Norman v. City of Whitefish

No. 90-564

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

LESTER NORMAN,
Claimant/Appellant,
v.
CITY OF WHITEFISH,
Employer,
and
CITY OF WHITEFISH,
Defendant/Respondent.

APPEAL FROM: Workers1 Compensation Court
The Honorable Timothy W. Reardon, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
John H. Bothe, Bothe & Lauridsen,
Columbia Falls, Montana
For Respondent:
Oiver H. Goe, Browning, Kaleczyc, Berry
& Hoven, Helena, Montana

Submitted on Briefs: February 28, 1991
Decided: June 4 , 1991
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Claimant Lester Norman appeals from an order of the Workers1
Compensation Court denying him temporary total disability benefits.
We affirm.
Two issues are raised on appeal:
1. Whether substantial credible evidence supports the
Workerst Compensation Court's finding that claimant's current
condition is not causally related to his injury of February 12,
1987; and
2. Whether the court's order on rehearing is inconsistent
with its prior findings and conclusions regarding the causal
relationship between claimant's current condition and the February
12, 1987, injury.
Claimant Lester Norman was employed as a police officer for
the City of Whitefish from 1969 until 1975, and again from 1979
until 1988, when he voluntarily left the force. Norman suffered
compensable auto accident injuries on November 16, 1980, and
February 12, 1987. He timely reported both injuries and filed
appropriate claim forms. He suffered no immediate wage loss from
either accident. Following the February 1987 accident, Norman
continued to work until March 1988, when he quit due to what he
characterized as a "nervous breakdown." He subsequently pursued
disability retirement benefits, claiming his disability was from
stress. No mention was made of any disability related to the
February 12, 1987, auto accident.
 On or about December 5, 1989, Norman filed a petition for
hearing with the Workers' Compensation Court, alleging that the
City of Whitefish was liable for his accident of February 12, 1987.
When the matter was heard in March 1990, the issues presented were:
(1) whether Norman's current cervical condition is related to the
February 12, 1987, accident; (2) if it is related, whether Norman
is entitled to temporary total disability benefits and medical
benefits; and (3) whether he is entitled to a 20 percent delay
increase. The court found, in August 1990, that Norman had failed
to prove that his current inability to work was proximately caused
by his February 12, 1987, auto accident, and that therefore, he was
not entitled to temporary total disability benefits, or fees,
costs, or penalty.
Norman then filed a motion for clarification, requesting the
court to order the City of Whitefish to accept liability for his
current cervical condition and pay medical benefits accordingly.
The court classified Norman's motion for clarification as a motion
for rehearing and denied it on the basis of its former finding that
Norman lacked the requisite credibility to support a finding that
the February 12, 1987, injury was medically related to his current
cervical complaints. Norman appeals from that denial.
Does substantial credible evidence support the Workers'
Compensation Court's finding that the claimant's current condition
is not causally related to his injury of February 12, 1987?
 The general rule is that the findings of the Workersv
Compensation Court will not be overturned on appeal if substantial
evidence supports them. Nelson v. ASARCO, Inc., 227 Mont. 272,
277, 739 P.2d 943, 946 (1987). Norman claims that he presented
substantial evidence to show that the February 1987 accident, which
occurred while he was working for the City of Whitefish, aggravated
a pre-existing shoulder and back condition. He states that it is

that condition which now prevents him from working, and that
therefore, the City of Whitefish should be held liable. He argues
that because his evidence was substantial and credible, the
Workersv compensation Court's decision not to grant benefits must
have been erroneous.
Liability in workerst compensation cases is defined in
5 39-71-407, MCA (1985):
Every insurer is liable for the payment of compensation,
in the manner and to the extent hereinafter provided, to
an employee of an employer it insures who receives an
injury arising out of and in the course of his employment
or, in the case of his death from such injury, to his
beneficiaries, if any.
An "injuryIv is defined as:
[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 ...
.
Section 39-71-119 (1), MCA (1985) . Norman reads these statutes
together and reasons that because he had an injury and now claims
a resultant physical condition the City is liable under
5 39-71-407, MCA (1985).
 A review of the evidence does not yield the result Norman now
urges the Court to reach. The following excerpts of findings and
conclusions by the Workers' Compensation Court support its
conclusion that the claimant is not entitled to benefits because
he has failed to show a nexus between his 1987 injury and his
present complaint:
1. The claimant was referred to a psychiatrist in February
1987 and was diagnosed with "generalized anxiety disorder and
psychological factors influencing physical condition."
2. Claimant expressed symptoms of worsening stress and
anxiety in 1988, which eventually led him to quit the police force.
3. By October 1988, Norman's psychiatrist indicated that
Norman could return to work. By November 1988, the psychiatrist
revised his opinion based on a report by another doctor that Norman
had suffered another anxiety episode leading to an emergency room
visit.
4. In the summer of 1989, a neurosurgeon diagnosed a
herniated disc in Norman's neck, which he stated was related to the
auto accidents he had suffered in 1980 and 1987. On cross-

examination in his deposition, the neurosurgeon stated that his
opinion relating Norman's cervical problems to his auto accidents
was entirely dependent on the history related by Norman some two
years after the fact. He further stated that the condition he
diagnosed could be caused by trauma or by aging.
 5. Norman was treated extensively by another doctor for his
cervical complaints. His visits increased following the February
1987 accident, but at no time did the doctor advise Norman to quit
work due to his physical problems.
6. During calendar year 1988, Norman's claim for disability
retirement benefits named stress as his disability.
7. The evidence is overwhelming that claimant's anxiety
disorder is his predominant disabling condition.
The City of Whitefish does not dispute that it must pay all
medical and wage loss benefits to which Norman is entitled as a
result of his February 1987 injury. However, the record shows that
his present disability is stress or anxiety related. Because
Norman has failed to show that the 1987 injury caused the condition
which now results in his total loss of wages, and because the
findings and conclusions of the Workers' Compensation Court are
supported by substantial credible evidence, the City of Whitefish
is not liable for Norman's present disability.
Is the court's order on rehearing inconsistent with its prior
findings and conclusions regarding the causal relationship between
Norman's current condition and the February 12, 1987, injury?
The court's original order of August 23, 1990, stated as part
of Conclusion of Law No. 3:
Dr. Mahnke did diagnose two disk level problems which
would require surgery. The Court does feel that given
Dr. Mahnke's report, plus Dr. Wensel's office notes
reflecting an increase in the number of visits claimant
made for chiropractic manipulation following the
 February 12, 1987 auto accident, that claimant may well
have a disability related to that event.
Norman maintains that the courtls decision on the motion for
rehearing on October 4, 1990, was inconsistent with the above
conclusion, and therefore, this Court should direct the lower court
to conform its judgment to the findings and conclusions, or vacate
the judgment and remand to the lower court for more specific
findings and consistent conclusions.
When read in their entirety, the August 1990 and October 1990
decisions of the Workers1 Compensation Court are specific and
consistent. The above conclusion in the August order additionally
states that:
However, in order to be entitled to total disability
benefits, the accident must cause the condition which
results in claimant's total loss of wages. Claimant has
not met that burden.
The October order states that:
The prior ruling, in the Conclusions of Law, notes that
claimant may well have some entitlement under the ACT for
that February 12, 1987 event but that his lack of
credibility fails to support a determination medically
that claimantls current cervical complaints can be
related to the February 12, 1987 accident. In short, he
failed to meet the requisite burden of proof in that
regard.
The orders are consistent in their rationale that although
Norman may have suffered a compensable injury in 1987, and that
injury may be related to his current cervical problems, he has not
shown in any respect that his total inability to work now is a
result of the 1987 injury. His failure to prove the causal
connection between injury and inability to work relieves the City

of Whitefish of liability for his present total disability.
Affirmed.

We Concur: