No. 90-462
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
CAROL A. HASH,
Petitioner and Appellant,
-v-
MONTANA SILVERSMITH,
Employer, APR 2 2 1997
and
STATE COMPENSATION MUTUAL INSURANCE FUND,
Insurer/Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Denise Ackerman; Lloyd E. Hartford; Billings,
Montana
For Respondent:
Richard E. Bach; State Compensation Mutual Insurance
Fund; Helena, Montana
Submitted on Briefs: January 24, 1991
Decided: April 22, 1991
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
Carol Hash appeals from a judgment of the Workers'
Compensation Court, which held she failed to establish that she
suffered a compensable back injury . The insurer, State
Compensation Mutual Insurance Fund, has cross appealed the Workers1
Compensation Court's judgment which held that Mrs. Hash suffered
a compensable injury to her hands. We affirm.
The only issues we find necessary for review are:
1. Whether the Workers1 Compensation Court's decision that
Carol Hash failed to prove she suffered a compensable back injury
is supported by substantial evidence;
2. Whether the Workers1 Compensation Court's decision that
Carol Hash suffered a compensable hand injury is supported by
substantial evidence.
At the time of trial, Carol Hash (claimant) was fifty years
old. She had worked for Montana Silversmith since 1981.
Apparently she worked in the "buckle department1' on a full time
basis until she terminated her employment on April 24, 1987.
In 1985, claimant began having problems with her hands. In
response to these problems, she sought medical attention from Dr.
Phillip Griffin, a Billings rheumatologist. Dr. Griffin noted the
formation of Heberden nodes in the claimant's fingers and concluded
that the pain in her hands was caused by degenerative or primary
osteoarthritis. According to Dr. Griffin, osteoarthritis is a
disease of unknown cause or origin. During his deposition, he
testified that the claimant's work activities could aggravate her
condition. However, this aggravation would be temporary in
character. Once the work activity ceased, the aggravation would
cease as well. In his opinion, no permanent damage would result
from claimant's job related activities.
In December 1986 claimant saw Dr. Dernbach and complained
about back pain, which was hurting to the point that she had
numbness in her right leg. Eventually, she was referred to Dr.
James Johnson who diagnosed her back condition as spondylolisthesis
or spondylolysis. He prescribed physical therapy for her back.
Dr. Johnson did not recall making any inquiry as to the nature of
claimant's work and consequently did not have an opinion as to
whether her condition was related to her employment. However, he
did state his belief that her back condition was a congenital
problem.
In early 1987, claimant informed her immediate supervisor that
her job was aggravating her back and hands. On April 15, 1987,
claimant informed her employer that she was going to file a claim
for compensation on her back. Eventually the claimant terminated
her employment due to ongoing problems with her back and hands.
As a result of claimant 's filing for benefits, respondent, the
State Fund, sent her to Dr. Susan English. Dr. English diagnosed
osteoarthritis of the hands and spondylolisthesis of her back. In
Dr. English's opinion the hand and back problems were not related.
Based upon her examination of the claimant, Dr. English concluded
that the claimant's job duties did not cause the osteoarthritis.
She believed that claimant's work would, at the most, temporarily
aggravate claimant's hand condition and that the work would not
produce any permanent effect. During her deposition, Dr. English
testified that the claimant would have the same osteoarthritis
problems regardless of her employment. It is ''medically possible1'
however that micro trauma, associated with claimant's job could
aggravate her osteoarthritis.
Initially, the State Fund agreed to accept liability for Mrs.
Hash's claim as an occupational disease. The State Fund agreed to
pay disability benefits until an occupational disease panel
evaluation could be performed to determine what percentage of
claimant's osteoarthritis was caused or contributed to by her
employment. The panel evaluation was performed by Dr. William Shaw
on June 19, 1989. Based upon this evaluation, Dr. Shaw concluded
that claimant's disability was unrelated to occupational causes.
As a result, claimant's benefits were terminated on September 11,
1989.
Claimant then filed a petition for a hearing before the
Workers1 Compensation Court. Following trial, before hearings
examiner Robert J. Campbell, the Workers1 Compensation Court found
that claimant suffered a compensable injury to her hands. However,
it found that she did not suffer a compensable injury to her back.
The court could not determine, from the evidence presented, the
nature and extent of her permanent disability. It therefore
ordered her to file a new petition "with evidence of maximum
healing and an election of permanent partial entitlement supported
by appropriate evidence.'' This appeal followed.
Our function in reviewing a decision of the Workers'
Compensation Court is to determine whether there is substantial
evidence to support the findings and conclusions of that court.
We cannot substitute our judgment for that of the trial court as
to the weight of evidence or questions of fact. Steffes v. 93
Leasing Co. Inc. (1978), 177 Mont. 83, 580 P.2d 450. However,
decisions of the Workers' Compensation Court must be based upon
substantial credible evidence. OIBrien v. Guaranty Fund Services
(1990), 241 Mont. 267, 786 P.2d 1189. If the conclusions of law
are not supported by the court's findings of fact, those
conclusions must be reversed. Hume v. St. Regis Paper Co. (1980),
187 Mont. 53, 608 P.2d 1063.
In accordance with this standard of review, the claimant
argues that she established that she suffered a compensable injury
to her back and that this Court should reverse the conclusions of
the Workers' Compensation Court. Claimant correctly points out
that an employer takes an employee the way he finds him. An
employee who suffers from a preexisting condition is entitled to
compensation if the condition was aggravated or accelerated by an
industrial injury. Shepherd v. Midland Foods Inc. (1983), 205
Mont. 146, 666 P.2d 758.
However, before a worker is entitled to Workers1 Compensation
benefits, she must establish by a preponderance of evidence that
an llinjuryll fact occurred.
in Dumont v. Wickens Bros. Const. Co.
(1979), 183 Mont. 190, 598 P.2d 1099. For the purposes of this
case, injury is defined as
"a tangible happening of a traumatic nature from an
unexpected cause or unusual strain resulting in either
external or internal harm and such physical condition as
a result therefrom and excluding disease not traceable
to injury ...
I
' Section 39-71-119, MCA (1985).
The claimant argues that she suffered an injury to her back,
as defined by the above statute. She maintains that her back
problems were a preexisting condition which was exacerbated by her
employment. Eventually, her back condition became so bad she was
forced to quit. In making this argument, claimant relies upon
Shepherd v. Midland Foods Inc. (1983), 205 Mont. 146, 666 P.2d 758
and Hoehne v. Granite Lumber Co. (1980), 189 Mont. 221, 615 P.2d
In Shepherd, the claimant suffered from degenerative arthritis
in his knees. This preexisting condition was aggravated by the
heavy work requirements of his job. Eventually, the claimant's
knees collapsed and he was forced to quit work. The Workers'
Compensation Court held he was ineligible for future benefits
because he could not show that his condition was work related. On
appeal, we reversed and held that uncontested medical evidence
supported the conclusion that Mr. Shepherd's work related
activities accelerated the arthritic condition of his knees and led
to their eventual breakdown. Shepherd, 666 P.2d at 763.
In Hoehne, this Court recognized that a "tangible happening
of a traumatic naturev1
need not be a single isolated incident, but
may well be a ''chain of incidents1' leading to an injury. In
Hoehne, the claimant's injury resulted from his job which required
him to stack lumber on a daily basis. Eventually, this activity
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led to the development of carpal tunnel syndrome, which this Court
found to be an injury arising out of the claimant's employment.
Neither of these cases are applicable to the facts surrounding
Mrs. Hash's back injury. In both cases, it was clear that the
claimants' conditions were caused by their work activity. In
Shepherd, the medical evidence established that the claimant's work
aggravated his preexisting condition until his knees eventually
broke down following a fall, which occurred at work. In Hoehne,
the claimant established that the repetitive nature of his work
directly led to the development of carpal tunnel syndrome. There
was medical evidence to establish that Mrs. Hash suffered from a
preexisting condition which was neither caused nor aggravated by
her work.
All doctors agree that her back condition was a congenital
defect which was not created by her employment. Because her
spondylolysis is not traceable to any injury, the condition is not
compensable and the judgment of the Workersr Compensation Court on
this issue is affirmed.
The court did find, however, that claimant was entitled to
compensation for her hands. The State Fund maintains that her hand
condition, like that of her back, is not a compensable injury. It
argues that the medical testimony illustrates that the
osteoarthritis in claimant's hands would have been no different had
she not engaged in her employment with Montana Silversmith and that
the Workers' Compensation Court erred in awarding benefits. We
disagree.
I ! ,j
* L,
6 *
Both Dr. English and Dr. Griffin testified that it was
possible that micro-trauma associated with Mrs. Hash's work
aggravated her underlying condition. Proof of medical possibility
can be used in conjunction with other evidence to support a grant
of workmen's compensation benefits because of such aggravation.
Viets v. Sweetgrass County (1978), 178 Mont. 337, 583 P.2d 1070.
It is uncontroverted that Mrs. Hash's hand condition
manifested itself while she was employed with Montana Silversmith.
Eventually, the pain in her hands became so severe she was forced
to quit work. The micro-trauma associated with her work combined
with her underlying condition to produce her disability.
After trial and after reviewing the witness testimony, the
Workers' Compensation Court found that Mrs. Hash suffered a
compensable injury to her hands. We cannot reverse this judgment
unless there is no substantial evidence to support it. Taking all
of the testimony as a whole, we hold that the judgment of the
Workers' Compensation Court is supported by substantial evidence.
The finding of the court that Mrs. Hash suffered a compensable
injury to her hands is therefore affirmed.
Finally, Mrs. Hash maintains that the Workers' Compensation
Court erred when it failed to determine the amount of permanent
compensation benefits she was entitled to. We have reviewed the
pretrial order in this matter and it is apparent that the issue of
permanent benefits was not submitted to the court for resolution
during trial. Therefore it would have been inappropriate for the
Workers1 Compensation Court to decide this matter. In order to
determine the extent of her entitlement, Mrs. Hash must submit
appropriate evidence to determine the nature and extent of her
8
permanent disability rating. The judgment of the Workers'
Compensation Court, on this issue, is affirmed.
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