No. 84-313
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
ODEAN L. FROST,
Claimant and Respondent,
-vs-
THE ANACONDA COMPANY,
Employer-Defendant and Appellant.
APPEAL FROM: Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Utick, Grosfield & Uda; Andrew J. Utick, Helena,
Montana
For Respondent :
Neil J. Lynch & R. Lewis Brown, Butte, Montana
Submitted on Briefs: March 21, 1985
Decided: June 25, 1985
JU& . i 4s
1y
Filed :
Mr. J u s t i c e J o h n Conway H a r r i s o n 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.
T h i s i s a n a p p e a l b y Anaconda Aluminum Company, from a
judgment in favor of claimant, Odean L. Frost, by the
Workers' Compensation C o u r t .
On October 21, 1974, claimant was injured while
c l i m b i n g down an ore s h o v e l o p e r a t i n g i n Anaconda Company's
mine i n Butte, Montana. C l a i m a n t s l i p p e d from a l a d d e r on
the ore shovel, l a n d i n g on t h e t r a c k o f t h e s h o v e l w i t h h i s
lower back. Immediately a f t e r t h e a c c i d e n t , h e experienced a
burning sensation in his lower back. C l a i m a n t worked the
remaining six hours of his shift. Claimant reported the
accident to his supervisor but did not immediately seek
medical a t t e n t i o n . Claimant continued working f o r seventeen
months u n t i l h e f i r s t s o u g h t t r e a t m e n t b e c a u s e o f c o n t i n u e d
b a c k p a i n a n d d i m i n i s h e d c o n t r o l o v e r h i s l e f t l e g and f o o t .
On March 9, 1976, Dr. B u e h l e r examined t h e claimant. Dr.
B u e h l e r d i a g n o s e d c l a i m a n t ' s c o n d i t i o n a s a n L5-S1 h e r n i a t e d
disc. I n August o f 1976, D r . B u e h l e r p e r f o r m e d a l e f t L5-S1
disectomy. Claimant testified that the back and leg
discomfort continued a f t e r t h e surgery. I n March o f 1976,
the persistent pain forced claimant to cease working for
Anaconda Company.
Claimant received benefits from Anaconda Company's
"METRO" program, i n l i e u o f Workers' Compensation from A p r i l
of 1976 u n t i l A p r i l o f 1 9 8 3 , o n w h i c h d a t e a l l b e n e f i t s w e r e
terminated. Claimant had not filed a claim f o r Workers'
Compensation within one year following the date of his
injury. The Workers' Compensation Court f o r b a d e Anaconda
Company from a s s e r t i n g t h e o n e y e a r s t a t u t e o f l i m i t a t i o n s a s
a bar to claimant's recovery of benefits. This Court
affirmed the Workers' Compensation Court's decision in Frost
v. Anaconda Company ( 1 9 8 2 ) , 1 9 8 Mont. 2 1 6 , 6 4 5 P. 2d 4 1 9 , and
held that the employer's payment of "benefits substantially
comparable to or greater than the benefits available to the
. . . employee under the Workers' Compensation Act" tolled
the statute of limitations for filing his claim.
On June 1 3 , 1 9 8 3 , a second hearing was held before the
Workers' Compensation Court. The claimant was awarded
permanent total disability benefits. Anaconda Company
appeals from the judgment of the Workers' Compensation Court.
The issue on appeal is whether substantial evidence
supports the Workers' Compensation Court's determination that
the claimant is entitled to compensation for permanent total
disability.
The basic premise of Anaconda Company's appeal is that
the claimant failed to meet his burden of establishing a
causal relationship between the industrial accident and
claimant's low back and leg condition. The Workers'
Compensation Court determined that the claimant established
causality:
"The cause of the herniated disc and the
surgery it necessitated was the
claimant's October 2 1 , 1 9 7 4 industrial
accident ... the cause of the
claimant's continuing back and leg pain
is the herniated disc he suffered in his
October 2 1 , 1 9 7 4 , industrial accident or
from the scarring in the area of the
L5-S1 disc protrusion."
Anaconda Company argues that there is a total absence of
medica 1 proof to support a finding of causal relationship.
Anaconda Company argues that the Workers' Compensation Court
improperly relied on claimant's testimony. Anaconda Company
further maintains that because the claimant was in error when
he testified as to the first date he saw a doctor that this
was intentional and made his testimony inherently incredible.
The testimony of two witnesses, Charles E. Buehler,
M.D. and the claimant, is critical to the determination of
the existence of causal relationship. Anaconda Company
submits, because Dr. Buehler's testimony was by deposition,
the standard of review should be governed by Sbupert v.
Anaconda Aluminum Company (Mont. 1985), 696 P.2d 436, 42
If I
. .
. when the critical evidence,
particularly medical evidence, is entered
by deposition, we have held that "this
Court, although sitting in review, is in
as good a position as the Workers1
Compensation Court to judge the weight to
be given to such record testimony, as
distinguished from oral testimony, where
the trial court actually observes the
character and demeanor of the witness on
the stand."'" (Citations omitted.) 696
P.2d at 439.
We will adhere to this standard in reviewing Dr. Buehler's
deposition testimony. However, in reviewing the testimony of
the claimant, deference will be accorded to the Workers1
Compensation Court's findings as to weight and credibility.
Section 39-71-119 (I), MCA in pertinent part defines an
injury as:
"a tangible happening of a traumatic
nature from an unexpected cause or
unusual strain resulting in either
external or internal physical harm and
such physical condition as a result
therefrom and excluding disease not
traceable to injury "...
The claimant must prove by a preponderance of the evidence:
(1) that he suffered an injury arising out of and in
the course of employment; and
(2) that such injury was the proximate cause of his
disabling condition. Viets v. Sweet Grass County (1978), 178
Mont. 337, 5 8 3 P.2d 1070. See a l s o , McQuiston v. Hubbard
( 1 9 7 5 ) , 1 6 7 Mont. 4 2 3 , 539 P . 2 d 380; V e t c h v. H e l e n a T r a n s f e r
and S t o r a g e Co. ( 1 9 6 9 ) , 1 5 4 Mont. 1 0 6 , 460 P.2d 757.
The s t a n d a r d o f r e v i e w f o r m e d i c a l proof of causation
c a s e s h a s b e e n s e t f o r t h i n e a r l i e r cases. I n Viets
"Medical p r o o f o f c a u s a t i o n o f a n i n j u r y
must be greater than 'possible' in
Workers' Compensation c a s e s . C l a r k v.
H i l d e C o n s t r u c t i o n Co. ( 1 9 7 8 ) , M o n t . , 576
P.2d 1 1 1 2 , 35 S t . R e p . 353; E r h a r t v .
G r e a t W e s t e r n S u g a r Company ( 1 9 7 6 ) , 1 6 9
Mont. 3 7 5 , 546 P.2d 1 0 5 5 ; McAndrews v.
S c h w a r t z v . G l a c i e r G e n e r a l A s s u r a n c e Co.
( 1 9 7 4 ) , 1 6 4 Mont. 4 0 2 , 5 2 3 P.2d 1379;
S t o r d a h l v . Rush I m p l e m e n t Co. (1966),
1 4 8 Mont. 1 3 , 417 P.2d 9 5 ; L a F o r e s t v.
S a f e w a y S t o r e s ( 1 9 6 6 ) , 1 4 7 Mont. 4 3 1 , 414
P.2d 2 0 0 . "
Dr. Buehler 's testimony set forth medical
symptomatology from which the Workers' Compensation Court
could fairly conclude that claimant did suffer an injury:
(i) Upon referral by D r . Buehler, claimant reported
to consulting physicians, Dr. Alexander Johnson and Dr.
Cooney, t h a t h e t o o k a f a l l a t work. Since the injury he has
i n c r e a s i n g l y s u f f e r e d back p a i n r a d i a t i n g t o h i s l e f t lower
extremity.
(ii) D r . Buehler performed a myelogram and d i a g n o s e d
t h e c l a i m a n t ' s c o n d i t i o n a s a n L5-S1 h e r n i a t e d d i s c .
(iii) D r . Buehler performed a l e f t L5-S1 disectomy.
(iv) Dr. Buehler noted that claimant continued to
e x p e r i e n c e back and l e g p a i n . The p a i n w o u l d i n c r e a s e w i t h
physical activity. Dr. B u e h l e r c o n c l u d e d t h a t t h e p a i n was
secondary t o t h e prolonged duration o f h i s herniated d i s c o r
t o scarring i n the area of t h i s disc protrusion.
(v) Dr. Buehler testified that clai-mant's back and
a s s o c i a t e d l e g c o n d i t i o n i s permanent.
The Anaconda Company has failed to produce any
evidence, medical or otherwise, as to the specific cause of
claimant's injury. Anaconda Company called no medical
witness to disprove causation. The record shows that the
claimant had no previous back problems or a history of injury
that might even remotely affect his back. Prior to the
accident, he was able to perform his job with no orthopedic
problems. Dr. Buehler informed Anaconda Company that
claimant could not return to heavy labor. The claimant
testified that the increased pain associated with physical
activity made it difficult for him to walk, to bend or even
to climb stairs. The claimant further testified that he
presently takes muscle relaxants and analgesics for pain.
Anaconda Company maintains that the Workers '
Compensation Court erred in considering claimant's testimony
of his continued pain following the accident. We have long
recognized the Workers' Compensation Court's right to rely on
the testimony of the claimant. McCormack v. Sears-Roebuck &
Co. (Mont. 1984), 682 P.2d 1357, 41 St.Rep. 979; Robins v.
Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67.
The Workers' Compensation Court's own finding that the
claimant was a credible witness and not a malingerer further
discounts Anaconda Company's allegation. The record shows a
conscientious working man, who although injured on the job,
chose to complete his work day and endure pain for six
additional hours. The fact that he did not seek medical
attention for seventeen months following the accident does
not lessen the injury nor minimize the pain he experienced.
The medical evidence, including Dr. Buehler's testimony and
the herniated disc trauma itself, establishes a firm basis
for claimant's complaints of pain.
We hold the record supports the Workers' Compensation
Court's findings and conclusions that a causal relationship
between the accident and the resulting physical disability
was sufficiently established.
Accordingly, the judgment o f the Workers ' Compensation
Court is affirmed.
Justic s
7'