Sterns v. Dudley

741 P.2d 407, 228 Mont. 45, 44 State Rptr. 1329, 1987 Mont. LEXIS 962
CourtMontana Supreme Court
DecidedAugust 11, 1987
Docket86-555
StatusPublished

This text of 741 P.2d 407 (Sterns v. Dudley) 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
Sterns v. Dudley, 741 P.2d 407, 228 Mont. 45, 44 State Rptr. 1329, 1987 Mont. LEXIS 962 (Mo. 1987).

Opinions

MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Charles Sterns appeals a Workers’ Compensation Court order which awarded him 200 weeks of permanent partial disability benefits. The issues on appeal are: (1) whether the court correctly concluded that Sterns is not permanently totally disabled; (2) whether the court erred in failing to award 500 weeks of permanent partial disability benefits to Sterns; (3) whether the court erred in refusing to impose a 20% penalty upon respondent Montana State Compensation Insurance Fund (State Fund) for insurer unreasonableness; and (4) whether the court erred in failing to award Sterns his costs and attorneys’ fees. We affirm.

In 1984, Sterns suffered two separate, compensable industrial injuries while working for Walter Dudley as a “faller.” Basically, Sterns’ job was to cut down trees and help to prepare them for transportation to lumbermills. In the first accident, in January 1984, Sterns suffered an injury to his lower back and left hip when a tree top fell on him. He received temporary total disability benefits for a relatively short period after that injury and he eventually returned to his job. In June 1984, Sterns suffered another injury when his chain saw kicked back and cut into the middle finger of his left hand. He also received temporary total disability benefits after that accident. Sterns returned to work after the second accident but after several months on the job, he quit work on the advice of his doctor. He has not worked since October 1984. After a dispute between Sterns and the State Fund, Sterns petitioned the Workers’ Compensation Court for a hearing, mainly to determine whether or not he was permanently totally disabled. Following discovery and a hearing, the hearings officer filed his proposed judgment in October 1986. The Workers’ Compensation Court adopted the hearings officer’s findings of fact and conclusions of law and, in October 1986, entered judgment [47]*47in accordance with the proposed judgment. The court ruled that Sterns was not entitled to permanent total disability benefits, that Sterns was entitled to 200 weeks of permanent partial disability benefits, and that Sterns was not entitled to a 20% penalty. The court also refused to award costs and attorneys’ fees to Sterns. This appeal followed.

The standard of review is clear as to the first issue; i.e., whether the court erred in ruling that Sterns is not permanently totally disabled.

“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute our judgment for that of the trial court as to the weight of evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this court cannot overturn the decision.” (Citations omitted.)

Brewington v. Birkenbuel, Inc. (Mont. 1986), [222 Mont. 505,] 723 P.2d 938, 940, 43 St.Rep. 1458, 1461. Section 39-71-116(13), MCA, defines a permanent total disability as:

“[a] condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability 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.”

In Metzger v. Chemetron Corp. (Mont. 1984), [212 Mont. 351,] 687 P.2d 1033, 1035, 41 St.Rep. 1788, 1790, we elaborated on the statutory definition and stated,

“To establish the existence of no reasonable prospect of employment in the normal labor market, a claimant must introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment and duties associated with those jobs because of his work-related injury.”

At the hearing on his petition, claimant testified to the continuing effects from both his work-related injuries. From the first injury, claimant testified that he still suffers from pain and numbness in the lower back and hip region. He also testified that sitting or riding in a car for extended periods aggravates his back injury. Dr. Sousa, an orthopedic surgeon who examined Sterns, diagnosed his back [48]*48condition as a neuropraxia of the cutaneous nerves in the lumbar region. He described the condition, in layman’s terms, as a stretching or bruising of the nerves in the skin. Dr. Sousa made no objective findings of injury, felt that Sterns had no impairment rating for his back injury and stated that this injury had reached maximum healing. Dr. Russo, a neurologist, also examined Sterns and described the back injury as a subjective complaint with no objective findings. He stated that the injury could conceivably limit Sterns’ ability to lift heavy objects.

Sterns’ second injury involved a chain saw cutting into his left middle finger. The injury required surgery and resulted in a loss of range of motion or flexibility with the finger. Dr. Sousa assigned an impairment rating of 56% for the finger, 11% for the left hand, 10% for the upper extremity and 6% for the whole man. Sousa described the “whole man” impairment rating as a 6% whole man permanent partial impairment based upon the AMA guidelines. (Emphasis added.) Doctors Russo and Sousa generally agreed that Sterns should avoid any employment which requires repetitive heavy gripping of the left hand. Since his high school days seventeen years ago, Sterns had worked almost exclusively as a timber faller in the Missoula and Thompson Falls area.

There is extensive evidence, some of it conflicting, bearing on the issue of permanent total disability. Because substantial credible evidence supports the lower court’s ruling, we affirm the court’s determination that Sterns is not permanently totally disabled. We agree that he has not established by a preponderance of the credible evidence that he has no reasonable prospect of finding regular employment of any kind in the normal labor market.

In September 1985, the Missoula Community Hospital Rehabilitation Center (Rehab Center) conducted a five-day vocational rehabilitation evaluation of Sterns. The Rehab Center’s report (1) considered Sterns a competent worker capable of training successfully for a large number of occupations, (2) stated that he appears to have the potential of functioning effectively in a variety of occupations, and (3) rated Sterns as above-average in work speed, accuracy, intellectual functioning, academic skills and clerical aptitude. The International Rehabilitation Associates, Inc. (IRA) conducted a labor market survey to determine Sterns’ vocational opportunities in the Thompson Falls area. IRA considered those vocations listed as possibly appropriate for Sterns by the Rehab Center. IRA conducted an extensive survey and concluded that “[w]hile the job market in the [49]*49Thompson Falls are [sic] appears depressed, there are, in fact, vocational opportunities for an individual with [Sterns’] documented physical and mental capabilities ...”

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Related

Metzger v. Chemetron Corp.
687 P.2d 1033 (Montana Supreme Court, 1984)
Brewington v. Birkenbuel, Inc.
723 P.2d 938 (Montana Supreme Court, 1986)

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Bluebook (online)
741 P.2d 407, 228 Mont. 45, 44 State Rptr. 1329, 1987 Mont. LEXIS 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterns-v-dudley-mont-1987.