Tocco v. City of Great Falls

No. 85-82

I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA

1986

RENAE J. TOCCO, s u r v i v i n g spouse;
and C O R I TOCCO and N I C H O L A S ANTHONY
TOCCO, m i n o r s , by and t h r o u g h t h e i r
g u a r d i a n , J U D Y L . TOCCO,

C l a i m a n t s and R e s p o n d e n t s ,

C I T Y O F GREAT F A L L S , Employer,

and

S T A T E COMPENSATION INSURANCE FUND,

D e f e n d a n t and A p p e l l a n t .

A P P E A L FROM: The Workers' Compensation Court, The Honorable
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 O F RECORD:

For A p p e l l a n t :

M a r r a , W e n z , Johnson & H o p k i n s ; T h o m a s A. M a r r a argued,
G r e a t Falls, M o n t a n a

For R e s p o n d e n t :

B a i z & O l s o n ; T h o m a s A. R a i z a r g u e d , ( S p o u s e ) G r e a t
Falls, M o n t a n a ( S p o u s e )
R e g n i e r , L e w i s , B o l a n d & R o b e r t s ; Stephen D. R o b e r t s
argued, ( C h i l d r e n ) , G r e a t F a l l s , M o n t a n a

Submitted: January 1 7 , 1 9 8 6

Decided: February 2 0 , 1 9 8 6

FEB 2 0 1986
Filed:

Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

This is an appeal from a judgment of the Workers'
Compensation Court of the State of Montana. Respondents
sought benefits as a result of a March 9, 1984, industrial
accident in Cascade County which resulted in the d.eath of
Anthony Tocco. The court awarded benefits to the respondents
and this appeal followed. We affirm.
Claimant-respondent Renae Tocco is the surviving widow
of the decedent, Anthony Tocco (hereinafter Tocco) .
Claimant-respondent Judy Tocco is the guardian of Cori and
Nicholas Tocco, the biological minor children of the
decedent. Renae Tocco, Cori Tocco and Nicholas Tocco are all-
beneficiaries of the decedent pursuant to $ 39-71-116(2),
MCA .
The decedent, age 36 at the time of his death, was
hired as a temporary employee by the City of Great Falls in
November of 1983. The record indicates that Tocco had
hypertension (high blood pressure) and coronary
arteriosclerosis (narrowing of the arteries leading to the
heart) which preexisted his employment with the City of Great
Falls.
Prior to the date of his d-eath, Tocco worked almost
exclusively as a "helper" on a city sanitation route. As a
sanitation "helper" Toccols job was helping the "lead man"
collect refuse. The employee in the "lead man" position had
more responsibility than the helper. The "lead man" was
responsible for his crew, that the route was followed and
that no stops on the route were missed. The record indicates
that Tocco was considered by his fellow employees to be a
good worker.
 When Tocco was hired i n November 1983, it was made

known t o him t h a t h i s job was temporary. On March 7 , 1984,

two d a y s b e f o r e h i s d e a t h , Tocco was n o t i f i e d t h a t h e would

be laid-off e f f e c t i v e March 21, 1984. O March
n 8, 1984,

Tocco was told that h e was to be the " l e a d man" on the

Riverview r o u t e on March 9 , 1984 ( t h e day o f h i s d e a t h ) . The

Riverview r o u t e was c o n s i d e r e d by t h e G r e a t F a l l s S a n i t a t i o n

Department t o be t h e most d i f f i c u l t and c o n f u s i n g r o u t e i n

the entire city.

The r e c o r d shows Tocco f e l t it was v e r y i m p o r t a n t t h a t

he perform w e l l on h i s job and i m p r e s s h i s employers. He

knew t h a t permanent, full-time p o s i t i o n s were g o i n g t o open

up and felt that h a r d work would increase h i s chances of

getting a full-time position. Tocco felt that his job

performance on March 9 , 1984, a s a l e a d man, was a t e s t which

c o u l d d e t e r m i n e whether o r n o t he would b e r e h i r e d by t h e

C i t y of Great F a l l s ,

O March 9 , 1984, when Tocco and h i s h e l p e r , Ken L i n d ,
n

b r o k e f o r l u n c h t h e y were f i f t y - s i x s t o p s ahead o f s c h e d u l e

on t h e Riverview r o u t e . The r e c o r d shows t h a t d u r i n g h i s

lunch hour, Tocco checked i n w i t h t h e s a n i t a t i o n foreman t o

see i f t h e r e had been any c a l l s a b o u t m i s s e d s t o p s on h i s

route. The foreman i n d i c a t e d t o Tocco t h a t no c a l l s had been

received.

A f t e r l u n c h , a t a p p r o x i m a t e l y 2:30 p.m., Tocco and Ken

Lind made a s t o p a t a r e s i d e n c e t o c o l l e c t r e f u s e . T h i s was

t h e o n l y s t o p t h a t day a t which Ken Lind had t o a s k Tocco f o r

h e l p due t o t h e s i z e and w e i g h t o f t h e o b j e c t . The r e c o r d

shows t h e o b j e c t was a box a p p r o x i m a t e l y two and o n e - h a l f

f e e t wide and s i x t o seven f e e t l o n g . Tocco grabbed t h e box

and dragged it f o u r o r f i v e f e e t from t h e garbage can r a c k t o
the truck. At this point both Tocco and Ken Lind grabbed the
box to lift it. The box bent in the middle as they lifted
it, and Tocco had all the weight of the box as they put it in
the truck. Approximately two to three minutes after Tocco
lifted the box, Ken Lind found him lying on the ground beside
the truck. Tocco was given CPR but could not be revived, and
was dead on arrival at the hospital.
The uncontroverted medical evidence presented by all
three doctors in this case, Drs. Buffington, Henneford and
Willson, revealed that Tocco had hjrpertension and coronary
arteriosclerosis which preexisted his employment with the
City of Great Falls. Dr. Henneford's autopsy report revealed
that at the time of his death, Tocco had the following:
I. Severe stenosing arteriosclerosis of
coronary arteries [narrowing of the
arteries leading to the heart] with:
A. 75-80% stenosis of left main coronary
artery and. anterior descending branch.
1. Organizing thrombosis [blood
clot] and partial occlusion of
anterior descending branch.
B. 50-75% stenosis of circumflex branch
of left coronary artery and of right
coronary artery.
Dr. Henneford, in his autopsy report, listed Tocco's cause of
death as "coronary artery insufficiency."
The three doctors, named above, also testified that if
Tocco had not died at work on March 9, 1984, he might have
lived weeks, months, possibly even years longer.
Furthermore, Tocco's treating physician, Dr. Buffington,
testified that Tocco's job related emotional and physical
stress may have played a very direct role in his sudden death
by aggravating his preexisting conditions of arteriosclerosis
and hypertension. Dr. Willson, appellant's expert witness,
and Dr. Henneford, the pathologist, also both testified that
it was at least medically possible that the job related
emotional and physical stress experienced by Tocco shortly
before his death aggravated his preexisting arteriosclerosis
and hypertension and led to his sudden death.
The respondents subsequently filed a Petition for
Hearing with the Workers' Compensation Court alleging Tocco
had suffered an industrial injury resulting in his death
which arose out of and in the course of his employment with
the Great Falls Sanitation Department. The Workers'
Compensation Court ruled in favor of the respondents and
found Tocco's death was caused by his employment with the
City of Great Falls. The State Compensation Insurance Fund
appeals.
The appellant, State Workers' Compensation Fund,
presents the following issues for review by this Court:
(1) Whether the Workers' Compensation Court was in
error by ruling that a death caused by arteriosclerosis is a
compensable Workers' Compensation injury.
(2) Whether the Workers' Compensation Court was in
error when it denied appellant's motion to retake the
deposition of its medical expert, Dr. Willson, after new and
relevant medical evidence was discovered.
(3) Whether the Workers' Compensation Court erred when
it allowed respondents and other witnesses to testify about
statements made by the decedent.
Under the first issue, appellant contends the Workers'
Compensation Court was in error when it held that Tocco's
death was caused by his work for the City of Great Falls.
Basically, appellant is arguing that the instant case is -
not
a heart attack case, but a case dealing with the disease of
arteriosclerosis. The appellant contends the real issue is
vrhether the decedent suffered a compensable Workers'
Compensation injury as a result of his death from the natural
progression of the disease of arteriosclerosis. The
appellant strongly points out that this Court has never
allowed compensation under the Workers ' Compensation Act
where the medical evidence shows that a claimant has died
from the natural progression of the disease of
arteriosclerosis. Schieno v. City of Billings (Mont. 1984) ,
683 P.2d 953, 41 St.Rep. 1157; Dumont v. Wickens Brothers
Construction Company (1979), 183 Mont. 190, 598 P.2d 1099;
McAndrews v. Schwartz (19741, 3.64 Mont. 402, 523 P.2d 1379.
The respondents, on the other hand, argue appellant
totally misstates the issue as "whether Tocco suffered a
compensable Workers' compensation injury as a result of his
death from the natural progression of the disease of
arteriosclerosis." Respondents point out they have never
sought and do not now seek compensation for Tocco's
arteriosclerosis which undisputably preexisted his employment
with the City of Great Falls. Rather, respondents argue they
are entitled to Workers' Compensation benefits because the
evidence clearly shows Tocco died of heart failure, on the
job, and that his job releted physical and emotional stress
aggravated his preexisting arteriosclerosis and hypertension
and caused his sudden death. Therefore, although appellant
correctly points out that this Court has never compensated a
claimant who has died as a result of the natural progression
of the disease of arteriosclerosis (see Schieno, Dumont and
McAndrews, supra), these cases are technically not applicable
to the instant case because respondents do not seek benefits
for Tocco's arteriosclerosis. We agree.
 It should first be noted that the standard of review on
appeal of a Workers' Compensation. Court judgment is both
clear and well settled in Montana.
The function of this Court is to
determine whether there is substantial
evidence to support the findings and
conclusions of the Workers' Compensation
Court ... This Court will not
substitute its judgment for that of the
trial court as to the weight of the
evidence on questions of fact ...
Where
there is substantial evidence to support
the findings of the Workers' Compensation
Court, this Court will not overturn the
decision ...
Bond v. St.Regis Pa.per Co. (1977), 174 Mont. 417, 419, 571

In light of this standard, we believe there is
substantial credible evidence on the record to support the
judgment of the lower court in the instant case. Therefore,
this Court cannot overturn that decision.
First, we find the decision of the lower court was
correct in its conclusion that respondent's proved a
compensable injury and that such an injury was the cause of
Tocco's death. For an injury to be compensable under the
Workers' Compensation Act, it must first meet certain
definitional requirements. Section 39-71-119, MCA, defines
"injury" as follows:
(1) 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
herefrom and excluding disease not
traceable to injury, except as provided
in subsection (2) of this section:
(2) cardiovascular or pulmonary or
respiratory disease contracted by a paid
firefighter employed by a municipality,
village, or fire district as a regular
member of a lawfully established fire
department, which diseases are caused by
overexertion in times of stress or danger
 in the course of his employment by
proximate exposure or by cumulative
exposure over a period of 4 years or more
to heat, smoke, chemical fumes, or other
toxic gases. Nothing herein shall be
construed to exclude any other working
person who suffers a cardiovascular,
pulmonary, or respiratory disease while
in the course and scope of his
employment .
(3) d.ea.thresulting from injury.
Appellant contends that subsection (2) of 5 39-71-119
is the only clause applicable to the instant case because it
deals with "cardiovascular . . . disease [caused] while in
the course and scope of . . . employment." Further, under
subsection (2), appellant argues that respondents have not
carried their burden of proof that it was "medically
probable" that Tocco's cardiovascu1a.r disease was caused by
his employment with the City of Great Fa-lls. In fact, the
appellant points out, the medical evidence is uncontroverted
that Tocco's hypertension and arteriosclerosis preexisted his
employment with the City of Great Falls.
Respondents, on the other hand, point out "it is well
established in Montana that a.n employer takes his employee
subject to the employee's physical condition at the time of
employment ... " Bond, 571 P.2d at 374. Furthermore, when
claimants have preexisting conditions, that combined with
their industrial accidents produce their disability,
acceptable proof of disability is proof that it was medically
possible for an industrial accident to aggravate a
preexisting condition. Viets v. Sweet Grass County (1978),
178 Mont. 337, 583 P.2d 1070. Also, this Court in Bykonen v.
Montana Power Company (Mont. 1985), 703 P.2d 856, 858, 42
St.Rep. 1112, 1115, recently reaffirmed its consistent
holdings that "when it is proved medically possible that an
industrial accident or injury aggravated a pre-existing
condition, that proof may, together with other evidence,
established a compensable disability."
The respondents argue, and this Court agrees, the case
at bar is clearly an aggravation of a preexisting condition
case. Therefore respondents discharge their burden of proof
by showing a "tangible happening of a traumatic nature from
an unexpected cause or unusual strain" ( S 39-71-119(1))
possibly aggravating Tocco's preexisting arteriosclerosis and
high blood pressure and resulting in his death. In this
case, the Workers1 Compensation Court found, and it is
undisputed in the evidence, that at the time of Toccols
sudden death, he was suffering from the effects of
significant physical and emotional stress which satisfied the
requirements of 39-71-119(1), and that such stress
aggravated his preexisting arteriosclerosis and caused his
sudden death. The court found in finding of fact no. 28.,
"The job-related physical and emotional stress claimant
suffered shortly before his death aggravated his preexisting
conditions of hypertension, arteriosclerosis and narrowed
coronary arteries, and led to his death." This finding was
based on the testimony of Dr. Buffington, decedent's
physician, and supports the court's finding.
On the date of his death, Tocco was suffering from
considerable mental and emotional stress because: (1) he had
been notified only two days earlier of his lay-off; (2) he
had been given more responsibility on the day of his death
hen he had at any other time during his four months of
employment which caused him to be very nervous; (3) he was
very concerned about missing some stops on a route which was
very difficult and confusing; and (4) he considered his
lead man responsibilities as a test to determine whether or
not he was qualified for a full-time position with the City
at a later date.
Completing the chain of incidents are the job related
physical stresses Tocco underwent on the day of his death.
Of particular importance are the facts that il) Tocco and
his helper were 56 stops ahead of schedule on this particular
route, and (2) Tocco dragged and lifted the heaviest object
he and his helper had to handle that day only two to three
minutes prior to his death.
Finally, the physician's testimony provided the final
link between Tocco's preexisting conditions, his physical and
emotional injuries, and his sudden death. For example, Dr.
Buffington, Tocco's treating physician, testified that
Tocco's job related emotional and physical stress may have
played a very direct role in his sudden death by aggravating
his preexisting conditions of arteriosclerosis and
hypertension.
Q. [By respondents' attorney] Do you
have an opinion as to whether the
physical and emotional stress more likely
than not aggravated the preexisting
conditions and led to the death?
A. [By Dr. Buffington] I think as a
factor in precipitating the acute
arrhythmia, given the information in the
autopsy, that it may have played a very
direct role in precipitating that acute
death.
Q. What is the basis for that opinion,
Doctor?
A. Well, basically the sudden death
syndrome is associa.ted with cardiac
arrhythmias. Usually ventricular
fibrillation. We know that generally
there is in a sudden death syndrome,
there is generally some underlying
cardiovascular disease, usually coronary
disease. Rut there is frequently a
precipitating factor which will cause the
myocardium to become irritable. And that
in Mr. Tocco's case was more than likely
related to the circulating adrenalin
levels within his bloodstream at that
point in time. Probably in extremely
high levels related to his extreme
physical activity.
Q. How would that release of adrenalin
make the heart more susceptible to
arrhythmia, heart attack, and sudden
death in Tony Tocco's case?
 A. Basically by producing more
ventricular contractions at a site of
ventricular irritability.
Q. And, Doctor, would the emotional
distress in and of itself release
adrenalin into the system?
A. Excuse me?
Q. Would the emotional stress in and of
itself release adrenalin into the system?
A. No question. That has been proven
many times.
Q. And, Doctor, would. the physical
stress on top of the emotional stress
release even a greater amount of
adrenalin into the system?
A. One would assume that.
Q. Is it correct to assume the more
adrenalin in the system the more likely
the adrenalin would irritate the heart
and ca-use the fatal arrhythmia?
A. That is correct.
In summary under this issue, we find there is
substantial credible evidence on the record to support the
judgment of the Workers' Compensation Court entered in favor
of the respondents. Therefore, we will not disturb that
decision.
Under the second issue, appellant contends the Workers'
Compensa.tion Court committed reversible error when it refused
to grant appellant's motion to retake the deposition of its
expert witness, Dr. Willson. The appellant claims it should
have been allowed to retalce the deposition of Dr. Willson
because Dr. Willson was deposed before Dr. Buffington,
respondents' expert witness. Appellants 'claim it was during
the deposition of Dr. Buffington that new and relevant
medical- information was discovered for the first time
concerning certain "risk factors" which may have led to
Tocco's arteriosclerosis and Dr. Willson did not have the
opportunity to review and comment on this new medical
information. Further, appellant argues it should have been
allowed to retake the deposition of Dr. Willson because the
medical information provid-ed by the respondents during
discovery was inadequate and this severely prejudiced the
effectiveness of Dr. Willson's deposition. We disagree with
appellant's argument under this issue for several compelling
reasons.
First, the subject matter the appellant wishes to
obtain by redeposing Dr. Willson is totally irrelevant to the
issues of this case. The appellants wish to redepose Dr.
Willson about certain "risk fa.ctorsW which may have led to
Tocco's arteriosclerosis. This inquiry into Tocco's risk
factors is totally irrelevant because it is undisputed by
either party that Tocco had arteriosclerosis before his
employment with the City of Great Falls. Further, as
discussed earlier, respondents do not seek compensation for
Tocco's arteriosclerosis. The only issue in this case was
whether Tocco's physical and emotional stresses at the time
of his death may have aggravated his pre-existing
arteriosclerosis and caused his sudden death. Dr. Willson
thoroughly discussed this issue during his deposition.
Second, appellant's argument that respondents
improperly withheld medical information during discovery is
also totally without merit. If the appellant had truly
believed that respondents' information during discovery was
insufficient, it had a clear, exclusive remedy under the
Montana Rules of Civil Procedure. Rule 33 (a), M. R.Civ. P. ,
provides that ". . . the party submitting the interrogatories
may move for an order under Rule 37(a) with respect to any
objection to or other failure to answer an interrogatory."
The appellant did not seek any order by the Lower court
compelling discovery.
 For the reasons discussed above, we hold the lower
court did not abuse its discretion when it denied appellant's
motion to retake the deposition of Dr. Willson.
Under the third and final issue, appellant argues that
the lower court's ruling allowing respondents and their
witnesses to testify about statements alleged to have been
made hy Tocco for the purpose of proving his mental stress
was a violation of the Montana Rules of Evidence regarding
hearsay. At the time of trial, appellant points out, it
objected to testimony from Tocco's widow and other witnesses
concerning statements made by Tocco showing he was under
mental and emotional stress from his job shortly before he
died. Appellant submits the lower court improperly ruled
these statements were admissible on the grounds that the
statments were not offered for the truth of the matter
asserted. We disagree with appellant's conclusion and agree
with the lower court's ruling.
First, it must be noted that by statute the Workers'
Compensation Court is not bound by either the common law or
statutory rules of evidence, including the prohibition
against hearsay evidence. Section 39-71-2903, NCA.
Therefore, it is within the discretion of the Workers'

Compensation Judge to accept or reject "hearsay" testimony.
Krause v. Sears Roebuck (1982), 197 Mont. 102, 641 P.2d 458.
Further, even if the lower court was bound by the rules
of evidence (which it is not) the testimony to which the
appellant objects is still admissible because it is not
hearsay. The statements made by Tocco to the witnesses
showing he was under extreme mental and emotional stress from
his job shortly before his death were not offered at trial
for the truth of the matter asserted. Rather, the purpose of
this testimony was to show what Tocco thought and felt
shortly before he died. This testimony is not hearsay. Rule
801(c), M.R.Evid. Therefore, the Workers' Compensation Court
did not err when it allowed respondents and other witnesses
to testify about statements made by Tocco.
The judgment of the lilorkers' Compensation Court is
affirmed.

We concur: