No. 86-370
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
ROBERT D. NELSON
Claimant-Appellant,
-vs-
ASARCO, INC.,
Employer, Defendant & Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
SMITH LAW FIm; Robert J. Sewell, Jr.,
Helena, Montana
For Respondent:
HUGHES, KELLNER, SULLIVAN & ALKE; Stuart L. Kellner
Helena, Montana
Submitted on Briefs: March 5, 1987
Decided: June 25, 1987
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Robert Nelson appeals a July 14, 1986, decision of the
Workers' Compensation Court which denied Nelson's claim for
compensation benefits. We affirm.
Nelson presents two issues for our review:
1. Did substantial credible evidence support the
Workers' Compensation Court's conclusion that Nelson failed
to establish an injury arising out of and in the course of
his employment?
2. Did substantial credible evidence support the
Workers' Compensation Court's conclusion that Nelson failed
to meet the sixty-day notice requirements of 5 39-71-603,
MCA?
On February 10, 1979, at age fifty-two, Robert Nelson
began working for ASARCO at its East Helena smelter. On
April 25, 1982, Nelson was working the day shift at the
smelter. Nelson alleges that while operating a front-end
loader and moving ore bodies around the yard, he stepped down
to remove a forty-to-fifty pound ore body from the bucket.
Nelson claims that he momentarily lost his equilibrium, felt
a sense of general weakness and lost sensation in his hands
and arms. He testified that his foreman, Reuben Hagen,
grabbed Nelson to prevent him from falling and asked if
Nelson was all right. Nelson recovered and finished working
his shift. Nelson did not work on April 26 and 27, 1982, due
to a sickness reported as a cold.
On April 27, 1982, Nelson complained to Dr. Jerome
Kremer of pain in his left knee. Nelson did not mention any
pain in his shoulder, arm or hand. He returned to work on
April 28, 1982, and worked regular shifts until May 24, 1982.
On May 6, 1982, Nelson saw Dr. Kremer again, this time com-
plaining of shoulder, arm and hand discomfort.
On May 19, 1982, both Dr. Kremer and Dr. David Bossler
reexamined Nelson and diagnosed Nelson as having thoracic
outlet syndrome. At no time did Nelson advise Dr. Kremer or
Dr. Bossler that he had injured himself in an accident at the
ASARCO smelter. On May 27, 1982, Dr. Bossler, assisted by
Dr. Kremer, surgically resected Nelson's first right rib to
relieve the thoracic outlet syndrome. On June 17, 1982, Dr.
Bossler, assisted by Dr. Kremer, surgically resected Nelson's
left first rib.
During the time between the two rib resections, Nelson
claimed benefits under ASARCO1s health plan. Nelson was
given a blank statement of claim form and advised how to
complete it. One line of the claim form requested detailed
information if an accident was involved. Nelson left this
line blank. Nelson also failed to sign the claim form, but
the office secretary signed the form so it could be pro-
cessed. Between May 28, 1982, and February 24, 1983, under
ASARCO1s health plan, Nelson received $6,475 in weekly bene-
fits and $18,353 in medical benefits.
Dr. Kremer and Dr. Bossler continued to see Nelson
until November 1982, at which time he was referred to Dr.
George Schernm, a neurologist, for consultation regarding
persistent complaints in Nelson's upper extremities. On
December 15, 1982, Dr. Schem surgically performed a cervical
laminectomy on Nelson to relieve cervical spondylosis.
On July 14, 1983, fifteen months after the alleged
incident, Nelson filed a claim for workers' compensation
benefits. On August 4, 1983, ASARCO denied the claim. On
October 10, 1985, the case was heard before an examiner, who
determined that Nelson was not entitled to workers1 compensa-
tion benefits. On July 14, 1986, the Workers' Compensation
Court adopted the hearing examiner's proposed findings and
conclusions. Nelson appeals that decision.
Issue 1
Did substantial credible evidence support the Workers'
Compensation Court's conclusion that Nelson failed to estab-
lish an injury arising out of and in the course of his
employment?
The hearing examiner concluded that Nelson "has not
carried the burden of proving that his alleged injury of
April 25, 1982, was an injury arising out of and in the
course of his employment as required by 55 39-71-119(1) and
39-71-407, MCA."
Section 39-71-119(1), MCA, 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 . . ."
Section 39-71-407, MCA, states: "Every insurer is
liable for the payment of compensation ..
. to an employee
of an employer it insures who receives an injury arising out
of and in the course of his employment . . ."
Nelson contends that the most reasonable conclusion to
be drawn, from all the facts and circumstances presented at
trial, is that he suffered a compensable injury while on the
job at ASARCO on April 25, 1982. Nelson asserts that the
strain caused by moving the ore body out of the bucket is
medically consistent with causing the onset of his symptoms,
and that there is no medical evidence to the contrary.
ASARCO contends that neither Nelson nor anyone on his
behalf gave ASARCO notice on April 25, 1982, or within sixty
days thereafter, of the time and place where an accident had
occurred, or the nature of any injury resulting from such
accident. Furthermore, Nelson did not inform any of his
three doctors that he incurred a work-related injury on April
25, 1982. ASARCO argues that Nelson, beyond his own testimo-
ny, presented no objective evidence indicating that he
suffered any type of injury on April 25, 1982. Given Nel-
son's evidence, ASARCO concludes that the Workers' Compensa-
tion Court correctly determined that Nelson failed to meet
his burden of proof in establishing a work-related injury.
When reviewing a decision of the Workers' Compensation
Court, we will not substitute our judgment for the trier of
fact unless the decision was clearly erroneous. Although
factual conflicts may exist, we will not disturb the court's
decision when it is supported by substantial credible evi-
dence. Tenderholt v. Royal Insurance Company of America
(Mont. 1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1795.
The burden was on Nelson to prove, by a preponderance
of credible evidence, that a work-related incident was a
contributing cause to his work-related injury. Dumont v.
Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105. In
attempting to prove the incident, Nelson testified that his
foreman, Reuben Hagen, helped Nelson regain his balance and
that Hagen asked if Nelson was all right.
Nelson's testimony conflicts directly with the testimo-
ny of Reuben Hagen, who stated that he and his wife were in
New York City on April 25, 1982, and did not return to East
Helena until 10:OO p.m. that day. Hagen's testimony was
supported by ASARCO pay slips, which showed Hagen on vacation
on April 25, 1982.
In addition, Nelson's conduct following the alleged
incident did not indicate that an injury occurred. Nelson
missed work on April 26 and 27, 1982, due to a cold, not an
injury. He continued to work regular shifts through May 24,
1982, without any indication of an injury. Although Nelson
underwent surgery on May 27 and June 17, 1982, he did not
advise either physician about his alleged injury.
Nelson's testimony was effectively rebutted by his
doctors, who believed that the condition they were treating
was unrelated to any trauma from Nelson's occupation. Dr.
Kremer testified about thoracic outlet syndrome in the fol-
lowing exchange:
Q. Based on your past experience with
these kinds of problems, do you have an
opinion as to how they typically mani-
fest themselves? By that, I mean, is it
a sudden onset, or do they develop over
time progressively?
A. It's a very gradual onset because
the muscle doesn't suddenly hypertrophy.
It isn ' t something that occurs over-
night. It's something that slowly
builds up. ..
Dr. Kremer also testified that Nelson's alleged inci-
dent could not cause thoracic outlet syndrome:
Q. Doctor, in your opinion, was Mr.
Nelson's scalenus anticus syndrome or
thoracic outlet syndrome caused by his
attempting to lift a 40-pound piece of
ore off the ground at ASARCO within a
month or two prior to your first
examination?
A. No. There's no way that a single
situation can cause that to happen.
Furthermore, Dr. Bossler testified that thoracic outlet
syndrome is a congenital problem. Dr. Bossler also testified
that in his twenty-six years of medical practice, he has
never seen a case of traumatic thoracic outlet syndrome and
that Nelson had no evidence of trauma:
Q. During that surgery, did you find
anything that would be indicative of
trauma that occurred recently or prior
to surgery?
A. No.
Dr. Schemrn testified that Nelson's cervical condition
arose gradually from a combination of factors:
I think that his kind of problem is
usually due to a combination of things,
or abnormal problems. In other words,
perhaps starting out with a narrow canal
from earlier life, and then having, in
addition, these wear and tear changes in
the spinal canal and the joints of the
spinal canal. However, individual
trauma can accelerate that kind of
process, or add to it.
Dr. Schemm also testified that Nelson's condition was consis-
tent with the diagnosis of thoracic outlet syndrome, and that
the condition existed for a considerable period of time prior
to April 25, 1982.
In conclusion, we will accord deference to the Workers1
Compensation Court's judgment as to the weight and credibil-
ity of conflicting evidence. Frost v. Anaconda Company
(Mont. 1985), 701 P.2d 987, 988, 42 St.Rep. 889, 891. In the
instant case, the court reviewed all the pleadings, exhibits,
depositions and testimony. As we held in Steffes v. 93
Leasing Co., Inc. (1978), 177 Mont. 83, 86-87, 580 P-2d 450,
453: "We cannot substitute out 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 Workers1 Compensation Court, this Court cannot over-
turn that decision. "
We have repeatedly held that the claimant bears the
burden of establishing a right to compensation. Gierke v.
Billings Gazette (Mont. 19861, 730 P.2d 1143, 1148, 43
St.Rep. 2322, 2329. Nelson has failed to prove that he
suffered an injury on April 25, 1982. We hold that the
preponderance of substantial credible evidence fully supports
the decision of the Workers1 Compensation Court. We affirm
on this issue.
Issue 2
Did substantial credible evidence support the Workers'
Compensation Court's conclusion that Nelson failed to meet
the sixty-day notice requirements of S 39-71-603, MCA?
Section 39-71-603, MCA, states:
No claim to recover benefits under the
Workers' Compensation Act, for injuries
not resulting in death, may be consid-
ered cornpensable unless, within - days
60
after the occurrence of the accident
which is claimed to have caused the
injury, notice of the time and place
where the accident occurred and the
nature of the injury is given - - to the
employer or the employ~rfsinsurer by
the injured employee or someone on the
employee's behalf. Actual knowledge of
the accident and injury on the part of
the employer ... is equivalent to
notice. [Emphasis added.]
The Workers Compensation Court adopted the conclusion
of the hearing examiner, who stated:
The claimant - - present by a pre-
did not
ponderance of the credible evidence 3
proof that sufficient notice was given
to the employer to satisfy the require-
ments of the statute. The evidence
supported the conclusion that the em-
ployer had no notice of the alleged
injury for almost 400 days after the
incident. This far exceeds the 60-day
statutory maximum and requires the
denial of the claim. [Emphasis added.]
Nelson contends that the claim period did not begin to
run until Nelson had reason to recognize the serious nature
of his problem. Nelson asserts that this recognition did not
occur until November of 1982.
However, our review of the record shows that Nelson
plainly understood the requirements and procedure for report-
ing an injury. He had properly reported two injuries to
ASARCO within the preceding three years. Furthermore, Nelson
was instructed on the differences between workers' compensa-
tion and the ASARCO health plan at his employee orientation
conference in 1979. Yet Nelson made no mention of his al-
leged injury to ASARCO for approximately one year after the
alleged incident.
Nelson underwent two surgeries for thoracic outlet
syndrome, but never told Dr. Bossler or Dr. Kremer about the
alleged incident. Dr. Kremer testified: "This is one of the
first questions you ask them, 'How did it happen?' Never was
there a mention of it on the job or any kind of injury." Dr.
Schemm's first knowledge of the incident occurred just prior
to his deposition in December 1985, when Nelson's attorney
told Dr. Schernrn that Nelson may have injured himself on April
25, 1982.
Nelson had ample opportunity to notify ASARCO and his
physicians of his alleged injury. We fail to see how Nelson,
through two surgeries and multiple medical visits, could
possibly misunderstand the seriousness of his condition. His
alleged injury on April 25, 1982, appears to be the product
of inspiration, not recognition. We hold that Nelson failed
to meet the notice requirements of $5 39-71-603, MCA.
We affirm the Workers' Compensation Court on both
issues.
/7"
/A
-
Chief Justice
We concur:
Justices
Mr. Justice John C. Sheehy, specially concurring:
I concur in the result.
Mr. Justice William E. Hunt, Sr., specially concurring:
Because claimant failed to give notice in 60 days as
required by S 39-71-603, MCA, I concuj; in the result.