WEAVER v BUTTREY FOOD AND DRUG
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NO. 92-235 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992 GLORIA J. WEAVER, Claimant and Appellant, -vsBUTTREY FOOD AND DRUG, Employer/Insurer, and Cross-Appellant, APPEAL FROM: The Workers' The Honorable Respondent Compensation Court, Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Richard J. Great Falls, For Martin, Montana Alexander, & Linnell, Respondent: G. Curtis Drake, Keller, Reynolds, & Johnson, Helena, Montana Submitted on Briefs: Decided: Filed: Baucus Drake, Stemhagen September October 10, 29, 1992 192 Justice John This is Honorable of for her Food Court her to past certain Drug work that injury. Weaver checker at the with two Buttrey the injured store for with in lumps her to Weaver 1986. total the the that she disability course Workers' is the Weaver and scope Respondent Drug. condition Buttrey Compensation causally had Bank, while related school had working Montana. At graduate been working twenty-one to pushed as the a of time and married at the same years. the Weaver's cart, the Weaver As she did She finished formed 1986, high She by a can, motion. 15, Cut old through of struck thigh. recommended 17, gate a twisting large took front left Gloria judgment when a customer goods her in approximately canned being and June children. large To avoid back on Buttrey dependent the during Food Weaver's occurred opened incurred cross-appeals The accident with Court Court. Court, Claimant temporary Buttrey the Compensation present she was a 46-year store Workers' of We affirm. was accident Opinion ' Compensation injuries at the presiding. and (Buttrey) judgment the Workers employment and from the entitled benefits delivered W. Reardon appeals not Harrison an appeal Timothy (Weaver) is Conway on her shift, thigh. who diagnosed elevation and ice to at the By then her leg work the searing by that supervisor Buttrey was bothering 2 injury tumble her as out. and sideways a hot but high pain time two immediately packs. continued Her to backward she felt piled When Weaver began jumped her a doctor checkstand. cans so, a cart store a hematoma until so much that and September she took vacation and then, on tne absence. Buttrey's disability from September this manager's Weaver consulted period surgeon in rupture Great therapy 1987, Buttrey Dr. expired. left wrote in his to opinion though she did not feel side of her leg Dr. that weak and she still return however, union apply for to work. because the store, Bloemendaal's she could return contract had which burned work at the new and in her foot. thigh disability a hearing 1987, the denied July temporary injury total had reached climbing a bleacher at a Little her left knee and reinjuring In his injured July 3 but refused however, to and after Court on the grounds later that her on March 18, 1987. leg "gave out" League game. her left insurer Compensation benefits maximum healing On June 4, 1987, Weaver's two weeks later. benefits, Workers' disability a "release," and numbness down the Buttrey's total in letter to work because her leg was had lumps on her extend her temporary her Compensation her she did On March in 1988. Weaver considered leg Workers' to the Buttrey returned by a possible and prescribed Weaver could allowed During an orthopedic the muscle. a of total 1987. quadriceps her employment, leave Weaver never 4, diagnosed to strengthen had terminated disability temporary April Bloemendaal around Weaver's that for a leave Dr. J. W. Bloemendaal, Dr. down in November 1987, store benefits 1986 until Bloemendaal already six-month 17, and exercise stating adjuster, paid Falls. of the facia physical 18, insurer recommendation, thigh. while She fell, Dr. 1989 deposition, she was injuring Bloemendaal he testified saw that she would and quadriceps" should be to still in her limped, work In found Court for under Weaver manager had time of the permanent At the nearly ten that he physically capable that "measurement because such of work Weaver of [Weaver's] and weakness, and 1991 had she curtailed he in failure if was she an had as a checker. partially a available. that work earning to her that testified half-time 1988, she position counselor post-injury November that rehire a benefits testified years, had permanently Compensation store would and of was her still tone disability hearing for rehabilitation that "in Workers' Buttrey vocational found she and partial Bank Weaver's court strong December a car, Cut to be accident in petitioned release would good activities. (1985). to a muscle drive and return 4 trial him employee," had pain, the for had experience to of of worked "excellent the Weaver MCA that to recreational g 39-71-703, June kept she at a determination former the difficult 1988, she after if and it and August "if continued leg, homemaking fallen even Weaver numbness the have that able function." her not Weaver disabled The but held capacity evidence introduce is impossible necessary for request for consulted Dr. determination." Weaver additional proof Lawrence without interpreted Iwersen seeking recommended a rehabilitation "nerve the court's order of disability. Accordingly, of the Kalispell Orthopedic approval from as testing" specialist and in Kalispell. 4 she Clinic Buttrey's referred a insurer. her to Dr. in May Dr. Dr. Stephens John 1989, Iwersen Stephens, saw Weaver twice in June 1989, ordered disk bulge" study root magnetic resonance in her lower (EMG), which notes for approval imaging back, injury is possible the alteration Dr. Stephens neurologist. resulted referred of radiculopathy, "it Dr. a complete only to surgery." Weaver learned for the first time when she saw Dr. Stephens his notes work-related In consultation, evaluation Dr. and treatment, not basis that of the lower this." in August spine," of this again Stephens her problem which diagnosis in May 1990. stated adding, 1990, Stephens Dr. referred Dr. Stephanie Herder recommended nerve conduction studies definitively rule out or rule in surgery." the January EMG in as it "I that would is related In Weaver feel on to her injury." August neurologist, as well examination "may respond than that Weaver to Dr. James Mahnke, a Kalispell disease a more probable possible has aggravated a "structural needed further wrote in the back problem 1989 and diagnosed that or nerve Stephens is certainly in her gait He an electromyograph EMG results, Dr. Mahnke performed for insurer. showed a "moderate and conducted the negative her work-related Buttrey's (MFZ), which June 13, 1989 that that from showed no evidence Despite damage. in his without in Great Weaver Falls. and another 1991 and again to Dr. EMG, "in Dr. Stephens found no clear another Herder order to did repeat evidence of radiculopathy. In the meantime, Weaver was working her husband had bought bookkeeping function, in 1985. replacing at the tavern that By 1988 she had taken a part 5 time employee she and over the who had been paid $6.50 weekday an hour. morning. afternoon evening with not waiting of three December run the In business, that seven 1991, include earn a living until resolved." At her cash paying time in total disability as medical claim and at the therefore terminated The temporary court total held down when over the duties of the trial all the work required tavern to Weaver's the in October for in trial in 1991, Weaver running the to "mainly us a way to give Compensation tavern claim] are Weaver and the past, by Court December as they Workers' for the 1991, had in Compensation reinstatement condition, fees. which accident been of her temporary and prospectively, and attorney's of her 4, was time retroactively not on April bar the Workers' seeking back had sit had taken sold husband, the costs time she could deposition [her the benefits lower The assume bar." 1991, benefits, was her an injury May to each doing were themselves, the hours a week. her of petitioned third well. arrangement" time of began as by Weavers and her the out Weaver the things were "taking days At herself husband and "anticipated would she By 1989 Weaver husband. the three 1988, of for end so that she and her husband and her said each Weaver duties bartenders, September sister at on customers. 1991, summer bartending a stool part-time occupied the During and equipped to Thiswork considered The basis had not at the been Buttrey when as well of her reported as store her in benefits 1986 were 1987. that disability although benefits, 6 Weaver was Buttrey's not entitled insurer to was responsible because for Dr. the medical Stephens back found court "a supported the by the June her for future medical however, left The unreasonably (1985) . Weaver medical the Did (1) on appeal at (3) Buttrey Did the (4) (5) approval for the Mahnke, and Buttrey benefits, had Weaver not was not by 5 39-71-2907, and attorney's fees Court by her Compensation total store on June for diagnostic the MCA on the issue finding entitled in that Court err injury? in benefits 15, err for to injuries 1986? Court refusing work done in denying on her Weaver lower back period? Is Weaver err 1986 work disability Compensation 1989-91 total temporary only condition, authorized Workers' benefits the liable her its of disability was caused temporary the in back because Compensation Workers' Weaver's sustained change are: Workers' the reinstate injury only. condition Did 1986 medical back Stephens, that costs 15, the lower pain" lower Iwersen, penalty was awarded the back (2) during payment of was held obtained found 20 percent The issues not back June by the insurer Weaver's Drs. also benefits The for by or the Weaver's accident 1986 had to that pain. Weaver refused to medical leg court entitled Weaver's 15, performed Herder. of conclusion bills because examinations that pain "low preponderance evidence" due to to her the The gait related had related injury. was caused expenses Is disability Weaver entitled to a penalty and medical to for withheld benefits? reasonable 7 unreasonably costs and attorney's fees for the disability issue as well as for the medical benefits issue? I The first erred in finding accident our issue that judgment for that of Worker's the v. Compensation back injury in June 1986. supports was caused by her We will not substitute Court the court's Dist. 813 P.2d 451, 455, 48 St.Rep. 579, 581; Anderson 826 P.2d 931, 934, 165, The immediate, to do with her visible left examined her during focussed exclusively had experienced pain suspect evidence accumulated disc her injury. aggravated her left aggravated disability. 386, 658 traumatic she might since spine may have the itself Belton P.2d event 405, or v. Carlson 407 ("An unusual did The medical caused that was the pain in fact it that was caused it Transport (1983), 8 years, what however, strain Weaver condition or by the accident they she has a damaged establish Whether who after three have a back problem. that had physicians her leg hurt, for a pre-existing accident, accident May 1989, in her leg leg caused her to limp. by the months that does not been by the accident she told then establishes but (1991), v. Hammer (1992), of Weaver's Not until and weakness that lower It several on the leg. a doctor in Because the next as 167. consequences leg. when conclusion, Glen Lake Irrigation 49 St.Rep. Court Compensation Workers' evidence McIntyre the lower store credible does here. whether Weaver's at the Buttrey substantial, it is is a this or merely compensable 202 Mont. is comepnsable aggravates a 384, if pre-existing the injury."). See Jones 639 P.2d 1140 in but 1976 v. St. (claimant was injured entitled caused by bending grader). We hold Worker's lower and back substantial, (1981), while for working in his credible award 196 Mont. disability work evidence of 138, as a logger subsequent activities Court's back Co. benefits lifting that Paper his to Compensation Weaver's Regis as a lumber supports medical the benefits for the second condition. II Given that question is benefits for disability Weaver's whether that she is injury To a claimant MCA (1985), is entitled injury. benefits, 71-116(19), back to be temporary entitled must which compensable, meet defines total to the disability temporary total requirements temporary of total 5 39- disability as: a condition resulting chapter that results until the injured permanent character To demonstrate what jobs to Metzger v. Here, She bookkeeper in perform inability market. her Weaver the new Cut Bank she stated that she thought prove (1984), 212 Mont. to meet the working Buttrey must market labor failed and bartender, a claimant and associated perform been wages," duties Corp. to had of normal the Chemetron 1035. complete loss constitute inability 1033, "total from an injury as defined in this in total loss of wages and exists worker is as far restored as the of the injuries will permit. with her those jobs. 351, 355, 687 burden of proving within her normal at least three years and she had applied At she could 9 complete jobs for store. establish the work for trial a job in a labor as as checker December as a checker P.2d 1991, and would a "give it a good her Workers' IGA store. "[t]he try," As the money and the a receives "economic gain" disability 49 165, St.Rep. simply means consideration for employee." 774 393, Here, income effort meet addition it share it her Indubitably, her daily but put it, work at 1987. the however, of P.2d 936, "wages" received economic (1989), total 931, Act, value real adopted for 826 is she has eligibility "anything She tavern, Compensation the tavern covered is took gain 237 Mont. "draw" income 1991 on as to 424, living "real it or duties, is and is not he's expenses the 426, tavern equal to she nights that a "I he's Whether a "draw" least her stated in handle not Weaver's or four the week" can't and good." at to example, four as for gain." 10 least a bookkeeper described economic at and not the contribution for "three husband like was deposition, bar a Weaver's bookkeeping receipts her it husband expenses. the my He don't has Bank employed" March (1992), Workers' H & H Lumber October her myself, of Hammer or this in bartender. v. Cut examiner in determining the living worked to by and their In she for new "gainfully Court, . . constituting generated husband's. This the of overwhelming." been her a resolution 394. that that . v. Weaver to for earnings, work is terminated wage Under Scyphers P.2d not were Anderson gross hearing has she standard 168. at work benefits. benefits. for applying to direct no waiting before ability benefits as was Compensation that temporary no says, her asserts her she claim Workers' of Weaver paid that Compensation evidence since but "wages," years. a The Workers' temporary total Compensation disability Weaver had reached That finding 1987. back that that Dr. based on its with respect injury that not reached has temporary total that disqualified her Weaver's for those finding that of March 18, opinion referred and treatment in 1989, and from only was needed and that she entitled to is We do not address earnings of to her leg injury. maximum healing benefits. denial "releasel' was discovered disability we hold evaluation its previous Bloemendaal's further therefore because also was based on Dr. Bloemendaal's Weaver argues the benefits maximum healing to her leg injury, for Court the this issue tavern alone benefits. III Next, benefits we must decide for 91 period. insurer this the diagnostic not period authorization Stephens, from v. Wells for Weaver the insurer from the or referring Fargo insurer a worker Armored Service Court Weaver's entitled to medical for her Rule for found that the 1989Buttrey's medical expenses requested neither Mahnke and Herder. authorization physician Compensation responsible because Weaver is work done on her back during The Workers' is whether nor obtained Drs. Iwersen, visits to 24.29.1403, changing to a medical Corp. ARM, requires a worker's specialist. (1989), during treating Carroll 240 Mont. 151, 783 P.2d 387. Weaver argues selects Stephens the initial were the that under treating "initial Rule 24.29.1403 physician; treating 11 the that physicians injured Drs. worker Iwersen for her and back injury;" and insurer is those doctors. Herder were that insurer required pay did Her also referrals the other 1989-91 period incurred Research Cottrell Chapman, the claimant from who her doctor Workers' awarding with here 248 other selected injury Buttrey's the insurer selected by the claimant than to by prescribe the claimant correctly. insurer and Dr. be was on had while the first Bloemendaal, Weaver's 12 in medical initial Chapman v. 1283. In benefits P.2d medical to authorization the initial and benefits for without the medication, Here, to as medical 811 denied We reversed by that subsequent holding a neurologist designated not our Court insurer. employer's and benefits 353, consulted ask rules. from Mont. not Compensation denying the the did Stephens Workers' future her was Stephens' the back for she Dr. Dr. in her Bloemendaal or that Compensation had support that correctly (1991), find Dr. for holding and Buttrey's about to Iwersen compliance our Stephens, undisputed We hold while in is approval 24.29.1403 Mahnke Iwersen was which Dr. doctors. Rule Dr. him for consult Dr. Drs. by too. consult It Buttrey's provided because for calling seek We distinguish was in (1985), services argues, services claim, not applied expenses a their however, to to Court for for physician. did reasonable Weaver purpose authorization she for MCA consultants not, treating 39-71-704(l), pay Compensation initial for to neurological Weaver problem. ยง Further, should Workers' under grounds that treating performed the physician no treatment neurologist was to her doctor who the was treating diagnose considered physician, by treated 1987. the Weaver's leg His letter insurer her to return two years within after her while the Chapman claimant visit claimant had only physician, that 1986 through to Dr. leg Bloemendaal We held, to consult the Dr. neurologist that the physician, for whom treating Here, does require nearly therefore, was not required. which was healed Weaver waited in Chapman consulted one initial June by both Weaver and her Moreover, her accident. authorization her treating October indicating to work. last a month after the insurer's from of March 18, 1987 was regarded as a "release" enough for Iwersen, extensively Weaver changed authorization. IV Next, we consider unreasonably provides withheld that claimant's the by has been the substantial trial Here, Weaver payment injury. unreasonably v. that or of fact, if Carpenter it MCA (1985), may increase finds delayed finding argues that a payment refused of by an and we will not supported by is (1987), Since the medical at least insurer benefits it was not accident evidence three Buttrey's and medical of disability was caused by Weaver's was submitted it is a question Milender We disagree. and since if Court for 230 Mont. 1, 935. withheld injury 20 percent to a penalty 39-71-2907, Compensation court's evidence. 6, 748 P.2d 932, Section Workers' Unreasonableness overturn Weaver is entitled benefits. benefit compensation insurer. whether linking years 13 after unreasonably for self-evident at Buttrey's the injury her that back this in June 1986, to the accident the accident occurred and was somewhat denial equivocal, We hold, therefore, that Workers' Compensation of the Court's was not unreasonable. credible substantial claim evidence supports denial of the 20 percent the penalty. V Finally, Under a we address 5 39-71-611, claim that the MCA (1985), is later Compensation Court fees. for Weaver's back now this Court therefore is is insurer entitled connection with costs to attorney's and benefits this Mont. 516, in for the same fees in a case of Court found attorney's denied liability Compensation Weaver Court The the and that she incurred in argues fees injury. litigating she is 1210, Deaconess 1213, on which reason that that an attorney where to he did that not attorney's disability permanent Montana issues benefits she is not as the Although, them, Workers' and and attorney's for entitled issue to Worker's a back for v. 776 P.2d be awarded time. fees Buckman 521, not not for the for court issue awarded of medical only. We held is the costs claim by consistently fees. liability costs compensable. all attorney's who denies reasonable has which and compensable for adjudged costs an insurer liable injury, have of adjudged Buttrey's Here, issue court partial not entitled fees to claimant did not and costs the out, benefits 14 not associated Weaver if fees Weaver with the Compensation benefits might she were on this should attorney Here, Workers' 238 prevail, receive to disability attorney's fees on any issue. because pointed (1989), attorney's would prevail entitled disability the Hospital at this be entitled to issue apply now. for At present, the court payable. Therefore, fees for only Affirmed that on all has ~found Weaver is only entitled the medical to costs benefits and to be attorney's claim. issues. -\~d';-;I:&cc, ( ;~I!. ibid;;: <'j ,/i,;&, Justicd ' We c 4 15 [ )$ , State nf montann QBfficn of (IUerk of the Supreme Mourt i&ha 54620 406.444-3858 EDSMITH CLERK October 29, 1,992 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Richard .I. Martin ALEXANDER, BAUCUS P.O. Box 2629 Great Falls, MT 59403 & LINNELL, P.C. G. Curtis Drake KELLER, REYNOLDS, DRAKE, STERNHAGEN & JOHNSON. P.C. 38 South Last Chance Gulch Helena, MT 59601 ED SMITH CLERK OF THE SUPREME STATE OF MONTANA _ COURT
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