No. 13496
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
DONNA J. CLOSE,
Claimant and Respondent,
-vs-
ST. REGIS PAPER COMPANY, Employer,
and
ST. REGIS PAPER COMPANY,
Defendant and Appellant.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presidinq.
Counsel of Record:
For Appellant:
Warden, Walterskirchen and Christiansen, Kalispell,
Montana
Merritt 13. Warden argued, Kalispell, Montana
For Respondent :
Daley and Sherlock, Kalispell, Montana
Joseph Daley argued, Kalispell, Montana
Submitted: October 6, 1977
CEC 2 2 l$Z
Decided : ----
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
This is an appeal by an employer from a judgment in
favor of its employee by the Workers' Compensation Court.
That court held claimant was entitled to temporary total dis-
ability benefits from July 21, 1974 to April 6, 1976; reimburse-
ment for certain medical expenses and travel costs; and attorney
fees. Following denial of its petition for rehearing, the
employer appeals to this Court.
Claimant sustained an injury in an industrial accident
on April 16, 1974, while employed by appellant, St. Regis Paper
Company at Libby, Montana. Claimant was attempting to free some
lumber that had become lodged in a machine and was struck in the
head with a board.
Claimant was immediately taken to a hospital and was
examined by Dr. Seifert, a Libby-area physician. An X-ray of
claimant's skull was taken and proved negative for injury. Claim-
ant, however, was experiencing severe pain in her neck and back
and a partial numbness of her hands. Dr. Seifert referred
claimant to a neurosurgeon in Spokane, Washington, who examined
her in May, 1974. No objective evidence of injury was found.
Claimant returned to Spokane in July, 1974, and was examined by
a second neurosurgeon. Spinal X-rays proved negative for in-
jury, and the neurosurgeon diagnosed claimant as suffering from
tension which was vascular in origin. He stated that he believed
claimant's condition to be triggered by the injury but not
directly causally related.
Claimant was released to return to work by Dr. Seifert
July 15, 1974. However, she complained of continuing pain and
stated that she was unable to work. Claimant continued to seek
medical aid and was examined by several doctors.
On February 4, 1975, claimant was examined by Dr. Forbeck,
a neurosurgeon in Great Falls, Montana, Dr. Forbeck concluded
that claimant's pain was the result of a cervical disc hernia-
tion. On February 20, claimant underwent surgery by Dr. Alex-
ander Johnson. No cervical disc problem was found, hut a
large osteophytic ridge which was compressing the C7 nerve root
was discovered. This osteophytic ridge and a smaller one were
removed and claimant recovered without difficulty. The evidence
reflects that the osteophytic ridges which were causing claim-
ant's discomfort could not have been caused by the accident of
April 16, 1974. Dr. Forbeck stated that they undoubtedly ante-
dated this injury as they could not have developed during a ten
month period.
Appellant, who is a Plan I self-insurer under Montana's
Workers1 Compensation Act, terminated benefits on July 21, 1974,
following the release of claimant to return to work by her doctor.
Thereafter, claimant employed counsel to represent her and a
hearing was held before the Workers' Compensation Court on April
6, 1976. Claimant was the only witness called to testify. The
deposition of Dr. Johnson, who performed the surgery on claimant,
was filed. On June 4, the Workers' Compensation Court judge issued
his findings of fact and conclusions of law awarding claimant
compensation from the date her employer terminated benefits to
the date of hearing at the rate of $94.62 per week. He further
ordered that claimant be reimbursed for travel costs incurred in
seeking medical treatment, medical expenses, and attorney fees.
The sole issue on appeal is the sufficiency of the evidence
to support the findings of fact and conclusions of law of the
Workers' Compensation Court. Specifically appellant questions
the findings and conclusions in three areas:
(1) Sufficiency of the evidence to support the finding
that claimant is entitled to temporary total disability benefits
from July 21, 1974 to ~ p r i l6, 1976;
(2) Sufficiency of the evidence to support the finding
that appellant is responsible for the medical and travel ex-
penses incurred by claimant along with her attorney fees;
(3) Sufficiency of the evidence to support the conclu-
sion that claimant is entitled to compensation benefits at the
rate of $94.62 per week.
We recently stated in Bond v. St. Regis Paper Company,
Mont. -1 -P.2d , 34 St.Rep. 1237, 1238 (1977):
"The function of this Court is to determine whether
there is substantial evidence to support the find-
ings and conclusions of the Workers1 Compensation
Court. Flansburg v. Pack River Co., Mont. I
561 P.2d 1329, 34 St.Rep. 183 (1977); Kimball v.
Continental Oil Co., 14ont . , 550 P.2d 912,
33 St.Rep. 517,s6
i7
h9
~1
.(
) Court will not sub-
stitute its judgment for that of the trial court
as to the weight of the evidence on questions of
fact. Brurud v. Judge Moving & Storage Co., Inc.,
Employer and Transportation Insurance Co.,
Mont. , 563 P.2d 558, 34 St.Rep. 260 (1977),
Where there is substantial evidence to support the
findings of the Workers' Compensation Court, this
Court will not overturn the decision. Skrukrud v.
Gallatin Laundry Co., Inc., Mont . , 557 P.2d
278, 33 St.Rep. 1191 (1976)."
Appellant raises two questions in its first issue; whether
claimants disability is a compensable disability under Montana law
and whether claimant has met her burden of proving that the accident
of April 16, 1974, caused the onset of her disability. Appellant
contends that claimant's problems were caused by a pre-existing
condition and are therefore noncompensable, citing LaForest v.
Safeway Stores, Inc., (1966) 147 Mont. 431, 414 P.2d 200.
The well-established rule in Montana is that an employer
takes his employee subject to the employee's physical condition at
the time of employment. Schumacher v. Employers Mutual Liability
Insurance Co., (1977) Mont .
-I -P.2d , 34 St.Rep. 1112;
Birnie v. U. S. Gypsum Co., (1958) 134 Mont. 39, 328 P.2d 133;
Peitz v. Industrial ~ccidentBoard, (1953) 127 Mont. 316, 264 P.2d
709. An employee who suffers from a pre-existing condition
is entitled to compensation if such condition is aggravated
by an industrial injury. Bond v. St. Regis Paper Co., supra;
Rumsey v. Cardinal Petroleum, (1975) 166 Mont. 17, 530 P.2d
433; Weakley v. Cook, (1952) 126 Mont. 332, 249 P.2d 926.
LaForest v. Safeway Stores Inc., supra, is factually
distinguishable from the instant case. In LaForest the claimant
experienced pain in her left shoulder in February. She was ex-
amined by a physician who diagnosed her condition as chronic
bursitis and treated her with cortisone. Two days later claim-
ant returned to work. The following month claimant suffered an
injury for which she sought compensation benefits. The District
Court decision allowing claimant benefits was reversed by this
Court on the basis of a determination that the claimant's dis-
ability was the result of a disease not traceable to injury and
therefore noncompensable.
Here the record reflects that claimant was suffering no
discomfort prior to the accident; she was able to perform her
job with no orthopedic problems. The cases are therefore dis-
tinguishable upon their facts.
We find substantial evidence to support the Workers'
Compensation Court's finding that claimant's injury aggravated
her pre-existing condition and she was therefore disabled from
the date of injury to April 6, 1976. Dr. Alexander Johnson,
the doctor who performed surgery upon claimant, testified in his
deposition:
"Q. Now, with respect to Mrs. Close, do you have
an opinion based on her description of discomfort
and its continuousness, as to whether this kind
of injury to the nerve root and continuing irri-
tation did occur? A. Well, I would assume, as I
believe I did indicate, that where there is a sequence
of events from the time of the injury and a patient
prior to injury who is asymptomatic, that I would
assume there is some relationship as an inciting or
aggravating factor even though a major portion of
the problem pre-existed."
Appellant asks us to review the sufficiency of the evi-
dence to support the finding that appellant is responsible for
the medical and travel expenses incurred by claimant along with
her attorney fees. This issue was neither briefed nor argued
on appeal and is therefore deemed waived.
Appellant finally asks us to review the weekly compen-
sation rate of $94.62 established for claimant by the Workers'
Compensation Court. Appellant argues that claimant was less than
a 40 hour per week employee and she is therefore being over
compensated. Claimant's testimony clearly reflects that she worked
40 hours per week during the months preceding her injury with
the exception of periods of illness. Appellant chose not to rebut
this testimony. Sufficient evidence is therefore present to
support the finding.
Judgment affirmed.
Justice
Justices