NO. 94-473 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995
DALE WOOD, Petitioner and Appellant,
STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Insurer for PIERCE'S DODGE CITY, Employer and Respondent.
APPEAL FROM: Workers' Compensation Court! The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD: For Appellant: Randall 0. Skorheim, Skorheim Law Office, Great Falls, Montana For Respondent: William 0. Bronson, James, Gray & McCafferty, Great Falls, Montana
Submitted on Briefs: May 11, 1995 Decided: August 25, 1995 Filed: Justice Terry N. Trieweiler delivered the opinion of the Court. Dale Wood filed a petition for emergency hearing in the
Workers' Compensation Court for the State of Montana in which he
named the State Compensation Mutual Insurance Fund as a defendant
and sought reinstatement of temporary disability benefits. After
trial, the Judge of the Workers' Compensation Court found that Wood
had sustained no disability for which he was currently entitled to benefits, and denied his petition. Wood appeals from the judgment
entered pursuant to that finding. We affirm the judgment of the
Workers' Compensation Court. The only issue on appeal is whether there was substantial
evidence to support the findings of the Workers' Compensation
court. In the pretrial order signed by the attorneys for the parties
and the Judge of the Workers' Compensation Court, it was agreed
that Wood injured his back during the course of and arising out of
his employment with Pierce's Dodge City on July 29, 1992, and that
at that time his employer was insured by the State Fund. The
parties also agreed that Wood had suffered a previous injury to his back while working for the same employer on June 15, 1990; that he
was released to return to work with a limitation on the amount that
he could lift following that injury; and that his claim for benefits related to that injury was settled.
Wood contended in the pretrial order that his second injury on
July 29, 1992, was either a new and different injury or a permanent
2 aggravation of his previous condition which disabled him from returning to his normal labor market and required extensive retraining. He claimed that during this necessary period of rehabilitation he was entitled to temporary total disability benefits retroactive to May 28, 1993. (Benefits had been paid temporarily by the State Fund from November 8, 1992, until sometime
in May 1993.)
The State Fund contended that its decision to terminate payment of disability benefits to Wood in May 1993 was based on
information it had received indicating that he had reached the
point of maximum medical improvement, and that at that point his
physical condition and the extent of his impairment was the same as
it had been following recovery from his earlier injury. The State Fund contended that based on the best information it was able to
gather, Wood's 1992 injury was in the nature of a temporary
aggravation of a pre-existing injury from which there was no
permanent effect. Therefore, it was the State Fund's contention
that claimant was not entitled to further disability benefits as a
result of his second injury. In particular, the State Fund relied
on 5 39-71-703(5), MCA (1991), which provides that: If a worker suffers a subsequent compensable injury or injuries to the same part of the body, the award payable for the subsequent injury may not duplicate any amounts paid for the previous injury or injuries.
At trial, Wood testified in person. Deposition testimony was
offered from Wood's treating physicians, Dr. Michael Luckett and Dr. Patrick E. Galvas.
3 Wood testified that following his first injury he experienced pain in his back and left leg, but that his pain was limited to the
left side. He stated that after settling his claim in 1991 he
returned to work and described the activities he was able to perform.
According to Wood's testimony, on July 29, 1992, while trying
to push an engine onto a pallet, he experienced pain on the right
side of his low back and in his right leg. He was first treated for that injury by Dr. Luckett, an orthopedic surgeon, who then
referred him to Dr. Galvas, a specialist in physical medicine and
rehabilitation. He testified that following recovery from his
second injury, his physical activities were more restricted than
they had been following recovery from his first injury. However,
he acknowledged that after being released to return to work
following his first injury, he was advised that his condition could get worse and that he had been limited to light duty work as a
result of that injury.
The Workers' Compensation Court found that Dr. Luckett's
diagnosis of the anatomical explanation for Wood's complaints was
the same following both the first and second injury, and that, in
spite of Dr. Galvas's contrary opinion, both doctors' diagnoses
related to nonspecific sources of pain in the low back. The court
was not persuaded that Dr. Galvas's testimony established that the
second injury caused a new and different condition (myofascial pain
syndrome) as opposed to the condition which was diagnosed by
4 Dr. Luckett (discogenic pathology). It found that his symptoms following the second injury were essentially the same as those following the first injury, and that his work restrictions were also essentially unchanged. In balancing the testimony of Dr. Luckett against the conflicting testimony of Dr. Galvas, the court noted that Dr. Luckett had the advantage of having treated Wood following both injuries, but that Dr. Galvas saw him in only the late stages of recovery from his second injury. Furthermore, the court found that the fact that claimant had been given a 7 percent impairment rating by Dr. Luckett and a 17 percent impairment rating by Dr. Galvas was not determinative because Dr. Luckett used a different edition of the text used for evaluation and did not consider range of motion, which would have increased the percentage of physical impairment. The court found that although a functional capacity evaluation done in 1993 showed greater restrictions in several areas, those differences were not significant and that the test results were a subjective measurement since they were dependent on the claimant’s
reports of pain and the amount of effort that he produced. Based on these findings, the Workers' Compensation Court found that Wood's 1992 injury was a temporary aggravation of his pre-existing condition, and that a preponderance of the evidence did not establish that the extent of his disability was materially different following that injury than it had been before. For these
5 reasons, the court concluded that Wood was not entitled to permanent disability benefits as a result of his 1992 injury.
On appeal, Wood contends that there was insufficient evidence
to support the trial court's finding that his second injury was to
the same part of his body as the first, and that the result of his
second injury was a mere temporary aggravation. He concludes that
because Dr. Galvas was his treating physician at the time of trial,
and pursuant to our decision in Snyder v. San Francisco FeedandGrain (1987) ,
230 Mont. 16, 27, 748 P.2d 924, 931, his testimony was entitled to
greater weight. He also contends that Dr. Luckett's testimony was
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NO. 94-473 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995
DALE WOOD, Petitioner and Appellant,
STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Insurer for PIERCE'S DODGE CITY, Employer and Respondent.
APPEAL FROM: Workers' Compensation Court! The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD: For Appellant: Randall 0. Skorheim, Skorheim Law Office, Great Falls, Montana For Respondent: William 0. Bronson, James, Gray & McCafferty, Great Falls, Montana
Submitted on Briefs: May 11, 1995 Decided: August 25, 1995 Filed: Justice Terry N. Trieweiler delivered the opinion of the Court. Dale Wood filed a petition for emergency hearing in the
Workers' Compensation Court for the State of Montana in which he
named the State Compensation Mutual Insurance Fund as a defendant
and sought reinstatement of temporary disability benefits. After
trial, the Judge of the Workers' Compensation Court found that Wood
had sustained no disability for which he was currently entitled to benefits, and denied his petition. Wood appeals from the judgment
entered pursuant to that finding. We affirm the judgment of the
Workers' Compensation Court. The only issue on appeal is whether there was substantial
evidence to support the findings of the Workers' Compensation
court. In the pretrial order signed by the attorneys for the parties
and the Judge of the Workers' Compensation Court, it was agreed
that Wood injured his back during the course of and arising out of
his employment with Pierce's Dodge City on July 29, 1992, and that
at that time his employer was insured by the State Fund. The
parties also agreed that Wood had suffered a previous injury to his back while working for the same employer on June 15, 1990; that he
was released to return to work with a limitation on the amount that
he could lift following that injury; and that his claim for benefits related to that injury was settled.
Wood contended in the pretrial order that his second injury on
July 29, 1992, was either a new and different injury or a permanent
2 aggravation of his previous condition which disabled him from returning to his normal labor market and required extensive retraining. He claimed that during this necessary period of rehabilitation he was entitled to temporary total disability benefits retroactive to May 28, 1993. (Benefits had been paid temporarily by the State Fund from November 8, 1992, until sometime
in May 1993.)
The State Fund contended that its decision to terminate payment of disability benefits to Wood in May 1993 was based on
information it had received indicating that he had reached the
point of maximum medical improvement, and that at that point his
physical condition and the extent of his impairment was the same as
it had been following recovery from his earlier injury. The State Fund contended that based on the best information it was able to
gather, Wood's 1992 injury was in the nature of a temporary
aggravation of a pre-existing injury from which there was no
permanent effect. Therefore, it was the State Fund's contention
that claimant was not entitled to further disability benefits as a
result of his second injury. In particular, the State Fund relied
on 5 39-71-703(5), MCA (1991), which provides that: If a worker suffers a subsequent compensable injury or injuries to the same part of the body, the award payable for the subsequent injury may not duplicate any amounts paid for the previous injury or injuries.
At trial, Wood testified in person. Deposition testimony was
offered from Wood's treating physicians, Dr. Michael Luckett and Dr. Patrick E. Galvas.
3 Wood testified that following his first injury he experienced pain in his back and left leg, but that his pain was limited to the
left side. He stated that after settling his claim in 1991 he
returned to work and described the activities he was able to perform.
According to Wood's testimony, on July 29, 1992, while trying
to push an engine onto a pallet, he experienced pain on the right
side of his low back and in his right leg. He was first treated for that injury by Dr. Luckett, an orthopedic surgeon, who then
referred him to Dr. Galvas, a specialist in physical medicine and
rehabilitation. He testified that following recovery from his
second injury, his physical activities were more restricted than
they had been following recovery from his first injury. However,
he acknowledged that after being released to return to work
following his first injury, he was advised that his condition could get worse and that he had been limited to light duty work as a
result of that injury.
The Workers' Compensation Court found that Dr. Luckett's
diagnosis of the anatomical explanation for Wood's complaints was
the same following both the first and second injury, and that, in
spite of Dr. Galvas's contrary opinion, both doctors' diagnoses
related to nonspecific sources of pain in the low back. The court
was not persuaded that Dr. Galvas's testimony established that the
second injury caused a new and different condition (myofascial pain
syndrome) as opposed to the condition which was diagnosed by
4 Dr. Luckett (discogenic pathology). It found that his symptoms following the second injury were essentially the same as those following the first injury, and that his work restrictions were also essentially unchanged. In balancing the testimony of Dr. Luckett against the conflicting testimony of Dr. Galvas, the court noted that Dr. Luckett had the advantage of having treated Wood following both injuries, but that Dr. Galvas saw him in only the late stages of recovery from his second injury. Furthermore, the court found that the fact that claimant had been given a 7 percent impairment rating by Dr. Luckett and a 17 percent impairment rating by Dr. Galvas was not determinative because Dr. Luckett used a different edition of the text used for evaluation and did not consider range of motion, which would have increased the percentage of physical impairment. The court found that although a functional capacity evaluation done in 1993 showed greater restrictions in several areas, those differences were not significant and that the test results were a subjective measurement since they were dependent on the claimant’s
reports of pain and the amount of effort that he produced. Based on these findings, the Workers' Compensation Court found that Wood's 1992 injury was a temporary aggravation of his pre-existing condition, and that a preponderance of the evidence did not establish that the extent of his disability was materially different following that injury than it had been before. For these
5 reasons, the court concluded that Wood was not entitled to permanent disability benefits as a result of his 1992 injury.
On appeal, Wood contends that there was insufficient evidence
to support the trial court's finding that his second injury was to
the same part of his body as the first, and that the result of his
second injury was a mere temporary aggravation. He concludes that
because Dr. Galvas was his treating physician at the time of trial,
and pursuant to our decision in Snyder v. San Francisco FeedandGrain (1987) ,
230 Mont. 16, 27, 748 P.2d 924, 931, his testimony was entitled to
greater weight. He also contends that Dr. Luckett's testimony was
suspect because it was based on a weaker foundation, it was more
equivocal, and Dr. Luckett demonstrated his bias in a letter he
wrote to the Great Falls Tribune which was critical of the workers'
compensation system. Finally, he contends that the Workers'
Compensation Court erred by considering Dr. Luckett's 1991
impairment rating because it was not based on the most recent Guide
to Evaluation of Permanent Impairment, as required by
§ 39-71-711(b), MCA.
We do not understand the relevance of Wood's argument
regarding Dr. Luckett's 1991 impairment rating. His position seems
to be that if Dr. Luckett had used the proper Edition of the Guides
to Evaluation of Permanent Impairment published by the American
Medical Association, and had considered limited range of motion, as
required by the Guide, that Dr. Luckett would have found a greater degree of impairment in 1991 than the 7 percent which was found.
6 However, the basis of Wood's claim in this case is that the degree of his impairment in 1993 is greater than it had been in 1991.
Therefore, it is hard to fathom how a higher impairment rating in
1991 would have benefitted Wood's claim.
We will limit OUT consideration to whether there was substantial evidence to support the Workers' Compensation Court's
decision.
We review findings of the Workers' Compensation Court to determine whether there is substantial evidence to support them.
Roadarmelv.AcmeConcreteCo. (1989), 237 Mont. 163, 168, 772 P.2d 1259,
1262. We have held that where medical testimony is offered by
deposition, we are in as good a position as the Workers'
Compensation Court to evaluate that testimony; Roadarmel, 772 P.2d
at 1262, however, where the opinions expressed by medical witnesses
are based on medical histories, and the persons who give those
histories testify at trial, we have held that the Workers'
Compensation Court's superior opportunity to evaluate the
credibility of those witnesses must be considered when reviewing
its decision. McIntyre v. State Compensation Insurance Fund ( 19 9 1) , 2 4 9 Mont .
63, 68, 813 P.2d 451, 454. Therefore, "this Court's review of the
medical depositions must be overlayed onto an encompassing review
of the Workers' Compensation Court's decision under the substantial
credible evidence standard." McIntyre, 813 P.2d at 454.
Although we have held in Snyder, 748 P.2d at 931, that the
testimony of claimant's treating physician is entitled to deference
7 when contradicted by testimony of other medical witnesses, both Dr.
Luckett and Dr. Galvas were Wood's treating physicians. Therefore,
the Snyder preference is inapplicable in this case.
Dr. Luckett testified that he is an orthopedic surgeon
practicing in Great Falls who first saw Wood for treatment of a
work-related back injury on June 25, 1990. He ultimately diagnosed
degenerative disc disease in the lumbo-sacral area of Wood's back
with back and lower extremity pain. On April 23, 1991, he evaluated the degree of Wood's permanent
physical impairment due to his first injury and arrived at a
7 percent impairment rating. He testified that he considered the
guide of the American Medical Association, but that he did not
strictly follow it, and in particular, did not consider limitations
in Wood's range of motion which would have significantly increased
the impairment rating. On November 1, 1991, Dr. Luckett released Wood to return to
work, but recommended that he lift no more than 25 to 30 pounds,
and restricted him to light duty.
Dr. Luckett saw Wood following his second injury on August 4,
1992. After additional diagnostic tests, he saw no dramatic change
anatomically, and arrived at the same diagnosis he had made
previously. He testified that his findings have never been
consistent and that he thought Wood had referred pain from several
possible sources, including degenerative discs, facet joints,
muscles, tendons, and ligaments. He concluded that there were
8 insufficient objective findings to state that Wood had sustained
two different injuries on the two occasions in question.
Dr. Luckett testified that Wood's restrictions on his work
activities were the same following recovery from his second injury
as they had been following recovery from his first injury. He
stated that while there were some differences indicated by the
physical capacity exam performed on December 20, 1993, from the one
done on April 9, 1991, he did not place much weight in the results because they simply reflect the subjective complaints of the
patient.
Finally, Dr. Luckett testified that in his opinion, Wood's
functional level was about the same following recovery from his second injury as it had been following recovery from his first
injury.
While Dr. Luckett's hostility toward the workers' compensation
system, and various aspects of American culture in general, is
apparent from his testimony and his editorial work, this bias was
simply one more factor for the trial court to consider in
combination with Dr. Luckett's prolonged opportunity to observe
Wood's physical condition after both injuries and its ability to
consider the credibility of Wood himself.
We conclude, based on our review of the entire record, that
there was substantial evidence to support the critical findings of
the Workers' Compensation Court; there is nothing from our review
of the medical depositions that leads us to believe that the trial
9 judge's resolution of the factual issues was incorrect; and, based
upon the Workers' Compensation Court's findings and our decision in
Allen v. TreasureState Plumbing (1990), 246 Mont. 105, 803 P.2d 644, the
conclusions of the Workers' Compensation Court were correct.
For these reasons, we affirm the judgment of the Workers'
Compensation Court.
Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
J st ce /
We concur: August 25, 1995
CERTIFICATE OF SERVICE I hereby certify that the following certified order wti sent by United States mail. prepaid, to the following named:
Randall 0. Skorheim - - - Law Office Skorheim .^_ Y.U.I5OX4lJl Great Falls, M, JI-,u.,
William 0. Bronson Attorney at La.w P.O. Box 2885 Great Falls, MT 59403
ED SMITH CLERK OF THE SUPREME COURT