Winchell v. G & B Motors, Inc. , 246 Mont. 320 ( 1990 )


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  •                              No.    89-479
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    1990
    ROSE LEE WINCHELL,
    Claimant and Appellant,
    G & B MOTORS, INC.,
    Employer,
    and
    WESTERN GUARANTY FUND SERVICES,
    Defendant, Respondent and
    Cross-Appellant.
    APPEAL FROM:    The Workerst Compensation Court,
    The Honorable Timothy Reardon, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    Donald R.     Marble; Marble Law Office, Chester,
    Montana
    For Respondent:
    K. Dale Schwanke; Jardine, Stephenson, Blewett        &
    Weaver, P.C., Great Falls, Montana
    Submitted on Briefs:   June 28, 1990
    Decided:   November 8, 1990
    Filed:                                    J
    Justice Diane G. Barz delivered the Opinion of the Court.
    This appeal arises from a judgment entered by the Workers1
    Compensation Court.      Both claimant and Western Guaranty Fund
    Services appeal.     We affirm in part and remand.
    On June 1, 1981, claimant injured her lower back while helping
    two co-workers carry a new pickup box to a wrecked pickup truck.
    It is undisputed that claimant's injury occurred while in the
    course and scope of employment with G   &   B Motors, whose carrier is
    1
    Western   Guaranty    Fund   Services   (insurer).       Claimant   was
    hospitalized at the Northern Montana Hospital from June 5, 1981 to
    June 14, 1981.       Claimant's treating physician, Dr. James E.
    Elliott, diagnosed her injury as a severe paravertebral muscle
    spasm. Claimant returned to work on July 1, 1981, and at that time
    was taking medications to relieve her back pain.
    On September 20, 1981, during her lunch break at work,
    claimant fainted and was found lying on a concrete floor.      She was
    taken to Dr. Elliott for medical services.           Claimant told Dr.
    Elliott that she was experiencing back pain and that the back pain
    was related to the industrial accident of June 1, 1981.       Claimant
    stopped working near the end of October, 1981, and has not worked
    since.
    On July 6, 1981, claimant filed a workers' compensation claim.
    The insurer accepted her claim and paid benefits from June 3, 1981
    to June 30, 1981.       The insurer denied subsequent demands for
    benefits, claiming that claimantls problems were not due to the
    June 1, 1981 accident on the basis that the claimant had returned
    to work and that it had received no medical reports since the last
    report of June 5, 1981.
    Claimant filed a petition with the Workers' Compensation Court
    to resolve the dispute between herself and the insurer.          A trial
    was   conducted   on   September    30,   1986    before   the   Workers'
    Compensation Court.    The issues before the court were whether the
    claimant was temporarily totally disabled, permanently totally
    disabled, or permanently partially disabled, and if permanently
    partially disabled, whether claimant was entitled to permanent
    partial disability benefits.       Also in issue was whether claimant
    was entitled to attorney's fees and costs and a 20% penalty.
    The court heard the testimony of the claimant and nine
    witnesses.   Other testimony was presented to the court by way of
    post-trial depositions of various physicians and psychologists who
    had treated or examined the claimant.       Conflicting testimony was
    presented regarding claimant's condition.        For example, claimant's
    treating physician and a psychologist opined that claimant's pain
    was legitimate while two other physicians opined that claimant was
    malingering for economic gain.
    On December 22, 1987, the Workers' Compensation Court entered
    its findings of fact and conclusions of law and judgment.            The
    court concluded that claimant's disability and benefits could not
    be determined at that time.         Claimant was ordered to undergo
    further testing, treatment and evaluation at a pain clinic to be
    selected by the parties.      The court retained jurisdiction and
    ordered the insurer to pay $93.33 per week in interim temporary
    total benefits until a final judgment was issued.               The court also
    determined that claimant was not entitled to a 20% penalty and the
    issue of attorney's fees and costs were held in abeyance until
    issuance of final judgment.
    After the issuance of the court's order there were numerous
    post-judgment motions        filed and eventually claimant underwent
    treatment    and       evaluation    at     the   Montana     Deaconess    Pain
    Rehabilitation Center in Great Falls from May 22, 1988 until June
    17, 1988.   The insurer, under order of the court, paid the cost of
    claimant's treatment at the pain clinic.
    A rehearing was conducted on October                   18, 1988 before a
    hearing examiner.       The evidence submitted was limited to the time
    period after the first trial. However, the parties stipulated that
    the court could rely upon the record already before it in addition
    to further evidence in making its determination on rehearing.                On
    rehearing, claimant again testified as did her vocational expert.
    Others testified for the defense.               Post-trial depositions were
    taken of the insurer's vocational expert and of the director and
    personnel from the pain clinic.
    On July 7, 1989, the Workers1 Compensation Court entered its
    findings of fact, conclusions of law and judgment. The court held
    that: (1) claimant is permanently partially disabled and under 5
    39-71-703, MCA     (1979), is entitled to 500 weeks of permanent
    partial benefits at the rate of $26.68 per week; (2) insurer is to
    receive credit for benefits paid after December 22, 1987; (3)
    claimant    is   not    entitled    to    any   temporary    total   disability
    benefits; and (4) claimant is entitled to attorney's fees based on
    the amount of benefits now awarded above the benefits paid by the
    insurer since December 22, 1987. Other facts will be discussed as
    necessary.
    The issues raised by claimant on appeal are:
    1.   Did   the   Workers1   Compensation   Court    err    in   its
    determination of claimant's permanent partial disability benefit
    rate?
    2.   Do the findings of fact and conclusions of law support the
    Workers1 Compensation Court's determination that claimant is not
    entitled to back temporary total disability benefits?
    3.   Did   the   Workers1   Compensation   Court    err    in   its
    determination of claimant's attorney's fees and in denying claimant
    a 20% increase in her award pursuant to 5 39-71-2907, MCA (1979)?
    The insurer presents the following additional dispositive
    issue on cross-appeal:
    Did     the Workers'    Compensation Court    err     in   ordering   a
    rehearing?
    The Workers1 Compensation Court determined that claimant is
    entitled to 500 weeks of permanent partial disability benefits at
    the rate of $26.68 per week, pursuant to 5 39-71-703, MCA (1979),
    which states in pertinent part:
    Compensation    for   injuries    causing     partial
    disability. (1) Weekly compensation benefits for injury
    producing partial disability shall be 66213% of the actual
    diminution in the worker's earning capacity measured in
    dollars, subject to a maximum weekly compensation of one-
    half the state's average weekly wage.
    On appeal, claimant contends the court's finding that she is
    entitled to benefits at the rate of $26.68 per week is not
    supported by substantial credible evidence. The insurer, in turn,
    argues that claimant is not entitled to any permanent partial
    disability   benefits    because    claimant    failed    to    prove   by   a
    preponderance of the medical evidence that she was permanently
    partially disabled.
    We begin with whether the Workers1 Compensation Court erred
    in   its determination that        claimant    is permanently     partially
    disabled.    It is well settled that decisions of the Workers'
    Compensation Court will be upheld upon a finding of substantial
    credible evidence.      Snyder v. San Francisco Feed      &    Grain (1987),
    
    230 Mont. 16
    , 25, 
    748 P.2d 924
    , 929; Tocco v. City of Great Falls
    (1986), 
    220 Mont. 221
    , 226, 
    714 P.2d 160
    , 163.           The determinative
    question, therefore, is whether in looking at the record as a
    whole, substantial credible evidence exists to support the decision
    of the Workers' Compensation Court that claimant is permanently
    partially disabled. In reviewing the record on appeal, we find the
    medical evidence, together with the other evidence, is sufficient
    to establish that claimant is permanently partially disabled.
    Section 39-71-116(12), MCA (1979), defines permanent partial
    disability as:
    [A] condition resulting from injury as defined in this
    chapter that results in the actual loss of earnings or
    earning capability less than total that exists after the
    injured worker is as far restored as the permanent
    character of the injuries will permit.
    It is undisputed that claimant's accident and injury occurred while
    in the course and scope of her employment with G               &   B Motors.     The
    evidence shows that prior to the accident, claimant had been a
    strong    person     with    no   history      of   previous   back       problems.
    Claimant's position with G          &    B Motors involved cleaning duties
    including cleaning floors, washing and vacuuming cars, changing
    tires, and cleaning water, mud, oil and dirt from a sump pit and
    carrying this sludge in two five-gallon buckets weighing 40 to 50
    pounds apiece.       These duties required heavy lifting, kneeling,
    bending and pushing.
    The evidence also shows that after the accident claimant went
    to numerous physicians and all diagnosed a soft tissue injury.
    Claimant's treating physician, Dr. Elliott, testified that most
    cases of pain have a psychological component and in claimant's case
    there is a high psychological basis to her pain. Additionally, Dr.
    Shubat, a clinical psychologist, testified that claimant is ''a
    characteristic long-term, low-back pain, pain patient."
    Dr. Elliott, Dr. Shubat, and Dr. Labunetz, a neurologist, all
    were of the opinion that claimant's problems began with her
    industrial       injury, based     on     a   reasonable degree          of medical
    certainty and all testified claimant would benefit from treatment
    at a pain clinic.           Dr. Elliott further testified that without
    treatment at a pain clinic, claimant's condition would remain the
    same.
    Dr. Hinde, the director of the pain clinic, testified that
    upon     entry    into   the      pain    clinic    claimant       had     all   the
    7
    characteristics of a chronic pain patient.             He noted claimant's
    inconsistent behavior regarding her pain and testified that this
    is frequently seen in a chronic pain state and does not necessarily
    indicate malingering.    Dr. Hinde diagnosed claimant as suffering
    from predominately myofascial pain or soft tissue-based pain, which
    followed a lumbar strain injury. Dr. Hinde was of the opinion that
    claimant's discomfort occurred as a result of the industrial
    injury, based on a reasonable degree of medical certainty.
    The record shows claimant performed very well at the pain
    clinic and her condition improved dramatically.            At the time of
    discharge claimant only had occasional reports of discomfort which
    did not interfere with any of the physical activities she was asked
    to perform. However, claimant still suffers from limitation in her
    functional capacity.     Occupational therapist Kelly Scott in her
    discharge summary found claimant could return to work in a medium-
    range employment where lifting is not greater than twenty-five
    pounds.    Additionally, standing and sitting was limited to I1[o]ne
    hour at a time, no more than 4 hours total out of [an] 8-hour day.
    The    Workers1   Compensation   Court,      after    reviewing   the
    supplemental medical evidence and the testimony of the parties1
    vocational experts, found that claimant could return to work and
    earn essentially the same wage,   $3.50   to   $4.00   per hour, as before
    her injury.    However, the court also considered the other factors
    for determining earning capacity set forth in Beck v. Flathead
    County    (1988), 
    230 Mont. 294
    , 
    749 P.2d 527
    .     The court in
    conclusion of law number 3 stated the following:
    The other factors that must be included in the
    determination of a loss in earning capacity under Section
    39-71-703, MCA, include claimant's age, (42); education
    and training, (ninth grade education with no vocational
    training); her previous health (good, although there may
    have been a preexisting lumbar disc disease aggravated
    by the injury).    She has been released for light or
    medium work.   She does experience pain, which can be
    minimized by following the pain clinic recommendations.
    Her 10 percent impairment rating recognizes her pain,
    which does limit her ability to work long hours standing,
    or in one position.
    Claimant's vocational witness testified that the
    claimant has a 78 percent reduction in her job market,
    as a result of the injury. However, she testified that
    the claimant was earning entry-level wages of $3.50 at
    the time of the injury and at this date, could also work
    at entry-level wages and therefore had no actual wage
    loss at this time.
    Defendant's vocational    consultant, D.     Bruce
    Carmichael, testified that the claimant could return to
    her job at the time of her injury or a number of
    vocational alternatives, which paid equivalent to or
    greater than what she was earning at the time of her
    injury.
    In considering all of the above factors, the Court
    concludes that the claimant did suffer a loss of earning
    capacity under Section 39-71-703, MCA, and with her
    difficulty in competing in her reduced labor market, has
    suffered a loss of earning capacity of $1.00 per hour,
    or $40.00 per week. Claimant's entitlement to permanent
    partial benefits under Section 39-71-703, MCA, is 66 2/3
    percent of her actual diminution in earning capacity,
    which is $40.00 times 66 2/3 percent, or $26.68 per week.
    Since claimant's injury is a back injury, not scheduled
    in Section 39-71-705, MCA, claimant is entitled to 500
    weeks, or a maximum of $13,340.00.
    The insurer argues that claimant has failed to prove her
    disability by a preponderance of the medical evidence. In support
    of its argument the insurer points out the testimony of those
    medical experts who were of the opinion that claimant was a
    malingerer. The insurer also stresses that testimony was elicited
    from pain clinic personnel.regarding claimant's inconsistent pain
    behavior.     However, this Courtts function upon review is to
    determine whether substantial credible evidence exists to support
    the Workerst Compensation Court's findings of facts and conclusions
    of law; it is not this Court's function to determine whether there
    is sufficient evidence to support contrary findings.     OtBrien v.
    Central Feeds (Mont. 1990), 
    786 P.2d 1169
    , 1172, 
    47 St.Rep. 251
    ,
    254.   We hold that the Workers1 Compensation Court did not err in
    finding claimant permanently partially disabled.
    Having concluded that substantial credible evidence exists
    supporting the lower courtts determination that claimant         is
    permanently partially disabled, we now turn to whether the court
    erred in its determination of claimant's benefit rate.    As noted
    earlier, the Workers1 compensation Court found that claimant is
    entitled to benefits at the rate of $26.68 per week.       claimant
    contends that the correct rate is $93.33 per week, arguing that the
    court totally ignored the testimony of claimant's vocational expert
    that claimant suffered a 78% reduction in her job market as a
    result of the injury.   She claims that the court missed the point
    presented by her vocational expert that the only work claimant
    would be able to find in her normal labor market would be in Havre,
    twenty-eight miles away from home, and that the work, due to her
    back pain, could only be part-time work.
    In the personal injury context, the impairment of earning
    capacity has been defined as 'Ithe permanent diminution of the
    ability to earn money in the future.'' Thomas v. Whiteside (1966),
    
    148 Mont. 394
    , 397, 
    421 P.2d 449
    , 451. "Pre-injury and post-injury
    wages are but one factor to consider when determining earning
    capacity. Earning capacity also includes age, occupational skills,
    education, previous health, remaining number of productive years
    and degree of physical or mental impairment."                 (Citation omitted.)
    Beck v. Flathead County (1988), 
    230 Mont. 294
    , 296, 
    749 P.2d 527
    ,
    529. "The correct test for loss of earning capacity is whether the
    injury has caused la loss of ability to earn in the open labor
    market.    l1    (Citation omitted.)        Beck, 749 P.2d at 529.
    In        the    case    at   bar    the   Workers1    Compensation    Court
    appropriately considered             the    factors in       determining    earning
    capacity.         The court found that claimant does have a number of
    vocational alternatives and although claimant does experience pain,
    the   pain       can    be    minimized    by    following   the   pain    clinic's
    recommendations.              We hold that substantial credible evidence
    supports        the    Workers1 Compensation        Court's    determination    of
    claimant's earning capacity and her permanent partial disability
    benefit rate.
    Claimant argues the Workers1 Compensation Court's findings
    after the rehearing do not support a conclusion that claimant is
    not entitled to temporary total disability benefits.                 She contends
    the issue of temporary total disability benefits was still before
    the court at the time of the rehearing but the court's findings are
    silent on the issue and the only reference regarding this issue is
    the court's conclusion of law number 4:
    Claimant is not entitled to any temporary total
    disability benefits.
    This Court did not find any temporary total
    disability benefits due prior to the Judgment of December
    22, 1987, and the evidence presented after that date at
    the rehearing does not change that determination.
    Claimant argues this is an unacceptable conclusion because
    nothing in the court's judgment following the first trial indicated
    that the court at that point felt claimant was not entitled to
    temporary total wage loss benefits.   We agree.
    The Workers' Compensation Court, after the initial trial, made
    numerous findings detailing the   conflicting testimony which was
    presented as to whether claimant's back pain was legitimate or
    whether she was malingering.    The court then made the following
    pertinent conclusions of law:
    2. Claimant's disability and benefits             cannot   be
    determined by this Court at this time. .     ..
    While it is undisputed that claimant suffered an
    injury to her back from an industrial injury that arose
    out of and was in the course of her employment, serious
    questions exist as to claimant's current physical
    condition.
    The record in this case is sated with conflicting
    testimony as to whether claimant's alleged back pain is
    legitimate or whether she is malingering. . .      .
    Therefore, it is this Court's decision that claimant
    shall be ordered to undergo further testing, treatment
    and evaluation at a pain clinic. This Court will retain
    jurisdiction over this matter and will delay its final
    decision until submission of a report by the pain clinic
    is received pursuant to the Judgment below.
    3. Claimant is to receive interim temporary total
    benefits which are to begin on the day of this Judgment
    and are to continue until the final decision of this
    matter.
    Claimant has not worked since terminating with
    employer in October of 1981 and, therefore, has suffered
    a complete loss of wages. There is no question that
    claimant sustained a compensable industrial accident in
    June of 1981.    The only issue is whether claimant is
    still incapacitated because of that injury. Because this
    Court is unable to make a decision as to that issue until
    further medical testimony is submitted from the pain
    clinic, this Court finds that interim temporary total
    benefits of $93.33 a week are appropriate under these
    circumstances.  ...
    These conclusions are inconsistent and conflicting with the
    court's conclusion of law number 4 entered after the rehearing.
    The Workers1 Compensation Court did not make a determination that
    claimant was not entitled to temporary total disability benefits.
    The court noted that, due to the conflicting evidence of claimant Is
    physical   condition,   it   was   unable     to   determine   claimant's
    disability and benefits, including whether claimant was temporarily
    totally disabled, and therefore expressly resewed ruling on these
    issues until further medical evidence could be obtained. After the
    rehearing,   the   court   made    findings   relating   to    claimant's
    attendance at the pain clinic and concluded that claimant was
    permanently partially disabled.      It was from testimony regarding
    claimant's physical condition after treatment at the pain clinic
    that the court was able to come to a determination that claimant
    was permanently partially disabled.      However, although the issue
    was before the court at the time of the rehearing, no definitive
    findings were made regarding whether claimant was temporarily
    totally disabled from the time claimant terminated employment with
    G & B Motors   in October, 1981 until interim total disability
    benefits were ordered by the court on December 22, 1987.
    We hold that the findings of fact and conclusions of law are
    conflicting within,     and    remand    this    issue   to   the   Workers'
    Compensation Court for further proceedings to determine what
    temporary total disability benefits are due, if any, from the time
    claimant terminated employment with G      &    B Motors until the date of
    permanent partial disability.
    111.
    In its judgment after the rehearing the Workers1 Compensation
    Court awarded claimant attorney's fees based on the amount of
    compensation benefits awarded her at that time above the benefits
    paid by the insurer after December 22, 1987. The court's rationale
    in limiting the attorney's fees award was that the court considered
    it unwarranted to compensate claimant's counsel at the insurer's
    expense for the court's independent decision to order a pain clinic
    evaluation.    The court stated attendance at a pain clinic was not
    requested by claimant nor was it part of her case.
    Claimant contends she should receive attorney's fees based on
    back    temporary   total   disability   benefits, permanent        partial
    disability benefits and the attendance at the pain clinic, arguing
    that she made attendance at a pain clinic part of her case.
    The insurer also contests the Workers1 Compensation Court's
    award, asserting that       claimant was not entitled to an award of
    attorney's fees.      The insurer argues the court stated in its
    initial decision of December 22, 1987 that claimant had elected to
    waive any claim to attorney's fees and costs in exchange for going
    forward with the case and taking post-trial depositions of medical
    providers.   The insurer contends the court's position on the issue
    of attorney's fees and costs was based on the claimant's failure
    to exchange all pertinent medical information by the time of the
    first trial.
    When reviewing an award of attorney's fees this Court will not
    disturb the award absent an abuse of discretion by the lower court.
    Martinez v. Montana Power Co. (1989), 
    239 Mont. 281
    , 285, 
    779 P.2d 917
    , 920. Our review of the record reveals that although the issue
    of referring claimant to a pain clinic was not raised before trial,
    this issue was presented to the court during the initial trial.
    In his opening statement, claimant's counsel stated:
    The medical testimony is to be introduced later. The
    records we have now indicate she should be referred to
    a pain clinic. We are not exactly sure how the court
    would handle this, but our feeling right now is that she
    is probably still in a healing phase. She checked out
    of the Northern Montana Hospital to come here for this
    hearing today, she was in traction and, due to extreme
    pain, she was medicated. It has been since recommended
    that she be referred to a psychological pain clinic. As
    far as I can tell she is probably in some sort of a
    healing phase. If the court felt that she is probably
    more in a presently permanently-total condition, then we
    think that would be reasonable. We aren't here to ask
    for permanent-partial benefits or permanent-total
    benefits, because we are really concerned she get
    adequate medical care at this point, that the insurer be
    required to pay for this.
    Moreover,    claimant's   attorney   elicited   the   testimony   from
    claimant's medical providers regarding the need for a pain clinic.
    In its December 22, 1987 decision, the Workers's Compensation
    Court noted that the following occurred at the commencement of the
    trial :
    At trial, a discussion ensued between the Court and
    counsel relative to the status of the exchange of medical
    information and after that discussion, the Court gave the
    claimant the alternative of proceeding with the
    understanding the claimant would be limited to the
    medical the claimant had in her possession on July 16,
    1986, when her petition was filed and any examination
    post-trial would be limited to that period, or the
    claimant could proceed on the basis she would waive any
    claim to attorney's fees or costs but would be able to
    take post-hearing depositions with the medical evidence
    the claimant had at the time of trial to be submitted to
    the Court through the deposition process. Claimant chose
    the latter course.
    Although we recognize that the fixing of attorney's fees is
    within the lower court's discretion, from our review of the record
    we are unable to determine the reasons why the court subsequently
    granted claimant limited attorney's fees after previously noting
    that claimant had elected to waive any claim to attorney's fees and
    costs.
    Because this Court is unable to determine whether or not the
    Workers'      compensation Court abused    its discretion in      fixing
    claimant's award of attorney's fees, we remand this issue to the
    Workers1 Compensation C0ur.t. The Workers' compensation Court is
    instructed to conduct such further proceedings as are necessary and
    again consider the amount of attorney's fees claimant is entitled
    to, if any, taking into consideration its findings and conclusions
    on remand regarding claimant's back temporary total disability
    benefits,      claimant's   permanent   partial   disability   benefits,
    claimant's attendance at the pain clinic and the possibility of
    claimant's waiver of any claim to attorney's fees and costs.
    Claimant further asserts she is entitled to a 20% penalty
    under    §   39-71-2907, MCA (1979), arguing there was no legitimate
    dispute between the parties such that the insurer was justified in
    rejecting her claim after paying less than one month of benefits
    in 1981.   We disagree.    Our review of the record finds no evidence
    to show that it was unreasonable for the insurer to deny benefits
    under the circumstances of this case.        This is especially true
    given the Workers1 Compensation Courtls inability to come to a
    conclusion as to disability and benefits after the initial hearing.
    We hold that the Workers1 Compensation Court properly denied
    claimant a 20% increase in her award.
    Cross-Appeal
    On cross-appeal the insurer argues claimant was not entitled
    to a new trial because claimant neither requested a new trial nor
    did she have grounds for one pursuant to 8 8 25-11-103 and 25-11-
    102 (I), (3) and   (4),   MCA, which set forth the bases for which a
    court sitting without a jury may grant a new trial.
    The record demonstrates that it was the insurer, not the
    claimant, who filed a petition for I1Rehearing or Modification of
    Findings of Fact and Conclusions of Law and Judgment."        In its
    petition the insurer argued that the decision of the Workers1
    Compensation Court was in error and that the insurer was entitled
    to a rehearing or an amendment of the decision.      In granting the
    petition and ordering a rehearing, the Workers1 Compensation Court
    noted claimant had not responded to the petition and had not
    complied with the courtls order to begin evaluation at a pain
    clinic.    The court found it had no alternative but to grant the
    insurer's motion      since claimant's failure to respond to the
    petition and to move the case forward lead to the conclusion that
    the insurer's petition had merit.
    The insurer, having filed the petition for rehearing in the
    first place, is in no position to argue the court erred in granting
    its motion.   We hold the Workers' Compensation Court did not err
    in ordering a rehearing.
    Affirmed in part and remanded in part with instructions.
    We concur:       y    /
    CH        J   tices
    

Document Info

Docket Number: 89-479

Citation Numbers: 246 Mont. 320, 805 P.2d 1323

Judges: Barz, Harrison, Hunt, McDONOUGH, Sheehy, Turnage, Weber

Filed Date: 11/8/1990

Precedential Status: Precedential

Modified Date: 8/6/2023