedeman applies as to "each new compensable injury."
Here, the Workers' Compensation Court found that Kuntz did not suffer
a permanent aggravation of his pre-existing back injury, and that therefore
the 1987 injury was not compensable. If that finding is supported by
substantial credible evidence, then the rule from Tiedeman does not
apply. Thus, both Belton and Tiedeman bring us back to the issue stated
above: whether substantial credible evidence supports the finding that
Kuntz does not have a permanent partial disability caused by his 1987
Workers' Compensation Court found that this case turned, in large part,
Kuntz's credibility. The court did not find wholly credible Kuntz's
testimony concerning the nature and extent of his pain or the nature
and extent of his disability, finding that Kuntz "is an extremely
angry man driven by a desire for revenge against his former employer,
and that his testimony concerning the demands of his time-of-injury
job, the extent of his pain, and his ability to perform his time-of-injury
job was exaggerated." ô23 The record supports the court's
determination as to Kuntz's credibility. For example, during his deposition,
Kuntz was asked if he had returned to the point where he was having
some periodic low-back pain and leg pain, "the same as you've had
ever since 1974?" Kuntz answered, "That's correct." The
court heard testimony from Kuntz's co-workers at the flour mill and
from one of the vocational experts concerning the physical demands of
the assistant miller job. Their testimony indicated that the pace and
labor required for the job were not nearly as intensive as described
by Kuntz. When asked if Kuntz complained about back pain at work, several
of his mill co-workers responded that he did, but that "he complained
about everything." When Kuntz stopped working as an assistant miller
in 1994, it was due to his depression, not his back injuries.
he was examined by Dr. Shaw, Kuntz was pursuing benefits for his 1977,
1980, and 1981 injuries, having not yet settled those claims. Kuntz
did not even report his 1987 injury to Dr. Shaw.
Kuntz applied for work with the Billings school district, he represented
that he had no physical handicap or deficit that precluded him from
performing certain work, and wrote, "My back has not given me any
trouble for a long time." At the time of the hearing, he had applied
for an upgraded custodial position with the school district which would
involve heavier duties, including the moving of desks and file cabinets.
Based upon all the information presented, the court concluded that Kuntz's
claims about his disability were exaggerated.
the evidence that Kuntz's 1987 injury caused his current disability
was, at best, equivocal. As the Workers' Compensation Court noted, it
was after the
1988 injury, not the 1987 injury, that Dr. Teal noted that Kuntz had
"developed aching pain mostly in the left calf." Dr. Teal
reported after his March 3, 1987 examination of Kuntz that Kuntz "has
improved now and in fact he is back to his usual status of some chronic
aching low back pain." Dr. Teal's opinion that Kuntz could not
perform the job of assistant miller was based on Kuntz's reports of
the nature and extent of his pain, the nature and extent of his disability,
and the requirements of the job. Unlike Dr. Shaw, Dr. Teal did not go
to the flour mill and observe the assistant miller job.
39-71-116(12), MCA (1985), defines permanent partial disability as a
"condition resulting from injury" (emphasis added) which results
in loss of earnings or earning capability. Dr. Teal assigned Kuntz a
ten percent impairment rating, but he was not able to attribute that
impairment rating to Kuntz's 1987 injury. In fact, in the pretrial order,
Kuntz stipulated that Dr. Teal's impairment rating is attributable to
his 1981 injury.
Shaw went to the flour mill on two occasions to evaluate the physical
demands of the assistant miller job. Based upon those visits to the
mill, his review of Kuntz's medical records, his physical examination
of Kuntz, and the detailed history which Kuntz provided, Dr. Shaw opined
to a reasonable degree of medical certainty that Kuntz was not physically
precluded from working as an assistant miller due to his back problems.
He further concluded that Kuntz quit work at the mill because of his
depression rather than because of problems with his lower back.
Shaw noted that Kuntz had a twenty-year history of mechanical low back
pain and sciatica. He testified that Kuntz's report of variations in
pain since his 1974 injury "is really very typical of this chronic,
recurrent, mechanical low back syndrome." As to Kuntz's claim that
before his 1987 injury he had only experienced right leg pain and not
left leg pain, Dr. Shaw testified that, "to me, as an examining
physician, the fact that one time the pain is on the right, the other
time the pain is on the left, is not so significant to me that there
has been a measurable alteration of his underlying status." Dr.
Shaw opined that Kuntz suffered a physical impairment, but he could
not to a reasonable degree of medical certainty attribute the impairment
to Kuntz's 1987 injury.
reviewing the record in this case, we hold that substantial credible
evidence supports the Workers' Compensation Court's finding that Kuntz
does not have a permanent partial disability caused by his January 1987
the court's conclusion correct that Kuntz failed to prove by a
preponderance of the evidence that his January 1987 injury caused his
Workers' Compensation Court concluded that "[t]he evidence preponderates
in favor of a conclusion that claimant's overall condition was not materially,
permanently changed by the 1987 injury, and that his disability was
not increased by the injury." Kuntz argues that the court erred
in accepting the testimony of Dr. Shaw over the testimony of Dr. Teal,
his treating physician for fourteen years.
review the Workers' Compensation Court's conclusions of law to determine
whether that court's interpretation of the law is correct. Kloepfer,
276 Mont. at 497-98, 916 P.2d at 1311. This Court has recently rejected
the argument that a treating
physician's opinion is conclusive in workersþ compensation matters:
Mont. at 498, 916 P.2d at 1312. This is especially true, where, as here,
the testimony of the treating physician was equivocal and was based
in large part upon subjective reports of a non-credible claimant, while
the conflicting testimony of the independent medical examiner was unequivocal.
to the deposition testimony of Dr. Teal, this Court has the same opportunity
to review that evidence as did the Workers' Compensation Court. See
Smith-Carter v. Amoco Oil Co. (1991), 248 Mont. 505, 813 P.2d 405. As
to that testimony, we agree with the Workers' Compensation Court in
that the testimony was equivocal and was based in large part upon Kuntz's
subjective representations of his condition and of his job duties.
to the testimony of the witnesses who appeared live before the Workers'
Compensation Court, this Court must defer to the trial court's assessment
testimony of those witnesses. See, e.g., Walls v. Travelers Indem. Co.
931 P.2d 712, 716, 54 St.Rep. 82, 84. We again point out, as noted above,
Shaw's opinion was based upon more than his physical examination of
Kuntz. It was also based upon his two visits to the flour mill to assess
the job requirements of an assistant miller, his review of Kuntz's medical
records, and the detailed history which Kuntz provided to him.
his reply brief, Kuntz argues for the first time that two cases previously
decided by this Court, Chaney v. U.S. Fidelity & Guar. (1996), 276
Mont. 513, 917 P.2d 912, and Walker v. United Parcel Service (1993),
262 Mont. 450, 865 P.2d 1113, control the result in the present case.
Walker is cited in the Respondents' brief, but Chaney is not.
Chaney and Walker recognize that the claimant bears the initial burden
establishing that he suffered a compensable injury from an industrial
accident. Chaney, 276 Mont. at 518, 917 P.2d at 915; Walker, 262 Mont.
at 454, 865 P.2d at 1116. As discussed above, Kuntz has failed to meet
his initial burden of establishing that he suffered permanent detriment
on account of his 1987 injury. Therefore, the burden does not shift
to the insurer as described under Chaney and Walker.
hold that the Workers' Compensation Court was correct in concluding
that the preponderance of the evidence indicated that Kuntz's 1987 injury
was not the cause of any permanent disability from which he suffers.
/S/ WILLIAM E. HUNT, SR.
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART