No. 14322
I N THE S P E E COURT O THE S A E OF' MONTANA
UR M F T T
1978
JOHN F. VIETS,
Claimant and Appellant,
-VS-
sWEFl' G A S COUNTY, Rtployer ,
RS
and
STATE C M E S TO INSURANCE FUND,
O P NA I N
Defendant and Respondent.
Appeal £ran: Workers' Capensation Court
Homrable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
James A. Tulley, Big Timber, Bbntana
For Respondent:
Tim Reardon, H e l e n a , Mntana
Subanitted on briefs: August 24, 1978
Decided: SEP 1 8 1978
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
The Workers' Compensation Court denied claimant compen-
sation for an alleged industrial accident. Claimant appeals.
We affirm.
The sole issue on appeal is the sufficiency of the evi-
dence to support the findings of fact, conclusions of law and
order of the Workers' Compensation Court.
On September 13, 1976, claimant suffered a sudden jolt
or jar when a plank he was prying up on a bridge suddenly broke
loose. Within a short time claimant felt some pain in his back
and kidney area. For several days thereafter at different times
he felt the same pain.
On September 26, 1976, claimant's physician determined
that claimant had a kidney stone in his ureter. He was referred
to a urological surgeon who removed the stone surgically. Claim-
ant has suffered no physical impairment as a result of removal
of the stone.
Claimant sought compensation for the period from September
27, 1976, to November 3, 1976, and medical costs from the State
Compensation Insurance Fund. The Workers' Compensation Division,
which administers this fund, denied the claim.
Claimant then filed a petition with the Workers' Compen-
sation Court. The case was assigned to a hearing examiner who
held a hearing thereon on January 24, 1978.
At the hearing the urological surgeon who removed the
stone testified that it was "possible" to displace a stone from
the kidney into the ureter by a sudden jolt or jar. He testified
that such a stone would probably pass into the ureter in the natural
course of events. He admitted that any determination of how the
stone passed into the ureter was "speculation".
The hearing examiner entered findings and conclusions
stating in substance that claimant had not sustained his burden
of proving by a preponderance of the evidence that the incident
of September 13, 1976, was the precipitating cause of passing
the kidney stone into the ureter. He denied claimant any com-
pensation or medical benefits.
The Workers' Compensation Court adopted the findings and
conclusions of the hearing examiner. Following denial of his
motion for rehearing, claimant appeals.
Specifically claimant questions the finding and conclu-
sion that his accident was not the precipitating cause or casually
related to the passing of the kidney stone into the ureter.
Our function in this appeal can be described in this
language :
"Our function in reviewing a decision of the
Workers' Compensation Court is to determine
whether there is substantial evidence to support
the findings and conclusions of that court. We
cannot substitute our judgment for that of the
trial court as to the weight of the evidence on
questions of fact. Where there is substantial
evidence to support the findings of the Workers'
Compensation Court, this Court cannot overturn
the decision." (Citations omitted.) Steffes v.
93 Leasing Co., Inc. (1978), Mont . , 580
P.2d 450, 452, 453, 35 St.Rep. 816.
Claimant must prove by a preponderance of the evidence
(1) that he suffered an injury arising out of and in the course
of his employment, and (2) that such injury was the proximate
cause of his disabling physical condition. McQuiston v. Hubbard
(1975), 167 Mont. 423, 539 P.2d 380; Vetch v. Helena Transfer &
Storage Co. (1969), 154 Mont. 106, 460 P.2d 757.
In this case claimant proved that the incident of Septem-
ber 13, 1976, on the bridge was a "possible" proximate cause of
the kidney stone passing into the ureter. Medical proof of
causation of an injury must be greater than "possible" in Workers'
Compensation cases. Clark v. Hilde Construction Co. (1978),
Mont . , 576 P.2d 1112, 35 St.Rep. 353; Erhart v Great Western
.
Sugar Company (1976), 169 Mont. 375, 546 P.2d 1055; McAndrews v.
Schwartz v. Glacier General Assurance Co. (1974), 164 Mont. 402,
523 P.2d 1379; Stordahl v. Rush Implement Co. (1966), 148 Mont.
13, 417 P.2d 95; LaForest v. Safeway Stores (1966), 147 Mont.
431, 414 P.2d 200.
Claimant argues that this Court has previously accepted
evidence of what is medically possible as sufficient proof of the
causal relationship between an accident and the resulting injury,
citing Close v. St. Regis Paper Company (1977), Mont . I
573 P.2d 163, 34 St.Rep. 1528, and Gaffney v. Industrial Accident
Board (1955), 129 Mont. 394, 287 P.2d 256. We disagree.
Neither case is controlling here. Each is distinguishable.
In each case, the evidence of what was medically possible was
directed at proving aggravation of a pre-existing condition or
injury rather than at proving causation of the claimant's disability.
We believe that evidence of what is medically possible is more
reliable in proving aggravation of an injury or disease than cause
and effect.
In Close and Gaffney the claimants had pre-existing con-
ditions. Their industrial accidents combined with their physical
condition produced their disability. Under those circumstances,
proof that it was medically possible for an industrial accident
to aggravate a pre-existing condition is acceptable proof of
disability.
Here, claimant did not have any pre-existing condition of
passing kidney stones. To accept the evidence offered by claim-
ant as proving proximate cause would be to engage in speculation.
We cannot accept proof of what may be possible as proving proximate
cause of a disabling condition.
Accordingly, we hold that claimant did not sustain his
burden of proving by a preponderance of the evidence that the
incident of September 13, 1976, was the proximate cause of his
disabling condition. Proof that it was "possible" to displace
a kidney stone into the ureter from a sudden jolt or jar is
insufficient under the facts of this case to establish the
necessary causal connection between the accident and the injury.
The decision of the Workers' Compensation Court is
a£ firmed.
Chief Justice