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NO.

92-235

IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

GLORIA J.

WEAVER, Claimant and Appellant,

-vsBUTTREY FOOD AND DRUG, Employer/Insurer, and Cross-Appellant, Respondent

APPEAL FROM:

The Workers' The Honorable

Compensation Court, Timothy Reardon, Judge

presiding.

COUNSEL OF RECORD: For Appellant: Richard J. Great Falls, For Respondent: G. Curtis Drake, Keller, Reynolds, & Johnson, Helena, Montana Drake, Stemhagen Martin, Montana Alexander, Baucus & Linnell,

Submitted Filed:

on Briefs: Decided:

September October 29,

10,

1992

192

Justice This Honorable (Weaver) is not

John is

Conway

Harrison from

delivered the Workers'

the

Opinion

of

the

Court. the Weaver that she

an appeal

Compensation Claimant Court

Court, Gloria

Timothy appeals entitled for

W. Reardon the to Workers past injuries at Buttrey

presiding. ' Compensation present incurred Food and

judgment total

and

temporary during Drug. the the

disability and scope Buttrey

benefits of her

certain

course

employment Drug

Respondent Workers' is causally

Food Court her

and

(Buttrey) that

cross-appeals back condition

Compensation related to

judgment work injury.

Weaver's We affirm.

Weaver checker the with Buttrey at

was the

injured

on store

June in Cut old

15,

1986,

while

working At the
time

as

a of

Buttrey

Bank,

Montana.

accident two

she was a 46-year dependent children. approximately occurred goods gate struck motion. thigh. had of

high had

school been

graduate working

and married at the same

She

store

for

twenty-one

years. pushed a cart piled high

The accident with opened To avoid with in large the canned front

when a customer through the Weaver's cart, the

checkstand. cans began backward a hot but to

When Weaver tumble out.

being

by a can,

Weaver so, her thigh.

jumped

and sideways searing time pain two

a twisting her left lumps her to

As she did She finished

she felt shift, Her

by that

large took

formed

on her

supervisor as

immediately a hematoma and

a doctor elevation continued By then her

who diagnosed and ice to leg work packs. at the

the

injury

recommended Weaver 17, 1986.

Buttrey her

store

until

September she took

was bothering 2

so much that

vacation absence. disability this

and then, Buttrey's

on tne insurer

manager's paid 17,

recommendation, benefits for April

a leave total

of

temporary 4, 1987.

from September Weaver consulted Great Falls.

1986 until

During

period in

Dr. J. W. Bloemendaal, Dr. Bloemendaal left diagnosed

an orthopedic a possible

surgeon rupture physical
18,

of the facia therapy Dr. stating already

around Weaver's

quadriceps

and prescribed On March

and exercise Bloemendaal that in his

to strengthen wrote opinion to a

the muscle. Workers'

1987,

Compensation return to work.

adjuster, Buttrey six-month expired.

Weaver could

had terminated leave returned though

her employment, allowed by her

however, union store, for work

because the contract had

disability Weaver never

to the Buttrey she did apply

which burned at the new

down in November 1987, store in 1988. Weaver considered she did not feel weak and she still side of her leg that

Dr.

Bloemendaal's return

letter

a "release,"

but

she could

to work because her leg was thigh Buttrey's benefits, and numbness down the insurer however, refused and after Court that later her to

had lumps on her and in total 1987, her foot.

extend her temporary a hearing denied leg in July total

disability the

Workers' benefits

Compensation

temporary

disability

on the grounds

injury

had reached

maximum healing injured

on March 18, 1987. leg "gave out" while she was injuring saw

On June 4, 1987, Weaver's climbing her left her a bleacher at a Little

League game. her left July 3 thigh.

She fell, Dr.

knee and reinjuring In his

Bloemendaal he testified

two weeks later.

1989 deposition,

that

she

would and be able

not that to

have even work continued and it at if

fallen after she to the

"if the kept

she June that

had 4

had accident

a

good she "in tone

strong still and and 1991 she

quadriceps" should function." numbness still her in limped, homemaking In Court under the Weaver "excellent release Weaver's would court that because such be found to for August

muscle pain, in a car,

Weaver her leg, found and 1988,

experience of drive trial

weakness, December and had

time to

difficult

curtailed

recreational Weaver of MCA of for (1985). the him and to work Cut for that and

activities. petitioned permanent At Bank nearly he would he had the the partial hearing store years, rehire a Workers' disability in November testified that her position testified work partially earning to introduce capacity evidence as if she she was had Compensation benefits 1988, that an a

a determination

g 39-71-703, former had manager worked employee," return

Buttrey ten

available. that a checker. Weaver The but impossible for held

vocational physically that

rehabilitation capable Weaver of her was of

counselor half-time

permanently

disabled is

"measurement of [Weaver's]

post-injury failure

necessary

determination." Weaver interpreted proof Iwersen seeking "nerve of of disability. the Kalispell from and in the court's order Accordingly, Orthopedic Buttrey's referred Kalispell. her Dr. as she Clinic insurer. to Dr. Stephens a request consulted in Dr. John May for Dr. 1989, Iwersen Stephens, saw Weaver

additional Lawrence without recommended a rehabilitation

approval testing" specialist

4

twice ordered disk study root

in June 1989, magnetic in

without

approval imaging back,

from

Buttrey's

insurer.

He

resonance her lower

(MFZ), which

showed a "moderate an electromyograph or nerve wrote that as it this."

bulge"

and conducted

(EMG), which damage. notes Despite for

showed no evidence the negative

of radiculopathy, Dr.

EMG results, "it

Stephens possible as well

in his

June 13, 1989 that injury resulted

is certainly

her work-related is possible that

in the back problem in her gait

the alteration referred

has aggravated

Dr. Stephens neurologist.

Weaver to Dr. James Mahnke, a Kalispell a complete disease examination in August which

Dr. Mahnke performed a "structural to surgery."

1989 and diagnosed "may respond for his the first notes for only time that

of the lower

spine,"

Weaver learned again

of this

diagnosis In

when she saw Dr. Stephens consultation, Dr.

in May 1990. that would

Stephens adding,

stated "I

Weaver feel on

needed further a more probable work-related In neurologist,

evaluation than

and treatment, that

not basis

her problem

is related

to her

injury." 1990, Dr. Stephens Herder studies referred in Great Weaver Falls. to Dr. another Herder order to

August Dr.

Stephanie conduction out or rule

recommended nerve definitively the EMG in rule

and another

EMG, "in

in surgery." found

Dr. Stephens no clear

did repeat evidence of

January

1991 and again

radiculopathy. In the meantime, her husband bookkeeping Weaver was working in 1985. at the tavern that she and over the

had bought function,

By 1988 she had taken a part 5 time employee

replacing

who had been

paid

$6.50

an hour.

Thiswork
During

occupied summer of

Weaver 1988, as

for she well.

three began

hours to

each assume

weekday afternoon equipped not of

morning. and with

the

evening a stool

bartending at each

duties

The sit over of the the work

bar

was

end so that

she could had taken the time all

down when the duties in

waiting three

on customers. part-time 1991,

By 1989 Weaver and by

bartenders,

trial required

December to run In sister said would earn

she and her husband seven 1991, the At days

were a week.

doing

the

business,

September and her

Weavers her

sold

the in for

tavern October running to give

to 1991, the

Weaver's Weaver tavern

husband. "anticipated herself until

deposition

that include a living

the

arrangement" husband, [her the Workers' trial in

and her things time of

"mainly

us a way to claim] Weaver past, are and by

Compensation December had 1991, in the

resolved." her husband cash Weaver third total time disability

At

the

were out

paying of the

themselves, bar." the Workers'

as they

"taking

petitioned in May 1991,

Compensation of

Court her

for

the

seeking retroactively

reinstatement

temporary as well of her as 1986 were

benefits costs back

and prospectively, fees. had not Buttrey her The basis been

as medical claim

benefits, lower time had on April court total held

and attorney's condition, accident considered which

was her

reported in

an injury and

at the

of her not 4, been 1987. that

at the

store benefits

therefore

when

terminated The temporary

although benefits,
6

Weaver

was

not

entitled insurer

to was

disability

Buttrey's

responsible because injury. evidence" was caused gait for due to future Dr.

for

the

medical

expenses the "a

related back pain

to her to

"low

back 15,

pain" 1986

Stephens The court

had related found the June that

the of lower

June the back change

preponderance that Weaver's or

medical injury in her only

supported by the her

conclusion 15, 1986

accident The insurer

by the was held

left

leg bills

pain. for had by not

liable

medical because

Weaver's obtained Iwersen, that

lower its

back approval

condition, for the and not

however, examinations Herder. unreasonably entitled (1985) . of medical

Weaver

performed The court

Drs. found

Stephens, because benefits, Buttrey

Mahnke, had

also payment

refused to the

of disability penalty costs authorized

Weaver

was not MCA issue

20 percent was awarded only.

by 5 39-71-2907, fees on the

Weaver

and attorney's

benefits

The issues (1) Weaver's
(2)

on appeal the Workers'

are: Compensation was caused Court err in finding injury? in refusing for injuries to that

Did back Did

condition the

by her

1986 work Court err benefits 1986? err

Workers' temporary Buttrey Workers' for the

Compensation total disability on June

reinstate sustained (3) medical during

Weaver's at the

store

15, Court

Did the benefits

Compensation diagnostic

in denying on her lower

Weaver back

work

done

the (4)

1989-91 Is Weaver total

period? entitled to a penalty for unreasonably withheld

temporary

disability Weaver entitled

and medical to 7

benefits? costs and attorney's

(5)

Is

reasonable

fees issue?

for

the disability

issue

as well

as for

the medical

benefits

I The first erred in finding issue that is whether the Worker's back injury Compensation Court

Weaver's store of

lower

was caused by her not substitute Court when as

accident our

at the Buttrey for that

in June 1986. the Workers' supports

We will

judgment

Compensation the court's

substantial, it does here.

credible McIntyre

evidence v.

conclusion, Dist. (1991),

Glen Lake Irrigation 579, 581; Anderson 165, 167.

813 P.2d 451, 826 P.2d 931,

455, 48 St.Rep. 934, 49 St.Rep. visible leg. the next

v. Hammer (1992),

The immediate, to do with her left

consequences Because several

of Weaver's the

accident

had who they

she told months that

physicians

examined her during focussed exclusively pain

her leg hurt, after

on the leg. and weakness she might since spine

Not until

May 1989, for three

Weaver did

had experienced a doctor evidence disc injury. aggravated her left aggravated disability. 386, 658 in suspect

in her leg

years,

that

have a back problem. that

The medical

accumulated her It lower

then establishes but does not

she has a damaged what caused that the pain this was in

establish

may have

been

a pre-existing or by the Whether however, Transport accident strain 8 it it

condition fact that

by the accident

itself

leg caused her to limp. by the accident, v. Carlson ("An

was caused is a

or merely

compensable 384, the

Belton P.2d event 405, or

(1983), is

202 Mont. if

407

comepnsable a

traumatic

unusual

aggravates

pre-existing

injury."). 639 P.2d in 1976

See Jones 1140 but (claimant was

v.

St.

Regis his

Paper back

Co. while for in

(1981), working subsequent his

196 Mont.

138,

injured to lifting substantial, Court's condition.

as a logger disability as a lumber supports benefits the for

entitled and that

benefits activities

caused grader). Worker's Weaver's

by bending We hold

work

credible award of

evidence medical

Compensation lower back

II Given question benefits disability 71-116(19), as: a condition resulting chapter that results until the injured permanent character To demonstrate what inability Metzger 1033, complete market. bookkeeper in the v. 1035. jobs "total from an injury as defined in this in total loss of wages and exists worker is as far restored as the of the injuries will permit. loss her the Corp. Weaver to had been of normal duties (1984), failed the for to wages," labor a claimant market and with 351, burden her three for trial a job in must prove those 355, of 687 proving labor as a establish complete jobs. P.2d a is for that Weaver's she is injury. a claimant which back injury to be must defines is compensable, total to the second

whether that

entitled To

temporary

disability total of 5 39-

entitled meet the

temporary

benefits,

requirements total

MCA (1985),

temporary

disability

constitute to perform

associated 212 Mont. meet jobs at her within least

Chemetron Here,

inability She

perform working

normal years

and bartender, Buttrey

and she had applied store. At the work

as checker 1991,

new Cut Bank that

December

she stated

she thought

she could 9

as a checker

and would

"give her IGA "[t]he

it Workers' store.

a good

try,"

but

that claim

she

was

waiting applying hearing is been

for at

a resolution the new Cut put

of Bank it,

Compensation As the of asserts temporary money receives gain" benefits. 165, 168. gross for Scyphers 393, 394. Weaver meet their generated In worked to her her October in daily but He don't my the and living her as a Workers' her that benefits direct no

before

Compensation to she has were wage work not terminated for This for v. the her

examiner

evidence Weaver

ability

overwhelming." "gainfully in work March at the 1987. tavern, has for P.2d Act, 931, employed" She is she adopted total 936,

since paid says, the

her no and "economic

benefits.

Court,

however, eligibility

standard Anderson Under earnings, work v. .

determining Hammer Workers' or "anything real (1989), (1992),

disability 49 St.Rep. means

826

Compensation of value economic 237 Mont.

"wages" as to the 426,

simply consideration employee." 774 P.2d

received gain 424,

. . constituting H & H Lumber

Here, income effort husband's. that addition it by she to that

husband expenses.

took

a

"draw"

on

the

tavern to to the her

Weaver's was at for or duties, four and

contribution least example, nights that "I and Whether a "draw" least or four a can't he's equal she

this 1991 bar

income deposition, "three

stated in

week" handle not Weaver's "wages," years.

bookkeeping husband like receipts it is and is

myself,

not he's

a bookkeeper not good." as for at

a

bartender. share it has of the

tavern her it is

described

covered

living "real

expenses economic gain."

Indubitably,

10

The Workers' temporary total

Compensation disability

Court

also

based previous

its

denial finding

of that

benefits

on its with

Weaver had reached That finding 1987.

maximum healing

respect

to her leg injury. of March 18, referred only

was based on Dr. Bloemendaal's that Dr. Bloemendaal's evaluation

"releasel' opinion

Weaver argues that

to her leg injury, for the back has total we hold her

further that

and treatment in 1989, and is

was needed and that entitled this she to issue alone

injury not

was discovered maximum healing benefits.

therefore temporary because

reached

disability that for

We do not address from the

Weaver's those

earnings

tavern

disqualified

benefits. III

Next, benefits 91 period. insurer this is period for

we must decide the diagnostic The Workers' not responsible because from the

whether

Weaver is

entitled

to medical the 1989Buttrey's during obtained Iwersen,

work done on her back during Compensation for Court found that

Weaver's neither for her

medical requested visits 24.29.1403, to

expenses nor Drs.

Weaver insurer

authorization Stephens, authorization physician v. Wells

Mahnke and Herder. from or referring Fargo Armored the insurer a worker Service

Rule for

ARM, requires treating Carroll 151, 783

changing

a worker's specialist. 240 Mont.

to a medical Corp. (1989),

P.2d 387. Weaver argues selects Stephens the initial the that under Rule 24.29.1403 that physicians the injured worker and back

treating "initial

physician; treating 11

Drs. for

Iwersen her

were

injury;" insurer those Herder insurer is doctors. were

and

that

under to pay

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