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Harmon v. Harmon7/30/1991
his right arm high enough to reach around the forms.
Mr. Mark Schwager, rehabilitation counselor employed by National Rehabilitation Consultants, testified that based on his study in his opinion Mr. Harmon is totally unemployable. Mr. Schwager reviewed the depositions and medical records of Dr. Lovitt and Dr. Johnson. He interviewed and observed several taxidermists at work, including the taxidermist who operates the only taxidermy school in Montana and who had trained Mr. Harmon. Mr. Schwager also considered the Vocational Diagnostic Assessment of Residual Employability in light of Mr. Harmon's vocational history and medical information. Mr. Schwager concluded that Mr. Harmon's limited shoulder motion prevents Mr. Harmon from pursuing his goal to continue as a taxidermist. Mr. Schwager testified to the stiff competition among Montana taxidermists, and stated that leading Montana taxidermists with national reputations are fortunate to make $20,000.00 per year. Therefore Mr. Schwager concluded Mr. Dever's and Mr. Harmon's expectations of an eventual income of $50,000.00 a year were unrealistic. The hearing examiner found that Mr. Schwager's testimony was not credible because Mr. Schwager had not personally observed Mr. Harmon working in his shop. However, on remand Mr. Schwager's testimony warrants consideration in light of the medical testimony and the extent of Mr. Schwager's professional investigation.
Mr. Harmon testified that in 1988 he made a "couple of hundred dollars" and in 1989 he made $826.00. With the help of volunteers doing the heavier work he expected to gross about $6,000.00 in 1990. Mr. Dever testified that these figures are consistent with his projections and that as Mr. Harmon's reputation increased his income would increase.
Dr. Lovitt provides insight into Mr. Harmon's optimistic point of view by stating that Mr. Harmon is a
"hard-driving, hard-working type person that really doesn't consider himself to have the time to give in to lesser aches and pains. And we frequently see ranchers like this working themselves into a rather significant pickle because they don't have the time for — you know, they consider their job and their ranch and so forth more important and they are supporting their family, more important than these what they would consider lesser aches and pains that may not be lesser [and who] obviously the way he has handled his back is certainly not a pain-prone guy. He is nobody's sissy or wimp, you know. And these guys can tend to play down things for whatever reason . . ."
In light of all the testimony, we conclude that there is substantial evidence to establish that Mr. Harmon has become permanently disabled due to the arthritic condition of his shoulder. We conclude that the Workers' Compensation Court erred when it found that Mr. Harmon had failed to prove that he is permanently disabled. However, because the Workers' Compensation Court based its determination on the premise that Mr. Harmon could not relate the injury to the 1979 accident and because the court reserved the question of permanent partial disability, we remand this case back to the Workers' Compensation Court for further proceedings consistent with this opinion to determine whether Mr. Harmon's permanent disability is partial or total in nature. The Workers' Compensation Court may properly hold additional hearings or admit additional evidence as needed to determine the issues before the court on remand.
Reversed and remanded.
CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, and McDONOUGH concur.
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