No. 84-180
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
JESSE R. SHUPERT,
Claimant and Appellant,
THE ANACONDA ALUMINUM COMPANY,
Employer,
and
THE ANACONDA ALUMINUM COMPANY,
Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
6
'
For Appellant:
Terry N. Trieweiler, Whitefish, Montana
For Respondent :
James Vidal, Kalispell, Montana
Submitted on Briefs: Feb. 8, 1 9 5 5
Decided: March 7, 1985
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Claimant, Jesse R. Shupert, filed a petition with the
Workers1 Compensation Court, Flathead County, seeking compen-
sation for injuries suffered during his employment with
defendant, Anaconda Aluminum Company, in Columbia Falls,
Montana. Claimant appeals the denial of his petition.
On April 11, 1978, claimant was working as a pot
reliner. While using a jackhammer to lift metal pads off a
pot, he injured his baclc. The following day, claimant went
to Dr. Peter Pisk, a chiropractor. Dr. Pisk diagnosed the
injury as a fracture of the right fifth lumbar vertebrae.
The defendant paid temporary total disability benefits to the
claimant at the rate of $174 per week from April 14, 1978,
until October 29, 1978.
On May 17, 1978, claimant went to see Dr. Jack
Hilleboe, an orthopedic surgeon. Dr. Hill-eboe stated claim-
ant sustained a herniated nucleus pulposis between the fourth
and fifth lumbar vertebrae. Dr. Hilleboe referred claimant
to Dr. Gary Cooney, a neurologist in Missoula. Dr. Cooney
concurred in Dr. Hilleboels diagnosis. Dr. Cooney treated
the claimant with bed rest, physical therapy, heat, ultra-
sound, massage and analgesic/anti-inflammatory drug therapy.
When claimant did not improve with this course of treatment,
Dr. Hilleboe referred him to another neurologist, Dr. Steve
Johnson. Dr. Johnson reported the cause of claimant's back
pain was unclear, but advised claimant "not to be in a job
which entailed lifting." Unable to find the etiology of
claimant's pain, Dr. Hilleboe concluded claimant's problem
was psychologj.ca1. When his condition failed to improve,
claimant sought further evaluation from the Missoula
Community Hospital Pain Clinic and the Virginia Mason Center
in Seattle.
Claimant returned to work on a part-time basis for
Anaconda on October 30, 1978, and continued in that capacity
until May 1979 when he returned to work full-time, working as
a pot reliner.
On November 26, 1980, claimant re-injured his back
while using a 25-pound iron "Postman's Bar" to break the
crust out of the burners. Claimant testified "he had to work
in a bent over position, and when he straightened he felt a
pain in his lower back" that radiated down his left leg.
Claimant discontinued working and received disability bene-
fits from November 28 until December 17, 1980. Claimant
returned to work on December 17, 1980, and drove an ore
truck. Due to lack of seniority, he was returned to the
labor pool and was again unable to perform the duties of a
laborer. Claimant left the employ of Anaconda.
Claimant was last seen by Dr. Hilleboe on November 12,
1981. At that time Dr. Hillsboe referred the claimant to Dr.
Robert Schimpff. Dr. Schimpff testified that the measurement
of claimant's thigh muscles varied by three centimeters. Dr.
Schimpff attributed the atrophy to disuse of the left thigh.
The claimant was also unable to dorsiflex his toes. Dr.
Schimpff ordered an electromyelogram and diagnosed the injury
to the nerve root of the fifth lumbar vertebrae causing
denervation of the muscles innervated by the L-5 nerve root.
Dr. Schimpff referred claimant to a Spokane radiologist, Dr.
William Tubbs. A CAT Scan report showed a central bulging
disk between the fourth and fifth lumbar vertebrae. Dr.
Schimpff testified that he and Dr. Cooney were unable to
demonstrate if a nerve root was compressed. Dr. Schimpff
restricted claimant's activities on January 4, 1982, which
included "no heavy lifting, excess walking or standing.'' Dr.
Schimpff has continued to see the claimant.
On December 14, 1982, the claimant was examined by Dr.
Dean Ross, a specialist in physical medicine and rehabilita-
tion. Dr. Ross concluded claimant had a double scoliosis in
his spine which made him more susceptible to mechanical
injury to his back. He found a prominent right paraspinous
muscle resembling a muscle spasm. Rased upon his examina-
tion, s. review of the medical records and test results, he
testified that, in his opinion, there was nerve root injury
to his L-5 nerve root and also a component of soft tissue
injury. He further testified that he did not consider it a
psychiatric illness or anything over which the patient had
control.
Kevin Murphy, a specialist in rehabilitation psycholo-
gy, testified that he saw the claimant on December 14, 1 9 8 2 .
Dr. Murphy interviewed the claimant and administered behav-
ioral and assessment tests. It was Dr. Murphy's opinion that
claimant did not have a hysterical personality, nor was he
making up his complaints of pain.
Claimant was unable to return to employment since
December 8, 1981. Claimant's disability benefits were termi-
nated on March 2, 1 9 8 2 . Anaconda refused to pay any further
disability benefits. Claimant petitioned the Workers' Com-
pensation Court to find that he was totally disabled and
entitled to total disability benefits at the maximum rate. A
hearing was held on May 31, 1 9 8 3 . Claimant, his wife, and
two vocational rehabilitation counselors testified. Four
medical experts testified by deposition: John Hilleboe ,
D . , an othopedic surgeon; Robert Schimpff, M.D., a
neurologist; Dean Ross, M.D., a psychiatrist and Kevin Mur-
phy, a psychology and rehabilitation special-ist. The deposi-
tion testimony wa.s admitted into evidence by the Workers'
Compensation Court.
The Workers' Compensation Court found that claimant did
injure his back on April 11, 1978, during the course of his
employment with the defendant, Anaconda Aluminum Company.
The Workers' Compensation Court also found that the claimant
reinjured his lower back on November 26, 1980, with the same
employer. The Workers' Compensation Court concluded the
claimant recovered from those injuries by December 8, 1980,
and any disability claimant now suffers is not the result of
either of the two prior injuries.
Cia-imant presents three issues on appeal:
(1) Whether the judgment of the Workers' Compensation
Court was supported by substantial evidence, or did the court
err in relying upon the testimony of John W. Hilleboe, M.D.,
as substantial evidence?
(2) Whether the Workers ' Compensation Court's finding
was incorrect in concluding that there was no testimony
relating claimant's current symptoms to his original injury.
(3) Whether the court erred in concluding that claim-
ant's condition at the time of hearing was not a work-related
injury.
The Workers' Compensation Court in its findings of fact
and conclusions of law cited to Dr. Hilleboe's testimony:
"The most the claimant has been able to
prove is that his symptoms (not found as
facts because not necessary to the dispo-
sition of this case) are consistent with
a L-5 nerve root injury. Consistency is
not causality. The claimant's treating
physician, Dr. Hilleboe, was adamant that
- -
there was nothing orthopedically wrong
with the claimant; . . ."
Claimant submits the following exerpts from Dr.
Hilleboe's testimony are highly improbable, incredible and
insufficient and therefore, does not constitute substantial
evidence :
(1) Hilleboe testified that when he examined the claim-
ant, shortly after his April, 1978, injury, he was of the
opinion that claimant had sustained a herniated nucleus
pulposis between the fourth and fifth lumbar vertebrae and
that a herniated disk can leave permanent damage to the nerve
root. However, later Hilleboe testified he found no objec-
tive physical signs of injury.
(2) One objective sign of injury is an abnormal curve
in the spine or scoliosis. Hilleboe testified that he found
none. However, Dr. Cooney, the neurologist to whom Hilleboe
referred the claimant found scoliosis in claimant's spine and
felt that it was the result of muscle spasm on the left side
of claimant ' s spine.
(3) Irritation to the fifth lumbar nerve root, would
cause a muscle spasm in the back. Dr. Hilleboe testified
that he found no muscle spasm. His testimony was contradict-
ed by Dr. Cooney, Dr. Ross and the examination performed at
the Virginia Mason Center.
(4) Dr. Hilleboe testified that he found no atrophy of
claimant's leg. His observation was inconsistent with the
defendant's doctor and Dr. Schimpff who reported more than a
one-inch reduction in the circumference of claimant's left
thigh.
(5) Dr. Hilleboe concluded that there was no evidence
of injury to the claimant's fifth lumbar nerve root in spite
of more than one electromyelographic exam which established
that there was. Dr. Johnson indicated that his EMG
examination indicated irritation of the muscles on the front
of claimant's calf. Dr. Schimpff also found positive results
from his EMG indicating that the muscles in claimant's left
extremity which were innervated by the fifth lumbar nerve
root were impaired.
(6) Dr. Hilleboe refused to consider whether injury to
claimant's spinal soft tissues could have resulted from the
same trauma that caused the fracture in his transverse pro-
cess because it was his opinion that that fracture could not
have occurred on April 11, 1978. Dr. Pisk disagreed. After
an examination of the claimant's x-ray film taken by Dr. Pisk
on April 12, 1978, and that taken by Dr. Hilleboe on May 1 7 ,
1978, Dr. Schimpff also disagreed.
(7) Not having found what he felt was "objective
evidence" of injury, Hilleboe concluded that claimant's
problem was psychological. Dr. Murphy, the only witness
qualified to express a psychological opinion, testified that
claimant had neither a hysterical personality, nor an emo-
tional disturbance of any other type. It was his opinion
that claimant was not making up his complaints of pain.
Claimant further contends Dr. Hilleboe's testimony is
unti~nely. Claimant points out that Dr. Hilleboe had not seen
claimant during the period of disability December 8, 1981
until March 2, 1982.
Anaconda responds Dr. Hilleboe's testimony is amply
supported by substantial expert opinion. Anaconda states the
Workers' Compensation Court did not rely exclusively on Dr.
Hilleboe's report but also cited to reports from an array of
experts. Claimant argues the reports are irrelevant to a
determination of his disability because he re-injured his
back on November 26, 1980. Other physicians have examined
him subsequent to his second. injury and have found evidence
of injury.
We a.re guided by a very basic and 1-imited standard of
review. This Court will not substitute its judgment for that
of the Workers' Compensation Court concerning the credibility
of the witnesses or the weight to be given their testimony.
Dumont v. Wickens Bros. Construction (1979), 183 Mont. 1.90,
598 P.2d 1099; Steffes v. 93 Leasing Co., Inc. (1978), 177
Mont. 83, 580 P.2d 450. Where the findings are based on
conflicting evidence, our function of review is confined to
determining whether there is substantial evidence supporting
such findings. Harmon v. Deaconess Hospital (Mont. 1981),
623 P.2d 1372, 38 St.Rep. 65; Jensen v. Zook Bros. Construc-
tion Co. (1978), 178 Mont. 59, 582 P.2d 1191,
In the instant matter, the record on appeal consists
mainly of testimony by deposition. Accord-ingly, this Court's
function on review is different. In a recent Supreme Court
decision, Lamb v. Missoula Imports, Inc. (Mont. 1984), 684
P.2d 498, 41 St.Rep. 1414, we stated this Court may determine
the proper weight of critica.1 medical testimony entered
through depositions:
"Ordinarily, this Court will not substi-
tute its judgment for that of the Work-
ers' Compensation Court in determining
the weight and credibility to be given
testimony. The reason for this is that
this Court defers to the lower court's
a.ssessment of the demeanor and credibil-
ity of witnesses. Rule 52(a), M.R.Civ.P.
However, 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 Com-
pensation Court to judge the weight to be
given to such record testimony, as dis-
tinguished from oral testimony, where the
trial court actually observes the charac-
ter and demeanor of the witness on the
stand. ' Hert v. J. J. Newberry Co.
(1978), 178 Mont. 355, 359-360, 584 P. 2d
656, 659."
A review of the medical experts' depositions reveals a
sharp conflict in the medical evidence presented, particular-
?-y in regard to the injury. Dr. Hilleboe testified that
later in his course of treatment of claimant, he found no
objective physical signs of injury and concluded that claim-
ant's problem was psychological. Dr. Schimpff and Dr. Ross
testified that the electromyngraphic examination indicated
L-5 nerve root impairment. The physicians stated the EMG
findings were an objective sign of injury to the claimant's
back. Furthermore, Dr. Murphy testified that claimant was
not making up his complaints of pain nor was he feigning
disability or pain in order to gather some secondary gain.
We see no reason to accord Dr. Hilleboe's testimony any
greater weight than the testimony of the other three medical
experts. We hold the testimony of Dr. Hilleboe did not
amount to substantial evidence.
Claimant next claims error in the Workers' Compensation
Court's conclusion that there was no testinony relating
claimant's current symptoms to his original injury. Claimant
contends that Hume v. St. Regis (1980), 187 Mont. 53, 608
P. 2d 1063, governs the outcome of this present matter. In
Hume, the claimant was injured on October 7, 1975 when he
stretched muscles in his shoulder and lower neck while work-
ing at a paper company. He continued to work for ten months,
during which time he received a second injury. He stopped
working on August 6, 1976. neurologist reported that
appellant's chronic pain probably is more psychogenic in
origin, than due to tissue injuries. Defendant terminated
benefits to claimant. The Workers' Compensation Court denied
benefits, concluding that claimant failed to prove that his
symptoms were related to his October 7, 1975 injury. Claim-
ant appealed. This Court reversed the Workers' Compensation
Court's ruling and stated that the employer's termination of
total disability benefits to the employee was improper.
"There j.s no substantial evidence to support the lower
court's conclusion . . . that claimant failed to prove that
his present symptoms and complaints are related to the indus-
trial accident." Hume, 187 Mont. at 64, 608 P.2d at 1089.
The Workers' Compensation Court in the present case found
that claimant did sustain injury on April 11, 1978 during the
course of his employment with Ana.conda. The court also found
that claimant re-injured his back on November 26, 1980 with
the same employer. The court concluded claimant recovered
from those injuries by December 8, 1980. As was the case in
Hume, the Workers' Compensation Court chose to ignore the
testimony regarding causation subsequent to claimant's termi-
nation. The testimony of the claimant and Dr. Schimpff did
relate claimant's present disability to the original injury.
Dr. Shimpff testified:
"Q. [By Mr. Trieweiler] Did you form an
impression as a result of the
electromyogram?
"A. I did.
"Q. What was your impression?
"A. I thought the findings suggested
partial denervation of muscles innervated
by L5 nerve root.
"Q. And by denerva.tion, what do you
mean?
"A. That there has been injury to the
nerve fibers going to those muscles and
in this case those muscles received their
primary innervation from the L5 nerve
root.
"Q. Have you seen Mr. Shupert since
December 28, 1981?
"A. Yes, I have.
"Q. Could you tell me for the record on
how many occasions you have seen him?
Not counting the times when you just
filled out a form for him.
"A. I saw him on 5-6-82, on 11-2-82 and
on 1-10-83.
"Q. As a result of your examinations and
treatment of Mr. Shupert, have you formed
any opinion regarding the cause of: his
complaints of back pain and leg pain?
"A. I think the most consistent informa-
tion is that he is suffering from an L5
radiculopathy. I presume - -
that it's
related - - earl3er injury - -
to his in 1978 and
have been unable to demonstrate a struc-
tural abnormality but have demonstrated a
suttle [sic] electrical abnormality and
physical examination has been consistent
with that diagnosis.
added. )
..
" (Emphasis
The claimant testified as to the manner the original injury
presently impairs him:
"Q. [By Mr. Trieweiler] Have you ever
been to any form of employment since you
left the Anaconda Company in December of
1.981?
"A. No, I haven't.
"Q. Do you feel you're capable of doing
heavy physical work i-n your present
condition?
"A. No. because I tried it and it hasn't
worked out.
"Q. How has it affected you?
"A. It's affected me on my walking on
hard pavement, hard concrete, and lift-
ing, bending, too.
"Q. How does it affect your bending a.nd
lifting?
"A. When I bend over, the lifting, I just
can't do it, it aggravates it worse, and
T don't get any better.
" Q . Do you have any specialized training
or job experience that qualifies you for
jobs that don't require heavy physical
labor?
"A. NO, I have none."
An examination of the record reveals that the only credible
substantial evidence as it concerns causation and injury
supports the claimant. We hold there is no substantial
evidence to support the lower court's finding that claimant
failed to prove his disability was the result of the two
injuries.
Finally, claimant urges that an injury once established
must be presumed to continue until proven otherwise. The
claimant again cites to Hume i n support of his contention.
.
"It is a rebuttable presumption 'that a thing once proved to
exist continues as long as is usual with things of that
nature. ' Section 26-1-602 (32), MCA. I' 608 P.2d at 1069.
Anaconda responds that Hume does not apply because no testi-
mony established any substantial link between the 1978 inci-
dent and. the claimant's present complaints of pain. The
record speaks for itself. The foregoing medical testimony of
Dr. Schimpff clearly established that the claimant met his
burden to prove that his present symptoms are related to the
original injury.
Moreover, the Montana Legislature has mandated that the
Workers1 Compensation Act be liberally construed in favor of
the claimant. Section 39-71-104, MCA. This Court requires
the same. Klein v. Indep. Wholesale Assoc. Grocers (19751,
167 Mont. 341, 538 P.2d 1358; Stokes v. Delaney & Sons, Inc.
(1964), 143 Mont. 516, 391 P.2d 698. We deal with many
individuals from all walks of life; not all are sophisticat-
ed, nor all highly educated. The claimant is a working man.
He is a person whose livelihood is at the mercy of his own
health. The policy underlying the Workers' Compensation Act
cannot be defeated by narrow and technical construction.
Accordingly, we hold a termination of benefits by
Anaconda was improper upon finding the claimant was disabled,
and absent any intervening cause or alternative explanation
for claimant's present, undisputed painful and disabling
condition.
The judgment is reversed and remanded to the Workers'
Compensation Court with instructions to enter judgment for
claimant in accordance with this opinion.
Mr. Justice Frank R . Morrison, Jr., specially concurring.
I concur in the result for the reason that Dr. Hilleboe
did not provide substantial credible evidence for the find-
ings of the Workers1 Compensation Court.
At the time Dr. Hilleboe was examined for the purpose of
refuting any permanent injury related to the subject acci-
dent, he was not asked whether he had an opinion, based upon
a reasonable degree of medical probability, as to whether
claimant suffered any permanent injury related to the acci-
dent. Instead, Dr. Hil-leboe was asked whether there was any
"objective" evidence of nerve root irritation and the answer
was that there was not. Counsel then again tried to approach
the problem after objections by opposing counsel. The fol-
lowing questions and answers were given:
"Q. Okay, in terms of a permanent condition.
"A. What in terms of a permanent condition?
"Q. Let me rephrase that question and ask, in
terms of your finding a permanent condition regard-
ing a L5 nerve root or nerve root or soft tissue
injury in the claimant.
"A. I didn't find anything. "
Here, again, the doctor is giving testimony with respect to
"objective" findings of injury. He is not expressing an
opinion, based upon a reasonable degree of medical probabil-
ity, that the claimant did not, in fact, suffer a permanent
injury.
The only testimony that could support the findings of
the Workers1 Compensation Court relate to the following
volunteer statement on the part of Dr. Hilleboe:
"The reason for his multiple referrals is that I
feel that this gentleman does not have an orthope-
dic problem. I don't think he has a neurologic
problem. I think he has a psychological problem
and that he should see a psychiatrist."
This testimony was not based upon the proper evidentiary
standards and should have been stricken from the record.
There is no place in this record where Dr. Hilleboe
gives an opinion, based upon a reasonable degree of medica.1
probability, that. the claimant suffered no permanent injury
ca.sually related to the subject accident. I do not consider
the non-responsive, volunteer statement of Dr. Hilleboe
attributing claimant's problems to a psychogenic origin, to
be substantial credible evidence for support of the Workers'
Compensation Court findings.
Therefore, I concur to reverse.
Mr. Justice Fred J. Weber dissents as follows:
I respectful-ly dissent from the majority opinion. I
agree with the standard of review stated in the majority
opinion, that where the findings are based on conflicting
evidence, our review is confined to determining whether there
is substantial evidence to support the findings. I also
agree with the majority's statement that a review of the
medical experts1 depositions reveals a sharp conflict in the
medical evid.ence presented.
The majority then refers to various medical evidence
which supports the claimant and concludes that there is no
substantial evidence to support the finding that claimant
failed to prove his disability resulted from the two inju-
ries. I disagree with that conclusion as I do find substan-
tial evidence to support the finding.
The majority relies on the testimony of Dr. Schimpff. I
do not find an adequate basis for reliance on his testimony.
It is true that Dr. Schimpff testified that he thought the
electromyogram suggested partial denervation of muscles
innervated by the L5 nerve root. That testimony did indicate
the possibility of injury to the L5 nerve root. However, as
Dr. Schimpff pointed out, that was not conclusive so he sent
the claimant on for a CAT scan, which was completed in
Spokane. Lt showed a central bulging disk at the L4-5 level,
but was essentially negative. In other words, the CAT scan
failed to show any reason for his condition.
Following the CAT scan, a myelogram was performed in the
hospital at Kalispell. The examining doctor concluded that
the myelogram study was essentially normal, that there was a
slight change in the anterior margin at the L4-5 level but
that this change was not proof of a bulging disk or abnormal-
ity. Dr. Schimpff agreed with the conclusion that the
myelogram was essentially normal.
Following is the question asked by plaintiff's counsel
and Dr. Schimpff's complete answer:
"Q. As a result of your examinations and
treatment of Mr. Shupert, have you formed
any opinion regarding the cause of his
compla-ints of back pain and leg pain?
"A. I think the most consistent informa-
tion is that he is suffering from an L5
radiculopathy. I presume that it's
related to his earlier injury in 1978 and
have been unable to demonstrate a struc-
tural abnormality but have demonstrated a
suttle [sic] electrical abnormality and
physical examination has been consistent
with that diagnosis although there have
been other facets of his examination
which have been confusing to myself and a
variety of other physicians who have seen
him in consultation."
Note that his testimony does not show a direct connection to
the 1978 injury. It is true that he concludes the most
consistent approach is that he is suffering from an L 5
radiculopathy, but he also points out that there are other
facets of the examination which have been confusing to him
and the variety of other physicians who ha-ve seen the
claimant.
The foregoing testimony must be considered along with
the following testimony by Dr. Schimpff on cross examination:
"A. ... So, I guess my best summary is
that I personally was suspicious that
there was an L5 nerve root in-jury and in
,ooking for a possible remedial abnormal-
ity such as a herniated disc, a bone spur
that would press on the nerve root or
other abnormality, I was not able to find
one.
"Subsequently Mr. Shupert's examination
changed somewhat. It changed when he was
seen by Dr. Cooney and then it changed
when I saw him in November of '82 and
then in January of '83. Some of the
earlier findings were no longer present.
At that point however he was still having
discomfo;t. - cause - - discomfort
The of his
I thoucrht was ambiauous and the cause of
- - uncertain.
it was
was an L5 nerve
Early on I thought it
root compression or
injury and I still feel that that is a
ossibility for his continued discom-
Tort." (emphasis supplied)
This summarizes Dr. Schimpff's view that he was not able to
find an abnormality which explained the condition. He points
out that the cause of the discomfort was ambiguous and uncer-
tain. Last, Dr. Schimpff in substance states there is a
possibility of an L5 nerve root compression or injury. That
does not in itself constitute a diagnosis of the claimant's
condition. This is consistent with Dr. Schimpff's case notes
of his examination of the claimant on January 10, 1983, where
he stated:
"IMPRESSION: Recurrence of lumbosacral
back pa.in, etiology [cause] uncertain."
As of January 1.0, 1983, Dr. Schimpff was uncertain as to the
cause of claimant's pain.
Reference has been made to Dr. Cooney's report. With
regard to his conclusions, Dr. Cooney stated the following
with regard to the claimant:
"IMPRESSION: Low back pain and left
Lower extremity pain of uncertain
etiology. The patient's low back com-
plaints appear to be aggravated by vari-
ous types of activities which I feel he
should. avoid. To date, no definite
diagnosis has been made to explain these
symptoms. A significant root compression
injury has been quite thoroughly excluded
with myelography and. lumbar CT scanning.
He has not responded well to muscle
relaxants and analgesics in the past."
Dr. Cooney must be placed in the camp of those who have no
opinion as to the cause of plaintiff's condition.
With regard to the contention that there is a signifi-
cant problem at the L4-5 level, following was Dr. Hilleboe's
testimony:
"Q. Doctor, I just have a couple ques-
tions after this cross examination. I
will again ask you, in your opinion, did
you find objective evidence of an L5
nerve root irritation or disc problem or
soft tissue problem in Mr. Shupert?
"A. No.
"Q. Okay, but in essence then, you stick
by your opinion that you could find. no
objective signs of the L5 nerve root
irritation, disk problem or soft tissue
injury.
"A. I could not find any. As far as his
back was concerned. On one occasion he
had a shoulder problem and a leg problem.
"Q. Let me rephrase that question and
ask, in terms of you finding a permanent
condition regarding an L5 nerve root or
nerve root or soft tissue injury in the
c1a.imant.
"A. I didn't find anything."
In substance, Dr. Hilleboe found no basis for concluding
there was damage or injury to the L5 nerve root. Dr.
Schimpff does not actually disagree but merely states that is
a "possibility."
While it is true that there is conflicting evidence, it
seems clear to me that the foregoing evidence constitutes
substantial evidence supporting the findings of the Workers'
Compensation Court.
I would affirm.
Jus IC
I join in the foregoing dissent of Mr. Justice Fred
J. Weber.