NO. 88-252
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
IRENE FJOOD,
Claimant and Appellant,
-vs-
ULMER'S CAR AND TRUCK, Employer,
and
STATE COMPENSATION INSURANCE FUND,
; I \ ' t'
Defendant, Respondent and Appellant. ..
c-' n y
APPEAL FROM: The Workers' Compensation Court, The Honorable Ti-mothv
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R.V. Bottomly; Rottomly 1,aw Offices, Great. Falls,
Montana
For Respondent:
Mike McCarter; Hughes, Kellner, Sul.livan & Alke,
Helena, Montana
Submitted on Briefs: Dec. 1.6, 1988
Decided: March 7, 1989
Filed :
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal and cross-appeal from the Workers'
Compensation Court involves a claim for widow's benefits.
The State Compensation Insurance Fund (Fund), appeals the
lower court's decision finding claimant's husband suffered an
injury resulting in death under the Montana Workers'
Compensation Act. The claimant, Irene Wood, cross appeals
contending that the lower court erred in refusing to provide
attorney fees due from the insurer in a lump sum. We affirm
the lower court's decisions in regard to the appeal and the
cross-appeal.
Appellant's Issue
Whether the Workers' Compensation Court erred in
awarding benefits to the widow of a worker based on the
conclusion that the worker's exposure to carbon monoxide
caused his heart attack?
The relevant facts are as follows: Irene's husband,
Duane Wood, worked approximately ten years as a mechanic at
Ulmer's Car & Truck in Great Falls. Duane suffered from
hypertension and an enlarged heart, musculoskeletal problems,
low potassium levels, and cardiovascular disease. Duane was
49 years old when he died of a heart attack on October 29,
1984.
Duane's doctor had diagnosed and treated most of his
various ailments, but had no knowledge of his moderate to
severe coronary artery disease until after Duane's autopsy.
The autopsy revealed moderate to severe narrowing due to
coronary arteriosclerosis.
Duane smoked a pipe. He had switched from cigarettes to
a pipe a few years before his death. Irene testified he did
not inhale the pipe smoke. Duane also liked to drink one or
two beers after work. The last two years his pace in
completing repairs at Ulmer's slowed considerably.
Duane worked the Friday before his death. On Friday
evening Duane skipped dinner and went straight to bed
complaining of extreme fatigue and shoulder pain. On
Saturday morning he collapsed and was taken to the hospital.
When he arrived at the hospital he was suffering from cardiac
arrest probably due to ventricular fibrillation. Two days
later he died. Duane's behavior on Friday night indicated he
experienced the onset of a myocardial infarction.
Irene testified that approximately two months before his
death Duane began to exhibit loss of balance and appetite.
During this period he also lost weight and experienced
breathlessness and coughing. These symptoms, according to
Irene, increased in September of 1984. Duane also complained
of cold and fumes at work.
Ulmer's Car and Truck operates in a building containing
seven service bays. The business employs five mechanics and
two mechanic's helpers. The helpers perform routine service
and the mechanics handle minor to major repairs. The bays
are often full with vehicles undergoing servicing or repair.
Carbon monoxide escapes into the air from the exhaust of
cars driven in and out of [Jlmer's shop. When an auto is run
in the shop, workers hook a hose to the auto's tail pipe.
The hoses channel the carbon monoxide outside the building.
Even when exhaust escapes outside through the hoses, leaky
manifolds and other sources associated with running the cars
inside contribute to the presence of carbon monoxide in the
air of the garage.
A twenty four inch fan in the wall of the garage and two
ceiling fans help to circulate air and dissipate the carbon
monoxide. Employees also help to rid the garage of the gas
by opening windows and the doors that access the bays.
Employees open the doors and windows more often on warmer
days than on colder days. The high temperature recorded in
Great Falls on Duane's last day of work was 51 degrees
Fahrenheit.
Irene hired Dr. Anderson to testify on the possible
effects of carbon monoxide on individuals with cardiovascular
disease. Anderson testified that individuals suffering from
cardiovascular disease risk precipitating a heart attack by
breathing carbon monoxide. The risk exists, according to
Anderson, because carbon monoxide molecules bond more
strongly to hemoglobin than oxygen molecules. Anderson
testified that where concentrations of carbon monoxide in the
air exist, the strength with which carbon monoxide binds to
hemoglobin allows it to displace a portion of the oxygen one
would normally obtain by breathing. The already reduced
ability of individuals suffering from cardiovascular disease
to supply the heart with oxygen, when combined with the
effects of breathing air contaminated by concentrations of
carbon monoxide, may precipitate a heart attack, accordinq to
Anderson.
Anderson considered the likelihood that inhalation of
carbon monoxide caused Duane's heart attack. Testing done on
February 26, 1985, when the high temperature in Great Falls
reached 43 degrees Fahrenheit demonstrated the presence of
carbon monoxide in the air of the garage. Anderson testified
that the levels of the gas present at that time could have
posed a health risk to Duane. Anderson also noted inhalation
of the gas in amounts sufficient to cause oxygen deprivation
may result in headaches, dizziness, confusion, and coughinq.
Amounts too small to cause symptoms in ordinary individuals
may nevertheless affect those sufferinq from cardiovascular
disease.
Rased. on the presence of carbon monoxide concentrations
in the garage, the compatibility of Duane's symptoms with the
effects of carbon monoxide in the blood, and a lengthy
hypothetical propounded by claimant's counsel incorporating
Irene ' s testimony and Duane ' s autopsy report, th.e fol.1owi.n~~
exchange occurred:
Q Taking into account the symptoms suggested
by the question over the preceding month period and
on the night of decedent's collapse, and takinq
into account the levels of carbon monoxide
concentrations reported in the question, in your
opinion did such levels of carbon monoxide
aggravate his underlying heart disorder?
A It certainly is probable that it did.
Q Would the symptoms listed by the decedent
be consistent with the levels of carbon monoxide
reported in the question?
A Yes.
Q Taking into account the decedent's heart
condition, as reported in the autopsy, and the
levels of carbon monoxide reported, could these
levels trigger or precipitate a new stage of
pathology or a new dysfunction in the heart
condition?
A Yes, it could.
Q In your opinion, did the levels of carbon
monoxide aggravate, hasten, trigger or precipitate
a new stage of pathology or a new dysfunction in
his heart condition?
A It was a precipitating factor, I think.
Q And in your opinion, did they do so?
A All I can say is that it's probable that
the high levels of carbon monoxide were a
precipitating factor in the final stage of events
that led to his dea.th.
On cross-examination, Anderson testified as follows:
Q Okay, I think I asked you earlier, but as I
understand it, it is not your opinion that the
carbon monoxide exposure triggered his heart
attack?
Mr. Bottomly [claimant's counsel objecting]:
Wait a minute, that is contrary to his opinion.
Q Well, let's ask you what your opinion is.
A Okay, my opinion is that it's a risk factor
that certainly could have triggered -- we don't
know, you know, it did with certainty, but it's
certainly a risk factor.
Q It's a risk factor, hut you don't know for
certain?
A Right.
Q And there were a number of other risk
factors in this case?
A That's correct.
Q The cigarette smoking, the hypertension;
correct?
A Right, for developing coronary artery
disease, right.
Q Was carbon monoxide any greater risk factor
than those factors?
A Carbon monoxide was a risk factor just in
the final event, not in the development of the
coronary artery disease, so the others played a
role in developing the coronary artery disease, put
him at higher risk for having a myocardj-a1
infarction, but the carbon monoxide was only with
respect to having symptoms from coronarv disease
and eventual]-y developing a myocardi-a1 infarction.
Q I guess what I'm asking here is can you
attribute his heart attack and his sudden death to
carbon monoxide as opposed to cigarette smoking:
hypertensio~ or anything else, for that matter.
A No.
The Fund contends that Irene failed to carry the burden
of proving inhalation of carbon monoxide caused an injury
resulting in death under 39-71-721 (I), 39-7'1.-119, MCA
(1983):
39-?l-721. Compensation for injury causing death.
(1) if an iniured emplovee dies and the iniurv was
- .- -
the proximate cause of such death ...
39-71-119. Injury or iniured defined.
"Injury" or "injured" means:
(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
therefrom and excluding disease not traceable to
injury, except as provided in subsection ( 2 ) of
this section ...
(3) death resulting from injury.
The Fund cites several cases where this Court affirmed
the Workers' Compensation Court because the claimant failed
to demonstrate causation even though "medical possibility"
evidence existed. See, Brown v. Ament (Mont. 1988), 752 P.2d
1?1, 45 St.Rep. 508; Currey v. 10 Minute Lube (Mont. 19871,
736 P.2d 113, 44 St.Rep. 790, Ferdinand v. Lodge No. 456
(Mont. 1986), 719 P.2d 775, 43 St.Rep. 955, Wheeler v.
Carlson Transport (Mont. 1985), 704 P.2d 49, 42 St.Rep. 1177.
The Fund contends that the similarity of this case to the
cited cases mandates the conclusion that Irene failed to
demonstrate causation. We disagree.
In Brown, the claimant failed to come forward with
sufficient evidence to corroborate testimony revealing the
medical possibility of causation. Brown, 7 5 2 P.2d at 1 7 5 .
In Curry, the medical evidence conflicted. Curry, 7 3 6 P.2d
at 1 1 6 . The medical experts in Ferdinand never offered
testimony that the claimed injury more probably than not
caused claimant's heart attack. Ferdinand, 7 1 9 P.2d at 7 7 7 .
And in Wheeler, conflicting evidence also led this Court to
affirm denial of benefits. Wheeler, 7 0 4 P.2d at 5 4 .
Here, Anderson testified carbon monoxide was probably a
precipitating factor in causing Duane's death. Irene ' s
testimony corroborates Anderson's opinion. Thus, substantial
evidence supports the decision of the lower court.
The Fund contends that Anderson contradicted his earlier
testimony under cross-examination when he stated that he
could not attribute the heart attack to carbon monoxide as
opposed to other factors which could have caused the attack.
However, the Fund questioned Anderson only on whether or not
he was certain that carbon monoxide caused the fatal illness.
Anderson never refuted or explained away his opinion that
carbon monoxide probably precipitated events leading to
Duane's death. Moreover, the lower court has the duty to
resolve conflicts in the evidence, and this Court may not
substitute its judgment for the judgment of the lower court
when substantial evidence supports the lower court's
decision. Ferdinand, 7 1 9 P.2d at 7 7 6 . Thus the we affirm
the lower court's finding on causation.
The Fund also contends that insufficient evidence
supports the lower court's finding that the heart attack met
the requirement of time definiteness for finding an injury
under 5 3 9 - 7 1 - 1 1 9 , MCA. We disagree.
Evidence disclosed the worsening effects of oxygen
deprivation on Duane's health t w o months prior to his death.
The night before his death, the lower court found that oxygen
deprivation precipitated the heart attack. Anderson
testified that Irene's description of Duane's symptomatology
on the Friday before he collapsed indicated the onset of a
myocardial infarction probably triggered by inhalation of
carbon monoxide. Thus, while Duane's cardiovascular disease
developed over time, the event that deprived his heart of
enough oxygen to continue pumping probably occurred on his
last day of work. Under these circumstances, substantial
evidence supports the finding of time definiteness by the
lower court. Daniels v. Kalispell Regional Hospital. (Mont.
1988), 750 P.2d 455, 45 St.Rep. 310.
Cross Appellant's Issue
Whether the lower court erred in denying lump sum
attorney fees for future benefits?
On cross-appeal Irene contends that the lower court
erred in refusing to provide the attorney fees due from the
Fund for future benefits in a lump sum. We disagree. The
applicable statute, S 39-71-611, MCA /1983), provides for an
award of attorney fees and costs from the insurer. The
amount and kind of fees, lump sum or periodic, must he
reasonably established by the Workers' Compensation Court.
The lower court acts reasonably and within its discretion by
refusing to lump sum attorney fees owed for benefits which
may never accrue. Davis v. Jones (Mont. 1987), 745 P . 2 d 362,
365, 44 St.Rep 1859, 1862. Thus, we affirm the cross appeal.
//
Justices
Mr. Justice John C. Sheehy, concusrinq in part and dissent-ing
in part:
I concur with that portion of the opinion that finds
that the decedent suffered a compensable injury. I dissent
from that portion of the opinion that relates to the
attorney's fees.
When this case first came before our conference for the
purpose of classification, I contended that we should have
oral argument relating to the attorney's fee issue. The
evolution of the opinion convinces me that my position was
correct. The attorney's fee issue is decided in a single
paragraph and its rationale is limited strictly to a
conclusion that the Workers' Compensation Court acted
reasonably. A lower court's decision is not "reasonable"
simply because we sav it is. Ipse dixit (he said so) is not
a substitute for judicial dissection and discussion of an
issue.
In this case we have record evidence that the claimant
is in perfect health and has a life expectancy of 25.2 years.
The attorney representing her is near retirement age.
Actuarially, the claimant will outlive her attorney, and
under our decision here, the attorney's estate may be paid
For the work the attorney performed in his lifetime. I hope
that does not happen, but the possibility shows how absurd
the Workers' Compensation law has become.
The claimant's attorney compiled a record in this case
which deserves the attention of this Court. He called an
expert witness, Gene Picotte, a lawyer with 38 years of
practice behind him, who specializes in representinq
compensation clients. Mr. Picotte testified from his
experi ence that cont.ingent arrangements are "absolutely
necessary in representing claimants." Without the
possibility of contingent arrangements, most claimants could
not afford attorneys or procure them on a fee basis. Indeed
if the attorney must advance the costs, as we must admit
occurs many times, long delays in collecting his fees can
cause prohlems with cash flow, as Mr. Picotte testified.
Mr. Picotte also indicated that attorneys in the past
have always anticipated that there would be lump sum payments
in compensation cases. They anticipate receiving as fees a
percentage of future benefits. It was his opinion that
lawyers will not take cases with long-deferred fees because
they cannot afford to d o so. Denial of lump sum attorney's
fees for future benefits frustrates the public policy of
compensation for those who cannot competently represent
themselves.
Especially, Mr. Picotte emphasized, long-deferred
payments would have an adverse effect on older attorneys
whose retirement security is compromised.
That record deserves some discussion. It is as
important to the proper legal administration of workers'
compensation cases to have an able claimant's bar available
for workers as it is to have fully compensated defense
lawyers for the insurers. We are forcing the available bar
to become unbalanced.
The position of this Court that there can be no
attorney's fee recovery for future benefits until received is
out of sync with respected authority in the field. Thus in
Quam v. Minnesota (1986), 391 N.W.2d 803, the Minnesota Court
said:
We agree with a respected commentator in the
workers' compensation field, ...
, that "[als a
general matter, the claimant's attorney's fee
should be based on the facts as to his services in
the compensation case as of the time the services
were rendered, and should not be at the mercy of
subsequent or collateral events over which he has
no control." 3 A. Larson, The Law of Workmen's
.
Compensation, S 83.13 (i) (1983)
Indeed Larson goes on to say that paying the attorney in
driblets from weekly installments over a long period means a
disproportionate amount of bother for everyone concerned. &
83.13(j), id.
There is no statute in Montana requiring that an
attorney be required to wait over a period of 25 years for
his attorney's fee as it comes in drihs and dabs. The only
requirement of 5 39-71-611, MCA, once the right to attorney's
fees is established, is that the fees be "reasonabl-e." Who
can contest that the payment of attorney's fees for services
fully rendered over a score or more years is unreasonable?
The standard of appellate review of attorney's fees in
workers' compensation cases is vrhether the Workers'
Compensation Court abused its discretion in determinFng
reasonable attorney's fees. Conway v. Blackfeet Indian
Developers Inc. (1985), - Mont . - 702 P.2d 970. Here
,
the contingency fee contract was approved but the attorney is
deprived of the benefit of his contract. There is no reason
why the FJorkers' Compensation Court could not award
reasonably the attorney a percentage of future benefits by a
discount factor to determine the present value of the future
payments. The attorney in this case offered such a basis.
The offer is completely reasonable and should not be denied
simply because the worker might die or the widow might
remarry. Certainly the Board has enough experience in its
own files to determine how many of its widows remarry during
the compensation payment period from which a factor could be
deri~red to be applied. As to the actuarial. life expectancy
of the claimant, the whole business of insurance relies on
actuarial tables and it would not be unreasonable for the
Workers' Compensation Court to rely on tables in computj.nq
attorney's fees for future benefits.
We have a serious problem developing in this field.
Reputable attorneys who in the past have represented
claimants for workers' compensation are leaving the practice
because of the niggardly compensation afforded them by the
Workers' Compensation Division, by the Workers' Compensation
Court, and lately by this Court. The development of an able
compensation bar is being hindered. A chilling effect on the
workers' ability to obtain adequate representation is
occurring. Davis v. Homestake Mining Company (N.M. Ct. App.
1 9 8 6 ) , 727 P.2d 941. We have blessed contingent attorney's
fees as necessary in the field, but we abrogate the
contingent fee contracts by proceeding as we have here. The
requirement that no attorney's fee be paid for future
benefits until received is an invention of this Court. and we
ouqht to change it.
n
a h .
Justice