Carroll v. Wells Fargo Armored Service Corp.

• Decision Date: 01 December 1989
• Docket Number: No. 89-335,89-335
• Citation: 783 P.2d 387,240 Mont. 151
• Parties: Laine P. CARROLL, Claimant and Appellant, v. WELLS FARGO ARMORED SERVICE CORPORATION, Employer, and CNA Insurance Company, Defendant and Respondent.
• Court: Montana Supreme Court

Page 387

783 P.2d 387

240 Mont. 151

Laine P. CARROLL, Claimant and Appellant, v. WELLS FARGO ARMORED SERVICE CORPORATION, Employer and CNA Insurance Company, Defendant and Respondent.

No. 89-335.

Supreme Court of Montana.

Submitted on Briefs Oct. 20, 1989.

Decided Dec. 1, 1989.

Eric B. Thueson, Thueson Law Office, Helena, for claimant and appellant.

Larry W. Jones, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.

HARRISON, Justice.

Claimant Laine Carroll appeals a decision of the Workers' Compensation Court wherein the Workers' Compensation Court awarded claimant 175 weeks of partial disability benefits. As part of its decision the Workers' Compensation Court denied several of claimant's requests including the following: (1) denial of a lump sum advance; (2) denial of payment of certain medical expenses; (3) denial of request to include overtime hours as part of wage calculation; and (4) denial of attorney's fees and costs. We affirm in part, reverse in part, and remand to the Workers' Compensation Court.

Claimant presents four issues for review:

1. Did the Workers' Compensation Court err because it failed to discuss the factors that must be evaluated when determining a claimant's disability factor under Secs. 39-71-705, -708, MCA (1985)?

2. Did the Workers' Compensation Court err by not including claimant's overtime hours in determining his pre-injury wages?

3. Did the Hearings Examiner err by not requiring the defendant to pay certain medical expenses?

4. Did the Workers' Compensation Court err in holding that Sec. 39-71-612, MCA (1985), controlled the determination of attorney's fees rather than Sec. 39-71-611, MCA (1985)?

On November 15, 1985, claimant injured his back during the course and scope of his employment as an armored car driver for Wells Fargo. Defendant initially accepted liability for claimant's injury and paid temporary total disability benefits and medical benefits. In a letter dated June 22, 1987, defendant offered to settle claimant's case for $30,317.58, representing 170 weeks of permanent partial disability benefits at the rate of $142.67 per week plus $6,063.48 in attorney's fees. Defendant stated in the letter that the offer was good for fifteen days. The Pretrial Order discloses that as of the hearing date, December 14, 1987, defendant had taken the position that claimant was not entitled to any indemnity benefits.

At trial the Hearings Examiner heard the claimant's testimony and testimony from two vocational rehabilitation experts. Also part of the record are various depositions including depositions of medical doctors who had treated or examined the claimant.

At the time of trial the claimant was 27 years old. He had a high school education and his work history included work as a gas station attendant, dishwasher, construction helper, and armored truck driver. At the date of his injury, claimant earned $5.35 per hour. It was undisputed that the claimant could not return to his former employment and that he is now limited to light or sedentary jobs that have starting wages of $3.50 to $4.50 per hour. Other facts will be discussed as necessary.

I.

Did the Workers' Compensation Court err because it failed to discuss the factors that must be evaluated when determining a claimant's disability factor under Secs. 39-71-705, -708, MCA (1985)?

This Court's task in reviewing a Workers' Compensation Court decision is to determine whether substantial evidence supports the Workers' Compensation Court's findings of fact and conclusions of law. Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 347, 704 P.2d 1048, 1050.

It is well established that Secs. 39-71-705, -708, MCA (1985), permanent partial disability benefits indemnify the claimant for possible loss of future earning capacity. McDanold v. B.N. Transport, Inc. (1984), 208 Mont. 470, 476, 679 P.2d 1188, 1191. Also well established are the factors the court must consider in determining a claimant's disability under Secs. 39-71-705, -708, MCA (1985). The court must consider the claimant's age, education, work experience, pain and disability, actual wage loss, and loss of future earning capacity. Holton v. F.H. Stoltze Land and Lumber Co. (1981), 195 Mont. 263, 266, 637 P.2d 10, 12. The Conclusions of Law recognized these factors.

After stating the appropriate standard for a Secs. 39-71-705, -708, MCA (1985), disability determination, the court set forth its rationale for its conclusion that claimant was 35% disabled. Appellant argues that the court's legal conclusion that the claimant is 35% disabled is flawed because the rationale does not reflect how, or even if, the court considered the above mentioned factors in reaching its decision. We agree.

As mentioned, case law interpreting Secs. 39-71-705, -708, MCA, requires that the court consider a claimant's age, education, work experience, pain and disability, actual wage loss and possible loss of future earning capacity. Based on the court's discussion, the only apparent consideration made by the court in determining claimant's disability was pre-injury versus post-injury earnings. Although the court listed the appropriate factors, it discussed only actual wage loss. The court's opinion contains no discussion of how any of the other factors weighed in its decision that claimant is 35% disabled, which nearly approximates claimant's actual wage loss. Thus, on its face, the court's decision reads like a permanent partial disability determination under Sec. 39-71-703, MCA (1985), which does look only to actual diminution in wages as the basis upon which benefits are determined. Because the court only discussed the claimant's actual wage loss and failed to discuss any of the other criteria, we hold that the court's decision is not supported by substantial evidence.

Respondent asks us to adopt its version of what the Hearings Examiner must have thought in reaching his decision. Similarly, claimant asks us to adopt his version of what the Hearings Examiner should have thought and increase the compensation award. However, this Court cannot second guess how the Workers' Compensation Court must have arrived at its decision or dictate what decision it should have made.

Both respondent and claimant supplied this Court with Workers' Compensation Court decisions. A review of the cases decided under Secs. 39-71-705, -708, MCA (1985), reveal in all some discussion of the necessary factors. Such a discussion is required so that the reviewing court can ascertain that all of the factors were indeed considered and discern the court's rationale. In the instant case the opinion discussed only the actual wage loss factor and none of the other mandatory considerations. We vacate the Workers' Compensation Court's award under Secs. 39-71-705, -708, MCA (1985), and remand to the Workers' Compensation Court for a redetermination of benefits consistent with the requirements of Secs. 39-71-705, -708, MCA (1985).

II.

Did the Workers' Compensation Court err by not including claimant's overtime hours in determining his pre-injury wages?

Generally, overtime earnings are not included in determining a claimant's "usual hours of employment." Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 348-49, 704 P.2d 1048, 1052. "However, if the work record shows that the employer hired the claimant expecting overtime work and the claimant actually worked overtime on a consistent, regular basis ... then that overtime becomes part of the usual hours of employment." Coles, 704 P.2d at 1052. In Coles, the claimant worked overtime in each of the weeks she worked at the Seven Eleven store.

Claimant contends that the Workers' Compensation Court erred by not including overtime hours in his pre-injury wages because he worked overtime in 24 of the 48 weeks preceding his injury. Thus, claimant contends that his case falls within the Coles decision on overtime and that the Workers' Compensation Court's decision is not supported by substantial evidence. We disagree.

As the Workers' Compensation Court found, the claimant did not receive overtime wages for 21 weekly pay periods prior to his injury. In other words, claimant had not worked overtime in the five months preceding his injury. The record contains no other evidence of any overtime claimant worked. On its face claimant's overtime hours do not approach the standard of a "consistent, regular basis" set in Coles. We hold that the Workers' Compensation Court's decision not to include overtime hours in determining pre-injury wages is supported by substantial evidence.

III.

Did the Hearings Examiner err by not requiring the defendant to pay certain medical expenses?

Claimant received medical treatment from Dr. Baggenstos for which defendant refused to pay. Defendant refused to pay Dr. Baggenstos' costs because neither did claimant's treating physician refer claimant to Dr. Baggenstos nor did defendant authorize Dr. Baggenstos' visit.

Montana law specifically requires either a referral from a claimant's treating physician or an authorization by the insurer before an insurer will be liable for medical treatment expenses. Garland v. The...