No. 86-470
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
WELDON R. CURREY,
Claimant and Appellant,
-vs-
10 MINUTE LUBE, Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court of the State of
Montana, The Honorable Timothy Reardon, Presiding.
COUNSEL OF RECORD:
For Appellant:
Kelleher Law Office; Robert L. Kelleher, Jr.,
Billings, Montana
For Respondent:
Crowley Law Firm; William J. Mattix, ~illings,
Montana
Submitted on Briefs: Feb. 13, 1987
Decided: April 21, 1987
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Appellant, Currey, appeals from an order of the Workers'
Compensation Court awarding benefits, reasonable costs and
attorney fees for a compensable injury, but ruling that the
claimant was not entitled to temporary total disability
benefits and denying his motion to submit additional
evidence. We affirm.
The issues raised on appeal are:
1. Is the decision of the Workerst Compensation Court
regarding appellant's entitlement to disability benefits
under the Montana Workers' Compensation Act supported by
substantial evidence?
2. Did the Workerst Compensation Court abuse its
discretion in denying appellant's motion for a rehearing in
order to submit additional evidence?
The defendant, Weldon Currey, is an auto mechanic. He
was injured on January 13, 1984, when his truck, while
stopped at a stop sign, was hit from the rear by another
vehicle. At the time of the accident Currey was on his way
to pick up cases of oil for his employer, 10 Minute Lube.
Following the collision, Currey experienced pain and
discomfort in his lower back and neck. He sought treatment
from a chiropractor whom he had been going to previously.
Since childhood, Currey has had congenital scoliosis
which causes the spine to grow unevenly. He also has. a
related disorder, syringomyelia, which affects the spinal
cord, creating cysts in the cord which destroy surrounding
nerve tissue. Due to this condition, repetitive moving or
lifting heavy objects has been difficult for Currey
throughout his life.
Typically, symptoms of syringomyelia can include atrophy
and weakness in the upper extremities as well as loss of
sensation to temperature and pain in the affected areas.
Although a naturally progressive neurological disorder, the
condition can remain undiagnosed and asymptomatic throughout
a person's life. Usually the symptoms will begin to become
noticeable in afflicted males between the ages of 20 through
40 years. Currey was 35 at the time of the accident. Since
the accident, he has become aware of some symptoms associated
with this disorder.
At the time of his industrial injury, Currey was
employed as the manager of 10 Minute Lube, a Billings
automotive shop which specializes in oil changes. As
manager, Currey was responsible for taking inventory each
night, balancing the daily books, and making a daily report
to the owner, Francis Fanning. Currey informed Fanning of
his injury the evening of the accident.
In April, 1984, Fanning sold 10 Minute Lube to Bill
Simmons who changed the business' name to Master-Lube. At
that time, Currey lost his position as manager and was
required to work faster than was previously expected of the
employees under Fanning's employ. In July, 1984, Currey left
Master-Lube and became a serviceman for Hotsy Wy-Mont, a
business which sells and services commercial cleaning
equipment. He worked there for approximately six months,
then quit with the intention of moving to California.
Instead of moving, Currey remained in Billings employed for
Mont-Dak Chemical as a delivery man for one month before
returning to work at Hotsy Wy-Mont. As a part of all these
jobs, Currey was required to lift equipment and supplies
weighing from 50 to 100 pounds.
Currey filed a claim for wage benefits under Montana's
Workers' Compensation Act on November 14, 1984, ten months
after the accident. He quit working for Hotsy Wy-Mont in
July, 1985, after Dr. Nelson, a Billings neurologist, advised
him to no longer perform activities which involved heavy
lifting.
The question as to whether there was substantial
evidence to support the decision of the Workers' Compensation
Court must be reviewed in light of the presumption of
correctness which accompanies the Workers' Compensation
Court's findings.
where the find-ings are based on conflicting
evidence, this Court's function on review is
confined to determining whether there is
substantial credible evidence to support the
findings, and not to determine whether there is
substantial evidence to support contrary findings.
Davis v. Mountain West Farm Bureau Mutual Ins. Co. (~ont.
1985), 701 P.2d 351, 353, 42 St.Rep. 840, 843. The findings
and conclusions will not be set aside unless they are clearly
erroneous. Carlson v. Cain (Mont. 1985), 700 P.2d 607, 616,
42 St.Rep. 695, 705.
The depositions of two neurologists, Doctors Peterson
and Nelson, were entered at claimant's hearing as medical
evidence of the nature and extent of Currey's injury. This
Court will not substitute its judgment for that of the
Workers' Compensation Court concerning the credibility of
witnesses nor the weight to be given their testimony except
where critical medical evidence is entered by deposition. In
cases where depositions are the evidence, "this court,
although sitting in review, is in as good a position as the
Workers' Compensation Court to judge the weight to be given
such record testimony, as distinguished from oral testimony,
where the trial court actually observes the character and
demeanor of the witness on the stand." Shupert v. Anaconda
Aluminum Company (Mont. 1985), 696 P.2d 436, 439, 42 St.Rep.
277, 281-282 citing Hert v. J. J. Newberry Co. (1978), 178
Mont. 355, 360, 584 P.2d 656, 659.
An examination of the doctor's testimony as recorded by
their depositions shows contradictory opinions with regard to
the relationship between Currey's symptoms and the January
13, 1984 accident. Section 39-71-104, MCA, requires that
liberal construction be given to the Workers' Compensation
Act whenever interpreted by a court. This Court has
repeatedly held that such liberal construction must be in
favor of the claimant. 696 P.2d at 441. However,
This rule of liberal construction does not relieve
the Court of it's duty to carefully consider all of
the evidence before determining whether the weight
of the evidence presented supports the workers'
claim.
Soelter v. Aetna. Life & Casualty Co. (Mont. 19841, 683 P.2d
480, 483, 41 St.Rep. 1205, 1208.
Appellant argues that because the record shows that it
was medically possible that the accident aggravated his
pre-existing condition he is entitled to an award for
permanent partial disability benefits. He cites ~ i e t sv.
Sweet Grass Co. (1978), 178 Mont. 337, 583 P.2d 1070, in
support of his argument. In Viets, we stated that "evidence
of what is possible is more reliable in proving aggravation
of an injury or disease than cause and effect ... proof
that it was medically possible for an industrial accident to
aggravate a pre-existing condition is acceptable proof of
disability." 583 P.2d at 1072. However, this evidence
cannot be considered as if in a vacuum. The medical
possibility that an industrial accident or injury aggravated
a pre-existing condition "may together with other evidence,
establish a compensable disability." (Emphasis added. )
Rykonen v. Montana Power Co. (Mont. 1985), 703 P.2d 856, 858,
42 St.Rep. 1112, 1115. Liberal construction of the Act does
not allow the Court to disregard some portions of the
evidence before it. Soelter, 683 P.2d at 483. Claimant,
Currey, still has the burden of proving his case by a
preponderance of the evidence. Dumont v. Wickens (1979) 183
Mont. 190, 201, 598 P.2d 1099, 1105.
In Wheeler v. Carlson Transport (Mont. 1985) , 704 P. 2d
49, 53-54, 42 St.Rep. 1177, 1183, this Court stated that:
expert testimony on medical possibilities is
competent evidence admissible in a worker's
compensation proceeding. It is the standard of
evidence and does not affect claimant's ultimate
burden to prove his case by a preponderance of the
evidence. "Medical possibility" is to be weighed
just as any other evidence; if supported by other,
independent evidence it is "acceptable" to be used
by the court in making its determination. Medical
possibility evidence by itself, though, does not
mandate the conclusion that the claimant has met
his burden of proof under the Act.
The record shows and the Workers' Compensation Court
found that with respect to this injury Currey was examined by
a mectical doctor, Dr. Peterson, in December, 1985, eleven
months after the accident. Dr. Peterson diagnosed Currey's
neurological disorder called syringomyelia. Dr. Peterson had
Currey's lifetime medical records and testified that within a
reasonable degree of medical certainty the January 13, 1984
accident did not worsen or affect Currey's condition. He
felt that a more traumatic, crushing-type injury would be
necessary to cause any sudden onset of syringomyelia or
related symptoms.
Dr. Nelson, also a neurologist, examined Currey in July,
1985. He agreed with Dr. Peterson's diagnosis of
syringomyelia. Dr. Nelson testified that due to Currey's
spine's abnormal curvature and posture, it was more likely
that he would sustain an injury. He believed that any degree
of trauma could aggravate Currey's disorder. Dr. Nelson
agreed that it was impossible to determine the extent, if
any, that the accident caused Currey's symptoms without
pre-accident and post-accident studies. He admitted that he
could not testify that the accident aggravated Currey's
syringomyelia, that the condition naturally progresses and
that at some point it would be expected that Currey begin to
notice some symptoms.
Currey testified that he has always had difficulty
lifting heavy objects but that he has had an increasing
problem since the January 13, 1985 accident. The record
shows that he did not notice any loss of heat and pain
sensation in his right shoulder until October or November,
1985 when his right shoulder became less sensitive to heat.
Currey worked at several jobs after the accident. The record
reflects that he left none of these positions due to his
physical problems until July, 1985, when Dr. Nelson advised
him to stop lifting heavy objects. Dr. Peterson, on the
other hand, testified that Currey's condition will not
prevent him from working and that he doubts that it will
result in any permanent disability.
Taken as a whole, the evidence presented in this case
does not establish a preponderance of the evidence in favor
of Currey's claim for temporary total disability benefits.
The Workers' Compensation Court carefully considered - the
all
evidence and concluded that the evidence did not prove that
Currey's industrial injury either caused or aggravated his
pre-existing syringomyelia and that defendant is therefore
not liable to Currey for wage benefits due to this condition
and related symptoms. We find that there is substantial
credible evidence to support the Workers1 Compensation
Court's decision.
The second issue raised by appellant is whether the
Workers' Compensation Court abused its discretion in denying
appellant's motion for a rehearing for the purpose of
admitting additional evidence.
Following the September 12, 1985 Workers' Compensation
Court hearing, appellant was examined by a third neurologist,
Dr. Cahill. This examination was done pursuant to a request
made by defense counsel to a collateral civil action
concerning the same accident as is the subject of Currey's
present compensation claim. Currey argues that Dr. Cahill's
medical report should be admitted as additional evidence in a
rehearing.
The Workers' Compensation Court hearing examiner
determined that the evidence presented at hearing was
insufficient to prove Currey's claim for temporary total
disability benefits. That decision will not be overturned as
an abuse of discretion. No opinion is expressed on
claimant's right to submit additional medical reports to the
Division of Workers' Compensation requesting a determination
of his medical condition based on the entire record,
including the new evidence.
The decision of the Workers' Compensation Court is
affirmed.
/" -
We Concur: ,//
4
Chief Justice /"