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Bird v. City of Lewistown

Court of Workers Compensation of Montana

November 2, 1995

WARREN BIRD Appellant
v.
CITY OF LEWISTOWN and MONTANA MUNICIPAL INSURANCE AUTHORITY Respondents.

          Submitted: August 7, 1995

          ORDER ON APPEAL

          Mike McCarter Judge

         Summary: Claimant appealed DOL Hearing officer's determination under 1989 law that he could return to work in a related occupation suited to his education and marketable skills pursuant to option (c) of section 39-71-1012, MCA (1987-1989).

         Held: The hearing officer misapprehended the evidence and the appropriate legal standard. The only evidence presented that claimant could return to work in a related occupation involved the single position of Street Maintenance Supervisor, but the evidence does not show that this job is typically available, as required by statute.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-1012, MCA (1987-1989). DOL hearing officer misapprehended the evidence and applied inappropriate legal standard in determining that claimant could return to work in a related occupation suited to his education and marketable skills pursuant to option (c) of section 39-71-1012, MCA (1987-1989). The only evidence presented that claimant could return to work in a related occupation involved the single position of Street Maintenance Supervisor, but the evidence did not show that this job is typically available, as required by statute.
Benefits: Rehabilitation Benefits: Rehabilitation Options. DOL hearing officer misapprehended the evidence and applied inappropriate legal standard in determining that claimant could return to work in a related occupation suited to his education and marketable skills pursuant to option (c) of section 39-71-1012, MCA (1987-1989). The only evidence presented that claimant could return to work in a related occupation involved the single position of Street Maintenance Supervisor, but the evidence did not show that this job is typically available, as required by statute.

         This is an appeal by Warren Bird (claimant) from Findings of Fact, Conclusions of Law, and Order entered October 14, 1994, by a hearing examiner of the Department of Labor and Industry. The decision found that Option (2)(c) -return to a related occupation suited to the claimant's education and marketable skills - is the first appropriate vocational option for claimant.

         Factual and Procedural Background

         1. Vocational History

         Claimant is presently 58 years old. He graduated from high school, attended a semester or two of college, and then enlisted in the Air Force, where he was trained as an aircraft technician. After discharge from the Air Force, he worked in construction from 1959 to 1964. In 1964 he went to work for the City of Orofino, Idaho, where over the years he successfully held every position within the public works department, ultimately attaining the position of Superintendent of Public Works. During this time he obtained a Water Treatment Certificate. He next worked as the Utilities Superintendent with the Assiniboine Tribe in Harlem, Montana. In 1981 or 1982 he was hired by the City of Lewistown as the Superintendent of Public Works, the position he held until the time of his injury on August 30, 1990. That position required him to engage in heavy labor.

         Through the years, the claimant performed a wide variety of job duties ranging from heavy labor to supervising as many as 20 employees. He was required to keep records of daily operations for wastewater treatment and street maintenance; was responsible for the operation and maintenance of water lines, sewer lines, streets, alleys, cemeteries, parks; kept time sheets used for payroll; and maintained employee performance records. He was responsible for job costing, budget preparation, and long-range expenditure planning. He used a computer to make daily diary entries and for drafting quarterly reports, although he described his computer usage as ?typing."

         2. Industrial Accident and Subsequent Medical History

         Claimant injured his low back on August 30, 1990, while working for the City of Lewistown. He was assisting a co-worker in lifting a 70-pound pump into a pickup. He felt his back "snap" and fell to the ground. Following his injury he was hospitalized for approximately three weeks, first in Lewistown and then at St. Vincent's Hospital in Billings. He submitted to x-rays, three MRIs of the lumbar and thoracic spine (Ex. 3 at 1, 39, 89, 99), one MRI of the skull (Id. at 35), a cervical-thoraco-lumbar myelogram (Id. at 68, 70) and a cystometrogram. (Id. at 95.)[1] The diagnostic studies showed age-appropriate structural integrity of the spine with mild desiccation of the L2 to S1 disks, and a small but insignificant disc protrusion at L5-S1. The cystometrogram was within normal limits. (Id. 3 at 95.) The discharge summary prepared by claimant's treating physician, Dr. James T. Lovitt, reported that claimant had been admitted "with symptoms suggestive of acute back strain" (Id. at 65) and was "[d]ischarged in satisfactory condition." (Id. at 66.)

         Since his 1990 hospitalization the claimant has been unable to urinate normally and catheterizes himself to empty his bladder. (Ex. 11.) However, claimant's physicians have been unable to find any physical basis for his bladder problem and believe that his condition is psychogenic.

         In October of 1990, the claimant made the first of a number of trips to Arizona. During this trip he obtained additional MRI of his low back and brain. The brain scan was normal. The results of the lower-back scan were consistent with those done in Billings in September 1990.

         The claimant thereafter received no regular medical care until June 19, 1992, when he returned to Dr. Lovitt. Dr. Lovitt's impression at that time was that of "[b]ack strain with considerable emotional overlay." (Ex. 2 at 2.) He ordered yet another MRI, which revealed a normal lumbar spine. Dr. Lovitt advised claimant's attorney, Tom Lewis, on July 16, 1992, "[t]hat basically the objective clinical findings and demonstrable studies are out of concert with the patient's clinical symptoms. . . . I think maybe his emotional response to injury is markedly out of proportion to the physical response to injury--physical injury such as it was." (Id. at 4, emphasis added.) On July 17, 1992, Dr. Lovitt reported:

His problem is basically a chronic low back strain without identifiable motion segment injury. I think he would qualify for a 7% whole man impairment rating.

(Id. at 5.) Dr. Lovitt encouraged the claimant to find employment in a tolerable job. He reported:

Realistically, I think he could sit for 2 hours if he can get up and move about, stand for 2 hours at a time if he's allowed to sit briefly, I think he can work an 8 hour day. I think his lifting maximum on an occasional basis would be 25 lbs. more frequency with less weight. He has no problem manipulating his hands or feet for controls. No problem with heights and no problem with temperature, etc.

(Id.) Dr. Lovitt also concluded that claimant's inability to urinate was physically unrelated to the back injury. He referred the claimant to Dr. Edward Shubat, Ph.D., a clinical psychologist.

         Dr. Shubat examined claimant and noted, "His behavior does reveal a lot of pain behaviors that are counterproductive to his current status." Shubat's diagnostic impression was, "Chronic low back pain; conversion disorder - bladder [Dr. Lovitt]; rule out incompetent bladder." (Ex. 10 at 1.)

         The claimant was then seen by Dr. John Mendenhall, who is a psychiatrist, on September 30, 1992. He found that claimant suffered from major depression and somatoform pain disorder. Dr. Mendenhall thought the bladder problems were a "red herring" and that no treatment was necessary. He suggested that claimant be referred to a pain rehabilitation clinic. (Ex. 9 at 2.)

         In November 1992, the claimant was referred to Dr. Bradley Root, a physiatrist, who prescribed a four-week pain rehabilitation program offered by Montana Plains Rehabilitation beginning on December 13, 1992. (Ex. 12 at 1.) The reports from this program are set forth in some detail in the hearing examiner's findings. Claimant was discharged on January 15, 1993. Of specific interest is the Discharge Summary by occupational therapist Lynette Slaybaugh:

LIFTING: Warren has proven the ability to lift up to 20 pounds occasionally to selected heights and 10-15 pounds frequently. This places Warren in light work level with lifting to selected heights. [Emphasis added.]

         (Ex. 14 at 39.) Ms. Slaybaugh also noted the claimant was able to carry up to 20 pounds on an occasional basis, climb stairs, kneel, crouch, squat, walk up to one-half mile, stand for 25-30 minutes, walk and stand for up to 45 minutes and tolerate sitting for up to 30 minutes with position changes. In the Valpar 9 test, which measures the agility of a person's gross body movement of trunk, upper/lower extremities, and fine motor dexterity and manipulative ability of hands/fingers, claimant scored in the 85th percentile in a timed test. (Id.) In his Discharge Summary Dr. Root misstates the occupational therapy report and states that the claimant "can lift/carry 15 pounds occasionally and 10 pounds frequently." (Ex 14 at 122.)

         Dr. Johnson, a psychologist, worked with the claimant throughout the pain rehabilitation program. At the time of the claimant's release, he noted that claimant "agrees to work toward an immediately productive schedule, e.g. volunteer work now, part-time work (at least) as soon as released. He indicates agreement." (Id. at 49.)

         Claimant was discharged from the pain rehabilitation program on January 15, 1993. The discharge summary by Dr. Root stated in part:

WORK STATUS: Patient is cleared to work at discharge in sedentary to light work level. I anticipate maximum medical improvement to be declared at four week follow up. This was discussed with patient prior to his discharge. It was also stressed to patient the importance of obtaining his urodynamic studies. [Emphasis added.]

(Id. at 123.)

         Claimant did not follow through with the recommendations of the pain rehabilitation program. He failed to continue with his conditioning program; he did not attempt volunteer work or part-time work; and he did not obtain urodynamic studies for his bladder condition.

         On April 27, 1993, Dr. Root assigned the following impairment rating:

At this time, secondary to soft tissue lesion with medically documented pain greater than six months, I would give him an impairment rating of 5%. I will not consider the bladder as part of his impairment rating at this time secondary to the etiology being undetermined and the patient having not followed through with his urodynamic studies.

         (Ex. 12 at 9.) Dr. Root did consider the claimant's psychological problems and his bladder catheterization when he determined maximum healing had been reached. Dr. Root concluded that catheterization and the use of prescribed antidepressants would not interfere with claimant working. (Id. at 13.)

         Claimant was next seen by Dr. Bill J. Tacke, who is also a physiatrist. Dr. Tacke's assessment was:

1) Chronic lumbosacral strain with myofascial pain syndrome.
2) Apparent conversion disorder affecting motor function as well as bladder function.
3) History of L5-S1 small disc herniation per MRI with no significant nerve compression.
4) Depression.

         (Ex.11 at 3.) Dr. Tacke further gave the opinion,

There'll need to be an expectation from Warren that each day he's going to demonstrate an improved level of function. . . . If he really doesn't have the commitment to do that it'll be clear that he's actually quite comfortable with the dysfunctional state that he's ended up in. That's sad but it is a psychological problem that sometimes people are not able to overcome. As far as his being disabled to the point that he can't ...

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