                                                                                           May 12 2009


                                           DA 08-0313

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 162



LARRY QUICK,

              Petitioner, Appellant and Cross-Appellee,

         v.

MONTANA STATE FUND,

              Respondent, Appellee and Cross-Appellant.




APPEAL FROM:           Workers’ Compensation Court, State of Montana
                       Honorable James Jeremiah Shea, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       J. David Slovak and Keith Marr, Lewis, Slovak & Kovacich, Great Falls,
                       Montana

                For Appellee:

                       Greg E. Overturf and Thomas E. Martello, Montana State Fund, Helena,
                       Montana



                                                     Submitted on Briefs: April 15, 2009

                                                                Decided: May 13, 2009


Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Larry Quick (Quick) appeals that portion of the Workers’ Compensation Court’s

(WCC) judgment that denied him retroactive domiciliary care benefits before February 1,

2007. Montana State Fund (State Fund) cross-appeals that portion of the WCC’s judgment

that granted Quick a 20% penalty to reflect the difference between the rate for domiciliary

care that the State Fund had paid Quick beginning on February 1, 2007, and the rate that the

WCC deemed appropriate. We affirm.

¶2     We review the following issues on appeal:

¶3     Did the WCC correctly determine that Quick was not entitled to retroactive

domiciliary care benefits before February 1, 2007?

¶4     Did the WCC correctly find State Fund liable for a 20% penalty on the difference

between the domiciliary care rate paid by State Fund and the rate that the WCC deemed

appropriate?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     Quick suffered a brain injury on June 15, 1984, in a work-related motor vehicle

accident. Quick was 35 years old. State Fund accepted liability for Quick’s worker’s

compensation claim and paid certain compensation and medical benefits. Quick continued

to work for several months after the accident, but his injuries eventually forced him to quit.

Quick unsuccessfully attempted to return to work on several occasions.

¶6     Numerous medical and psychological providers treated Quick over the years,

including medical doctors, psychiatrists, dentists, and chiropractors. Quick initially saw Lee
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Hudson, D.C., on June 25, 1984. Quick complained of dizziness, pain, headaches, soreness,

and stiffness. Dr. Hudson diagnosed Quick with acute cervical, thoracic, and lumbar strain.

Richard A. Nelson, M.D., treated Quick in 1985. A CT scan showed a minimal bulge on

Quick’s spine. Dr. Nelson diagnosed Quick with cervical subluxation and sprain syndrome

and recommended physical therapy, use of a whirlpool, and pain medication.

¶7     Brian V. Earle, M.D., wrote a letter to Quick’s counsel on May 5, 1987. Dr. Earle

expressed concern that Quick presented a suicide risk due to a major depressive illness that

required treatment. Dr. Earle predicted that Quick would be disabled completely for a period

of at least three years, at which time “recovery remains a good possibility.”

¶8     William S. Shaw, M.D., headed a panel that evaluated Quick in December of 1987.

The panel concluded that Quick’s neck, head, and shoulder pain were myofascial in nature

and that Quick’s “overriding problem at this point appears to be significant depression.”

The panel rendered a 5% impairment rating and determined that Quick was at maximum

medical improvement except for his depression. The panel noted organic brain syndrome as

a possible source of Quick’s ongoing problems and recommended neuropsychologic testing.

¶9     Dr. Robert B. LeLieuvre, Ph.D., performed a neuropsychological evaluation of Quick

on June 6, 1988. Dr. LeLieuvre stated that Quick showed signs of mild decreased

neuropsychological functioning. Dr. LeLieuvre believed that the “mild signs may well be

consistent with a past, mild closed head injury of the type he might have sustained in an auto

accident.”



                                              3
¶10    Quick attended an eight-week pain clinic at the UCLA Pain Management Center in

February of 1989. The Center diagnosed Quick with headaches of musculoskeletal origin,

head and neck myofascial pain, severe depression, and multiple perpetuation factors. Quick

learned various pacing techniques and stretching exercises. Quick’s wife, Dolly, attended

the program part-time and learned pain management techniques that she used to assist Quick

with his pain.

¶11    Luis A. Cueva, D.D.S., sent a letter to Quick’s counsel on November 9, 1989, that

outlined his recommendations following Quick’s stay at the pain clinic. Dr. Cueva

recommended long term follow-up at the pain center approximately every six months, a

home exercise program, psychotherapy sessions to manage Quick’s chronic depression, the

use of a whirlpool bath, the use of an orthotic splint at night, and the use of a chair with

lumbar support. Dr. Cueva noted that Quick had improved during treatment and had

performed daily work routines without an increase in pain. Dr. Cueva stated that Quick had

progressed to the light-medium physical demand work level. Dr. Cueva concluded that he

did not find any permanent disability associated with Quick’s head and neck symptoms,

although he felt that Quick’s chronic headaches and neck soreness could cause impairment

that would decrease his employment ability.

¶12    Dr. Earle sent a letter in August of 1989 to Michelle A. Rowe, a rehabilitation

counselor working with Quick. Dr. Earle opined that Quick was suited to the position of

drafter, coordinating with builders, architects, planners, and building inspectors, as long as

Quick could take pain medication and stretch regularly throughout the workday. Quick
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underwent cognitive testing performed by Edward E. Shubat, Ph.D., on April 9, 1990.

Quick’s verbal and performance IQ fell within the average range. Dr. Shubat recommended

that Quick obtain treatment for his head injury outside of Montana due to his extremely

complex case.     Quick attended a rehabilitation program in Lakewood, Colorado, in

November and December of 1990. Janet Van Dyke performed a vocational evaluation in

June of 1990 and concluded that supported employment represented the most feasible option

for Quick.

¶13    Quick unsuccessfully attempted to return to regular employment. State Fund

conceded in 1991 that Quick was permanently and totally disabled. Quick settled the

indemnity portion of his claim in 1991 with the assistance of counsel. Quick did not settle

on medical benefits.

¶14    Despite his disability, Quick worked as an assistant coach for several high school and

college basketball teams throughout the 1990s. Quick also worked to remodel a home that

the Quicks had purchased in Havre, Montana, in 1991. Quick managed to go hunting several

times. Quick drove by himself from Tucson, Arizona, to Circle, Montana, in 2000 to start a

part-time basketball coaching job. Dr. Nelson H. de Jesús, Ph.D., a psychologist specializing

in pain management, noted that Quick’s coaching went well and that the school asked Quick

to return as a coach.

¶15    Quick moved to Tucson, Arizona, in 1996 and established medical care. Quick

moved back to Havre in 2001, but continued to treat with Tucson doctors. State Fund paid



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for both Quick’s and Dolly’s travel to Arizona. State Fund also compensated Dolly $29 per

hour for the time that she spent caring for Quick while traveling.

¶16    Dolly estimated that she cared for Quick for between 12 and 24 hours a day from the

date of his accident in 1984. Dolly worked as an apartment manager for approximately two

years beginning in 1985. The position allowed her to assist Quick with daily living as she

could work out of their apartment. Dolly worked at Havre Optometric from 1987 to 1991

and eventually worked up to a full-time position. Dolly entered nursing school in 1991 and

received a bachelors degree in nursing in 1995. Dolly worked at a variety of part-time and

full-time nursing positions from 1995 through November of 2005. Dolly did not work

between August of 2000 and August of 2001. Dolly testified that she cared for Quick 24

hours per day during this time period.

¶17    Dolly testified that Quick’s injury has been extremely difficult for the Quick family.

She recounted the emotional and financial stresses that the family had endured as a result of

Quick’s accident. Dolly testified that she constantly assisted Quick with pain management.

Dolly’s training as a Registered Nurse (RN) enabled her to provide better care than she could

provide without the training.

¶18    Quick filed a Petition for Trial on December 26, 2006, to obtain domiciliary care

benefits. State Fund initially denied liability for the domiciliary care. State Fund accepted

liability for 24-hour domiciliary care, however, after it received a letter dated February 1,

2007, from Dr. de Jesús. Dr. de Jesús reported that Quick required full-time domiciliary



                                             6
care. State Fund began to pay Quick domiciliary care benefits at the rate of $7.50 per hour

retroactive to February 1, 2007.

¶19    The WCC conducted a trial from March 30, 2007, to April 5, 2007. The WCC

rejected Quick’s claim that he was entitled to retroactive domiciliary care benefits before

February 1, 2007. The WCC ordered State Fund to pay Quick’s domiciliary care benefits at

the rate of $20 per hour commencing on February 1, 2007. The WCC further imposed on

State Fund a 20% penalty on the difference between the $7.50 per hour paid by State Fund

and the $20 per hour rate that the WCC deemed appropriate. Quick appeals the WCC’s

denial of retroactive domiciliary care benefits. State Fund cross-appeals the 20% penalty.

                               STANDARD OF REVIEW

¶20    We review de novo the WCC’s conclusions of law to determine whether they are

correct. Harrison v. Liberty Northwest Ins. Corp., 2008 MT 102, ¶ 11, 342 Mont. 326, 181

P.3d 590. Our review of the WCC’s findings of fact is limited in scope and highly

deferential. We simply review whether substantial credible evidence supports the WCC’s

factual findings. Harrison, ¶ 11. Substantial credible evidence is that which a reasonable

mind could accept as adequate to support a conclusion. We will consider the evidence to be

substantial even if other evidence contradicts it, even if it is somewhat less than a

preponderance, and even if it is inherently weak. Harrison, ¶ 11. The evidence must be

more than a mere “scintilla” of evidence, however, and it must rise above the level of

“trifling or frivolous.” Harrison, ¶ 11.



                                            7
¶21     We do not resolve conflicts in the evidence, and we do not consider whether evidence

supports findings that are different from those made by the WCC. We confine our review to

the determination of whether substantial credible evidence supports the findings actually

made by the WCC. Harrison, ¶ 11. We defer to the WCC’s findings concerning the

credibility and weight of witnesses who testify in person at trial. The WCC resolves any

inconsistencies in a witness’s testimony. Harrison, ¶ 12. We conduct de novo review of

deposition testimony that a party presents at trial, but we ultimately are restricted to

determining whether substantial credible evidence supports the WCC’s findings. Harrison,

¶ 13.

                                       DISCUSSION

¶22     Did the WCC correctly determine that Quick was not entitled to retroactive

domiciliary care benefits before February 1, 2007?

¶23     Quick argues that the severity of his injuries put State Fund on constructive notice of

his need for domiciliary care and thereby entitles him to domiciliary benefits retroactive from

the date of his injury on June 15, 1984. The WCC correctly applied the 1983 version of the

Montana Workers’ Compensation Act (Act) that was in effect at the time of Quick’s 1984

work-related accident. See Buckman v. Montana Deaconess Hosp., 224 Mont. 318, 321, 730

P.2d 380, 382 (1986). The WCC also correctly stated that Quick bears the burden of proving

by a preponderance of the evidence that he is entitled to the retroactive domiciliary benefits.

See Dumont v. Wickens Bros. Constr. Co., 183 Mont. 190, 201, 598 P.2d 1099, 1106 (1979).



                                               8
¶24    The Act did not expressly provide for domiciliary care benefits at the time of Quick’s

injury in 1984. We determined in Carlson v. Cain, 216 Mont. 129, 139-41, 700 P.2d 607,

614-15 (1985), that insurers are responsible for domiciliary care benefits under § 39-71-704 ,

MCA (1983), if the claimant meets certain criteria. The pertinent issue for our analysis is

whether “[t]he employer knows of the employee’s need for medical services at home

resulting from the industrial injury.” Carlson, 216 Mont. at 140, 700 P.2d at 614. Quick

argues that the medical records establish that State Fund had at least constructive notice of

Quick’s need for domiciliary care since the date of the accident. Quick contends that State

Fund cannot distinguish his case from Larson v. Squire Shops, Inc., 228 Mont. 377, 742 P.2d

1003 (1987).

¶25    Larson suffered a traumatic head injury in an automobile accident in February of

1983. Larson’s accident caused permanent brain injury and left him permanently disabled.

Larson, 228 Mont. at 378, 742 P.2d at 1004. Larson did not return to work. Larson’s wife

became his primary caretaker upon his release from the hospital on March 3, 1983. Larson,

228 Mont. at 379, 742 P.2d at 1004. The WCC determined on November 4, 1985, that the

insurer was liable for domiciliary care from the date of Larson’s release from the hospital.

Larson, 228 Mont. at 379, 742 P.2d at 1004. Upon rehearing, the WCC revised its judgment

and held that the insurer should not be liable for domiciliary care before August 22, 1985, as

Larson had not raised the issue of domiciliary care until that date. Larson, 228 Mont. at 379,

742 P.2d at 1005.



                                              9
¶26    This Court reversed the WCC’s ruling and held that the insurer should compensate

Larson’s wife for domiciliary care from the date of his release from the hospital. Larson,

228 Mont. at 385, 742 P.2d at 1008. The Court determined that State Fund had constructive

notice of Larson’s need for domiciliary care. The Court emphasized the “unquestioned

severity of the injury, the degree of medical attention [Larson] required while in the hospital

and the permanence of the resulting disabilities.” Larson, 228 Mont. at 385, 742 P.2d at

1008. The Court stated that “need for domiciliary care must be supported by medical

evidence, and we find it is.” Larson, 228 Mont. at 385, 742 P.2d at 1008.

¶27    In Hilbig v. Central Glass Co., 238 Mont. 375, 382, 777 P.2d 1296, 1300 (1989), this

Court affirmed the WCC’s conclusion that Hilbig was not entitled to retroactive domiciliary

care benefits. Hilbig suffered a severe head injury in a fall from a scaffold that left him

permanently totally disabled. Hilbig, 238 Mont. at 376, 777 P.2d at 1297. Hilbig claimed

that his employer had constructive knowledge of his need for home health care from the day

that the hospital released him on December 6, 1983. Hilbig pointed to medical records that

demonstrated the severity of his head injury and his memory loss, headaches, depression, and

anxiety. Hilbig, 238 Mont. at 381-82, 777 P.2d at 1300.

¶28    The WCC granted Hilbig domiciliary care beginning on the date that the employer

first had knowledge of the need or demand for domiciliary care. Hilbig, 238 Mont. at 380,

777 P.2d at 1299. The WCC found that Hilbig first requested domiciliary care on December

18, 1986, at a pretrial conference. The WCC also found that the medical reports before that

date had not recommended home health care. Hilbig, 238 Mont. at 381, 777 P.2d at 1300.
                                              10
The Court emphasized that “the employer’s knowledge of the employee’s need for medical

services is one factor which must be met when considering eligibility for domiciliary care.”

Hilbig, 238 Mont. at 381, 777 P.2d at 1300 (citing Larson, 228 Mont. at 385, 742 P.2d at

1008). The Court declined to disturb the WCC’s conclusion as substantial evidence in the

record supported its findings. Hilbig, 238 Mont. at 382, 777 P.2d at 1300.

¶29    The WCC entered detailed findings of fact regarding Quick’s medical condition from

the date of the injury through 2007. The WCC extensively described Quick’s medical and

vocational history based on medical records and trial testimony. The WCC also entered

findings of fact derived from the testimony of Dolly Quick and the two State Fund claims

specialists who had handled Quick’s case. The claims adjusters testified regarding their

claims files and their interactions with Quick’s medical providers. The WCC further entered

detailed findings of fact derived from the testimony of a number of medical professionals

who had treated Quick.

¶30    The WCC concluded that the severity of Quick’s condition from the time of his

injury, unlike the situation in Larson, “was not so readily apparent as to put [State Fund] on

notice of [Quick’s] need for domiciliary care.” The WCC noted Quick’s return to work for a

period of time after the accident. The WCC emphasized medical records that indicated that

Quick had shown signs of improvement or potential recovery, expert opinions that stated that

Quick was suitable for certain types of employment, and test results that indicated that Quick

possessed an average IQ. The WCC also pointed to Quick’s part-time and volunteer work

efforts and his ability to drive himself both locally and on long-distance trips. The WCC
                                             11
also noted Dolly’s work outside the home on an intermittent basis through 2005. The WCC

emphasized that the first medical opinion establishing Quick’s need for domiciliary care was

Dr. de Jesús’s letter of February 1, 2007.

¶31    The WCC acknowledged that Dolly had provided care to Quick for extended periods

since his accident. The WCC determined, however, that “the events set forth above are not

necessarily indicative of the need for domiciliary care.” The WCC also highlighted an

assertion by Quick’s counsel in a September 2, 2005, letter to State Fund that Quick “has

never made a claim for domiciliary care.” The WCC concluded that it was “hard-pressed to

find that [State Fund] should have been on notice that [Quick] was in need of domiciliary

care since the time of his 1984 injury when his own attorney was contending in 2005 that he

had never made such a claim.”

¶32    The WCC’s factual findings constitute more than a mere “scintilla” of evidence, and

rise far above the level of “trifling or frivolous,” notwithstanding Quick’s claim that selected

portions of the twenty-three year record contradict the court’s findings. Harrison, ¶ 11. As

we stated in Harrison, “we do not resolve conflicts in the evidence, and we do not consider

whether evidence supports findings that are different from those made by the WCC; rather,

we confine our review to determining whether substantial credible evidence supports the

findings actually made by the WCC.” Harrison, ¶ 11.

¶33    Our review of the record convinces us that substantial credible evidence supports the

WCC’s factual findings. Harrison, ¶ 11; Hilbig 238 Mont. at 382, 777 P.2d at 1300. We

decline to disturb the WCC’s conclusions based on those findings. Harrison, ¶¶ 13, 22. The
                                              12
WCC correctly determined that State Fund had not received constructive notice before

February 1, 2007, and that Quick was not entitled to receive retroactive domiciliary benefits

before that date.

¶34    Did the WCC correctly find State Fund liable for a 20% penalty on the difference

between the domiciliary care rate paid by State Fund and the rate that the WCC deemed

appropriate?

¶35    The WCC may increase the full amount of a claimant’s compensation benefits by

20% when the insurer unreasonably delays or refuses to make payments. Section 39-71-

2907, MCA. “The question of unreasonable delay or refusal shall be determined by the

workers’ compensation judge.” Section 39-71-2907(2), MCA.

¶36    State Fund offered Quick $7.50 per hour for 24-hour domiciliary care on the eve of

the trial. The WCC considered testimony from multiple doctors that Quick required the level

of care that only an RN could provide. Kertrina Miller, RN, and Lora K. White, RN,

testified as to the pay rates of RNs, both in Montana and in Tucson, Arizona. They

determined that home health nurses’ salaries ranged from $25 to $65 per hour. The WCC

further noted the $29 per hour that State Fund had paid Dolly for her travel time with Quick

in 2005 and 2006. The WCC lowered the hourly rate that it awarded Quick to $20 per hour

based on the reality that Dolly had a greater level of discretion and freedom than did a

privately retained nurse.

¶37    State Fund does not appeal the WCC’s determination that Quick was entitled to 24-

hour domiciliary care at the rate of $20 per hour. State Fund instead argues that it acted
                                             13
reasonably in questioning the monetary value of the services provided by Dolly and that the

20% penalty therefore was unjustified. State Fund relies on Simms v. Montana State Fund,

2004 MTWCC 27, 2004 WL 525200 (Mont. Work. Comp. Ct. 2004) (Simms – Work. Comp.

Ct.) aff’d, Simms v. State Compensation Ins. Fund, 2005 MT 175, 327 Mont. 511, 116 P.3d

773 (Simms). In Simms – Work. Comp. Ct., ¶ 53, the WCC denied Simms’s request for a

handicapped accessible van. Simms, ¶ 10. The WCC determined that the van was not a

reasonable medical expense or a medical necessity as Simms had other reasonable means of

transportation. Simms – Work. Comp. Ct., ¶¶ 45-46; Simms, ¶ 22. The WCC concluded that

“nothing in the statutes . . . requires a Rolls Royce where the Chevy would be adequate.”

Simms – Work. Comp. Ct., ¶ 45.         The WCC denied Simms’s request based on its

determination that the van was not a medical necessity. State Fund does not dispute the

medical necessity of Quick’s 24-hour domiciliary care. Simms fails to support State Fund’s

argument.

¶38    State Fund also suggests that the WCC’s penalty was improper because the total

amount that Quick will receive each year “equals far more than that of the average working

Montanan.” State Fund did not appeal the WCC’s determination that $20 per hour

represented the appropriate rate for Quick’s domiciliary care. This concession undermines

State Fund’s argument that the wage of the average working Montanan should play a role in

determining the appropriate rate for domiciliary care benefits.

¶39    The WCC properly confined its analysis to whether the State Fund’s $7.50 per hour

rate reasonably approximated the value of the nursing services that Quick requires. The
                                            14
WCC noted that in 1987 and 1989, this Court upheld the WCC’s awards of $7.00 per hour

and $7.50 per hour to claimants’ spouses for 24-hour domiciliary care. See Larson, 228

Mont. at 384-85, 742 P.2d at 1008; Hilbig, 238 Mont. at 382, 777 P.2d at 1300. The WCC

stated that “[i]f I were to consider nothing other than the unquestionable increase in medical

care costs since the late 1980s, [State Fund’s] rate of $7.50/hr. . . . would be unreasonable.”

The WCC emphasized that the claimants’ spouses in Larson and Carlson were not RNs, and

pointed to medical records and testimony from medical professionals that indicated that

Quick required RN-level nursing care. Substantial credible evidence supports the WCC’s

determination that State Fund’s offer was unreasonable. Harrison, ¶ 11; Hilbig 238 Mont. at

382, 777 P.2d at 1300. The WCC correctly awarded Quick a 20% penalty.

¶40    Affirmed.

                                           /S/ BRIAN MORRIS

We Concur:


/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE



Justice James C. Nelson concurs.

¶41    I concur in the Court’s Opinion. However, had I been the trial judge I would have

awarded Quick domiciliary care benefits before February 1, 2007. I join the Court’s Opinion

only because I was not the trial judge, and because, as an appellate judge, I am constrained to
                                              15
affirm the trial court’s decision by the standards of review set forth in ¶¶ 21 and 32 of the

Court’s Opinion. It strikes me as being anomalous, nonetheless, that on the one hand we are

affirming the trial court’s decision against Quick, but on the other we are affirming the trial

court’s award of a 20% penalty against State Fund for its unreasonable conduct.

¶42    I concur.



                                                   /S/ JAMES C. NELSON




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