No. 14756
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
ODESSEY S. STAMATIS (Fatal),
JESSIE M. STAMATIS,
Claimant and Appellant,
BECHTEL POWER CORPORATION, Employer,
and
INDUSTRIAL INDEMNITY COMPANY,
Defendant and Respondent.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Lewis E. Brueggemann argued, Billings, Montana
For Respondent :
Marra, Wenz, Iwen and Johnson, Great Falls, Montana
Charles R. Johnson argued, Great Falls, Montana
Submitted: September 20, 1979
Decided: OCT 2 : 7979
Mr. C h i e f J u s t i c e F r a n k I. H a s w e l l d e l i v e r e d t h e O p i n i o n o f
t h e Court.
C l a i m a n t a p p e a l s f r o m a judgment o f t h e W o r k e r s '
Compensation C o u r t d e n y i n g Workers' Compensation b e n e f i t s f o r
t h e d e a t h o f h e r husband. We affirm.
C l a i m a n t ' s h u s b a n d , O d e s s e y S. S t a m a t i s , was e m p l o y e d
a s a n e l e c t r i c i a n by B e c h t e l Power C o r p o r a t i o n a t a p l a n t
n e a r C o l s t r i p , Montana, o n March 3 , 1 9 7 6 . H e c o l l a p s e d on
t h e j o b , was t a k e n by a m b u l a n c e t o a F o r s y t h h o s p i t a l , and
was p r o n o u n c e d d e a d o n a r r i v a l .
H i s widow f i l e d a c l a i m f o r b e n e f i t s u n d e r t h e W o r k e r s '
C o m p e n s a t i o n A c t a g a i n s t I n d u s t r i a l I n s u r a n c e Company,
B e c h t e l ' s P l a n I1 c a r r i e r . A h e a r i n g was h e l d b e f o r e t h e
W o r k e r s ' C o m p e n s a t i o n C o u r t a t w h i c h much c o n f l i c t i n g e v i d e n c e
was i n t r o d u c e d by t h e r e s p e c t i v e p a r t i e s .
R o d e r i c k S w i t z e r , a f e l l o w employee o f d e c e d e n t ,
t e s t i f i e d t h e y s p e n t t h e morning of h i s d e a t h i n s t a l l i n g
c o n d u i t s e c t i o n s w e i g h i n g 1 0 t o 1 5 p o u n d s a p i e c e and p u l l i n g
s e v e r a l w i r e s t h r o u g h 50 t o 1 0 0 f e e t o f t h e c o n d u i t . Switzer
i n d i c a t e d t h i s was v e r y s t r e n u o u s work i n v o l v i n g l i f t i n g w i t h
y o u r w h o l e body on a p u l l f r o m b e l o w y o u r k n e e s and c r a w l i n g
t h r o u g h a s p a c e o f a b o u t t h r e e f e e t between t h e f l o o r and
b o t t o m o f a g e n e r a t o r i n t h e work a r e a . Switzer t e s t i f i e d he
d i d n o t t a k e h i s l u n c h b r e a k w i t h d e c e d e n t , b u t t h a t when h e
r e t u r n e d t o work t h e r e a f t e r h e saw d e c e d e n t c o l l a p s e a s h e
p i c k e d up some m a t e r i a l s f r o m a work b e n c h .
The o t h e r v e r s i o n o f w h a t h a p p e n e d o n t h e d a y o f
d e c e d e n t ' s d e a t h came f r o m t h e t e s t i m o n y o f Gordon Z i e g e l d o r f ,
a f e l l o w employee, and Michael L a s l o v i c h , d e c e d e n t ' s foreman.
Z i e g e l d o r f t e s t i f i e d t h a t h e a n d d e c e d e n t worked
t o g e t h e r t h a t day c a r r y i n g l i g h t f i x t u r e s from a warehouse
i n t o t h e B e c h t e l p l a n t a n d c l e a n i n g them p r e p a r a t o r y t o i n s t a l l a t i o n .
This activity involved walking 50 to 100 yards from the plant
to the warehouse, carrying a single light fixture weighing
about 20 pounds back to the plant each trip, loading the
fixtures on an elevator that transported them to the 120 foot
level of the plant, and cleaning them with soap and water at
the 120 foot level. Ziegeldorf testified the work was not
strenuous, did not involve heavy lifting, and did not involve
climbing stairs. According to Ziegeldorf, decedent at no
time complained that the work was tiring or causing him any
physical discomfort. Decedent and Ziegeldorf took a coffee
break at about 2:30 in the afternoon and as they were returning
to work thereafter, decedent collapsed while walking ahead of
Ziegeldorf and fell back into his arms.
Foreman Laslovich recalled that decedent worked with
Ziegeldorf on the day of his death stocking and cleaning
light fixtures. Laslovich testified that he saw decedent
collapse in Ziegeldorf's arms as the men walked back to work
following the afternoon coffee break. He stated that it was
customary to assign decedent nonstrenuous jobs like bringing
up fixtures because of decedent's age. The foreman never
recalled assigning decedent to install conduit or pull wire,
but admits decedent could have performed that type of work
since his job as foreman did not require him to continuously
supervise the men under him.
After decedent collapsed, first aid consisting of
cardiopulmonary resuscitation was administered on the job
site. Decedent was taken by ambulance to a hospital in
Forsyth, a distance of about 35 miles. Dr. Deone Hanson
pronounced decedent dead on arrival at 4 : 4 5 p.m. The Rosebud
County coroner examined the body and determined the cause of
death to be acute coronary thrombosis. The coroner testified
his examination was not extensive enough to rule out the
p o s s i b i l i t y t h a t decedent d i e d of myocardial i n f a r c t i o n r a t h e r
than coronary thrombosis. N o a u t o p s y was p e r f o r m e d , The
body was c r e m a t e d .
The r e c o r d s h o w s t h a t d e c e d e n t w a s a l a r g e man s t a n d i n g
6 ' 2 " a n d w e i g h i n g 250 p o u n d s . H e was 5 4 y e a r s o l d a t t h e
t i m e o f h i s d e a t h and had no p a s t m e d i c a l h i s t o r y o f h e a r t
disease. H e smoked t w o p a c k s o f c i g a r e t t e s a d a y a n d h a d
been smoking s i n c e a g e 13. I n t h e month p r e c e d i n g h i s d e a t h ,
d e c e d e n t h a d worked 2 1 s h i f t s t o t a l l i n g 1 9 0 h o u r s f o r a n
average of about nine hours p e r s h i f t . The S a t u r d a y b e f o r e
h e d i e d , F e b r u a r y 28, h e worked a n e i g h t - h o u r o v e r t i m e s h i f t .
On t h e d a y o f h i s d e a t h , t h e t e m p e r a t u r e a t C o l s t r i p , a f e w
m i l e s f r o m t h e B e c h t e l p l a n t r e c o r d e d a h i g h o f +18OF a n d a
l o w o f -18OF, The t e m p e r a t u r e i n s i d e t h e p l a n t was somewhere
b e t w e e n +40°F a n d +50°F.
The m e d i c a l t e s t i m o n y c o n f l i c t e d a t s e v e r a l p o i n t s .
Dr. Walter Degnan, a c a r d i o l o g i s t , t e s t i f i e d by
d e p o s i t i o n t h a t d e c e d e n t d i e d o f w h a t i s m e d i c a l l y known a s
sudden d e a t h . Sudden d e a t h o c c u r s when t h e p a t i e n t d i e s
w i t h i n s e v e r a l h o u r s o f t h e o n s e t o f symptoms a n d i s
s t a t i s t i c a l l y r e l a t e d t o c o r o n a r y d i s e a s e 80 p e r c e n t o f t h e
t i m e . According t o D r . Degnan s u d d e n d e a t h f r e q u e n t l y o c c u r s
w i t h o u t t r a u m a t i c c a u s e o r p r e v i o u s symptoms. The d o c t o r
t e s t i f i e d t h a t while unusual s t r a i n increases t h e p r o b a b i l i t y
of sudden d e a t h , normal e x e r t i o n w i l l n o t produce a h e a r t
attack. H e d i d n o t f e e l t h a t t h e temperature t h e day of
d e c e d e n t ' s d e a t h had any r e l a t i o n s h i p t o h i s d e a t h . Responding
t o a h y p o t h e t i c a l q u e s t i o n b a s e d on t h e e f f e c t o f s t o c k i n g
a n d c l e a n i n g l i g h t f i x t u r e s by a man o f d e c e d e n t ' s a g e a n d
physical condition, Dr. Degnan t e s t i f i e d t h a t e x e r t i o n w a s
not a causal f a c t o r i n h i s death.
Dr. P a t r i c k Byorth, a s p e c i a l i s t i n i n t e r n a l medicine,
was also deposed. He agreed that decedent died from sudden
death and that sudden death is related to a coronary incident
in 80 percent of the cases. However, his opinion was that
vigorous physical activity precipitated the heart problems.
Responding to a hypothetical question encompassing the facts
testified by witness Switzer, Dr. Byorth stated physical
exercise was a probable contributing factor to decedent's
death. When presented with a hypothetical question positing
facts similar to the testimony of witnesses Ziegeldorf and
Laslovich, Dr. Byorth testified that the physical exertion
involved in decedent's activities contributed to precipitating
the heart attack. The doctor further testified that working
in cold weather could contribute to a heart attack.
The essence of the findings of fact by the Workersv
Compensation Court was that decedent had been engaged in the
task of cleaning light fixtures in the few hours prior to his
collapse after a coffee break at approximately 2:45 p.m. on
March 3, 1976, and that his activity was not of a strenuous
physical nature, nor was it unusual, nor was the outside air
temperature a factor in precipitating his collapse. The gist
of the court's conclusions of law was that the preponderance
of competent and credible evidence failed to sustain a
conclusion that decedent suffered a compensable injury as
defined in the Workersv Compensation Act. Judgment was
entered denying claimant any benefits thereunder or attorney fees.
Two issues are presented for review in this appeal:
1. The sufficiency of the evidence to support the
findings of the Workers1 Compensation Court.
2. Did decedent suffer a compensable injury under the
Workers' Compensation Act?
The test of sufficiency of the evidence is whether
there is substantial evidence supporting the court's findings
of fact. Head v. Larson (1979), Mont. , 592 P.2d 507,
510, 36 St.Rep. 571, 575; Strandberg v. Reber Company (1978),
Mon t . , 587 P.2d 18, 20, 35 St.Rep. 1742, 1745; Jensen
v Zook Bros. Construction Co. (1978),
. Mon t . , 582
P.2d 1191, 1193, 35 St.Rep. 1066, 1068. This Court will not
substitute its judgment for that of the Workers' Compensation
Court concerning the credibility of the witnesses or the
weight to be given their testimony. Dumont v. Wickens Bros.
Construction Co. (1979), Mont. , 598 P.2d 1099, 1106,
36 St.Rep. 1471, 1479-1480; Steffes v. 93 Leasing Co., Inc.
(1978)I Mon t .
, 580 P.2d 450, 452-453, 35 St.Rep, 816,
Mont .
818; Crittendon v. City of Butte (1977, , 559 P.2d 816,
817,/34 St.Rep. 3, 4. Thus, where the findlngs are b - n
ao
conflicting evidence, our function of review is confined to
determining whether there is substantial evidence supporting
such findings. Jensen, supra, 582 P.2d at 1194. Conversely,
our function is not to determine whether there is sufficient
evidence to support contrary findings.
Here the evidence is conflicting concerning the cause
of death. Claimant's witnesses testified decedent performed
strenuous physical activity on the job prior to his death and
the exertion had a causal connection with his death. Respondent's
witnesses testified that decedent did nothing strenuous or
unusual and that his activities on the job in the hours
preceding his death had no causal relationship to his collapse
and subsequent death. The Workers' Compensation Court found
respondents' witnesses more credible, gave greater weight to
their testimony, and entered findings accordingly. Substantial
evidence supporting such findings is found in the testimony of
Ziegeldorf, Laslovich, and Dr. Degnan, summarized previously.
The second issue for review is whether decedent suffered
a compensable injury under the Workers' Compensation Act. This
question has two facets: (1) Did decedent suffer an injury
as defined by the Act? (2) Was such injury causally related
to decedent's death? Dumont, supra, 598 P.2d at 1106-1109.
The Act in pertinent part defines an injury in this language:
"'Injury' or 'injured' means:
"(1) a tangible happening of a traumatic nature
from an unexpected cause or unusual strain re-
sulting in either external or internal physical
harm and such physical condition as a result
therefrom . . ." Section 39-71-119(1), MCA.
We have previously interpreted this language to mean
that a claimant can recover if the physical harm suffered is
unusual either from the standpoint of cause or effect. Love v.
Ralph's Food Store (1973), 163 Mont. 234, 242, 516 ~ . 2 d598,
602; Robins v. Ogle (1971), 157 Mont. 328, 333, 485 P.2d 692,
695; Jones v. Bair's Cafe (1968), 152 Mont. 13, 19, 445 P.2d
923, 926. However, claimant must still prove a tangible
happening of a traumatic nature. Dumont v. Wickens Bros.
Construction Co., supra, 598 P.2d at 1108; Erhart v. Great
Western Sugar Company (1976), 169 Mont. 375, 380-381, 546 P.2d
1055, 1058; Hurlbut v. Vollstedt Kerr Company (1975), 167
Mont. 303, 306-307, 538 P.2d 344, 346. We have explained the
meaning of a tangible happening of a traumatic nature in these
words.
"A tangible happening must be a perceptible hap-
pening. [Citations omitted.] Some action or
incident, or chain of actions or incidents, must
be shown which may be perceived as a contribut-
ing cause of the resulting injury. This court has
found neurosis compensable, but a tangible, real
happening must be the cause of the condition
[Citations omitted.] ... In the recent case of
Love where a gradual buildup of back pain was
found compensable, this Court emphasized two spec-
ific incidents of strain were perceptible from the
record." Erhart, supra, 169 Mont. at 381.
Here, there is no tangible happening of a traumatic nature.
The Workers' Compensation Court found that claimant had been
engaged in cleaning light fixtures preceding his collapse and
that this activity was not of a strenuous physical nature, nor
unusual, nor was the outside air temperature a factor in
precipitating his collapse. Taking this view of the facts,
there is simply no evidence in the record of any real,
perceptible or identifiable incident, action or happening of a
traumatic nature within the definition of injury in the Act.
Finding no injury, the required causal connection
likewise fails. Accordingly, we hold there is no compensable
injury as defined in the Workers' Compensation Act.
Affirmed.
Chief Justice
Justices
I