NO. 82-483
I N THE SUPFEME COURT OF THE STATE OF MONTANA
1983
FREDERICK CONb7AY ,
C l a i m a n t and R e s p o n d e n t ,
BLACKFEET I N D I A N DEVELOPERS I
INC., E m p l o y e r ,
and
MISSOULA S E R V I C E C O . ,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: Workers' C o m p e n s a t i o n C o u r t , T h e H o n o r a b l e
T i m o t h y R e a r d o n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t :
J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver; D a l e
S c h w a n k e , G r e a t F a l l s , Montana
For R e s p o n d e n t :
D o n a l d R. M a r b l e , C h e s t e r , Montana
N o r m a n H. G r o s f i e l d , H e l e n a , M o n t a n a
S u b m i t t e d on B r i e f s : June 1 6 , 1 9 8 3
Decided: September 2, 1983
Filed:
SEP 2 - 1983
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Missoula Service Company, as adjuster for the insurance
carrier of the employer, Blackfeet Indian Developers, Inc.,
appeals from a judgment of the Workers' Compensation Court
awarding the claimant, Frederick Conway, permanent total
disability benefits. The Workers' Compensation Court
concluded that the injury which the claimant received in an
industrial accident caused the claimant's multiple sclerosis
to become symptomatic; and that therefore the claimant's
subsequent disability from MS was a compensable injury under
the Workers' Compensation Act.
On July 30, 1976, the claimant was operating a backhoe
for the Blackfeet Indian Developers, Inc. as part of a sewer
line construction project in the Heart Butte area. It was
raining and windy that day making it impossible for the
workers to measure accurately the depth of the sewer line
ditch with the string lines. Therefore, the claimant and his
co-workers decided to stop work for the day.
In exiting the backhoe, the claimant placed his left
hand on the left door of the cab and his right hand on the
handhold on the right side of the left door and pushed open
the door. When the door opened, the wind caught it and
jerked the claimant forward. The sudden jerk and the
claimant's rea.ction caused the claimant's right hand to slip
into the handhold. As the claimant dropped from the cab, his
hand remained in the handhold and he was left dangling by his
right hand for several seconds before he finally dropped to
the ground.
Because the stabilizers which lift and support the
backhoe in its normal operation were extended, the floor of
the cab was approximately 5 1/2 feet off the ground and the
handhold on the cab was approximately 8 1/2 feet off the
ground.
Before the claimant fell to the ground, he shouted for
help. A co-worker heard the shout and turned to see the
claimant dangling from the cab.
Later that afternoon, the claimant began to experience
pain and soreness in his right arm, shoulder and neck area.
The claimant continued to experience pain and soreness
through the weekend and therefore did not report to work the
following Monday and Tuesday. Approximately nine days later,
the claimant began to experience numbness in his right thumb.
Soon after that, on August 10, 1976, the claimant sought
medical attention for his pain and numbness. The numbness
eventually expanded to his fingers, arms and toes over a
period of two months. By December 1976, the claimant began
to experience weakness in his left side. The source of the
claimant's continuing numbness and weakness was diagnosed as
multiple sclerosis sometime in 1977.
The claimant filed his claim for benefits under the
Workers' Compensation Act. The claim was denied by Missoula
Service Company on December 22, 1977. Claimant requested
benefits three more times on June 15, 1978, August 28, 1978,
and December 11, 1978. His request was denied each time. A
petition for hearing before the Workers' Compensation Court
was filed in April 1979. After a trial before the Hon.
William E. Hunt, a decision was rendered by the Hon. Timothy
W. Reardon on September 15, 1982, ordering Missoula Service
Company to pay the claimant permanent total compensation
benefits and also medical benefits. A stay pending appeal
was granted on November 3, 1982, and the notice of appeal was
filed by Missoula Service Company on December 1, 1982.
Appellant raises the following issues on appeal:
1. Whether there is substantial, credible evidence to
support the findings of fact of the Workers' Compensation
Court.
2. Whether the findings of the Workers' Compensation
Court are sufficient to support the conclusions of law based
thereon.
The issue is essentially over the finding by the
Workers' Compensation Court that the claimant's industrial
accident caused the onset of disabling MS symptoms.
The insurer argues that because the medical community
cannot determine with any degree of certainty what factors
may precipitate an onset of MS symptoms, there is not
substantial evidence that the trauma from the claimant's
injury could cause the claimant's MS to become symptomatic.
The findings of the Workers' Compensation Court in this
case come to us in an unusual stance. Rule 52(a), M.R.Civ.P.
instructs that findings of a District Court shall not be set
aside unless erroneous. We have extended this rule to
findings made by the Workers' Compensation judge, McGee v.
Bechtel Corp. (1979), 182 Mont. 149, 154, 595 P.2d 1156,
1159, but we are also usually careful to say that the Supreme
Court in reviewing findings of the Workers' Compensation
Court will look to the record to determine if there is
substantial evidence to support the findings. Steffes v. 93
Leasing Co., Inc. (1978), 177 Mont. 83, 86, 580 P.2d 450,
452-453. If there is substantial evidence to support the
findings and conclusions, we have said we are without power
to overturn the result in that court. Head v. Missoula
Service Company (1979), 181 Mont. 129, 592 P.2d 507; Close v.
St. Regis Paper Company (1977), 175 Mont. 158, 573 P.2d 163.
The question in this case is one of proximate cause.
Did the injury sustained by the claimant cause MS or
precipitate or aggravate an underlying but present MS
condition? One doctor testifying for the employer said there
is no causal, precipitative, or aggravating effect upon MS
a.rising from injury of the type here, which he considered
minor. Another doctor, testifying for the employer, felt the
injury was of no significance because claimant, whose medical
history indicated he was quick to seek medical help in other
instances, waited 12 days before seeking help here, so that
the injury must have been minor. A third doctor testifying
for the claimant, stated his opinion that the injury
described by claimant "precipitated" the outward symptoms of
an underlying MS condition in the claimant.
All the medical persons agree: (1) claimant does indeed
suffer from MS (rare among American Indians) and is disabled;
(2) he will not recover from the active MS condition; (3) MS
is a disease wherein the insulating substance covering nerve
fibers in the central nervous system (myelin) is attacked,
causing demyelinating lesions; (4) there is no known cause,
only high probabilities; (5) some authorities believe in
viral causation, others think the disease results from a
defect in the body's immune system; (6) for unknown reasons,
MS features remissions and exacerbations, and sometimes
completely asymptomatic conditions of MS.
Medical authorities on causation run the stretch from
"do not deny" that trauma can cause, precipitate, or
aggravate MS to "peripheral trauma appears" to be a
precipitating factor in MS.
Against this background, the Workers' Compensation Court
found that the "claimant's industrial accident proximately
caused his MS to become symptomatic and disabling."
In making its finding, the Workers' Compensation Court
did not agree with the "aggravation principle" of underlying
or pre-existing diseases, nor did he accept without more the
testimony of the claimant's medical doctor that the injury
caused claimant's MS to become symptomatic. The court's
rationale is best explained by its own words:
"Given that the claimant's MS was pre-existing but
asymptomatic prior to July 30, 1976, it would
appear that the claimant's case is one of an
aggravation of a pre-existing disease. Under this
theory, the claimant could satisfy his burden of
proof regarding proximate causation by evidence
that it was medically possible that his July 30,
1976, accident made his MS symptomatic.
"This Court does not find the theory of aggravation
of a pre-existing condition applicable in this
case. Although the claimant ' s MS , while
asymptomatic, pre-existed his July 30, 1976,
traumatic accident and although Dr. Nelson stated
that trauma could have caused the claimant's MS to
become symptomatic, the weight this Court can give
Dr. Nelson's statement is severely limited because
of the medical community's lack of knowledge
regarding the cause and development of MS.
"The extensive medical testimony elicited by both
counsel can be reduced to two statements: (1) the
cause of MS is unknown; (2) evidence regarding what
may cause MS to become symptomatic is at best
extremely tentative and at worst entirely
speculative.
"Against this background, Dr. Nelson's statement
can be seen for what it is -- a concession to
medical ignorance. Because the medical community
cannot disprove that trauma may cause MS to become
symptomatic, it does not follow that this failure
is affirmative evidence of causation. For example,
simply because one cannot conclusively disprove
that there is intelligent life in distant galaxies,
it does not follow that this failure is somehow
proof of their existence. The failure merely
leaves the field clear for an argument that will
affirm or refute the proposition.
"Similarly, Dr. Nelson's statement merely
recognizes that current medical knowledge has not
foreclosed the possibility that trauma can cause MS
to become symptomatic. Although Dr. Nelson cited
several articles in medical journals as the basis
for his conclusion that trauma may cause MS in a
person to become symptomatic, these articles also
discuss causation only in terms of statistical
correlations and tentative, inchoate possibilities.
Those who investigate the cause of MS and what
causes it to become symptomatic are at the frontier
of medical science; until they have explored
further no one will have affirmative evidence of
what may cause MS to become symptomatic.
"This leaves the claimant in the seemingly
impossible position of being required to prove
proximate causation when there is no direct medical
evidence on this point."
For his guidance and authority in deciding this case,
the Workers' Compensation judge looked to the decision in
Moffett v. Bozeman Canning Co. (1933), 95 Mont. 347, 26 P.2d
973. Moffett, a young man of 24 in good health, expecting to
lift a 40 pound case of tins, lifted 80 pounds, and
immediately felt pain in his right side and back at the top
of his hip bone, and was unable to continue his work. The
next day in the doctor's office, he was more nervous than is
usual for a patient in the office; within three weeks he had
a pronounced tremor in his left foot which spread to both
legs, his tongue a.nd his head. The medical witnesses agreed
that the claimant was suffering from Parkinson's disease or a
Parkinsonian syndrome. In Moffett, as in this case, two
doctors testified that the lifting of the cases of tins could
not have caused the Parkinsonian syndrome. One doctor
testified that in his opinion Moffett's condition was caused
by the lifting. Medical science at the time knew little of
Parkinson's disease or Parkinsonian syndrome, and this Court
found that the testimony of the experts was more in the
nature of surmises based upon the pathology of the disease
rather than upon facts upon which a true hypothetical
question as to the theoretical cause of the claimant's
condition could be founded. This Court in Moffett went on to
say with respect to the burden of proof imposed on the
injured employee:
"The record contains no direct evidence from which
it can be said the injury was the proximate cause
of claimant's present condition; this, not because
of failure on the part of claimant properly to
present his case, but because, on the frank
admission of the doctors, no man on earth knows
positively the exact cause of such an affliction in
any given case; medical science has not advanced to
a point where it can positively trace back from the
effect and declare the cause of the disease in a
given patient, but this fact alone need not bar the
claimant from recovery, if, on the record, it can
be said that he is entitled thereto.
"The reasonable deductions from the record are as
follows: Carl Moffett, a strong, healthy young
man, suffered a traumatic injury arising out of and
in the course of his employment, against the effect
of which he was duly insured. He was thereafter
never in condition to follow his vocation. His
physical deterioration commenced with the injury
and followed the usual course of the affliction
from which he now suffers until he was totally and
permanently disabled." 95 Mont. at 358, 359, 26
P.2d at 977, 978.
This is the Moffett rationale which was used by the
Workers' Compensation judge in the case at bar to find in
favor of the claimant:
"Undeniably the Moffett court at several places
expresses itself in language that strongly suggests
that the theory on which the claimant was entitled
to recover was that of an aggravation of a
pre-existing condition. But the Moffett court
never overcame the absence of affirmative evidence
of causation; it merely recognized the absence of
medical evidence and accepted as sufficient the
coincidence between the claimant's trauma and the
manifestation of Parkinson's disease and similar
coincidences observed by persons the court could
only bring itself to label as 'authorities.' But
coincidence is not causation; an event following
another event does not of itself establish
causation. At most it may suggest a causal
relationship, and it is this suggestion,
ultimately, and the purpose behind the Workers'
Compensation Act, on which the Moffett court relied
in finding the claimant's Parkinson's disease
compensable."
Following that rationale, the Workers' Compensation
judge applied the facts here and determined a "causal
relationship" between Conway's injury from the handhold of
the backhoe and the lighted-up symptoms of his MS:
"There is indirect evidence, i.e., a strong
suggestion, that the claimant's traumatic accident
caused the claimant's MS to be symptomatic. The
claimant, while a healthy man, suffered a traumatic
injury on July 30, 1976. Almost immediately
thereafter he began to experience the numbness, and
months later, the weakness which doctors later
diagnosed as caused by his MS. On the basis of
these events, the purpose of the Act and the
medically undemonstrable proposition that trauma
possibly causes MS to be symptomatic, this Court is
left with the conviction that the claimant's
traumatic injury proximately caused the claimant's
MS to become symptomatic; the claimant's disability
resulting from MS is, therefore a compensable
injury."
The insurer in this case quarrels with the finding of
the Workers' Compensation judge that prior to July 30, 1976,
the claimant had no serious illnesses or injuries which
required him to miss work for any significant period of time
and that he had no MS symptoms before his accident of July
30, 1976. The insurer contends that there were two earlier
manifestations of MS, one in May 1973, when he was seen at
the Indian Health Service complaining of an inability to
extend his right little finger which had not been injured.
Another was in 1965, when the claimant was evaluated for
possible rheumatoid arthritis and tingling and numbness in
his feet.
The Workers' Compensation Court found that claimant had
MS, but had no symptoms of MS before his accident on July 30,
1976. On this finding, we can state that the Workers'
Compensation Court was not clearly erroneous since the two
claimed instances were not diagnosed as MS at the time, each
several years prior to the manifest symptoms that occurred
following the July 30, 1976, incident.
The insurer also maintains that the injuries suffered by
the claimant here were not of sufficient magnitude either to
aggravate his MS or to precipitate an onset of MS symptoms.
The insurer also claims that Moffett should not apply here
because in Moffett the medical authorities agreed that trauma
could cause an onset of Parkinson's disease and all of the
medical doctors were of the opinion that trauma precipitated
the onset of such symptoms.
The contentions of the insurer are merely argumentative,
and are the same as those contentions which were urged upon
and rejected by the Workers' Compensation judge. The basic
issue for us to decide in this case is whether we should in
effect overrule the holding in Moffett to the effect that
where medical science is unable to provide definitive
answers, the Workers' Compensation Court should look to
indirect evidence to establish causation.
We hold that the Moffett rationale is valid in cases
where medical science is powerless to be of direct aid, and
is especially applicable in this case. The indirect evidence
of causation here is too strong to admit of cavil, or to be
ignored. Here the wind, catching the opening door of the
backhoe, jerked the claimant out of his cab with his hand
caught in the handhold, and he was left dangling for some
seconds before he was able to drop to the ground from a
handhold height of about 8 1/2 feet. In the later afternoon,
he complained of soreness to his right arm, shoulder and
chest. Within a few days, he developed a numbness on his
right thumb and had a slight bruise on his right thumb.
Within 12 days he was in the doctor's office complaining
about a spread of the symptoms. His condition gradually
deteriorated. There is no other conclusion to be made but
that the onset of the symptoms began when he was jerked out
of the backhoe cab. There is no other credible evidence but
that prior to the July 30, 1976, incident, there was no
outward manifestation of MS symptoms. It is entirely proper,
as the Workers' Compensation Court found, that on the basis
of these events, and considering the purpose of the Workers'
Compensation Act, and the medically undemonstrable
proposition that trauma does or does not cause MS to become
symptomatic, there is nevertheless a conviction that the
claimant's traumatic injury proximately caused his MS to
become symptomatic and that therefore he suffered a
compensable injury. We therefore affirm the Workers'
Compensation Court on that point.
The Workers' Compensation Court did not apply the 10
percent penalty provided in section 39-71-2907, MCA, a point
on which we further agree.
And now something further need be said to alert the
legislature to the dreadful economic effect upon this
claimant in pursuing his Workers' Compensation claim. He was
injured on July 30, 1976. Through the administrative
procedures before the Workers' Compensation Division and the
eventual progress of the case through the Workers'
Compensation Court, and this Court, more than 7 years have
elapsed since claimant became disabled. In this case, the
Workers' Compensation Court stayed the execution of his
judgment pending appeal, which means that claimant has been
without payments of compensation benefits. Although some
inherent institutional delay may be expected as a claim
lumbers through the claims process, it is clear as day that a
7-year case time is intolerable to a worker. The blame rests
squarely on the legislature. It has treated the Workers'
Compensation Court as an orphan, leaving it understaffed,
underfinanced and underquartered. It has practiced a false
economy, because the burden of financing the Workers'
Compensation Court is upon industry and those who suffer most
from underfinancing are the helpless and the injured. If
this case does not shake some legislator's conscience,
perhaps nothing will.
Af firmed.
We Concur: