Michael Homme v. Rauenhorst Corp.

740 P.2d 1110, 227 Mont. 495, 44 State Rptr. 1262, 1987 Mont. LEXIS 944
CourtMontana Supreme Court
DecidedJuly 28, 1987
Docket86-343
StatusPublished
Cited by4 cases

This text of 740 P.2d 1110 (Michael Homme v. Rauenhorst Corp.) 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
Michael Homme v. Rauenhorst Corp., 740 P.2d 1110, 227 Mont. 495, 44 State Rptr. 1262, 1987 Mont. LEXIS 944 (Mo. 1987).

Opinions

MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Workers’ Compensation Court found claimant to be permanently partially disabled and not entitled to temporary total disabil[497]*497ity benefits while he was being retrained. Claimant appealed. We affirm.

The determinative issue is whether the Workers’ Compensation Court erred in deciding claimant was not entitled to be paid continued temporary total disability benefits under Section 39-71-116(19), MCA, while he was in college being retrained.

Claimant was employed as a construction laborer by Rauenhorst Corporation when a %” drill fell approximately 85 feet from a building and landed in the middle of his back, fracturing a vertebra in the thoracic area of his back. Rauenhorst’s insurer, Continental Casualty Company, accepted liability and paid medical benefits and temporary total disability benefits. Claimant is now receiving permanent partial benefits, but would like to begin receiving temporary total benefits again while he is being retrained.

Six days after the accident, claimant went to a hospital emergency room, where X-rays were taken. After this initial examination claimant was seen several times by Dr. Richard A. Nelson, a neurologist. Dr. Nelson last physically examined claimant on July 31, 1984. Dr. Nelson diagnosed central injuries to the vertebra and/or to the disk, a fracture of the spinous process at T-10, and a small bony density that was thought to be causing a slight encroachment upon the the-cal sac. The thecal sac consists of strong fibrous sheaths which enclose the canal of the vertebra column. Dr. Nelson also said there was some innervation of the stomach muscles which would lead to some lifting restrictions.

Of central importance to this case, Dr. Nelson stated in his deposition that the claimant had reached maximum healing with regard to the tissues which had been fractured and that he had no argument with a three percent impairment rating being assigned to claimant. However, Dr. Nelson did not believe claimant should go back to his old job as a laborer because of the possibility of reinjuring his back. Dr. Nelson also recommended that a nuclear magnetic resonance (NMR) be done to determine if claimant could be helped by surgery. The NMR would have had to be performed somewhere outside of Montana.

Claimant also saw Dr. Henry H. Gary, a neurosurgeon, and Dr. Robert A. Sterling, an orthopedist, on February 11, 1986, almost a year and a half after Dr. Nelson’s last examination. Dr. Gary and Dr. Sterling found that claimant suffered from a fracture of the spinous process, but did not believe the encroachment upon the thecal sac was causing claimant any pain. Neither Dr. Gary nor Dr. Ster[498]*498ling gave any credence to Dr. Nelson’s innervation theory. Both Dr. Gary and Dr. Sterling agreed that claimant had reached full recovery as far as maximum healing was concerned and neither recommended further treatment.

The Workers’ Compensation Court found that:

“Given the differing medical opinions reached by Dr. Nelson on the one hand and by Drs. Gary and Sterling on the other, it is not surprising to find that there is also a degree of disagreement as to whether claimant has reached maximum healing.”

This issue of whether claimant had reached maximum healing is central to whether he is entitled to temporary total disability benefits.

Dr. Nelson declined to issue an impairment rating. However, Dr. Gary and Dr. Sterling concluded that claimant had reached maximum healing. Dr. Nelson listed several restrictions on claimant’s physical activities, including no climbing, only intermittent carrying of light weights, and limited walking. In contrast, Dr. Gary and Dr. Sterling released claimant to return to his previous employment without restriction.

Because of his back problems, claimant contacted the Social and Rehabilitation Services (SRS) whose services are offered to anyone with a vocational handicap. The SRS sponsored claimant and agreed to pay claimant’s tuition of $323 per quarter to attend Eastern Montana College as long as claimant maintains a 2.0 GPA. Claimant’s counselor at SRS testified Mr. Homme would have also been suitable for on-the-job training and would currently qualify for some positions which would not require any retraining.

Based upon the above outlined medical evidence, injury, and vocational potential, the Workers’ Compensation Court concluded that the claimant was not entitled to temporary total disability benefits under Section 39-71-116(19), MCA, while he was in college. Claimant appealed.

The issue is whether the Workers’ Compensation Court erred in deciding claimant was not entitled to be paid continued temporary total disability benefits under Section 39-71-116(19), MCA, while he was in college being retrained.

The standard of review we will use in this case is well settled:

“The function of this Court is to determine whether there is substantial evidence to support the findings and conclusions of the Workers’ Compensation Court. . . This Court will not substitute its judgment for that of the trial court as to the weight of the evidence [499]*499on questions of fact. . . Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court will not overturn the decision . .

Tocco v. City of Great Falls (Mont. 1986), [220 Mont. 221,] 714 P.2d 160, 163, 43 St.Rep. 310, 314, citing Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 419, 571 P.2d 372, 373.

Claimant was injured on June 22, 1984. On that date, the definition of temporary total disability found at Section 39-71-116(19), MCA (1983), provided:

“ ‘Temporary total disability’ means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence.”

Although Section 39-71-116(19), MCA (1983), was amended effective October 1, 1985, we will not consider the amended statute since this Court has held that the statute in effect on the date of claimant’s injury controls. Buckman v. Montana Deaconess Hospital (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216. Because amended Section 39-71-116(19), MCA, provides that [a] worker shall be paid temporary total disability benefits during a reasonable period of retraining”, we emphasize that this holding does not apply to cases determined under the statute as amended in 1985.

We will first discuss the implicit determination by the Workers’ Compensation Court that the claimant was not entitled to permanent total disability benefits while attending college. The Court considered the two-factor test contained in Metzger v. Chemetron Corporation (Mont. 1984), [212 Mont. 351,] 687 P.2d 1033, 41 St.Rep.

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Bluebook (online)
740 P.2d 1110, 227 Mont. 495, 44 State Rptr. 1262, 1987 Mont. LEXIS 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-homme-v-rauenhorst-corp-mont-1987.