IN THE SUPREME COURT OF THE STATE OF MONTANA
Claimant and Respondent,
Defendant and Appellant.
Workers' Compensation Court
Honorable Timothy Reardon, Judge presidina.
Counsel of Record:
Jardine, Stephenson, Blewett
Weaver, Great Falls,
Bernard J-Everett, Anaconda, Montana
Submitted on Briefs: November 3, 1983
Decided.::,lay 2 4 , 1 3 8 4
I . Justice Daniel J.
Shea delivered the Opinion of the
The employer, Sears, Roebuck
Co., appeals an order of
disability benefits to claimant, Dwight McCormack, based on a
condition set forth in section 39-71-1005, MCA, that claimant
successfully pursue a program of vocational rehabilitation.
The employer raises two issues concerning the disability
rulings, and the third issue is a claim that claimant did not
right to obtain vocational rehabilitation without
first being evaluated by the Workers' Compensation Di-vision
under section 39-71-1005, MCA, even though the claimant had
been examined and evaluated by the Department of Social and
permanent total disability is legally unsupportable because
it was not, as is required by section 39-71-116(13), MCA,
"supported by a preponderance of medical evidence."
however, that the medical evidence of objective symptoms,
together with the testimony of the claim-anttranslating those
symptoms into pain that physically impaired his ability to
move his shoulder, fully supports the finding of permanent
finding of permanent total disability, as also required bv
section 39-71-116(13), MCA, was not supported by evidence
that claimant had no reasonable prospect of returning to the
normal labor market.
The record, however, amply supports the
ruling that claimant had no reasonable prospect of returning
to his normal labor market as a service repairman.
the employer argues that the trial court erred in permitting
the claimant to bypass the statutory procedure for evaluation
to determine whether one can be occupationally retrained and
in which occupation one should be retrained.
We do not
necessarily agree with employer's interpretation of section
39-71-1001, MCA, on which it relies, but hold also that the
employer, by stipulating to the use of an SRS medical report,
has waived its right to complain that claimant bypassed the
At the time of his injury on November 2, 1981, claimant
had been a Sears1 employee for 13 years.
He had worked only
for Sears since his graduation from high school and his work
experience was limited to automotive and appliance repair
together with a short experience as the automotive department
Claimant had no other job experience.
Claimant had a history of repeatedly dislocating his
In 1976, Dr. Berg of Billings performed surgery
on his right shoulder when
it was dislocated.
shoulder on November
working on a kitchen range at a customer's home in Billings.
While pulling the stove away from the wall he fell backwards
and strained his right shoulder and struck his right elbow on
cupboards behind him.
He immediately felt pain in his right
shoulder and had numbness in his right hand.
while he finished the repair job.
He continued to work
for the next several days but the pain in his right shoulder
reported his injury to his employer on November 11 and the
employer set up an appointment for November 16 with Dr. Berg,
the physician who had operated on claimant's right shoulder
At the November 16 examination, the claimant complained
of right shoulder pain and numbness in his right hand.
Rerg diaqnosed claimant's
shoulder problem as a shoulder
d-islocation and prescribed medicine and an exercise program.
Claimant was told that he should not return to work until.
Another examination was set for December 28.
Claimant, however, continued to work four more days (until
December 20) , but then had to quit because the pain was too
severe to perform the movements necessary for an appliance
examination, Dr. Berg released claimant to return to work
with no restrictions.
But claimant never worked again.
Three days after his final examination by Dr. Rerg, the
pain in claimant's shoulder and the numbness in his hand led
him to seek further medical attention in Butte.
31, Dr. Davidson diagnosed claimant's condition as residial
problems from the right shoulder dislocation and mild right
ulnar nerve palsy.
Just 10 days later, January 10, 1982, Dr.
Claimant saw Dr. Davidson for a follow-up examination on
January 20, 1982, and although claimant still had pain in his
right shoulder, he reported that. the numbness in his fingers
Dr. Davidson examined claimant again in
February 1982, and claimant still complained of pain in his
The doctor ordered four weeks of therapy to
alleviate the shoulder pain.
Dr. Davidson last examined
claimant on April 13, 1982, and claimant still reported pain
in his right shoulder.
Because the pain in claimant's right shoulder persisted,
claimant, at the request of the employer, was examined by Dr.
Canty on May 26, 1982.
Claimant reported that he still had
determined that. claimant had a chronic inflammation of the
shoulder area, but Dr. Canty also stated that he expected
claimant's shoulder function to improve.
During this time the claimant was unemployed and the
employer had refused to pay him compensation benefits for the
injury he sustained on November 2, 1981.
Because of his
inability to find a job and because he had no source of
income, claimant, in June 1982, went on his own initiative to
the Department of Social and Rehabilitation Services (SRS) to
seek help in training for a change in occupation.
request of SRS, Dr. Gilboy of Butte examined claimant; and
SRS determined that claimant could be retrained in computer
claimant avoid pulling, lifting, pushing or reaching motions
with his right arm and shoulder.
Dr. Gilboy's report was
1-ater stipulated into the record by the claimant and the
employer as part of the evidentiary record on the disability
Based on the SRS determination that he was qualified for
1982 in the computer science
program at Butte's College of Mineral Science and Technology.
He continued in this program, received an A in each of the
testified that the program would take from four to five years
The Workers' Compensation Court ruled that claimant was
permanently totally disabled, but that as a condition of
receiving benefits, he would, under the authority of section
39-71-1005, MCA, be required to continue in a program of
In ruling on the disability issue
the court relied on the depostion testimony of Drs. Berg,
cl.aimantls testimony that he had such severe pain in his
right shoulder that he could not engage in the pushing,
pulling, lifting and shoving motions necessary to perform the
functions of a service repairman.
PERMANENT TOTAL DISABILITY--MEDICAL EVIDENCE
The medical question turned on whether claimant ha.d such
in his right shoulder that he
properly perform his former appliance repa.ir duties because
of the physical movements required..
Another part of the
established that he could not reasonably find employment in
the normal labor market.
The employer concedes that claimant
suffered a perma.nent partial disability, but argues that the
medical evidence does not support a finding a.nd conclusion
that claimant cannot return to his former type of employment.
The undisputed medical evidence established that claimant, on
November 2, 1981, reinjured his should.er, and that he had
also iniured the ulnar nerve in the right arm that required
disability, section 39-71-116(13), MCA, requires in part that
any determination of permanent total disability "shall be
& - preponderance - medical testimony."
employer argues that there is a total absence of medical
testimony to support a finding that the pain in claimant's
shoulder prevents him from performing the normal duties of an
The employer argues that the trial
court's findings improperly relied on claimant's testimony
that his pain was so severe in his right shoulder that he was
unable to perform the physical movements necessary for proper
performance as a service repairman.
In short, the employer
claimant could return to his work as an appliance repairman.
We have no doubt that claimant's testimony, together
with testimony of his sister-in-law, establishes the painful
shoulder condition with which he has been forced to live.
has been forced to change in many aspects of his life.
example, he is righthanded but the pain in his right shoulder
forced him to use his Left hand in performing certain tasks.
He cannot perform minimal household chores without great
He cannot perform even the simple task of driving an
automobile or typing on a typewriter without severe shoulder
The trial court was clearly impressed by claimant's
testimony, and found him to be a most credible witness.
Beyond claimant's testimony as to shoulder pain leading
to inability to properly use his right arm and shoulder, the
medical evidence abundantly establishes a firm medical basis
for the complaints of pain.
The trial court noted that "none
of the physicians who examined the claimant even suggested he
physicians' testimony set forth objective symptomology from
which the trial court could fairly conclude that severe pain
conclusion, the court clearly had a right to rely heavily on
the testimony of the claimant.
Dr. Davidson's prognosis of claimant's right shoulder
"not good;" he testified that claimant did not
respond to treatment and did not get complete relief from
claimant from returning to his normal duties as a service
repairman, and that claimant should avoid activities that
involve pushing, pulling, lifting and reaching.
condition as "chronic," and testified that although he could
force claimant's right shoulder through a
full range of
motion, that claimant on his own volition could only force
the shoulder through an 80 percent range of motion.
Although he examined claimant only once on behalf
shoulder pain meant that it was a chronic condition.
Finally, the report of Dr. Gilboy, who examined claimant
on behalf of the SRS, and which was relied on in admitting
stipulated into evidence.
Dr. Gilboy reported that claimant
had a quite limited range of motion in his right shoulder,
that he could not put his arm over his head, and that he had
a "fair amount of pain" when range of motion was forced.
Gilboy concluded that claimant should avoid pulling, lifting,
pushing and reaching activities.
Although the employer relies on an absence of medical
evidence, the trial court entered three significant findings
that are not challenged by the employer.
These findings were
based not only on the testimony of claimant, but on the
testimony of two physicians.
The trial court relied on Dr.
Davidson's testimony in finding that from November 20, 1981
(when claimant had to quit work because of the pain), to the
time of trial, the pain the clsimant experienced in his
. . .
returning to work
The court relied on the testimony of Dr.
Davidson in finding that "the pain the claimant experiences
in his right shoulder and its susceptibility to exacerbation
with use is a permanent condition."
Finally, the court
relied on the testimony of Dr. Davidson and Dr. Canty in
finding that "the pain the claimant experiences in his right
shoulder when pushing, pulling, rea.ching or lifting prevents
repairman or any other job that would require him to use his
right shoulder to push, pull, reach or lift."
Based on this record, to hold that the medical evidence
did not support the trial court's findings and conclusions of
total permanent disability, would require this Court to bury
its head in the sand.
PERMANENT TOTAL DISAEILITY--INABILITY TO PARTICIPATE
IN NORMAL LABOR MARKET
A second requirement under section 39-71.-116 (13), MCA,
for a determination of total permanent disability, is that
the permanent character of the injuries
". . . results in the
reasonable prospect of
employment of any kind in the normal labor market."
employer a.rgues that it was not sufficient for claimant to
merely go through his entire work-life employment history
with Sears and for him to testify that. the pain in his
shoulder made him unable to enga.ge in the physical activities
of an appliance repairman.
The employer, therefore, argues
that the record is devoid of any significant evidence to
support the statutory requirement.
Other than his employment history at Sears, however,
claimant had no other work history to offer--he had worked
for Sears ever since his graduation from high school.
experience was limited to automotive and appliance repair
with the exception of a short time as automotive department
Claimant testified that the jobs in this field
required extensive lifting and reaching, pushing and pulling,
and that the pain in his shoulder prevented him from doing
Notwithstanding claimant's testimony as to
performance of the required activities, and notwithsta-nding
the supporting medical evidence of the injury that provided
an objective basis for claimant's complaints of pain, the
employer argues that claimant did not establish his inability
to obtain employment in the normal labor market.
The trial court concluded that claimant's normal labor
market was that of automobile repair jobs and television and
electrical appliance repair jobs, but that his industrial
necessary to performance in this capacity.
The court noted
that the employer did not refute claimant's evidence or
attempt to establish other types of employment for which
experience qualified him.
The court therefore concluded that
employment in his normal labor market and that he must be
retrained to expand his normal market to enable him to have a
reasonable prospect of finding regular employment.
We are convinced that the claimant's proof satisfied the
REHABILITATION--THE STATUTORY SCHEME FOR EVALUATION
At the time claimant went to t-he Department of Social
and Rehabilitation Services for occupational retraining, he
was not being paid Workers' Compensation benefits, and in
fact the employer had consistently denied those benefits to
him. The SRS tested claimant for apptitudes in occupational
retraining, and, in addition, before recommending a change in
occupation, had him examined by Dr. Gilboy in Butte.
Gilboy submitted his report to the SRS, and partly based on
that report, claimant was approved for retraining in computer
The claimant and the employer stipulated at trial
before the Workers '
Compensation Court, that Dr. Gilboy ' s
medical report could be considered on the nature and extent
of claimant's disability claim.
The employer now raises a question of whether claimant
could. avail himself under the Workers ' Compensation Act of
occupational retraining without first being evaluated by the
section 39-71-1001, MCA, which is the first of a rather
The employer, in effect, would have this
Court nullify the occupational training program embarked on
by the claimant because he did not start with the proper
Although we do not read section 39-71-1001, MCA, in
the same way as the employer, and although that statute in
fact requires the SFS to handle all occupational retraining
referrals, a detailed discussion of the statutes and how they
relate to each other, would serve no useful purpose.
dispose of this issue by a holding that the employer has
any right to complain that claimant bypassed
statutory procedures for occupational retraining.
The employer agreed to the use of Dr. Gilboy's report on
the issue of the nature and extent of claimant's claim of
Had claimant not gone to SRS, and had SRS
not obtained the medical report from Dr. Gilboy before the
decision to retrain claimant in another occupation, that
report would not have been available.
The medical report was
obtained specifically for use by S R S in evaluating claimant's
application for retraining.
The employer agreed to its use
as part of the evidentiary record relating to the na-ture and
extent of claimant's disability.
Whatever the evidentiary
value of the report may have been, it would not have been
available unless claimant had gone to S R S on his own seeking
It would be unfair to permit
the employer on the one hand, to rely on evidence from the
hecau.se claimant went
to S R S
evaluation, hut on the other hand, to permit the employer to
complain that claimant should not have gone to the S R S in the
first place because he had not obtained an evaluation from
consideration on the merits, the employer is in no position
to complain that claimant had no right being examined by Dr.