Miller v. Frasure, 93-253

• Decision Date: 21 April 1994
• Docket Number: No. 93-253,93-253
• Citation: 264 Mont. 354,871 P.2d 1302
• Parties: Linda Newman MILLER, Petitioner and Appellant, v. Maurine FRASURE, d/b/a O'Haire Motor Inn Restaurant, Employer, and Western Guaranty Fund Services, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1302

871 P.2d 1302

264 Mont. 354

Linda Newman MILLER, Petitioner and Appellant, v. Maurine FRASURE, d/b/a O'Haire Motor Inn Restaurant Employer, and Western Guaranty Fund Services Defendants and Respondents.

No. 93-253.

Supreme Court of Montana.

Submitted on Briefs Jan. 13, 1994.

Decided March 22, 1994.

Rehearing Denied April 21, 1994.

William O. Bronson, James, Gray & McCafferty, Great Falls, for petitioner and appellant.

K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls, for defendants and respondents.

NELSON, Justice.

This is an appeal, and a cross-appeal, from a Workers' Compensation Court, findings of fact, conclusions of law and order, in which the court ruled that petitioner Linda Newman Miller (Miller), was permanently partially disabled. We affirm in part, reverse in part and remand for calculation of the permanent partial disability rate.

We restate the issues on appeal and cross-appeal.

ISSUES ON APPEAL

1. Did the Workers' Compensation Court err in concluding that Miller was not permanently totally disabled?

2. Did the Workers' Compensation Court err during its in camera inspection of the insurer's claims file, and following order, by failing to require disclosure of otherwise discoverable facts?

3. Did the Workers' Compensation Court err in failing to require the insurer's adjuster's deposition to take place in Montana?

ISSUES ON CROSS-APPEAL

1. Did the Workers' Compensation Court err in concluding that Miller met her burden of proof that a causal relationship existed between her industrial accident and her disability?

2. Did the Workers' Compensation Court err in concluding that, if Miller is permanently partially disabled, she can elect whether she will seek benefits under § 39-71-703, MCA, or under §§ 39-71-705-708, MCA?

3. Did the Workers' Compensation Court err in sustaining Miller's objections to Frasure's deposition and the accompanying exhibit?

4. Did the Workers' Compensation Court err in denying the insurer's motion to reopen the trial?

Miller was 34 years old and working at the O'Haire Motor Inn Restaurant when she suffered an injury while at work on July 10, 1984. She slipped while mopping a floor and struck her right knee against the side of the bucket.

Since the accident, Miller has been to numerous physicians for a diagnosis of her knee problem, as well as relief from knee pain and swelling. These physicians have provided varying diagnoses for her condition, from chondromalacia patella of the right knee to reflex sympathetic dystrophy. It should be noted that Miller had suffered from both Prior to the accident Miller was a high school graduate. After the accident she obtained a business degree from the Great Falls Vocational Technical Center, graduating in 1988. She has not sought paid employment since that time although she does volunteer at the YWCA as a receptionist/front desk clerk twice a week for a total of six hours per week. Miller has not made any attempt to obtain work, even on a part-time basis, since she started her volunteer position.

knee and hip problems before the date of the industrial accident.

In addition to being the single parent of two children, Miller is a foster care parent for up to four children at a time. She receives $360 per child per month for her work as a foster care parent. Miller also receives $334 per month in social security as well as $42.70 per child for her two children.

Miller's employer was enrolled under Compensation Plan # 2 of the Montana Workers' Compensation Act and was insured by InterMountain Insurance Company. InterMountain's obligations have since been assumed by Western Guaranty Fund Services (Western), based in Denver, Colorado.

The standard of review for findings of fact is whether there is substantial credible evidence to support the Workers' Compensation Court's findings of fact. Pepion v. Blackfeet Tribal Industries (1993), 257 Mont. 485, 489, 850 P.2d 299, 302. The standard of review for conclusions of law is whether the tribunal's interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The standard of abuse of discretion applies to trial administration issues. Steer, Inc., 803 P.2d at 603-04.

ISSUES ON APPEAL

1. PERMANENT TOTAL DISABILITY

Miller argues that the Workers' Compensation Court erred in concluding that she was not permanently totally disabled. The defendant/cross-appellant (Western) counter that there is substantial credible evidence supporting the Workers' Compensation Court's conclusion. Moreover, Western states that Miller did not carry her burden to introduce evidence about her normal labor market as required, but instead, provided evidence "related to jobs she had held prior to her injury and vocational retraining--not to the types of work she is qualified for now having graduated from Vo-Tech."

Section 39-71-116(13), MCA (1983), states that:

"Permanent total disability" means 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.

We have adopted the Workers' Compensation Court's approach to establishing the burdens of production and proof for the nonmedical elements of disability in establishing a permanent total disability. Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355, 687 P.2d 1033, 1035. Metzger provides:

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. (Citation omitted.)

Metzger, 687 P.2d at 1035.

In the instant case, Miller did not present any vocational evidence concerning her normal labor market. Miller relied on her testimony that she could not perform any of the jobs she had in the past because of her physical limitations. We have concluded that that sort of testimony is sufficient to meet the claimant's burden of proof to establish the existence of no reasonable prospect of employment in the claimant's normal labor market. See, for example, Varela v. Exxon, U.S.A., Billings Refinery (1989), 237 Mont. 300, 308-09, 773 P.2d 299, 304; Ness v. Anaconda Minerals Co. (1993), 257 Mont. 335, 339, 849 P.2d 1021, 1023-24. Once the claimant has demonstrated that there is no reasonable prospect of employment in his normal labor market, the burden then shifts to the employer to show that suitable work is available. Metzger, 687 P.2d at 1036.

Here, Western met its burden to establish that, by reason of Miller's post-injury education and training, there were other jobs for which she was suited by age, education, work experience and physical condition. Gerry Loch (Loch), a private rehabilitative counselor who worked with Miller in an attempt to facilitate her return to the work force, testified for Western and presented vocational evidence. She also developed job analyses after discussing Miller's post-injury education and training with her and after discussing Miller's medical condition with a physiatrist who treated Miller. Loch also considered that with Miller's training and education, she was in a better earning position post-injury than she was in before she was injured and subsequently retrained, if she could work on a full-time basis.

Western offered the deposition testimony of Dr. Hinde, the physiatrist Loch interviewed, who stated that "[t]o my evaluation and by her history, I would suspect that [Miller] would be able to function successfully at a sedentary work level or very well selected light work level." He also opined that "her sum total of demonstrated function in terms of volunteer capacity, homemaking activity, child care activity, would constitute an equivalent to more hours than six hours per week of sedentary to well selected light work. To work out of the home would require child care to be arranged and perhaps someone else to assist with homemaking duties, but it certainly doesn't preclude work at a level of much higher than that." Dr. Hinde concluded that the job analyses compiled by Loch were positions which were medically appropriate for Miller although his recommendation was to gradually work Miller into full time employment. Dr. Hinde's conclusions were also supported by another physiatrist, Dr. Jackson, to whom Dr. Dietrich referred Miller.

To counter Western's evidence, Miller, for the most part, relied on her own testimony that she would not be able to perform the job duties associated with the analyses provided by Loch. She also offered the deposition testimony of Dr. Dietrich that unless there was some improvement in her physical condition, he would not approve of Miller working beyond the six hours per week she volunteers at the YWCA. The sum total of the evidence provided by Miller, coupled with her non-existent effort to obtain even part-time employment, does not carry her burden to prove an inability to find employment in her normal labor market. Metzger, 687 P.2d at 1036. Western, however, did carry its burden to show that suitable work was available for Miller, and that, therefore, she was not permanently totally disabled.

Miller also poses the argument that she may be an "odd lot" employee. However, Miller is not an "odd lot" employee due to her sufficient training, education and experience and therefore, we reject her "odd lot" employee argument. Metzger, 687 P.2d at 1036.

Moreover, Miller provided testimony about a variety of household chores she has engaged in which...