The opinion
NO. 87-244
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
DALLAS 0 BROWN,
.
Claimant and Appellant,
-vs-
DONALD AMENT, d/b/a
A & R TRANSPORT,
Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Whalen & Whalen; Michael J. Whalen, Billings, Montana
For Respondent:
Crowley, Haughey, Hanson, Toole & Dietrich; William
J. Mattix, Billings, Montana
Submitted on Briefs: Feb. 4, 1988
Decided: March 18, 1988
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the Workers' Compensation Court,
before the Honorable Timothy Reardon. Judgment was rendered
May 28, 1987 and it was determined that defendant, the State
Compensation Insurance Fund, was not liable for the
claimant's injury beyond the liability previously accepted
and the benefits previously paid. We affirm.
On July 31, 1978, the claimant, Dallas 0 . Brown,
suffered an accidental injury while at work. While unloading
bricks from a truck, Brown accidentally fell backwards and
injured his back. Both parties agree this injury was an
accidental injury arising out of and in the course of
employment. Brown's employer at that time was Donald Ament,
d/b/a A & R Transport. The employer carried workers'
compensation insurance through the State Compensation
Insurance Fund at the time of the injury. Liability was
accepted for the injury to Brown's back and temporary-total
disability benefits were paid starting August 1, 1978 and
ending October 27, 1978.
In January of 1986, claimant Brown was diagnosed as
having a herniated disk which required surgery. Brown
contends there is a causal connection between his back injury
sustained on July 31, 1978 and the back problems sustained in
1986, and therefore the State Compensation Insurance Fund is
responsible for paying certain Workers' Compensation
benefits. The relevant events occurring between these two
events are somewhat involved and difficult to trace. This
will be addressed in more detail under the first issue
discussed in this opinion.
The insurer denied liability and Brown filed a Workers'
Compensation petition to resolve the dispute. The Workers'
Compensation Court granted a motion by defendant to bifurcate
and trial proceeded as to the issues of liability and
claimant's entitlement to temporary total disability. All
other issues were dismissed without prejudice to the parties.
Trial was held September 16, 1986 and the Workers'
Compensation Court entered findings of fact, conclusions of
law, and a judgment on May 28, 1987 concluding that
"defendant is not liable for claimant's hack condition beyond
the liability accepted and the benefits paid in 1978."
Appellant raises six issues for our consideration on
appeal :
1. Did the Workers' Compensation Court correctly
conclude that claimant did not. provide sufficient proof to
establish a causal link between his 1978 injury and his back
condition experienced in 1986?
2. Did the Workers' Compensation Court commit error in
refusing to admit certain exhibits into evidence?
3. Did the Workers' Compensation Court commit error in
denying an award of attorney's fees and costs to claimant?
4. Is the claimant entitled to temporary-total
disability benefits for the three years that he was not
working by reason of his physical condition between July 31,
1978 and the time of trial, and a,-sointo the future?
5. Is the claimant entitled to be reimbursed, or have
paid, the medical expenses incurred by him for treatment of
his back injury between July 31, 1978 and the current date,
where they have not already been paid by the defendant?
6. Is the claimant entitled to receive a 20% penalty
for unreasonable delay or refusal to pay by the defendant?
Our determination of issues one and two will make it
unnecessary to determine the remaining issues.
1. Causal Connection.
Claimant contends that the back injury diagnosed in
1986 actually began with his injury on July 31, 1978, and
that he has experienced one continuous injury with periodic
manifestations. Brown states his back problems resulted in
the loss of a significant amount of employment from October
19?8 to 1986, and that he worked only sporadically for at
least seven different employers during that time. Brown
contends he lost a total of approximately three years
employment due to his back condition. Counsel for Brown
states that further workers' compensation claims were not
entered because Brown was told he was not eligible for
further benefits.
Claimant's precise employment history between October
1978 and 1986 is somewhat difficult to trace and claimant
appears to have had mixed reasons for leaving each of his
jobs during this time period. Following his accident, Brown
first worked on an intermittent basis for P & S Trucking,
hauling hay and other various loads. In the spring of 1979,
Brown worked a short period for Hi-Ball Trucking and left
either because he was terminated or due to a difference of
opinion with a dispatcher. Brown then worked for
K & S Trucking for approximately six months. He stated he
worked exclusively as a driver and was working approximately
70 hours a week. His employment was terminated at K & S
Trucking when the business closed. Brown then worked loading
trucks for the Coca Cola Company from July 1980 to December
1980. He loaded trucks approximately 38 hours a week and was
apparently terminated due to a disagreement with a night
manager. Brown then commenced work driving a truck with E.R.
Young in January 1981. The job involved little loading or
unloading and Brown stated he hired help if he encountered a
problem. The employment with E.R. Young lasted approximately
one year, and ended when the company sold its trucks. Brown
also drove a truck for Robert Ganson for a short period and
left over a pay dispute. Finally, claimant worked for H & H
Lumber from December 1982 to September 1985. Brown states he
left H & H Lumber because he had difficulty performing his
job due to his back.
In addition to the above work history, the Workers'
Compensation Court entered a thorough statement in its
findings of fact regarding claimant's medical history between
July 31, 1978 and his injury in 1986. Claimant initially
sought chiropractic treatment from Dr. Gary V. Dols on August.
2, 1978. Dr. Dols treated claimant a number of times and
eventually referred him to Dr. John R. Dorr, an orthopedic
surgeon. Dr. Dorr treated claimant on several occasions and
prescribed a specially molded seat and a corset to assist
claimant in his work. Claimant last visited Dr. Dorr on
October 23, 1978 and Dr. Dorr believed it was unlikely
claimant would have any permanent physical impairment.
Claimant saw Dr. Dols on October 17, 1978 and Dr. Dols noted
claimant was doing "fair." After experiencing a strain while
stacking hay, claimant again visited Dr. Dols on December 1,
1978.
The claimant did not seek any medical attention for his
back from December 1, 1978 to June 18, 1982, at which time he
again consulted Dr. Dols. Claimant consulted Dr. Dols four
times in June 1982 and four times again in September 1982.
Claimant saw Dr. Dols again in June 1983, and the doctor
noted claimant was doing rather well. Claimant had a
physical exam on January 17, 1984 and the examination report
noted a "tender over lumbasac [sic] joint." Dr. Dols was
again visited on February 16, 1984 for claimant's back
problems. Claimant experienced back pain while assisting in
movi-ng a stuck truck and saw Dr. Dols again on September 24
and October 15, 1984. There is no claim that claimant sought
any medical attention again until January 1986.
On January 18, 1986, Dr. Dols noted that claimant's
condition was "far more severe than it had been in the past."
Apparently, claimant strained his back while unloading a
truck and shoveling snow. Claimant was eventually referred
to Dr. Maurice C. Smith, a neurosurgeon. Dr. Smith diagnosed
a herniated disc and performed surgery on claimant January
30, 1986. Following the surgery, Dr. Smith stated clai-mant
could not return to work as a truck driver.
In attempting to determine whether claimant's surgery
in January 1986 was the result of the injury on July 31,
1978, the Workers' Compensation Court considered deposition
testimony by the treating physicians. Dr. Dorr, who treated
claimant in September and October of 1978, stated he believed
it was unlikely that claimant suffered permanent physical
impairment at that time. At his deposition on September 3,
1986, Dr. Dorr stated he had not specifically identified a
disk problem in claimant during the treatment. Dr. Dols, the
treating chiropractor, was deposed and refused to state that
the back problem in 1986 was a direct result of the injury
sustained in 1978. Dr. Smith, claimant's surgeon, stated in
his deposition that it was "virtually impossible for [him] to
state with a degree of medical certainty that the herniated
disk that [he] operated on was a direct result of an injury
occurring in 1978."
In Rightnour v. Kare-Mor, Inc. (Mont. 1987), 732 P.2d
829, 830-831, 44 St.Rep. 141, 143, we stated:
The essential element to be proved by a
claimant is a direct relationship between
the claimant's employment and the injury.
- -
Schwartzkopf v. Industrial Accident Board
(1967), 149 Mont. 488, 493, 428 P.2d 468,
470. That is, a subsequent injury is
compensable if it is the direct and
natural result of a compensable primary
injury, and not the result of ai r
independent intervening cause
attributable to the claimant's own
intentional conduct. See Breen v.
Industrial Accident Board (1968), 150
Mont. 463, 436 P.2d 701. When a
subsequent injury is compensable, the
claimant is entitled to receive those
benefits which are payable because of
medical treatment necessitated by the
original injury pursuant to S 39-71-407,
MCA, and § 39-71-704, MCA, including any
medical benefits reserved.
In Rightnour, the claimant's subsequent injury was found
compensable because the medical evidence demonstrated, with a
reasonable degree of medical certainty, that her subsequent
injury was the direct and natural result of her previous
injury. The claimant's previous injury was compensable under
workers' compensation.
Claimant Brown has the burden of proving a causal
connection by a preponderance of the evidence. Evidence
demonstrating only a medical possibility "does not mandate
the conclusion that the claimant has met his burden of proof
under the Act." Currey v. 10 Minute Lube (Mont, 1987), 736
P.2d 113, 116, 44 St.Rep. 790, 793 (citing, Wheeler v .
Carlson Transport (Mont. 1985), 704 P.2d 49, 53-54, 42
St.Rep. 1177, 1183). However, evidence demonstrating a
medical possibility is acceptable evidence and may be used by
the Workers' Compensation Court to support its decision if
supported by other independent evidence. Currey, 736 P.26 at
Both parties have devoted a significant amount of
argument as to the standard of our review in regards to
medical testimony submitted by deposition. In Currey we
stated:
This Court will not substitute its
judgment for that of the Workers'
Compensation Court concerning the
credibility of witnesses nor the weight
to be given their testimony except where
critical medical evidence is entered by
deposition. In cases where depositions
are the evidence, "this court, although
sitting in review, is in as good a
position as the Workers' Compensation
Court to judge the weight to be given
such record testimony, as distinguished
from oral testimony, where the trial
court actually observes the character and
demeanor of the witness on the stand."
Shupert v. Anaconda Aluminum Company
(Mont. 1985), 696 P.2d 436, 439, 42
St.Rep. 277, 281-282 citing Hert v. J.J.
Newberrv Co. (1978). 178 Mont. 355, 360,
Currey, 736 P.2d at 115, 44 St.Rep. at 792. This rule
remains unchanged.
Following a careful review of the medical testimony
submitted by deposition plus the remaining evidence
submitted, we find that the Workers' Compensation Court
correctly concluded that there was insufficient evidence to
establish a causal link between claimant's two injuries. The
medical evidence is inconclusive and, at best, establishes
only a possibility of a causal link. As noted by the
Workers' Compensation Court, this is a difficult case to
chart and "too much time has passed without explanation and
without a tracing of the injury through that time.''
Following December 1, 1978, claimant did not seek any medical
attention for his back for approximately three and one-half
years. The evidence presented fails to sufficiently
demonstrate that treatment rendered after that period was a
direct result of the injury received in 1978; and the
decision of the Workers ' Compensation Court is affirmed.
2. Evidence.
Claimant contends the Workers' Compensation Judge
improperly denied the admission of five exhibits into
evidence. Exhibits 1 and 2 consist of correspondence between
claimant's attorney and a claims examiner for the insurer.
Exhibit 3 is a letter from Dr. Smith's medical secretary to
the Workers' Compensation Division notifying the Division of
claimant's injury. Exhibit 4 is a "memorandum to file" by
Julie McGee noting that claimant requested "that the medical
[file] on his July 78 accident be re-opened." Finally,
exhibit 10 was denied admission and consisted of a letter
from claims examiner Smith to claimant's attorney,
accompanied with a "File Routing/Tracking Form" indicating
that the Division might have to assume responsibility for the
latter injury. Claimant asserts all of these exhibits should
have been admitted and relies on statutes governing the Rules
of Evidence, including statutes regarding hearsay and its
exceptions and limitations.
According to the statutory law in effect at the time of
the hearing, the Workers' Compensation Court was not bound by
the rules of evidence. Section 39-71-2903, MCA (1985).
Although it has no effect on this case, we note this statute
has been amended so as to apply the rules of evidence to
proceedings in the Workers' Compensation Court. Section
39-71-2903, MCA (1987). Claimant's arguments based on
statutes contained within the rules of evidence do not
control in this case.
We have stated that it is within the discretion of the
Workers' Compensation Judge to accept or reject "hearsay"
testimony. Tocco v. City of Great Falls (Mont. 1986), 714
P.2d 160, 166, 43 St.Rep. 310, 318 (citing, Krause v. Sears
Roebuck (1982), 197 Mont. 102, 641 P.2d 458). Even if the
exhibits had been admitted, claimant would not have
sufficiently established a causal connection as discussed in
part one of this opinion. We find no abuse of discretion by
the Workers' Compensation Court.
For the foregoing reasons, we affirm the decision of
the Workers' Compensation Court.
We concur: