No. 82-495
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
WILLIAM Iq. WILSON,
Claimant and Respondent,
-vs-
SUN RIVER CATTLE COPIPANY , Employer,
and
GLACIER GENERAL ASSURANCE COMPANY,
Defendant and Appellant.
APPEAL FROM: Workers' Compensation Court, Hon. Timothy Reardon,
Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jardine, Stephenson, Blewett & Weaver; K. Dale
Schwanke, Great Falls, Montana (~rgued)
For Respondent:
James M. Regnier, Great Falls, Montana (Argued)
Submitted: June 7, 1983
Decided: September 29, 1983
Filed: SEP 2 9 1983
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Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal from an award of medical and
temporary total disability benefits to the claimant by the
Workers' Compensation Court. The matter was tried before a
hearing examiner, whose proposed findings of fact and
conclusions of law were adopted by the Workers' Compensation
Court.
Claimant William W. Wilson is a thirty-nine year old
native of Kentucky. His education background is somewhat
limited, having taken until age seventeen to complete only
eight grades before entering the work force. Several
learning disabilities have limited the variety of jobs
available to him. Claimant has been in Montana since 1969
working at various jobs in the Great Falls area.
On October 21, 1978, claimant was involved in an
industrial accident and sustained injury. While working for
the Sun River Cattle Company, claimant was feeding hay into
a conveyor belt when a stack of hay bales fell, knocking him
over the conveyor and onto a concrete slab, breaking his
right leg. Claimant was taken to the emergency room at
Columbus Hospital in Great Falls and treated by Dr. Thomas
C. Power. Surgery was performed immediately and claimant's
leg was set in traction. A second surgical procedure was
performed November 7, and a long leg cast was thereafter
placed on the leg. The leg did not heal properly and
surgery was performed a third time on August 7, 1979.
Appellant Glacier General Assurance Company (hereinafter
appellant), was the Sun River Cattle Company's Workers'
Compensation insurance carrier at the time of the accident,
and accepted liability for claimant's injury to his leg.
Weekly temporary total disability benefits were paid from
the time of the accident through December 5, 1980.
Claimant resumed work in March 1980, when he was
employed by Harris Land and Cattle Company in Highwood. On
April 25, 1980, claimant was loading hay bales onto a
conveyor belt and while performing this job claimant placed
a hay hook in a bale, dragged it about three feet and
stopped. As claimant tried to straighten up he began
feeling nauseous and experienced severe back pain and had to
be driven to the Columbus Hospital emergency room. Dr.
Power examined claimant at that time, and hospital records
of the examination list the diagnosis as "acute lumbosacral
strain."
Claimant requested coverage from appellant for the
medical costs resulting from this condition, asserting that
his back problems stemmed from the October 21, 1978,
accident at Sun River Cattle Company. Appellant denied
coverage, and claimant filed a petition with the Workers'
Compensation Court to resolve the dispute.
After hearing the matter, the Workers' Compensation
Court found that claimant had given proper and timely
notification of the injury to his employer, that claimant
injured his back in the scope and course of his employment
with the Sun River Cattle Company on October 21, 1978, and
that the April 25, 1980, incident at Harris Land and Cattle
Company was neither an unusual strain nor a tangible
happening of a traumatic nature, and not the proximate cause
of claimant's back injuries. The Court further found that
claimant's leg injuries had reached a healing plateau, but
his back injuries had not and manifested themselves
throughout both his back and right leg making a permanent
partial disability rating premature. Appellant was to pay
for all hospital and medical treatment and chiropractic
services for his back injuries from April 25, 1980, to the
date of the order, and all future tests and treatments
necessary to treat the injury. Appellant was also to pay
temporary total disability payments to claimant for the time
he was undergoing treatment if the result was a total loss
of wages. The court retained jurisdiction over the case
until claimant was healed as much as his injuries would
permit and a permanent partial disability rating determined.
From these findings and the order, this appeal is taken.
The issues raised on appeal are:
1. Whether claimant gave due and proper notice of his
injuries as required by section 39-71-603, MCA;
2. Whether the Workers' Compensation Court erred in
holding that appellant insurance carrier had the burden of
proving that claimant did not injure his back in his
industrial accident;
3. Whether the Workers' Compensation Court correctly
ruled that claimant injured his back in the October 21,
1978, accident;
4. Whether the Workers' Compensation Court correctly
ruled that the claimant is temporarily totally disabled; and
5. Whether the Workers' Compensation Court erred in
neglecting to give the carrier credit for overpayment of
compensation.
Appellant first contends that claimant did not give
proper notice of his back injuries as required by section
39-71-603, MCA. Pursuant to that statute, to recover
W o r k e r s ' C o m p e n s a t i o n b e n e f i t s t h e r e m u s t be ". . . [N] o t i c e
of t h e t i m e and p l a c e w h e r e t h e a c c i d e n t o c c u r r e d a n d t h e
n a t u r e of the injury . . . g i v e n t o t h e employer or the
employer's insurer . . ." The claim for compensation
prepared by c l a i m a n t a f t e r t h e October 21, 1978, accident
gave timely n o t i c e of t h e accident b u t only r e f e r r e d t o t h e
r i g h t k n e e and l e g i n j u r y . Despite a p p e l l a n t ' s arguments,
t h i s is s u f f i c i e n t n o t i c e o f claimant's back i n j u r y under
Montana l a w .
Both parties c i t e Wight v. Hughes Livestock Co.
(Mont. 1981), 634 P.2d 1189, 38 St.Rep. 1632, in their
b r i e f s a n d W i g h t is c o n t r o l l i n g o n t h i s i s s u e . I n Wight t h e
c l a i m a n t was i n j u r e d when h e was p i n n e d b e t w e e n t h e s t e e r i n g
w h e e l o f t h e t r a c t o r h e was d r i v i n g a n d t h e f r o n t e n d l o a d e r
of another. Within t h e prescribed t i m e l i m i t , t h e claimant
s u b m i t t e d h i s claim s e e k i n g c o m p e n s a t i o n f o r i n j u r i e s t o h i s
ribs and chest. The insurer accepted liability and
compenstion was made. Two years later the claimant
submitted an a d d i t i o n a l claim f o r b e n e f i t s d u e t o a b a c k
i n j u r y w h i c h h e a l l e g e d was c a u s e d by t h e same a c c i d e n t . By
c o n s t r u i n g s e c t i o n 39-71-603, MCA, t h i s Court held f o r t h e
claimant stating:
" [ T l h e r e is no requirement t h a t a n
employee must g i v e n o t i c e o f e a c h
s e p a r a t e i n j u r y received i n an i n d u s t r i a l
accident p a r t i c u l a r l y where, as h e r e ,
c l a i m a n t was f u n c t i o n a l l y i l l i t e r a t e
having terminated h i s schooling i n t h e
t h i r d grade. Wight was i n c o m p l i a n c e
with the statutory notice requirement
when h e n o t i f i e d t h e i n s u r e r o f h i s
a c c i d e n t a n d t h e f a c t t h a t h e had b e e n
injured." 634 P.2d a t 1 1 9 1 .
The f a c t s o f W i g h t a r e o n a l l f o u r s w i t h t h o s e o f t h e
The facts of Wight are on all fours with those of the
present case, and our holding is the same. However, this
should not be viewed as setting a lower standard of review
for a notice given by a relatively uneducated worker. In
this case, claimant's notice is sufficient not because of
his education level or literacy rate, but because the
circumstances of the entire situation apprised the employer
of the time and place of the accident and the nature of the
injury.
As noted in Wight, the purpose of the notice
requirement is to give the employee an opportunity for
prompt examination of the worker so that proper treatment
can be obtained for his injuries. The requirement should
not be used to excuse the employer or insurer from liability
because imprecise notice was given by the injured worker.
The Montana legislature has mandated that the Workers'
Compensation Act be liberally construed. Section 39-71-104,
MCA. The reasoning behind this Court's liberal construction
of the notice requirement becomes evident in a situation
such as we have in the case at bar. Claimant did not report
every ache, pain, or discomfort he experienced as a result
of the industrial accident, in an honest belief and hope
that they would dissipate with time. As the evidence
adduced at trial tended to show, this belief was fostered
through statements made by the attending physician that
claimant's back troubles may have been due to tight shorts.
The claim form submitted to the insurer provided sufficient
information to allow a prompt and complete investigation to
determine the extent of claimant's injuries. The purpose of
the notice requirement can only be met by holding that
claimant, in this case, complied with the notice
requirements of section 39-71-603, MCA.
The second issue raised on appeal is whether the court
erred in concluding that the insurance carrier must shoulder
the burden of proving that claimant's back injuries were not
caused by the October 21, 1978, accident. Appellant focuses
on the trial court's conclusion of law no. 2 which, after
stating that the October 21, 1978, accident was the
proximate cause of claimant's injuries, states in part:
"Assuming, arguendo, that the incident on
the Harris Ranch were proven to be an
injury as defined in 39-71-119, the case
would fall under the rule in Newman v.
Kamp, 140 Mont. 487, 374 P.2d 100,
(1962), 'where there are two insurers and
two accidents, it is incumbent on the
insurer seeking to be relieved from
liability to establish by a preponderance
of the evidence that the claimant's
present condition was caused by the
accident occurring when the other insurer
was at risk.' 140 Mont. at 494. The
present defendant has not met that
burden. "
Appellant's argument is misleading. In its finding of
fact no. 24 the court concluded that a "slight preponderance
of the medical evidence" shows claimant to have been
suffering from lumbosacral strain prior to the incident at
the Harris Ranch, and by that statement tacitly acknowledged
that claimant held the burden of proving the cause of his
injuries and carried that burden. The language from the
trial court's order relied on by appellant is clearly
surplusage. From conclusion of law no. 2, it appears the
trial court would have given appellant the burden of proof
had there been two separate injuries. This application was
not made, however, as the court found only one incident to
be the proximate cause of the back pain. Since it is not at
issue, we do not pass on the correctness of the hypothetical
application of the Newman v. Kamp rule by the trial court.
The third error raised by appellant questions the
sufficiency of evidence showing claimant's back injuries to
have been proximately caused by the October 21, 1978,
accident. Appellant's brief contains a lengthy list of
facts which purport to show that the preponderance of
evidence in this case goes against the Workers' Compensation
Court's ruling. Claimant also cites numerous facts elicited
at trial in support of the ruling. Underlying this
divergence is the fact that there was a close factual
question involved in this case. The trial court
acknowledged that there was conflicting medical evidence, by
exposing the conflicts in its findings of fact no. Is 24 and
36. Nevertheless, it found that a slight preponderance of
the medical evidence showed claimant's injury to have been
caused by the October 21, 1978, accident.
This Court has long held that great deference should
be given to the decision of the trier of facts based on
conflicting evidence. This Court does not sit as the trier
of fact, but when there is conflicting evidence, only sits
to determine if substantial evidence exists to support the
trial court's findings. Jensen v. Zook Brothers
Construction (1978), 178 Mont. 59, 582 P.2d 1191; Stamatis
v. Bechtel Power Co. (Mont. 1979), 601 P.2d 403, 36 St.Rep.
1866. The Workers' Compensation Court rested its decision
on claimant's own testimony, histories taken by Dr. Michael
Sousa and Dr. Marvin Harris, their testimony concerning the
nature and source of compression fractures such as
claimant's, and the testimony of Dr. Susan Avery about her
examination of claimant prior to the incident at the Harris
Ranch. When compared with the evidence cited by appellant,
there clearly was substantial evidence presented at trial to
support the trial court's findings.
The fourth error asserted by appellant is that there
was no medical evidence to support a finding that claimant
is temporarily totally disabled. The trial court ordered
that spinal nerve tests be performed on claimant, and that
temporary total disability payments begin when claimant
reports for the tests and continue while he is undergoing
treatment if he experiences a total wage loss. From its
brief, it appears appellant's major concern is that the
order will be used by claimant as a vehicle to prove his
case; the argument being that there is insufficient medical
evidence to find temporary total disability otherwise and
these tests may provide it.
Temporary total disability exists when an injury
results in total loss of wages and continues until the
worker is as far restored as the permanent character of the
injuries will permit. Section 39-71-116(19), MCA. When the
application of a well defined statutory term is involved as
in this case, the standard of review is whether, in view of
the findings of fact, the court agrees that the conclusion
was the most appropriate application of the statutes to the
facts. Anderson v. Carlson Transport (1978), 178 Mont. 290,
583 P.2d 440. Since appellant attacks the sufficiency of
the medical evidence, the trial court's findings must be
tested by the Jensen standard of review. If the Jensen test
is met, their application to the statutory definition is
then scrutinized. To withstand this Court's scrutiny, the
application of the term by the trial court must have been
legally correct.
In the case at bar, the trial court placed much
emphasis on the testimony of Dr. Sousa concerning claimant's
condition at the date of the hearing, because of its
recency. The next most recent examination was by Dr. Thomas
Power, a year prior to Dr. Sousa's examination. As the
court noted in finding of fact no. 3 5 , Dr. Power changed his
mind as to the original diagnosis in his deposition. This
fact, coupled with testimony by claimant and his wife as to
communication problems between Dr. Power and claimant, fully
justifies the trial court's reliance on Dr. Sousa's
testimony. Dr. Sousa testified, and the trial court so
found, that the tests were necessary to restore claimant to
his best physical condition, and thus he has not reached a
healing plateau. There is clearly substantial evidence to
support the trial court's finding.
Based upon the above facts, the court applied the
statutory definition of temporary total disability, and
found claimant entitled to appropriate payments for that
condition if he experiences a total loss of wages while
undergoing treatment. There is clearly no error in the
application of the statute to the facts as found by the
trial court. The medical evidence about claimant's
condition at the hearing date showed him still disabled.
While he undergoes treatment, claimant will of necessity
experience a total loss of wages. Therefore, the two main
prongs of the statutory definition are met; claimant has not
been as far restored as the permanent notice of his injuries
will allow, and he will experience a total loss of wages.
On the facts as found by the Workers' Compensation Court,
the application of the statutory term is legally correct.
The final issue is whether the Workers' Compensation
Court erred by not allowing appellant credit for overpayment
of compensation. It was conceded by claimant that he was
overpaid a lump sum of $1,500 which must be offset against
any award to claimant and we agree. Appellant further
concedes that there have been social security benefits in
the amount of $4,704.97 which have not been offset.
Pursuant to section 39-71-701(2), MCA, this amount must also
be offset against any award to claimant. As the Workers'
Compensation Court maintained jurisdiction over this case,
the appropriate adjustments should be made by that court.
Affirmed with modification of the award.
N.
We concur: