NO. 91-272
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
TWOMAS GERLACH,
Petitioner and Appellant,
-vs-
CHAMPION INTERNATIONAL,
Employer, Defendant and Respondent.
APPEAL FROM: The Workers’ Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rex Palmer, Esq., Attorneys, Inc., Missoula, Montana
For Respondent:
Bradley J. Luck, Esq., Garlington, Lohn & Robinson,
Missoula, Montana
Submitted on Briefs: January 9, 1992
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Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
This is an appeal from a decision of the Workers' Compensation
Court filed April 30, 1991, denying claimant entitlement to
permanent partial disability benefits under the Workers'
Compensation Act. We affirm.
The sole issue on appeal is whether the Workers' Compensation
Court erred in determining that claimant does not suffer a
disability as a result of an industrial injury which occurred in
the summer of 1986.
Claimant Thomas Gerlach (Gerlach) has worked in the wood
products industry for 25 years. Gerlach began his employment with
Intermountain Lumber Mill which subsequently was purchased by
Champion International. During the year prior to the 1986 events
which give rise to this action, he worked as a trimmer operator, a
position requiring Gerlach to engage in repetitive upper body
movements.
By 1984, Gerlach was experiencing physical problems involving
his neck, and back due to his work and sought help from a
chiropractor. The chiropractor diagnosed Gerlach with "acute
myositis" or acute muscular discomfort. The pain gradually
increased and, in 1985, Gerlach sought medical treatment from his
family physician, who found neck and shoulder aching and chronic
back problems.
In late spring or early summer of 1986, Champion International
modified its operation to increase lumber production. Gerlach
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worked the modified job intermittently over an eight to nine week
period. The strain to Gerlach's arms and shoulders increased when
he worked the modified job because he was required to work two
lines simultaneously instead of one. Gerlach shortly reached a
point at which his right arm remained in constant pain.
Gerlach sought medical assistance from Dr. Donald Nevin during
July of 1986. Dr. Nevin diagnosed and treated Gerlach's tendinitis
of the right shoulder and elbow. Gerlach subsequently filed a
claim for compensation with Champion.
Dr. Nevin continued to care for Gerlach. After recommending
several weeks off work so that the right elbow could be completely
immobilized, he referred Gerlach to Dr. Mark Rotar, an orthopedic
surgeon. Dr. Rotar saw Gerlach three times, confirming Gerlach's
right elbow tendinitis.
Gerlach obtained physical therapy for his tendinitis in
October of 1986. Because the physical therapy failed to completely
alleviate Gerlach's right arm discomfort, Dr. Rotar prescribed a
period off work for Gerlach. As a result, Gerlach did not work
from November 1986 until mid-January of 1987. Champion paid
Gerlach total disability and medical benefits for this period of
time without specifying whether compensation was made under
Montana's Occupational Disease Act or Workers' Compensation Act.
Between Gerlach's return to work in January of 1987 and the
Champion mill closure in 1990, Gerlach worked continuously, albeit
in less repetitive jobs. He missed no work due to his physical
condition nor did he complain to his employer of any physical
problems. The record reflects that Gerlach did not seek or receive
any medical treatment for his elbow, arm and shoulder problems
following his return to work in 1987. Gerlach is currently
employed by Montana Wood Specialties working a variety of jobs.
Gerlach and Champion could not agree whether Gerlach's claim
arose under the Workers' Compensation Act or the Occupational
Disease Act. Gerlach filed a claim seeking permanent partial
disability benefits under the Workers' Compensation Act. The case
was heard on November 14, 1990.
The Workers' Compensation Court concluded that Gerlach does
not suffer a disability as a result of an industrial injury in the
summer of 1986. According to the court, overwhelming evidence
establishedthat Gerlach suffered from an overuse syndrome as early
as 1984 and that he continues to suffer from that syndrome: such a
condition is an occupational disease rather than a compensable
disability under the Workers' Compensation Act. The court
determined that Gerlach did not prove that his problems with his
arms, shoulders, back and neck were causally related to the events
of 1986.
At the Workers' Compensation hearing, Gerlach testified that
he is presently in constant pain in his neck, shoulders, and
elbows, with the majority of his pain centered in the shoulder
area. Gerlach's testimony did not connect his current physical
problems to the events of 1986. Indeed, Gerlach testified in his
deposition to the gradual onset of the pain from which he continues
to suffer:
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Q: And so from the onset of the neck pain in ' 8 4 , it
gradually got worse until in July of '86, it
involved both arms, both shoulders and the neck,
and you went to see Dr. Nevin?
A: Yes.
Q: And that's when you filed your claim?
A: Yes.
Q: And in retrospect, you attribute the totality of
these upper extremity problems to those numbers of
years of repetitive activity beginning with
Intermountain and then into the Champion operation?
A: Yes.
The three doctors who testified by way of deposition agreed
that Gerlach suffered from an overuse syndrome prior to the spring
of 1986. Following the 1986 work increase, Gerlach first saw Dr.
Donald Nevin who diagnosed his condition at that time as right
elbow tendinitis, consistent with an overuse syndrome. He treated
Gerlach and then referred him to an orthopedic surgeon, Dr. Mark
Rotar. Dr. Rotar confirmed Dr. Nevin's diagnosis, treated Gerlach
for right elbow tendinitis, "almost always an overuse problem,I' and
prescribed a period of complete inactivity for the elbow. Dr.
Rotar stated in his deposition that an overuse syndrome is not an
unusual condition for someone who has worked many years in
repetitive activity in the wood products industry. Dr. Peggy
Schlesinger, who specializes in arthritic conditions including
overuse syndrome, testified that she could not conclude that
Gerlach's present physical condition derived from any specific
events of 1986.
Our standard of reviewing a decision of the Workers'
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Compensation Court is to determine if there is substantial evidence
to support the findings and conclusions of that court. When there
is substantial evidence to support the Workers' Compensation Court,
this Court cannot overturn the decision. Wood v. Consolidated
Freightways, Inc. (1991), 248 Mont. 26, 28, 808 P.2d 502, 504.
The Workers' Compensation Court concluded that Gerlach does
not suffer a disability as a result of an industrial injury in the
summer of 1986. In this case, Gerlach must prove by a
preponderance of the credible evidence that 1.) he suffered an
injury arising out of and in the course of his employment; and 2.)
the injury was the proximate cause of his disabling condition.
Frost v. Anaconda Company (1985), 216 Mont. 387, 701 P.2d 987.
Substantial evidence exists to support the Workers' Compensation
Court's determination that Gerlach's current condition did not
result from the 1986 tendinitis. As stated above, the physicians
who testified stated that Gerlach was treated for right elbow
tendinitis in 1986, but had suffered a prior overuse syndrome.
Neither the doctors nor Gerlach could directly attribute Gerlach's
present condition involving his neck, shoulders, arms and back to
the events of 1986; all stated that prior to the 1986 tendinitis,
Gerlach had suffered pain in the same body parts as now afflict
him. Given the record before the causation element, we need not
determine whether the 1986 tendinitis met the other statutory
requirements for an injury under 5 39-71-119(1), MCA (1985).
Gerlach relies on Hoehne v. Granite Lumber Co. (1980), 189
Mont. 221, 615 P.2d 863, and Kraft v. Flathead Valley Labor and
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Construction ( 1 9 9 0 ) , 243 Mont. 363, 792 P.2d 1 0 9 4 ; his reliance is
misplaced. Hoehne and Kraft involved determinations of whether a
compensable and defined injury under the Workers' Compensation Act
had occurred. In the case at bar, the causal connection between
Gerlach's job activity and his 1 9 8 6 tendinitis has been conceded
and the tendinitis has been fully compensated by Champion. The
sole issue necessary for resolution of this case is whether the
compensable 1 9 8 6 tendinitis caused Gerlach's current physical
problems.
Taken as a whole, the medical evidence and Gerlach's own
testimony establish that the 1 9 8 6 events resulted in right elbow
tendinitis, that that condition was treated successfully by the
time of Gerlachls return to work in 1 9 8 7 , and that it did not
recur. Stated differently, the evidence establishes that Gerlach's
current overuse syndrome existed as early as 1 9 8 4 and was not
caused by and does not result from the increased work activity in
1986.
We conclude that substantial credible evidence exists to
support the Workers' Compensation Court's determination that
Gerlach does not suffer a disability as a result of an industrial
injury which occurred in the summer of 1 9 8 6 . We hold that the
Workers' Compensation Court did not err.
Af finned.
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We concur:
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