Davis v. Jones

                               Xo. 84-354
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1985



JOHN A. DAVIS (FATAL) VIVIAN
MARIE DAVIS,
                       Claimant and Respondent,


GEORGE W. JONES,   Employer,
    and
MOUNTAIN WEST FA,W BUREAU MUTUAL
INSURANCE COMPAYY ,
                       Defendaht 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:
               Joseph E. Engel, 111, Great Falls, Montana



                               Submitted on Briefs:    March 28, 1985
                                             Decided: June 13, 1985




                                               - -
                                                -
                               Clerk
Mr. Justice           L.    C.     Gulbrandson d e l i v e r e d          t h e O p i n i o n of     the
Court.


         D e f e n d a n t Mountain West              appeals          from a n o r d e r o f        the

Workers'       Compensation              Court        finding          employer      and     insurer

liable        to       claimant          for      benefits             under       the     Workers'

Compensation A c t .

         This i s a continuation of                         a   case t h a t has previously

been b e f o r e t h i s Court.               I n Davis v.        Jones      (Mont.      1 9 8 3 ) , 661

P.2d    859,       40 S t . R e p .    5 7 0 , we h e l d t h a t t h e e m p l o y e r , J o n e s ,

was e s t o p p e d from a s s e r t i n g t h e s t a t u t e o f l i m i t a t i o n s t o b a r

claimant's          r e q u e s t f o r compensation.               The p r e s e n t a c t i o n i s

an      appeal             from        the      Workers'            Compensation             Court's

determination               that       Davis'         fatal        heart       attack          was     a

compensable i n j u r y .

         Testimony i n d i c a t e d t h e            following f a c t s :           On F e b r u a r y

1 6 , 1 9 8 0 , J o h n D a v i s was w o r k i n g a s a r a n c h hand.                One o f h i s

d u t i e s was t o chop t h r o u g h t h e i c e c o v e r i n g c a t t l e w a t e r i n g

holes s o t h a t t h e c a t t l e could drink.                       To d o t h i s , h e u s e d a

d u l l a x t o b r e a k t h e i c e and a s h o v e l o r p i t c h f o r k t o rpmove

t h e b r o k e n i c e from t h e h o l e .            H e would h a v e t o c h o p a h o l e

through      the       ice       two    feet    wide        and    ten      feet     long.         This

activity       usually           led    to    Davis     getting          wet    from     the    knees

down, and o t h e r w i s e was v e r y s t r e n u o u s work.                   On t h e d a t e i n

question,       t h e a i r t e m p e r a t u r e was somewhere b e t w e e n -10                    and

+20     degrees         Fahrenheit,            with     a       wind     chill      down     to      -31

degrees.

         P r i o r t o 10:30           a.m.    on F e b r u a r y 1 6 , D a v i s had a l r e a d y

chopped o n e w a t e r i n g h o l e .           Sometime d u r i n g t h a t m o r n i n g h e

began     t o experience a               sensation          like a        brick     on h i s c h e s t

while     c h o p p i n g i c e t o make          the       second w a t e r i n g h o l e .         One
time       he     passed          out       on      the       ice     and      when       regaining

consciousness f e l t very cold.                          A t a p p r o x i m a t e l y 10:30    a.m.,

after      Davis        regained            consciousness,            the      employer         and      a

co-employee,          Louis Velasco,               found him s i t t i n g o r k n e e l i n g on

t h e i c e and l e a n i n g a g a i n s t t h e h a n d l e o f h i s a x h e u s e d t o

chop t h r o u g h t h e i c e .        The employer s p o k e w i t h employee D a v i s

who complained o f              c h e s t p a i n and s a i d t h a t h e d i d n o t f e e l

well.        The employer s u g g e s t e d t h a t h e l e a v e work and s e e a

doctor.

          Shortly        thereafter,             Davis        left     the     water      hole        and

proceeded t o h i s v e h i c l e .                H e continued t o experience c h e s t

pain,      although          less       severe        than       originally         experienced.

B e t w e e n a p p r o x i m a t e l y noon and 1:00 p.m.,                  h e was s i t t i n g i n

h i s v e h i c l e and c o n t i n u i n g t o e x p e r i e n c e m o d e r a t e c h e s t p a i n .

He    declined         to    help       a     co-employee.              Davis      told     another

co-employee          t h a t h e was g o i n g t o see a d o c t o r and t h a t h e

f e l t s i c k , a s t h o u g h he had t h e f l u .

          A t approximately             1:00       p.m.     t h a t day,      Davis a r r i v e d a t

t h e home o f        J u d y and Ralph Paddock.                     While s t a n d i n g i n t h e

f r o n t yard,      h e c o m p l a i n e d t o Judy Paddock a b o u t h a v i n g f e l t

like     there       was    a     brick       on    his      chest     while      chopping        ice,

passing         out,        and       feeling             very       cold      when      regaining

consciousness.              H e complained o f               s t i l l being cold, of c h e s t

p a i n , and r e p e a t e d l y s a i d h e wanted t o c a l l D r .             Sidensticker.

O t h e r c o m p l a i n t s were o f numbness i n h i s h a n d s and a c h i n g i n

h i s arms;       and w h i l e h e d i d s o h e r o t a t e d h i s s h o u l d e r s and

arms.           To     Judy       Paddock,           he      appeared         pale,     cold          and

"shook-up."            I n t h e Paddock h o u s e ,             D a v i s t o l d Ralph Paddock

t h a t h e had p a s s e d o u t w h i l e c h o p p i n g i c e t h a t morning and

t h a t r i g h t t h e n h e f e l t c o l d and had a c h e s t p a i n .                     Ralph
Paddock       testified        that       Davis        appeared           upset,    nervous        and

scared.

         Davis       left    the     Paddocks'         house        a t    approximately          4:30

p.m.      W h i l e d r i v i n g home h e a l m o s t b l a c k e d - o u t         three t i m e s

and    had    to     stop      his      vehicle        on     each        occasion.         When    he

a r r i v e d home a b o u t    7:30      or    8:00        p.m.,    h e immediately asked

his     wife,       the     claimant,           for     something            cold      to     drink,

c o m p l a i n i n g a b o u t h a v i n g b e e n t h i r s t y a l l d a y and a b o u t n o t

h a v i n g been a b l e t o g e t enough c o l d f l u i d s t o d r i n k .                H e then

s a t down      and drank        approximately a g a l l o n o f                   ice t e a .      He

looked     tired,      g r a y and was s h a k i n g .              He told h i s wife t h a t

w h i l e c h o p p i n g ice d u r i n g t h e morning h e had p a s s e d o u t a f t e r

experiencing chest pain.                   H e a l s o complained o f h a v i n g "hard

c h e s t p a i n s on and o f f a l l day."                  A little b i t          l a t e r while

s i t t i n g a t t h e d i n n e r t a b l e , Davis complained o f c h e s t p a i n s

a n d numbness i n o n e arm.             He did not f i n i s h dinner.                    H e asked

for    something        cold       to    eat    and     then        ate     two    bowls     of    ice

cream.       H i s wife ran a t u b o f hot water s o t h a t he could t a k e

h i s u s u a l b a t h , b u t h e s a i d t h a t h e was t o o t i r e d ,              and t h a t

h e would r a t h e r       l i e down.         He t h e n g o t u p f r o m t h e d i n n e r

t a b l e a n d w e n t i n t o t h e bedroom.               Soon a f t e r D a v i s l e f t t h e

k i t c h e n and w h i l e h i s w i f e was removing t h e d i n n e r d i s h e s s h e

h e a r d him m o a n i n g i n t h e bedroom.                  S h e e n t e r e d t h e bedroom

and    saw t h a t    he     had     vomited.           He     was        rolling     on    the    bed

h o l d i n g h i s c h e s t and moaning, a c t i n g a s t h o u g h h e was u n a b l e

t o g e t enough a i r .

         Vivian Davis,             the    claimant,          g o t h e r husband           into the

family       car     and    then        drove    to     a      nearby       gasoline         service

station.        As    t h e y p u l l e d up t o t h e g a s s t a t - i o n , John Davis

grabbed       his     chest        and    starting            gasping        for      breath       and
rocking.          The c l a i m a n t a t t e m p t e d t o c l e a r h i s t h r o a t .             He

suddenly q u i t breathing.                   S h e g a v e him a r t i f i c i a l r e s p i r a t i o n

a n d r e v i v e d him t e m p o r a r i l y .     H i s h e a r t a t t a c k c o n t i n u e d , and

s e v e r a l m i n u t e s l a t e r h e s i g h e d d e e p l y and d i e d .

          The W o r k e r s ' C o m p e n s a t i o n C o u r t f o u n d t h a t t h e d e c e d e n t

d i e d of a h e a r t a t t a c k .         I t a l s o found t h a t h i s h e a r t a t t a c k

b e g a n w h i l e h e was          chopping        i c e t o make a s e c o n d w a t e r i n g

hole      on     the     morning        of     February          16,    1980       and   continued

t h r o u g h o u t t h e d a y and e n d e d w i t h h i s d e a t h t h a t e v e n i n g .         On

those        findings,        the     Workers'           Compensation         Court      held     that

employer         and     insurer        were        liable       for    claimant's           benefits

under      the    Workers'           Compensation           Act.        Appellant,           Mountain

W e s t Farm B u r e a u ,      p r e s e n t s t h e following i s s u e s f o r review:

          (1) W h e t h e r        there     was     a    causal       r e l a t i - o n s h i p between

John Davis' myocardial i n f a r c t i o n and r e s u l t i n g d e a t h and h i s

work a c t i v i t i e s .

          (2)      Whether,           even        assuming         there        was      a     causal

r e l a t i o n s h i p between       John      Davis'      myocardial          infarction           and

his     work       activities,               such        myocardial         infarction          is     a

compensable          injury        under      t h e Montana         Workers'        Compensation

Act.

          The W o r k e r s '      Compensation C o u r t h e l d t h a t t h e d e c e d e n t

died     from a m y o c a r d i a l        i n f a r c t i o n and t h a t t h i s i n j u r y was

s u f f i c i e n t l y work r e l a t e d s o a s t o b r i n g i t w i t h i n t h e a m b i t

of     the     Workers'         Compensation              Act.         In   challenging           this

determination,               the      appellant           raises       inconsistencies               and

weaknesses          in       claimant's           case,      alleging         an    insufficient

causal       relationship            between        claimant's         work     activities           and

the heart attack.                   I n c o n s i d e r i n g such an argument, w e have

f i r m l y a d h e r e d t o t h e view t h a t w h e r e t h e f i n d i n g s a r e b a s e d
on conflicting evidence, this Court's function on review is
confined to determining whether there is substantial evidence
to support the findings, and not to determine whether there
is sufficient evidence to support contrary findings                .   Little
v. Structural Systems (1980), 188 Mont. 482, 614 P.2d 516;
Jensen v.     Zook Brothers Construction Company              (1978), 178
Mont. 59, 582 P.2d 1191; see also Jones v. St. Regis Paper
Company (1981), 196 Mont. 138, 639 P.2d 1140.
       We find that the Workers' Compensation Court's order
was based on substantial credible evidence in the record.                     In
a   well-reasoned      and    comprehensive      opinion,    the    Workers'
Compensation Court addressed many factors that went into its
decision.    The   claimant        herself was    found     to be      a   very
credible    witness.         The    claimant's   hypothetical       question
presented to each party's expert was found to be accurate.
The claimant1 medical expert was found to be more qualified
             s
and his opinion was accorded greater weight.                 Finally, the
nature of decedent's work and the particular activity he was
engaged in at the time the initial heart attack occurred
lends support to the Workers' Compensation Court's order.
Given the presumption of correctness that accompanies the
Workers' Compensation Court's findings when they reach this
Court, we will not overrule this order, Erhart v.                          Great
Western Sugar Company (1976), 169 Mont. 375, 546 P.2d 1055;
Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 303, 308,
538 P.2d    344, 346; Hunt and Luinstra, "The Montana Workers'
Compensation Court" 41 Mont.L.Rev.         1, 18, (1980).
       As to the second issue, we have in the past held that
in certain cases heart attacks are cornpensable injuries under
Montana Workers' Compensation Act.               See, Rathbun v. Taber
Tank     Lines,          Inc.        (1955),     129     Mont.         121,       283       P.2d     966,

(compensation               allowed);        Dumont       v.     Wickens          Bros.        Constr.

Company          (1979),       1 8 3 Mont.       190,     598     P.2d      1107;           Hurlbut     v.

Vollstedt            Kerr      Company,        supra;      Ness        v.     Diamond          Asphalt

Company          ( 1 9 6 4 ) " 1 4 3 Mont.       560,    393 P.2d           43,     (compensation

denied)    .         S e e a l s o G r o s f i e l d , Montana        Workers ' Compensation

Manual          53.40       (1979).     The q u e s t i o n      of    w h e t h e r a n employee

suffered a            job     related     " t a n g i a b l e happening o f             a    traumatic

n a t u r e from a n u n e x p e c t e d c a u s e o r u n u s u a l          strain resulting

in    . . . harm,"            s e c t i o n 39-71-119,         MCA,    i s one o f f a c t .            In

t h a t r e g a r d t h e c o u r t must " r e l y on c r e d i b l e m e d i c a l e v i d e n c e

to    determine"            whether     the      injury       i s compensable,               Jones      v.

B a i r ' s Cafe        ( 1 9 6 8 ) , 152 Mont.       1 3 , 1 9 , 445 P.2d         923, 9 2 6 , see

a l s o Dumont v.            Wickens B r o s .    C o n s t r . Company,          s u p r a , a t 205,

206, 598 P.2d a t 1107.

         The l o w e r c o u r t i n t h i s c a s e n o t e d t h a t " i n t h e i n s t a n t

case,     t h e d e c e d e n t was p e r f o r m i n g        strenuous physical                   labor

and    . . . the            medical     evidence        proved        it    caused          his     heart

attack.    I'         The     Hurlbut     case,         supra,       upon     which          appellant

relies          is    distinguishable            in     the      fact       that       this        Court,

quoting t h e medical w i t n e s s ,              noted       t h a t he could - s t a t e
                                                                                not

what was t h e c a u s e o f M r .             Hurlbut's         h e a r t a t t a c k and h e l d :

"Claimant            failed     to    carry his         burden        and     therefore            cannot

qualify          under      the      statute     for     benefits."               In    accord        are

Dumont ,         supra       Hurlbut,      supra,        Ness    ,    supra,        and       Ra t h b u n   ,
supra.

         Again,         w e a r e p r e s e n t e d w i t h t h e q u e s t i o n of whether

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 on t h e r e c o r d          t o support t h e

Workers'             Compensation          Court's          determination                   that      the

decedent's            heart     attack     was     caused        by     his    work.           Experts
t e s t i f i e d on b e h a l f   of each side.           Each e l a b o r a t e d upon t h e

cause      of    decedent's         heart     attack.          The     court     heard      this

testimony,        and h e l d      t h a t t h e c l a i m a n t had    e s t a b l i s h e d by a

preponderance               of     the    credible         medical         evidence         that

d e c e d e n t ' s h e a r t a t t a c k w a s work r e l a t e d .    We   find there is

s u b s t a n t i a l e v i d e n c e i n t h e r e c o r d and t h e c o u r t ' s o r d e r i s ,

therefore, affirmed.




W e concur:             N    /'
                                                        iJustice