Brewington v. Birkenbuel, Inc., 85-87

Decision Date09 September 1986
Docket NumberNo. 85-87,85-87
Citation222 Mont. 505,43 St.Rep. 1458,723 P.2d 938
PartiesJack BREWINGTON, Claimant and Appellant, v. BIRKENBUEL, INC., Employer, and Employers' Fire Insurance Co., Defendant and Respondent.
CourtMontana Supreme Court

Utick & Grosfield, Andrew J. Utick, Helena, for claimant and appellant.

William L. Baillie, Great Falls, for defendant and respondent.

HUNT, Justice.

Jack Brewington appeals a Workers' Compensation Court order which ruled that he is permanently partially disabled and awarded him 400 weeks of indemnity benefits under Sec. 39-71-706, MCA. The issues on appeal are: (1) whether the lower court erred in ruling that appellant is not permanently totally disabled; (2) whether the lower court erred in awarding appellant 400 weeks of indemnity benefits rather than 500 weeks, the statutory maximum; and, (3) whether the lower court erred in failing to increase appellant's award by 20% under Sec. 39-71-2907, MCA, because of respondent's allegedly unreasonable delay or refusal in paying benefits. We reverse and remand.

Appellant is 61 years of age, with an eighth grade education, and since 1960 has generally worked as a millwright, welder or carpenter. He also worked as a supervisor in a Missoula paper mill and he has worked for very short periods of time in other supervisory positions. These other supervisory jobs lasted only two to three days but details on how long he worked as a supervisor in the paper mill are lacking.

In December 1974, appellant suffered a compensable injury during the course of his employment with Birkenbuel, Inc. Due to the collapse of some scaffolding, appellant fell twelve feet to the ground landing on his right hand and shoulder. Appellant was able to work for some time after his accident although he experienced pain and difficulties with his coordination. Appellant stopped working for three weeks in March 1975 because of his injury but he resumed working thereafter. Due to the injury, appellant suffered substantial pain in his neck, shoulder and arm. After working through 1975, 1976 and part of 1977, appellant suffered another industrial accident in July 1977 in which he sawed off the tips of two fingers on his left hand. Appellant has never worked since this second accident. Any disability he has from the second injury is not at issue in the instant case.

Dr. Nelson, appellant's treating physician, first examined appellant in August 1977. Dr. Nelson diagnosed appellant as having brachial plexus neuritis, bilaterally, but greater on the right side. Brachial plexus neuritis is an inflammation of the nerves in the neck and shoulders which may be brought on by direct blows or other injuries. Dr. Nelson later made an additional diagnosis of appellant as having thoracic outlet syndrome; i.e. a kinking or pinching of the artery and nerve as the shoulder and arm are elevated. These problems stem from appellant's 1974 accident. The doctor stated that appellant's condition had stabilized, and his healing period was over by October 1982. On September 7, 1982, appellant was examined by Dr. Cahill at the request of the respondent. Dr. Cahill agreed with Dr. Nelson's diagnosis.

In January, 1984, appellant described his health problems stemming from his 1974 accident. He stated that he had problems with his neck and if it was cold or if he bent over a lot, his neck would lock and he had a lot of pain; that he had pain all the time in his shoulder, ranging from pain "like a toothache" most of the time to a burning sensation at other times; that he had pain all the time, and no coordination most of the time, in his right arm; that any physical work made his arm and shoulder worse; and that he could do woodworking for about 1 1/2 hours before his right arm hurt him and he was required to stop.

Dr. Nelson testified at deposition that appellant's arm and shoulder injuries prevent him from doing laborious work; that is, "overhand, overhead, climbing, lifting, prolonged, repetitive usage of the arm and shoulder to any degree of strength." The doctor also recommended no prolonged bending by appellant or even long-distance driving. Dr. Nelson had no objections to appellant attempting to work as a foreman or supervisor. He stated that appellant should be in a "sedentary" occupation, which he described as something educative or supervisory or something appellant could take periodic breaks from if he had to do repetitive physical work. Dr. Nelson recommended vocational training for appellant as long as it would outfit him for light work. The doctor rated appellant's disability as a 10% impairment of the whole body. Dr. Cahill agreed with Dr. Nelson's impairment rating and conclusion that appellant was limited to a sedentary-type occupation.

After quitting work after his second accident, appellant attempted to secure work as a supervisor with several Lewistown construction firms and as a welding instructor. The construction firms indicated that he would have to be a working foreman and he felt he was physically unable to handle such a position. Appellant apparently did not inquire into many jobs which could be classified as "sedentary" because, as he stated, he would not accept any job unless he could earn $1,000 a month. He concluded that he could probably enter into a retraining program and find work if he could stay close to his wife, who is going blind. Respondent hired National Rehabilitation Consultants to work with appellant to improve his employment chances. Appellant declined the services of the rehabilitative consultants and admitted that he did so because he had decided to try and obtain a lump sum settlement of his Workers' Compensation benefits, and because acceptance would have required him to travel far from Lewistown and his ailing wife.

Respondent accepted liability for appellant's first injury and initially paid him temporary total disability benefits. Respondent paid these benefits until February 1983. In January 1983, National Rehabilitation Consultants advised respondent that appellant had refused their services. Within a month, respondent stopped paying appellant temporary total disability benefits and began paying appellant lesser benefits for permanent partial disability. At the time of this change, respondent had reports from Dr. Nelson and Dr. Cahill which stated that appellant had reached his maximum point of recovery and could return to sedentary-type work.

Appellant disagreed with respondent's decision to pay him permanent partial disability benefits and, in June 1983, he filed a petition for a hearing with the Workers' Compensation Court claiming a right to permanent total disability benefits. The lower court held a hearing in January 1984, before a hearing examiner who disqualified himself for conflict of interest reasons and the parties stipulated that the judge could complete the case. The judge did not hear any of the testimony but rather issued his decision in January 1985 based on the record. The court concluded that appellant was 80% permanently partially disabled, based upon an impairment rating of 10% of the whole man. The court awarded appellant 400 weeks of benefits, 80% of the statutory maximum of 500 weeks. The court refused to impose a 20% penalty upon respondent. This appeal followed.

The first issue is whether the lower court erred in finding that appellant is partially rather than totally disabled. The oft-cited standard of review is that,

"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.)

Metzger v. Chemetron Corp. (Mont.1984), 687 P.2d 1033, 1035, 41 St.Rep. 1788, 1790; citing Nielsen v. Beaver Pond, Inc. (Mont.1983), 661 P.2d 47, 49, 40 St.Rep. 489, 491.

But we have also stated that where the Workers' Compensation Court received the critical evidence by deposition "this Court, although sitting in review, is in as good a position as the Workers' Compensation Court to judge the weight to be given to such record testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witnesses on the stand." Lamb v. Missoula Imports, Inc. (Mont.1984), 684 P.2d 498, 500, 41 St.Rep. 1414, 1416; citing Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140; and Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d 656. The Workers' Compensation judge did not hear any oral testimony but decided the case on the same record that we have before us.

Appellant claims that he has a permanent total disability, which is defined at Sec. 39-71-116(13), MCA, 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 expanding upon the statutory definition, we adopted the following test in Metzger.

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. Spooner v. Action Sales, Inc., III Workers' Compensation Court Decisions No. 85 (January 24, 1983).


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    ...of the positions, including the general salesperson position. Factually, we consider this case to be similar to Brewington v. Birkenbuel (1986), 222 Mont. 505, 723 P.2d 938. In that case, the claimant was around the same age as Larson and had also worked in heavy labor his entire life. Also......
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