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                                                               No. 00-734

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2002 MT 11N



                                                           PHILLIP DAVIS,

                                                      Petitioner and Appellant,


                                                                      v.

                                    CREDIT GENERAL INSURANCE COMPANY,

                                                    Defendant and Respondent,

                                                                     and

                                                   UNITED STAFFING, INC.,

                                                                Employer.

                               APPEAL FROM: Montana Workers' Compensation Court

                                     The Honorable Mike McCarter, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                               Marvin L. Howe; Navratil & Herring, Glendive, Montana

                                                            For Respondent:

                              Joe C. Maynard, James R. Hintz; Crowely, Haughey, Toole

                                                  & Dietrich, Billings, Montana

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                                              Submitted on Briefs: August 16, 2001
                                                  Decided: January 29, 2002

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk




Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. It shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Phillip Davis (Davis) appeals from the Findings of Fact, Conclusions of Law and
Judgment entered by the Workers' Compensation Court (WCC) in his claim against Credit
General Insurance Company (Credit General). We affirm.

¶3 We address the following issues:

¶4 1. Did the WCC err in finding Credit General did not wrongfully terminate Davis'
temporary total disability benefits?

¶5 2. Did the WCC err in finding that Davis is not permanently totally disabled and not
entitled to treatment at a pain clinic?

¶6 3. Is Davis entitled to attorney fees and a statutory penalty?BACKGROUND

¶7 On August 29, 1995, Davis sustained an injury to his right shoulder after he fell while
tightening straps that secured a load he was carrying on his truck. At the time of the
accident, Davis was employed by United Staffing, Inc. which was insured for workers'
compensation purposes by Credit General. Credit General accepted liability for the

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accident and immediately began paying Davis temporary total disability and medical
benefits. Davis' primary treating physician, Dr. Lawrence Toder (Dr. Toder), diagnosed a
torn rotator cuff and operated on Davis' right shoulder in November of 1995.

¶8 After the surgery, Davis underwent physical therapy with Richard Smith (Smith) and
demonstrated steady improvement in his right shoulder. In April of 1996, Smith concluded
Davis was able to return to light-duty work, but Davis did not return to work. In
September of 1996, at Credit General's request, Davis saw Dr. Stephen G. Powell (Dr.
Powell) for a second opinion. Dr. Powell expressed concern about another possible rotator
cuff tear that was hindering Davis' recovery. Dr. Toder concurred and recommended Davis
undergo a second surgery. Davis declined.

¶9 In December of 1996, Credit General consulted Dr. Powell and ascertained Davis had
reached maximum medical improvement because he was unwilling to undergo further
surgery. Davis reconsidered surgery and consulted Dr. Toder and Dr. Robert Seim (Dr.
Seim), eventually scheduling the second surgery for February of 1997. Davis subsequently
cancelled this surgery and did not see Dr. Toder again until shortly before a determination
of his disability status in 1999. In March of 1997, the Social Security Administration
awarded Davis disability benefits retroactive to April 1996. Smith examined Davis again
in June of 1997 and found that his condition had deteriorated, but approved various jobs
that were within Davis' capabilities. Dr. Powell reviewed the jobs recommended by Smith
and determined Davis was capable of employment.

¶10 In August of 1997, Davis moved to Jamestown, North Dakota. In November of that
year Credit General sent Davis a 14-day notice of termination of temporary total disability
benefits and conversion to permanent partial disability benefits based on Dr. Powell's
earlier conclusion that Davis had reached maximum medical improvement.

¶11 Davis filed his first petition in the WCC in July of 1998. In August of 1998, Credit
General hired a private agency to conduct video surveillance of Davis. The surveillance
tape shows Davis working in his garden using his right arm to shovel, pull-start a
rototiller, rototill, carry water, and pull weeds. Shortly thereafter, in August of 1998, he
submitted to a medical examination by Dr. Thomas L. Schumann (Dr. Schumann). After
examining Davis and viewing the video surveillance tape, Dr. Schumann concluded Davis
might be exaggerating his pain and limited mobility symptoms. Dr. Schumann considered
Davis to be at maximum medical improvement without further surgery and approved nine
jobs recommended by a rehabilitation counselor.

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¶12 In November of 1998, Davis saw Dr. Howard T. Berglund (Dr. Berglund), an
orthopedic surgeon in Fargo, North Dakota. Dr. Berglund feared there might be another
tear in Davis' rotator cuff and recommended a second surgery on Davis' shoulder. In a
deposition taken in April of 1999, shortly before trial, Dr. Toder continued to recommend
further surgery for Davis, stating the procedure was safe and had a sixty to seventy-five
percent chance of improving Davis' condition. Dr. Toder also concluded Davis was
capable of performing sedentary work.

¶13 Davis' petition proceeded to trial in the WCC on April 26, 1999. On the second day of
trial, Davis informed the court he was willing to consider additional surgery with Dr.
Berglund. The court subsequently granted Davis' motion to dismiss his petition without
prejudice, and Dr. Berglund performed the second surgery on Davis' shoulder in June of
1999. Davis continued to report pain thereafter, but Dr. Berglund opined that the surgery
had been successful and no medical explanation for Davis' pain was evident.

¶14 Davis filed a second petition in the WCC in July of 1999 on the grounds he was
permanently totally disabled and Credit General had wrongfully terminated his temporary
total disability benefits in November of 1997. Dr. Berglund referred Davis to Dr. Michael
Webster (Dr. Webster) in Jamestown, North Dakota, for follow-up treatment in October of
1999, after the second surgery. Both Dr. Berglund and Dr. Webster subsequently
recommended Davis seek treatment at a pain clinic to learn to cope with his chronic pain.

¶15 In March of 2000, at Credit General's request, Davis was examined by Dr. Gregory
Peterson (Dr. Peterson). After reviewing Davis' medical records, watching the video
surveillance tape and physically examining Davis, Dr. Peterson concluded Davis'
complaints of pain and disability were markedly out of proportion to objective medical
findings. Dr. Peterson also found Davis' statements regarding pain and his behavior during
the examination were exaggerated, and that Davis lacked motivation to obtain
improvement and likely would not benefit from a comprehensive pain program or further
rehabilitation. Dr. Peterson also noted Davis was capable of employment with his physical
limitations.

¶16 Davis was evaluated at a pain clinic in March of 2000. Dr. Steven Berndt found his
overall symptoms seemed to be somewhat exaggerated. Davis was given an injection to
alleviate his pain which he later claimed "didn't do much for the pain."

¶17 A second trial was held in the WCC on April 26, 2000. The court subsequently

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entered its Findings of Fact, Conclusions of Law and Judgment. It determined Davis to be
"not credible" and found he is not entitled to permanent total disability benefits, further
temporary total disability benefits, treatment at a pain clinic or further rehabilitation
benefits. Davis appeals.

                                                  STANDARD OF REVIEW

¶18 We review the WCC's findings of fact to determine whether they are supported by
substantial credible evidence and its conclusions of law to determine whether the
interpretation of the law is correct. Schimmel v. Montana Uninsured Employers Fund,
2001 MT 280, ¶ 5, 307 Mont. 344, ¶ 5, __P.3d__, ¶ 5. In workers' compensation cases, the
law in effect at the time of the claimant's injury establishes the claimant's substantive right
to benefits. Ness v. Anaconda Minerals Co. (1996), 279 Mont. 472, 478, 929 P.2d 205,
209. As a result, the 1995 statutes and cases interpreting those statutes apply in the present
case.

                                                             DISCUSSION

¶19 1. Did the WCC err in finding Credit General did not wrongfully terminate Davis'
temporary total disability benefits?

¶20 The WCC found that Davis' temporary total disability benefits were not improperly
terminated because he reached maximum medical healing prior to their termination. Davis
advances alternative arguments that he had not reached maximum medical improvement
by the time Credit General terminated his temporary total disability benefits in late 1997
and, therefore, that the termination of his benefits was improper.

¶21 Davis' main assertion is that Credit General was obligated to seek a maximum medical
improvement determination from his primary treating physician, Dr. Toder, and,
consequently, that Dr. Powell's determination was not adequate. Davis fails to advance
any authority, as required by Rule 23(a)(4), M.R.App.P., to support his contention,
however. Accordingly, we refuse to consider this matter further. See In re Estate of
Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶ 19.

¶22 In his opening brief, Davis also fleetingly mentions his temporary total disability
benefits should not have been terminated in November of 1997, even though he was
reluctant to have surgery on his shoulder at that time. Pursuant to Rule 23(a)(4), M.R.App.


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P., in order for Davis to properly raise an issue in his opening brief he must list his
contentions with respect to the issues presented and the reasons therefor, with citations to
the authorities relied on. Davis' argument fails to comply with Rule 23(a)(4), M.R.App.P.
"[I]t is not this Court's obligation to conduct legal research on appellant's behalf, to guess
as to his precise position, or to develop legal analysis that may lend support to his
position." Estate of Bayers, ¶ 19 (citation omitted). We decline, therefore, to address this
contention further.

¶23 Substantial credible evidence of record supports the WCC's finding that Davis'
temporary total disability benefits were not improperly terminated. Substantial evidence is
"more than a mere scintilla of evidence but may be less than a preponderance of the
evidence." Taylor v. State Compensation Ins. Fund (1996), 275 Mont. 432, 437, 913 P.2d
1242, 1245 (citation omitted). Here, the evidence of record, including Dr. Powell and Dr.
Toder's testimony, indicates Davis had reached maximum medical improvement prior to
the termination of his temporary total disability benefits. In addition, Dr. Powell
determined that Davis could return to work as a forklift operator or a toll booth operator
with some modifications. Smith, Davis' physical therapist, also concluded Davis could
return to work as a transport driver, a bus driver or a toll booth operator with some
modifications. Accordingly, we conclude the WCC's finding was supported by substantial
credible evidence.

¶24 We hold, therefore, the WCC did not err in finding Credit General did not wrongfully
terminate Davis' temporary total disability benefits.

¶25 2. Did the WCC err in finding that Davis is not permanently totally disabled and not
entitled to treatment at a pain clinic?

¶26 The WCC found Davis is not permanently totally disabled based on record evidence
that Davis is physically capable of performing regular work and has a reasonable prospect
of finding regular work within his physical capabilities. Davis contends that, as a result of
his pain, in combination with his low education level, age and exclusive work as a truck
driver, he is unable to perform regular employment and is, therefore, permanently totally
disabled.

¶27 In this regard, Davis correctly argues pain is one factor that can be considered when
determining whether a claimant is permanently totally disabled and that, in some
instances, pain may be so severe that it renders a claimant physically incapable of


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performing job duties. He relies on Killoy v. Reliance National Indemnity (1996), 278
Mont. 88, 923 P.2d 531, which is factually distinguishable from the present case. There,
the claimant's testimony regarding pain was corroborated by medical evidence given by
two of his treating physicians and was found to be credible by his doctor and by the WCC.
See Killoy, 278 Mont. at 96, 923 P.2d at 535, 536.

¶28 In the present case, Davis' treating physicians have not been able to find any objective
medical reason for his on-going reports of pain. More importantly, the WCC found Davis
to be "not credible" with respect to the pain he claimed to be experiencing. The record
contains suggestions from several doctors that Davis' pain reactions were exaggerated. In
addition, the court noted the inconsistency between Davis' claims of constant pain and
inability to work and his garden work as depicted on the video surveillance tape. We will
not substitute our judgment for that of the trial court with respect to the credibility of a
witness. See Walls v. Travelers Indemnity Co. (1997), 281 Mont. 106, 111, 931 P.2d 712,
715 (citation omitted).

¶29 Pursuant to § 39-71-116(23), MCA (1995),

        Permanent total disability means "a physical condition resulting from injury as
        defined in this chapter, after a worker reaches maximum medical healing, in which a
        worker does not have a reasonable prospect of physically performing regular
        employment. Regular employment means work on a recurring basis performed for
        remuneration in a trade, business, profession, or other occupation in this state."

¶30 Here, substantial credible evidence of record supports the WCC's finding that Davis is
capable of regular employment and, consequently, not permanently totally disabled. Dr.
Toder testified in his deposition that Davis was capable of performing sedentary work "at
bench level" and specifically agreed Davis could work as a floral delivery driver. In
addition, Dr. Berglund agreed that Davis is capable of both full-time and part-time
employment. The record further indicates Dr. Peterson, Dr. Schumann and Davis' physical
therapist, Smith, all determined that Davis is capable of returning to work in some
capacity. Accordingly, we conclude substantial credible evidence of record exists to
support the WCC's finding that Davis is capable of regular employment and, therefore, not
permanently totally disabled.

¶31 The WCC further found Davis was not entitled to treatment at a pain clinic. Davis
contends the WCC erroneously relied on a report from Dr. Peterson in which Davis was


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represented as being unmotivated. Davis argues the report was in direct contradiction to
the opinions of his treating physicians and was influenced by allegations in a letter to Dr.
Peterson from Credit General's counsel.

¶32 Davis bases his assertion of entitlement on § 39-71-704, MCA (1995), quoted at the
beginning of his argument. Section 39-71-704(1)(a) and (b), MCA (1995), with regard to
primary and secondary medical services to be provided separate and apart from other
compensation benefits provided, states as follows:

        (a) After the happening of a compensable injury and subject to other provisions of
        this chapter, the insurer shall furnish reasonable primary medical services for
        conditions resulting from the injury for those periods as the nature of the injury or
        the process of recovery requires.

        (b) The insurer shall furnish secondary medical services only upon a clear
        demonstration of cost-effectiveness of the services in returning the injured worker to
        actual employment.

Davis fails to assert which subsection he is arguing under; indeed, he fails to present any
legal analysis or advance any legal authority substantiating his entitlement to benefits
under this statute on the facts of this case as required by Rule 23(a)(4), M.R.App.P.

¶33 Accordingly, we decline to address this issue further and we hold that Davis has failed
to establish error in this regard.

¶34 3. Is Davis entitled to attorney fees and a statutory penalty?

¶35 Davis' request for attorney fees clearly is premised on holdings in his favor on the
issues discussed above. We have held that the WCC did not err. Therefore, an award of
attorney fees pursuant to § 39-71-611, MCA (1995), is not appropriate in this case.

¶36 Additionally, Davis' argument in favor of a statutory 20% penalty against Credit
General is also premised on holdings in his favor on the issues above. Our affirmation of
the WCC's judgment is fatal to his request for a penalty under § 39-71-2907, MCA (1995).
Accordingly, we conclude Davis is not entitled to attorney fees or a statutory penalty in
this matter.

¶37 Affirmed.
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                                                     /S/ KARLA M. GRAY

                                                              We concur:

                                                   /S/ PATRICIA COTTER

                                                   /S/ JAMES C. NELSON

                                                        /S/ JIM REGNIER

                                                            /S/ JIM RICE




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