NO. 82-395
I N THE SUPREME COURT OF THE STATE OF WNTAPJA
1983
DEE SHEPARD,
C l a i m a n t and A p p e l l a n t ,
VS.
MIDLAND FOODS, INCORPORATED.
E m p l o y e r , and GLACIER GFNERAL
ASSURANCE COMPANY,
D e f e n d a n t s and R e s p o n d e n t s .
Appeal f r o m Workers' Compensation Court
H o n o r a b l e T i m R e a r d o n , J u d g e presidina
C o u n s e l of R e c o r d :
For Appellant:
H a l l , Halverson & Sheehy, B i l l i n q s , Montana
W i l l i a m T. K e l l y , B i l l i n g s , P l o n t a n a
For Respondents:
Crowley, Hauahey, Hanson, Toole & Dietrich, Billings, Montana
S u b m i t t e d o n briefs- April 21 1983
Decided? July 19 , 1983
JUL I 9 1983
F i l e d: d
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Claimant Shepard appeals from a decision of the Workers'
Compensation Court that he was ineligible for further
benefits. We reverse the Workers' Compensation Court, and
remand for a determination of compensation due, as well as
fees, costs and penalties, if any.
Claimant presents half a dozen issues for review. The
following issues are dispositive:
1. Whether there was substantial evidence to support
the Workers' Compensation Court's determination that
claimant's knees had deteriorated (and eventually collapsed)
because of other than work related reasons.
2. Whether there was substantial evidence to support
the Workers' Compensation Court's determination that claimant
had recovered from his February 14, 1980 industrial accident
by February 25, 1980, when he returned to work.
Dee Shepard, the claimant, has been a general laborer
all his working life. In September of 1973, he was hired by
Midland Foods, Inc. (Midland) . His job involved very heavy
work cleaning the boning room and beef coolers in a packing
plant. For six and one-half years, claimant routinely lifted
garbage cans and tubs containing meat scraps and bones which
weighed several hundred pounds. He jacked up and hauled away
racks of meat weighing half a ton to a ton. He washed the
boning rooms and coolers, squatting, kneeling and stooping
for hours at a time, while pulling heavy hoses and
machinery. He lifted garbage cans full of ice. He jumped on
and off a four-foot-high table he had to clean. Mr. Shepard
is a stocky man, 5'4%'' tall, whose weight has fluctuated
between 155 and 205 lbs. over the last decade. His favorite
hobby, up until he was 50 or 52 years old, was weightlifting.
At 50 years of age, he could lift 500 lbs. He stopped
weightlifting about 1969.
In 1972, Mr. Shepard began having pain in his knees.
His doctor diagnosed the condition as degenerative arthritis
and chondrocalcinosis. Doctors testifying in this case
described the first condition as a relentlessly progressive
disease involving the wearing away of the cartilage lining of
a joint, accompanied by pain, bony changes and some bone
deformation. The condition generally takes years to develop
into an advanced stage and is not reversible. It is
aggravated, and the accompanying degeneration of joints and
bones is accelerated, by weightbearing, obesity and trauma.
The doctors described chondrocalcinosis as the existence of
calcium crystal deposits in the joints. The deposits
sometimes break free and cause episodes of severe pain and
swelling known as "pseudogout." Pseudogout is treatable with
anti-inflammatory drugs. Chondrocalcinosis and pseudogout do
not cause instability or degenerative changes in the bone.
They are neither caused nor aggravated by heavy lifting. In
fact, pseudogout may flare up during periods of inactivity,
as the record shows it did for Dee Shepard.
The physician attending Mr. Shepard in 1972 (Dr. Flynn)
noted that an x-ray of the left knee showed changes in the
cartilage and bone consistent with advanced degenerative
arthritic change. He noted, "I cannot see any fracture or
dislocation in the left knee." During the next eight years,
claimant experienced several episodes of pain and swelling
and some instability in his knees. Doctors treated him by
draining synovial fluid and injecting cortisone into the
knee. In 1975, when Mr. Shepard was hospitalized for a heart
"minimal varus deformity,I or slight bowleggedness ,
'
was noted by a Dr. Hull in both of Mr. Shepard's knees. This
condition is also consistent with degenerative arthritis.
From September of 1973 on, Mr. Shepard performed the
extremely heavy work required by his job with Midland. By
1977, he was walking with a limp.
On February 14, 1980, Mr. Shepard slipped on an icy step
at work and fell, twisting his left knee and striking it
sharply against the edge of the step. His knee was numbed by
the blow but gradually became very painful. Mr. Shepard
completed his shift, then went to the St. Vincent's ~ospital
emergency room in Billings, where his knee was x-rayed and
his leg put in a strap-on cast. Within a few days, claimant
visited Dr. Taylor, who fitted him with a hinged leather
lace-up brace and crutches. The brace was required to keep
Mr. Shepard's left knee from "popping out," or dislocating.
He wore the brace for approximately a year, and used the
crutches for two months longer.
Mr. Shepard received temporary total disability benefits
until he returned to his job on February 25, 1980, a period
of ten days. He testified that working after February 25 was
extremely painful for him, and that he began to experience
difficulties with his right knee as well:
"Q. Did you experience any problems as a result of
wearing that hinged knee brace for approximately a
year? A. Yes. I would have to lace it so tight
in order to keep my left knee in place that I would
cut off the circulation off of my leg and my leg
would swell above the brace and also below the
brace. And my toes would discolor, and three to
four times a night I would have to open it up and
massage my leg in order to get circulation back.
The pain was terrible. . . If I slacked off a
little bit on the brace, [the left knee] would not
stay in place. I'd go to step down, and I would
fall because there was nothing there.
"Q. What problems were you having with the right
knee during this period of time? A. I was bearing
as much weight as I could bear to take the pressure
off the left knee.
"Q. What did you experience as a result of putting
more weight on your right knee? A. Mostly it
would get so tired and then I would he getting
pain.
"Q. In which leg or knee? A. On the right -- On
the right knee."
On April 10, 1980, on the advice of Dr. Taylor, Dee
Shepard retired. Dr. Taylor's case notes on Mr. Shepard,
dated April 10, 1980, state, "His knees have collapsed." A
subsequent letter from Dr. Taylor to claimant's attorney,
dated June 15, 1981, states in pertinent part:
"I would say there was aggravation of a knee
problem with the accident of Feb. 14, 1980 . . .
His knee problem is presumed to be quite a long
term, very chronic, kind of dysfunction, and I
would consider the percent of aggravation to . ..
be very small as regards the Feb. 14, 1980
incident."
Dr. Griffin examined Mr. Shepard in December of 1981.
He noted that x-rays showed significant degenerative changes
in Mr. Shepard's knees since 1972, and found "rather
remarkable [varus] deformity ." (bowleggedness) Dr. Griffin
testifed that such a deformity "means almost always that
there's been significant bony change in one of the
compartments of the knee . . . [It] means that there's
significant wear and tear." Dr. Griffin also stated that
while Mr. Shepard's weightlifting hobby could explain the
changes evident - -
in 1972, it could not be considered the only
possible cause, and that weighthearing, along with obesity
and trauma would accelerate the degeneration of the cartilage
and the joints.
Dr. Taylor, Mr. Shepard's attending physician after the
February 14, 1980 accident, stated that he was "not very
impressed with the specific incident as the main problem."
He described Mr. Shephard's knees as "disaster knees," which,
due to a longstanding condition of degenerative arthritis had
deteriorated by 1980 to the point that they would respond to
nothing but fusion, or the more preferable total knee
replacement. Dr. Taylor noted that the February 1980 x-rays
indicated "multiple knee injuries [and] many, many
subluxations" or small dislocations in both knees. He stated
that, although the industrial accident was an aggravant, he
did not consider it the major cause of damage to Mr.
Shepard's joints, not the kind of thing which takes the
arthritic person to his "crippling end." The weightbearing
and activity associated with day-to-day living aggravated the
condition. Dr. Taylor stated that Mr. Shepard's knee
deterioration would have resulted in his forced retirement
within a short period. He also stated:
"The job that you described to me, that was
described to me that Mr. Shepard did at Midland
Pack, I am sure would be an accelerant."
Upon Mr. Shepard's retirement he sought, and was denied,
permanent total disability benefits. He petitioned the
Workers' Compensation Court for a hearing, which was held
November 18, 1981. The Workers' Compensation Court issued
its findings of fact, conclusions of law and judgment on
September 14, 1982 denying benefits, costs, fees and
penalties. Mr. Shepard appeals.
I.
Mr. Shepard argues that both his work for Midland and
the February 14, 1980 accident at work aggravated his
underlying condition of degenerative arthritis, accelerating
the approach of his eventual breakdown and total disability.
He argues that the Workers' Compensation Court erred in its
conclusion that the condition of his knees had deteriorated
because of other than work-related reasons. We agree.
Uncontested evidence established that Mr. Shepard's
degenerative arthritis was a pre-existing condition which had
been diagnosed prior to his beginning work at Midland.
"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. Empire Steel
Manufacturina Co. and ~ m ~ l. o v e r T
- I - - ' Mutual Liabilitv
L z
.
Insurance Co. (1977), Mont., 574 P.2d 987, 34
St.Rep. 1112. Close - - Regis Paper Co. (1977),
v. St.
Mont., 573 P.2d 163. The fact that an employee is
suffering from or afflicted with pre-existing
disease or disability does not preclude
compensation if the disease or disability is
aggravated or accelerated by an industrial
accident. Birnie v. U.S. Gypsum Co. (1958), 134
Mont. 39, 328 ~ z d 133; ~ u m s e y v . Cardinal
Petroleum (1975), 166 Mont. 17, 530-p.2d 433."
Robins v. Anaconda Aluminum Company (1978) , 175
Mont. 514, 518, 575 P.2d 67, 70.
This Court has recognized that a series of minor
traumas, which are work related and which sufficiently
aggravate a pre-existing condition to result in disability,
must be treated as a slowly developing injury, which is
compensable. Jones v. St. Regis Paper Co. (1982) Mont .
, 639 P.2d 1140, 38, St.Rep. 2201.
In Hoehne v. Granite Lumber Co. (1980) Mont .
, 615 P.2d 863, 37 St. Rep. 1307 (not. a pre-existing
injury case), we held that the "tangible happening of a
traumatic nature" required under section 39-71-119 (1), MCA,
before injury can be found, need not be a single isolated
incident, but may well be a "chain of incidents" leading to
an injury. In Hoehne, the claimant's job involved stacking
lumber on a daily basis; the work itself was found to be a
series of actions or incidents resulting in injury. In
Hoehne, this Court also recognized that "unusual strain"
under section 39-71-119 (1), MCA, does not necessarily refer
to an unexpected cause, but can apply to an unexpected
resulting injury, even though the effort involved was not
unusual for the particular job. See Jones v. Bair's Cafes
(1968) 152 Mont. 13, 445 P.2d 923, wherein claimant, a
dishwasher, was injured lifting a heavy tray of dishes,
although such lifting was a routine part of her job. This
Court affirmed the Workers' Compensation Court, holding that
there was an "unusual strain" and a compensable injury under
section 92-418, R.C.M. 1947, the forerunner to section
39-71-119 (I), MCA.
In the case at bar, both Dr. Griffin and Dr. Taylor
testified by deposition that the heavy work Mr. Shepard
routinely performed at Midland would have aggravated his
existing condition, i.e., would have accelerated the
breakdown of his knees. Both physicians recognized the
February 14, 1980 accident as an aggravant of Mr. Shepard's
condition. X-rays show "a marked increase" in varus bone
deformity between 1972 and 1980, just after Mr. Shepard's
accident. The x-rays also indicate "many, many
subluxations", or small dislocations in the knee joints,
which were not evident in 1972. The physicians stated that
these symptoms were indicative of wear and tear on the joint,
and would probably result in pain and instability. This
evidence of work-related injury aggravating a pre-existing
condition is considerable and is unrebutted.
The well-settled standard of review in cases appealed
from the Worker's Compensation Court is stated in Nielsen v.
Beaver Pond, Inc. (1983) Mont . , 661 P.2d 47, 49,
40 St.Rep. 489, 491:
"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 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. Steffes v. 93
Leasing Co., Inc. (U.S.F. & G.) (1978), 177 Mont.
83, 86, 87, 580 P.2d 450, 452; [Pinion v. H. C.
Smith Const. Co. (1980) Mont .
, 619 P.2d
167, 168, 37 St.Rep. 1 , 1356-571 Novak v.
Montgomery Ward and Co. (1981), Mont., 638 P.2d
390, 392, 38 St.Rep. 1803; Viets v. Sweet Grass
County (1978), 178 Mont. 337, 583 P.2d 1070, 1071,
1072."
Respondent relies on statements by Dr. Taylor and Dr.
Griffin that Mr. Shepard's "main problem" was degenerative
arthritis of the knees and pseudogout caused by
chondrocalcinosis, which conditions had been present for
nearly a decade and probably would have forced his early
retirement even absent the 1980 accident.
The Workers' Compensation Court found that the 1980
accident aggravated Dee Shepard's pre-existing knee
condition, and that "weight-bearing, at work or otherwise,
would speed up the degenerative process." There is no
evidence whatsoever to suggest that Mr. Shepard did heavy
work outside of his job with Midland, having abandoned his
weightlifting hobby at least three years before he began work
with Midland and more than ten years before his fall in
February of 1980. Certainly his own weight and the normal
degeneration associated with the disease contributed to Mr.
Shepard's breakdown in 1980. But unchallenged medical
evidence establishes that the pre-existing condition was
aggravated and the degeneration and breakdown were
accelerated by the many small traumas to his knees caused by
Mr. Shepard's work with Midland and also by his February 14,
1980 industrial accident.
We hold that the Workers' Compensation Court's
conclusion that Dee Shepard's knees had deteriorated for
other than work related reasons is not supported by
substantial evidence.
11.
The Worker's Compensation Court found that when Dee
Shepard returned to work on February 25, 1980, he "had
completely recovered" from the aggravation of his condition
caused by his fall. Respondent now urges this Court not to
"retry Dee Shepard's case," because the unrebutted evidence
that he returned to work and worked steadily for
approximately six weeks before retiring, constitutes
substantial evidence that he had completely recovered.
We do not agree. That evidence only indicates that he
was able to return to work for six weeks. The remainder of
the evidence establishes that Dee Shepard returned to work in
a condition far worse than before his accident and that he
worked for six weeks despite pain, inconvenience and further
deterioration of his condition caused by the heavy work and
his attempts to minimize the pain and damage to his left knee
by shifting his weight to the right.
Before his accident, Dee Shepard had worked steadily for
years, without a brace, without crutches, and without
constant, severe pain. He returned to work only ten days
after his accident with a hinged leather brace, which had to
be kept extremely tight to prevent his knee from dislocating
constantly. He was in such pain that he took up to a dozen
aspirin during a shift, a fact noted by the Workers'
Compensation Court. His right knee began to trouble him
because of the extent to which he favored the left. In April
of 1980, Dr. Taylor noted: "His knees have collapsed." Dr.
Taylor stated in deposition that there is no "healing
process" with degenerative arthritis, only an "attempt at
healing" which results in the type of extra bone formation
evident in Mr. Shepard's x-rays. The disease itself is
"relentlessly progressive", although the speed of
deterioration can be affected by weightbearing, obesity and
trauma.
Dr. Griffin, who treated several of Mr. Shepard's
episodes of pseudogout between 1972 and 1976, did not see Mr.
Shepard again until December of 1981, nearly two years after
Mr. Shepard's return to work. His conclusion that in
December of 1981, Mr. Shepard's pseudogout symptoms were,
"fairly well resolved," can have no bearing here, being too
remote in time to indicate Mr. Shepard's condition upon his
return to work in February of 1980.
Mr. Shepard stated at hearing in November of 1981 that
he was at that time exercising and moving without pain. Dr.
Taylor attributed that not to recovery, but to "neuropathic
knees", a loss of feeling in the knees, generally due to some
other condition, which usually results in further knee damage
due to use of a damaged knee joint without the protection of
the warning provided by pain.
There is no substantial evidence which supports the
Workers' Compensation Courts' conclusion that Dee Shepard had
fully recovered from his accident at the time he returned to
work. On the contrary, all significant evidence suggests the
return to work of a man disabled by disease, weightbearing at
work, and work-related trauma, whose disability was increased
by his return to work.
We reverse the Workers' Compensation Court on both
issues and remand this case for a determination of the
compensation, costs, fees and penalties, if any, to which Dee
Shepard is entitled.
We concur:
Justices
11
Mr. J u s t i c e L . C. G u l b r a n d s o n d i s s e n t i n g .
I respectfully dissent.
I would affirm the decision of the Workers' Compensation
C o u r t on t h e b a s i s t h a t t h e r e i s s u b s t a n t i a l e v i d e n c e t o s u p p o r t
t h e f i n d i n g s and c o n c l u s i o n of t h a t c o u r t .
Judge Reardon, a f t e r o b s e r v i n g and h e a r i n g t h e t e s t i m o n y of
t h e c l a i m a n t and c o n s i d e r i n g t h e d e p o s i t i o n s of t h e two m e d i c a l
e x p e r t s , r u l e d t h a t t h e c l a i m a n t ' s i n c a p a c i t i e s were n o t p r o d u c e d
b y t h e i n d u s t r i a l a c c i d e n t of F e b r u a r y 1 4 , 1 9 8 0 . In referring to
t h e c l a i m a n t ' s m e d i c a l c o n d i t i o n and t h e s p e c i f i c i n c i d e n t of t h e
knee injury on February 14, 1980, Dr. Taylor testified as
follows:
"Q. D u r i n g t h e c o u r s e of Mr. K e l l y ' s examina-
t i o n e a r l i e r , you w e r e r e f e r r e d t o y o u r f i r s t
r e p o r t of t r e a t m e n t of Mr. S h e p a r d , and you
s a i d t h a t y o u r d i a g n o s i s was ' k n e e a r t h r i t i s ' ,
i n d i c a t i n g t h a t you w e r e n o t p a r t i c u l a r l y
impressed with the s i n g l e i n c i d e n t . Can you
d e s c r i b e why?
A. I was . .. You a r e i n f a c t c o r r e c t . I
was n o t i m p r e s s e d w i t h t h e s i n g l e i n c i d e n t , a s
i t was q u i t e c l e a r from c l i n i c a l f i n d i n g s and
x - r a y f i n d i n g s t h a t Mr. S h e p a r d had h a d , i n my
o p i n i o n , a h i g h l i k e l i h o o d of h a v i n g had b a d l y
d i s o r g a n i z e d k n e e s f o r some time. In fact, I
d i d n o t e v e n r e f e r i n my i n i t i a l n o t e and
i n c o r r e c t l y s o t o t h e f a c t t h a t he had b e e n
recently injured.
"Q. You h a v e i n d i c a t e d t o Mr. S h e p a r d and
a l s o t o Midland Foods t h a t he s h o u l d p r o b a b l y
r e t i r e b e c a u s e of t h e c o n d i t i o n of h i s k n e e s .
A. T h a t , and a n o t h e r r e a s o n .
"Q. What i s t h e o t h e r r e a s o n ?
A. T h a t is something t h a t I have t o t a k e
e x c e p t i o n t o Mr. K e l l y ' s l i s t of f a c t . I
r e a l l y question a s readily as the quitting
work of how b a d l y he w a n t s t o keep w o r k i n g .
H e f i t s " t h e l a s t - s t r a w syndrome". T h a t is an
e l d e r l y man who i s w o r k i n g i n a r e l a t i v e l y , a n
u n e d u c a t e d e l d e r l y man who i s w o r k i n g i n a
f a i r l y uninteresting j o b who s u s t a i n s a n
i n j u r y , and t h a t i n j u r y c a n be r e l a t i v e l y
minor. I t is r e a l l y d i f f i c u l t for that
p a t i e n t t o r e t u r n t o work, and f o r t h a t r e a s o n
i n making t h a t d i a g n o s i s of " t h e l a s t - s t r a w
s y n d r o m e " , I recommended t h a t he be r e t i r e d a s
I f e l t c e r t a i n t h a t he would n e v e r r e t u r n t o
work, i n a n y c a s e .
"Q. Referring then t o the f i r s t reason, the
i n s t a b i l i t y and t h e l o n g - s t a n d i n g problems
w i t h b o t h k n e e s , would t h a t r e a s o n a l o n e h a v e
b e e n s u f f i c i e n t f o r you t o make t h a t recommen-
d a t i o n t h a t he r e t i r e ?
A. Yes.
"Q. Is t h e l e f t k n e e , b a s e d upon y o u r c l i n i -
c a l f i n d i n g s and y o u r x - r a y s and a l l of y o u r
e x p e r i e n c e i n t h e same, b e t t e r o r worse con-
d i t i o n t h a n t h e r i g h t knee?
A. Well, b o t h a r e i n t e r r i b l e c o n d i t i o n , b u t
I would s a y t h a t t h e l e f t knee h a s some r e t e n -
t i o n of j o i n t s p a c e m e d i a l l y , and on a s c a l e
o f one hundred bad p o i n t s t h e r i g h t knee h a s
o n e h u n d r e d and t h e l e f t h a s n i n e t y - n i n e .
"Q. So a c t u a l l y t h e l e f t knee i s b e t t e r t h a n
t h e r i g h t knee b a s e d on w h a t ?
A. Very m a r g i n a l l y .
"Q. T h a t ' s a l l ?
A. And r e c a l l , t o o , t h a t h i s t o r i c a l l y he h a s
p a i n i n h i s , he h a s a l l e g e d p a i n i n h i s l e f t
k n e e and t h a t o b v i o u s l y makes i t a w o r s e k n e e .
"Q. You indicated also i n answer to a
q u e s t i o n by Mr. K e l l y t h a t t h e o r d i n a r y f u n c -
t i o n s of l i f e a r e g o i n g t o c o n t i n u e t o a g g r a -
v a t e t h e c o n d i t i o n of Mr. S h e p a r d ' s k n e e s ?
A. Yes. T h i s is a r e l e n t l o u s l y p r o g r e s s i v e
condition.
" Q . You s a i d t h a t i t i s a r e l e n t l o u s l y
p r o g r e s s i v e c o n d i t i o n , and t h a t t h e r e a r e
a g g r a v a t i o n s s i m i l a r t o t h e one which you p r e -
sumed o c c u r r e d on F e b r u a r y t h e 1 4 t h , 1 9 8 0 , t h e
industrial accident. And I am a s k i n g you t o
d e s c r i b e what t h e e f f e c t of t h o s e a g g r a v a t i o n s
i s , o r what t h e i r n a t u r e i s .
A. T h a t was a s p e c i f i c a g g r a v a n t , a n i n j u r y .
And t h e s e , w h i l e t h e y a r e p r o b a b l y a g g r a v a n t s ,
a r e n o t t h e k i n d of t h i n g s which t a k e s t h i s
man t o h i s e v e n t u a l e n d , and I t h i n k t h a t end
m u s t be a c r i p p l i n g e n d . They a r e , t h e t h i n g s
t h a t b r i n g him t o t h a t end a r e t h e f a c t t h a t
h e c o n t i n u e s t o b e a r weight; i n o t h e r words,
h e g e t s o u t of bed i n t h e m o r n i n g , g o e s t o t h e
b a t h r o o m , h a s b r e a k f a s t , g o e s o u t and works i n
h i s y a r d o r g o e s f o r a walk o r g o e s f i s h i n g o r
g e t s i n t h e c a r and g o e s down t o t h e g r o c e r y
s t o r e , a l l of t h e s e t h i n g s i n v o l v e w e i g h t
bearing and will mandate relentlous
progression.
" Q . D o c t o r , w e t a k e t h e view t h a t i f Mr.
S h e p a r d i s d i s a b l e d due t o a p h y s i c a l con-
d i t i o n a t t h i s t i m e , t h a t t h a t d i s a b i l i t y is
one which exists with or without the
o c c u r r e n c e of t h i s F e b r u a r y 1 4 t h , 1 9 8 0 i n c i -
d e n t . Do you a g r e e ?
"A. Okay, w i t h i n a r e a s o n a b l e d e g r e e of medi-
c a l c e r t a i n t y , yes.
"Q. You a g r e e w i t h me?
A. Yes. A g r e e t h a t he would h a v e b e e n , would
h a v e r e t i r e m e n t w i t h i n a s h o r t p e r i o d , i n any
c a s e , a s much b e c a u s e of h i s k n e e s a s t h e
o t h e r f a c t o r t h a t I mentioned. In addition t o
which, he a p p r o a c h e s t h e n o r m a l a g e f o r
r e t i r e m e n t , i n any c a s e . "
Dr. G r i f f i n t e s t i f i e d by d e p o s i t i o n and h o s p i t a l r e c o r d s from
t h e B i l l i n g s C l i n i c were received i n evidence. Those records
revealed severe knee problems as e a r l y a s August ,1972. The
r a d i o l o g y r e p o r t , made i n c o n j u n c t i o n w i t h c l a i m a n t ' s c o m p l a i n t s
at that time, stated: "These findings are consistent with
advanced d e g e n e r a t i v e a r t h r i t i c change." Dr. Griffin testified
a s follows:
" [Q.] I ' m a s k i n g d i d you s e e any symptoms of
t h i s F e b r u a r y 1 9 8 0 s l i p and f a l l on your phy-
s i c a l e x a m i n a t i o n of Mr. S h e p a r d ?
A. W e l l , t h e o n l y t h i n g I saw was--evidence
o f h i s p h y s i c a l f i n d i n g s was n o t e d ; n a m e l y ,
some a r t h r i t i c c h a n g e s i n b o t h k n e e s .
"Q. And t h e s e a r e t h i n g s t h a t you had seen
g o i n g back a s f a r a s 1 9 7 2 , c o r r e c t ?
A. Correct.
"Q. Including, I think, a reference to the
l i m p a s f a r back a s 1 9 7 7 , a t l e a s t ?
A. Right.
"Q. Well, Doctor, i n a n u t s h e l l , I g u e s s I ' m
a s k i n g w h e t h e r o r n o t i t would be y o u r m e d i c a l
o p i n i o n t h a t Mr. S h e p a r d ' s i m p a i r m e n t w i t h
r e g a r d t o h i s k n e e s was m e d i c a l l y t h e r e s u l t
o f t h e d e g e n e r a t i v e a r t h r i t i s , p s e u d o g o u t , and
c h o n d r o c a l c i n o s i s , which i s of l o n g s t a n d i n g .
"MR. KELLY: Excuse m e . O b j e c t e d t o on t h e
grounds t h a t t h e q u e s t i o n is not phrased i n
t h e t e r m s of b e i n g w i t h i n a r e a s o n a b l e d e g r e e
o f m e d i c a l c e r t a i n i t y and i s i r r e l e v a n t and
immaterial.
"BY MR. BISHOP:
"Q. And, of c o u r s e , I ' m a s k i n g f o r y o u r o p i -
n i o n w i t h i n a r e a s o n a b l e d e g r e e of m e d i c a l
certainty.
A. Well, t h e a n s w e r t o y o u r q u e s t i o n i s y e s .
"Q. D o c t o r , w e have p r e v i o u s l y t a k e n t h e
d e p o s i t i o n of D r . James T a y l o r , a n o r t h o p e d i c
s u r g e o n h e r e i n B i l l i n g s who you have r e f e r r e d
t o a l s o , I s e e , i n your n o t e of December 2 9 ,
1 9 8 1 , and D r . T a y l o r h a s t e s t i f i e d t h a t h e ' s
n o t i m p r e s s e d w i t h t h e s i n g l e i n c i d e n t of
F e b r u a r y 1 9 8 0 a s an e x p l a n a t i o n f o r t h e con-
d i t i o n of Mr. S h e p a r d ' s k n e e s , which Mr.
S h e p a r d d e s c r i b e s a s i n c a p a c i t a t i n g , and I
w i l l a s k you f o r y o u r o p i n i o n , t o a r e a s o n a b l e
d e g r e e of m e d i c a l c e r t a i n t y , a s t o t h e e f f e c t ,
i f a n y , which you would a s s i g n t o t h e F e b r u a r y
1 9 8 0 e v e n t which Mr. S h e p a r d h a s d e s c r i b e d t o
you i n s o f a r a s i t r e l a t e s t o t h e c o n d i t i o n of
h i s k n e e s which you h a v e s e e n from 1972
t h r o u g h December 2 9 , 1 9 8 1 .
"MR. KELLY: E x c u s e me, D o c t o r , b e f o r e you
answer. I w i s h t o o b j e c t upon t h e g r o u n d s
t h a t t h e q u e s t i o n e x c e e d s t h e s c o p e of t h e
c r o s s e x a m i n a t i o n and i s i m p r o p e r , i r r e l e v a n t ,
immaterial, and i n c o m p e t e n t , and d o e s n o t
assume a l l of t h e f a c t s , and i s a n i m p r o p e r
hypothetical question.
"MR. BISHOP: I n v i e w of t h e f a c t t h a t c r o s s
e x a m i n a t i o n c e n t e r e d on t h e q u e s t i o n of t h e
c l a i m a n t ' s i n c a p a c i t y and t h e m e a s u r i n g of
t h a t i n c a p a c i t y , I t h i n k t h a t t h i s r e d i r e c t is
p e r f e c t l y w i t h i n t h e s c o p e of c r o s s .
"MR. KELLY: I move t o s t r i k e C o u n s e l ' s a u d i -
tory explanation as not constituting a
question.
"BY MR. BISHOP:
"Q. Do you h a v e t h e q u e s t i o n i n mind s t i l l ,
Doctor?
A. Well, y e a h , I think I know what the
q u e s t i o n is.
"Q. Okay. Why d o n ' t you go a h e a d and t r y t o
answer i t , then.
A. W e l l b a s e d on my n o t e s and r e c o r d s , I
would say t h a t Mr. Shepard's incapacity
related to his arthritis is one of
l o n g s t a n d i n g , and I , s i n c e I d i d n o t s e e him
a t t h e time of h i s i n j u r y b u t I d i d see him i n
December of 1 9 8 1 , and I would s a y t h a t h i s
c h a n g e s w e r e t h o s e of c h r o n i c d e g e n e r a t i v e
a r t h r i t i s of t h e k n e e s , a c h r o n i c p r o c e s s .
"Q. What e f f e c t o r s i g n i f i c a n c e , if any,
would you a s s i g n t o t h e F e b r u a r y 1 9 8 0 s l i p and
f a l l i n c i d e n t which Mr. S h e p a r d d e s c r i b e s ?
A. From w h a t it sounded l i k e t o m e , he had a
c o n t u s i o n of h i s k n e e w i t h a l o t of i m m e d i a t e
p a i n and s w e l l i n g and d i s c o m f o r t .
"Q. From what you saw, d i d i t a p p e a r t h a t
t h a t had, t h e n , run its c o u r s e ?
A. I t a p p e a r e d t o be f a i r l y much r e s o l v e d
when I saw him."
The Workers ' C o m p e n s a t i o n C o u r t ' s d e c i s i o n h i n g e s upon the
fundamental principle that compensation is payable only for
" i n j u r y producing . . . disability." S e e s e c t i o n s 39-71-701,
7 0 2 , and 7 0 3 , MCA.
I n my v i e w , w o r k e r s ' compensation i n s u r a n c e does have s t a t u -
tory l i m i t s . I t s b e n e f i t s s h o u l d be l i b e r a l l y a l l o w e d , b u t it
s h o u l d n o t be c o n s t r u e d s o b r o a d l y t h a t i t becomes a s u b s t i t u t e
f o r general health insurance, pensions, o r r e t i r e m e n t programs.
T h i s C o u r t r e c e n t l y handed down a d e c i s i o n t a c i t l y a p p r o v i n g
the State's commendable p r o g r a m of hiring t h e handicapped. I
f e a r t h a t the majority decision w i l l provide g r e a t incentive t o
employers to avoid hiring a n y o n e who is in less t h a n p e r f e c t
health.
I would a f f i r m t h e W o r k e r s ' Compensat
\