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Elam v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

August 25, 1995

JERRY ELAM Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: May 15, 1995

          ORDER ON APPEAL

          Mike McCarter Judge

         Summary: On appeal from the Department of Labor and Industry's order on claimant's appropriate return to work option, claimant argued substantial evidence did not support the decision and, in the alternative, that essential findings of fact were not made.

         Held: Substantial evidence supports the hearing officer's determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. Claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer's credibility determination that claimant's perception of his disability was "to a great extent self-limiting and rather incredible." Other testimony and documentation also demonstrates claimant's hostility to physical evaluation and refusal to make reasonable effort to perform physical activities. With regard to claimant's assertion that essential findings were omitted, the hearing officer's determination that claimant was capable of performing the job duties of parking lot attendant encompasses a determination that he can perform the individual tasks required by the position, so explicit findings on each individual task are not required.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-1012, MCA (1987). Substantial evidence supports DOL hearing officer's determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer's credibility determination that claimant's perception of his disability was "to a great extent self-limiting and rather incredible." Other testimony and documentation also demonstrates claimant's hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.
Vocational -- Return to Work Matters: Employability. Substantial evidence supports DOL hearing officer's determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer's credibility determination that claimant's perception of his disability was "to a great extent self-limiting and rather incredible." Other testimony and documentation also demonstrates claimant's hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.
Benefits: Rehabilitation Benefits: Rehabilitation Options. Substantial evidence supports DOL hearing officer's determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer's credibility determination that claimant's perception of his disability was "to a great extent self-limiting and rather incredible." Other testimony and documentation also demonstrates claimant's hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.
Witnesses: Credibility. Substantial evidence supports DOL hearing officer's determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer's credibility determination that claimant's perception of his disability was "to a great extent self-limiting and rather incredible." Other testimony and documentation also demonstrates claimant's hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.
Appeals (To Workers' Compensation Court): Generally. Substantial evidence supports DOL hearing officer's determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer's credibility determination that claimant's perception of his disability was "to a great extent self-limiting and rather incredible." Other testimony and documentation also demonstrates claimant's hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.
Appeals (To Workers' Compensation Court): Generally. On appeal to the WCC from DOL's determination of injured worker's first appropriate return to work option, claimant argued that hearing officer erroneously failed to make findings on each specific task of the identified job. Where the hearing officer's determination that claimant was capable of performing the job duties of parking lot attendant encompassed a determination that he can perform the individual tasks required by the position, explicit findings on each individual task are not required.

         This is an appeal by Jerry Elam, claimant, from a Department of Labor and Industry hearing examiner's Findings of Fact, Conclusions of Law, and Order which found that Option (2)(d) - on-the-job training - of section 39-71-1012, MCA (1987), was the first appropriate rehabilitation option. Claimant argues that the decision of the hearing examiner should be reversed because it is not supported by substantial evidence. In the alternative he asks that the decision be modified because findings of fact upon issues essential to the decision were not made. (Claimant's Brief on Appeal at 9.)

         Factual background

         Claimant was born April 14, 1945. He did not complete high school, nor has he obtained a GED. From 1961 to 1986 he worked as a brakeman/lineman for Burlington Northern Railroad. Due to a disabling knee injury he left that employment. In February 1990, he went to work for Territorial Restaurant, Inc., the employer in this case. He worked as a security guard and then as a janitor. Claimant's work history can be classified as unskilled and semi-skilled work with medium to heavy physical demands.

         Claimant was injured on July 27, 1990, when he fell down a flight of stairs while carrying two 35 pound containers of cooking oil. On the day of the injury claimant was examined at North Valley Hospital by Dr. Jerrold Johnson. His condition was diagnosed as lumbosacral sprain. (Ex. 4 at 6.) X-rays revealed moderate degenerative narrowing of the L4-5 interspace with spurring, sclerosis and moderate facet degenerative changes at L4-5 and L5-S1. (Id. at 3.) Spinal surgery was performed by Dr. James Mahnke on December 7, 1990.

         In August 1991, Dr. Mahnke referred the claimant to Dr. John Stephens, a physical medicine and rehabilitation specialist, for further evaluation and follow-up. Dr. Stephens examined the claimant on August 15, 1991 (Ex. 2 at 22-25), October 1, 1991 (Ex. 2 at 26), and December 19, 1991 (Ex. 2 at 12-13). In December of 1991, Dr. Stephens noted that the claimant "doesn't really seem to be improved with anything that I have done at this point." (Id.) Dr. Stephens referred claimant to Dr. Seabaugh for management of urinary complaints and sexual dysfunction and to Dr. Ceverha for an additional neurosurgical opinion.

         On January 21, 1992, Dr. Ceverha provided the following assessment:

Assessment: 1. Status post diskectomy L4-5, L5-S1 with persistent low back pain. He has a very degenerative disc at L4-5. From a neurological point of view no post surgical intervention would [be] helpful, in my opinion. If the patient were to try surgical [sic] for pain relief in the lumbar spine perhaps fusion of the L4-5 vertebra anteriorly may provide him with a 50% chance of relief. 2. Impotence status post above mentioned surgery. From my prospective [sic] it is difficult to place the location neurological that would give his above mentioned sensory findings. There may be a functional component to his sexual dysfunction. [Emphasis added.]

(Ex. 5.)

         In a May 11, 1992 letter to the State Fund, Dr. Stephens concluded that the claimant had reached maximum medical improvement and assigned a 24% whole body impairment rating. The rating was based upon surgery, loss of motion and loss of sexual function. He noted that the claimant's physical restrictions were in the "light-manual sedentary range," and that the claimant needed to "get going vocationally." (Ex. 2 at 8, 9.)

         Claimant was then referred to Crawford & Co. Health and Rehabilitation for vocational evaluation. Michael Helms, a vocational consultant, contacted the claimant on October 5, 1992. Helms administered a wide-range achievement test which showed that claimant ranked at the fifth grade level for reading and below the third grade level in arithmetic. Helms testified that claimant did not take the spelling portion of the test "because of pain he, he terminated the test because he was unable to continue sitting." (Tr. at 5.) Claimant completed the COPS Interest Inventory, scoring highest in the area of skilled service occupations. He expressed an interest in security and law enforcement occupations. (Ex. 9 at 18-19.)

         A Functional Capacity Evaluation was performed by Jay Shaver, RPT, on October 22 and 23, 1992. Claimant did not cooperate in the testing. Shaver reported:

Cooperation:
Client demonstrated repeated uncooperative behavior. Although maximal safe lifting clearly had not been met, client would not continue with lifting activities on either day ...

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