Keene v. Anaconda Co.

652 P.2d 216, 201 Mont. 102, 1982 Mont. LEXIS 933
CourtMontana Supreme Court
DecidedOctober 13, 1982
DocketNo. 81-270
StatusPublished
Cited by3 cases

This text of 652 P.2d 216 (Keene v. Anaconda Co.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keene v. Anaconda Co., 652 P.2d 216, 201 Mont. 102, 1982 Mont. LEXIS 933 (Mo. 1982).

Opinions

MR. JUSTICE HARRISON

delivered the opinion of the Court.

Claimant-respondent petitioned the Workers’ Compensation Court for permanent total disability benefits, attorney fees and a 20 percent penalty for unreasonable delay and refusal to pay benefits, in July, 1980. The Workers’ Compensation Court entered judgment for the claimant on all issues. Defendant-appellant, Anaconda Company, appeals the judgment of the Workers’ Compensation Court.

Claimant was employed with the Anaconda Company as a boilermaker at the Berkley Pit in Butte, Montana. On August 23,1978, claimant was riding in a two and one half ton truck in the Berkley Pit when the truck caught fire. Claimant jumped out of the truck with a fire extinguisher in his hand and landed on his left leg. Claimant immediately felt pain in his lower back and left leg.

On August 24, 1978, claimant went to see Dr. James P. Murphy, an orthopedic surgeon in Butte, Montana, for treatment of his lower back and leg pain. Dr. Murphy recommended claimant undergo a myelogram but claimant refused to consent to a myelogram and asked for a second opinion. Dr. Murphy referred claimant to Dr. Johnson, a neurosurgeon, who examined claimant on September 13, [104]*1041978. Dr. Johnson found claimant had suffered a “low back and lower leg muscular ligamentous” injury but found no “neutral component” to claimant’s pain. Dr. Murphy then released claimant and claimant was treated by Dr. Phillip A. Blom, D.C., a chiropractor in Butte, Montana. Dr. Blom treated claimant from September 29, 1978, until November 3, 1978, for a “lumbar sacral strain with accompanying myofacitis and grade II radiculitis left.” On November 3, 1978, Dr. Blom released claimant to return to work.

When claimant continued to complain of pain, Dr. Blom referred him to Dr. David P. Jacobson, an orthopedic surgeon in Missoula, Montana. Dr. Jacobson examined claimant on November 7, 1978, and recommended claimant return to fully active employment. Claimant returned to work as a boilermaker with the Anaconda Company on November 9, 1978. Claimant testified he had to quit after working only four hours because of pain.

On November 10, 1978, claimant saw Dr. Ladd D. Rutherford, an orthopedic surgeon, in Bozeman, Montana. Claimant saw Dr. Rutherford on two occasions after which Dr. Rutherford advised claimant that he would not do any damage to himself by returning to work but that he may have periodic back pain. Claimant returned to work with the Anaconda Company as a boilermaker on or about December 1, 1978. Claimant continued working until March 1979, when claimant quit because of pain.

On April 19, 1979, claimant went to work for Union Tank Works, Inc., in Missoula, Montana, as a boilermaker. Claimant quit work at Union Tank Works, Inc., on September 11, 1979. Shortly thereafter, claimant worked at Weiss Construction Company for a period of eight days and quit when the job was finished.

On October 7, 1979, claimant began working for Refractory Construction, Inc., as a boilermaker. Claimant quit work on October 17, 1979, because of low back pain. On October 30, 1979, claimant returned to Dr. Blom for treatment. Dr. Blom treated claimant on four occasions.

[105]*105On April 22, 1980, claimant went to work for Combustion Engineering Company. Claimant was fired on April 29, 1980, because of a personality conflict with his employer. On December 13, 1979, claimant was examined by Dr. Arnold G. Peterson, an orthopedic surgeon in Missoula, Montana. Dr. Peterson stated, “[h]is history, [claimant’s], physical findings and x-rays [sic] sure all fairly characteristic of a musculoskeletal etiology for his back pain and I strongly doubt that it has a neurogenic origin.” Dr. Peterson suggested claimant should seek work that is less labor intensive.

When claimant submitted Dr. Peterson’s report to the Anaconda Company’s adjuster, it was requested that he be examined by Dr. John H. Avery, an orthopedic surgeon in Great Falls, Montana. Dr. Avery stated claimant had sustained a “soft tissue injury to the lumbrosacral spine as a result of his accident of August, 1978.” Dr. Avery advised claimant find work in an occupation which would not involve excessive bending of his back or heavy lifting. However, the Anaconda Company still refused to pay workers’ compensation benefits to claimant or claimant’s medical expenses. Claimant testified due to Anaconda’s refusal to pay benefits or medical expenses, claimant exhausted all of his savings which amounted to over $15,000 and lost his home and two trucks.

In July 1980, claimant petitioned the Workers’ Compensation Court for permanent total disability benefits, attorney fees and a 20 percent penalty for unreasonable delay and refusal to pay benefits. The Workers’ Compensation Court found claimant is permanently totally disabled, ordered the Anaconda Company pay claimant’s reasonable costs and attorney fees and held claimant was entitled to a 20 percent increase in award for unreasonable delay and refusal to pay claimant permanent total disability benefits. Defendant, Anaconda Company, appeals the ruling of the lower court.

The issues raised on appeal are as follows:

1. Whether the lower court erred in finding that the claim[106]*106ant is permanently totally disabled because he could not return to his former occupation as a boilermaker.

2. Whether there is substantial evidence to support the lower court’s finding that the claimant could not engage in his former occupation as a boilermaker since August 23, 1978.

3. Whether the lower court erred in awarding claimant the 20 percent increase for unreasonable delay and refusal to pay benefits under section 39-71-2907, MCA.

The Anaconda Company contends the lower court erred in finding claimant to be permanently totally disabled because the court did not apply the statute properly. The statute defining permanent total disability is section 39-71-116(13), MCA, which states:

“ ‘Permanent total disability’ means a condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capacity that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence.” (Emphasis supplied.)

The Anaconda Company argues here the lower court made no finding that claimant had no reasonable prospect of finding regular employment of any kind in the normal labor market and thus was in error. Instead, the lower court found claimant “is permanently totally disabled from engaging in his normal occupation as a boilermaker.”

Although claimant may not be able to engage in his normál occupation as a boilermaker, that does not necessarily mean that claimant has a permanent total disability. The statute requires that the claimant have no reasonable prospect of finding regular employment of any kind in the normal labor market before the court can find permanent total disability. In Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660, this Court held, “[t]he intention of the [107]

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Cite This Page — Counsel Stack

Bluebook (online)
652 P.2d 216, 201 Mont. 102, 1982 Mont. LEXIS 933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keene-v-anaconda-co-mont-1982.