NO. 91-104
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
LAURIE L. SMITH,
Claimant and Appellant,
V.
UNITED PARCEL SERVICE,
Employer,
and
LIBERTY MUTUAL INSURANCE CO.,
Insurer and Respondent.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kenneth H. Grenfell argued, McChesney,
Grenfell & Ogg, Missoula, Montana
For Respondent:
Larry W. Jones argued, Garlington, Lohn
& Robinson, Missoula, Montana
Submitted: May 28, 1992
Decided: July 21, 1992
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Laurie L. Smith appeals the judgment of the Workers'
compensation Court which held that her 1986 back injury, sustained
in the course and scope of her employment at UPS, was not the
proximate cause of her current permanent partial disability. The
court held that appellant's current disability resulted from a
separate injury occurring in July 1989, and denied her permanent
partial disability benefits for her current disability under
5 39-71-703, MCA (1985).
We affirm.
Appellant raises various issues for this Court to consider.
However, we find the following issues to be dispositive:
1. Did the Workers' Compensation Court err when it adopted
respondent's proposed findings of fact and conclusions of law
almost verbatim?
2. Was there substantial credible evidence to support the
Workers' Compensation Court's findings of fact that claimant's
injury was not proximately caused by an industrial accident which
occurred at UPS?
Prior to her injury, appellant worked for UPS as a preloader
and part-time driver. On March 24, 1986, she injured her back when
lifting a package. On April 11, 1986, she returned to work in a
light-duty capacity, and later in the month she worked again as a
preloader. In July 1986, she left UPS because she continued to
have back problems and decided to attend college at Portland State.
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While at Portland State, appellant played women's basketball,
worked 20 hours per week at a pizza parlor, and carried a full
credit load of classes. Appellant testified that she continued to
have back problems during this period. However, she never reported
any back problems when undergoing a required physical examination
for Portland State basketball players. She quit basketball because
of either a hamstring pull or continued back problems. After
ending her basketball career, appellant increased her work hours at
the pizza parlor.
Appellant returned to Missoula in July 1987. She continued
her interests in athletics by playing soccer and running. Although
appellant enjoyed these endeavors, she would occasionally have
flair-ups of back pain which would result in the suspension of her
activities until the pain subsided.
She began working for Gallagher Ceder Products bundling cedar
shakes in July 1987. On her application for employment, appellant
stated that she did not have a physical disability which would
restrict her ability to perform her job. Initially, she began
performing light-duty work, but in August 1987 she started heavy
cedar shake bundling. It was at this time that appellant began to
experience increasing back pain. She then filed a workers'
compensation claim through Gallagher Cedar Products. The State
Fund awarded her temporary total disability benefits and medical
benefits.
Because appellant was concerned about reinjuring her back, she
left Gallagher Cedar Products and became a manager at Torrey's Home
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Cooking in Missoula. She also started to experience back pain
while working in this position, which led her to forgo her athletic
activities until the pain subsided. She then filed a workers'
compensation claim relating to her reinjury at Torrey's restaurant
and received ten weeks of temporary total disability benefits.
At the time of trial, appellant had been working for Azimuth,
Inc., a geotechnical service company, where she had done surveying
and claim staking for approximately one and one-half years. Her
duties include hiking on hilly terrain, digging holes for survey
monuments, and carrying a pack frame that weighs about 25 to 30
pounds.
The location and type of symptoms the appellant now claims are
disabling, are the same symptoms in the same body areas as those
affected after her injury at Gallagher Cedar Products. Appellant
asserts that because of her condition she can no longer play
college basketball, work at a pizza parlor, or work at Torrey's
Home Cooking or Gallagher Cedar Products. Appellant filed a
workers' compensation claim against UPS alleging that her initial
injury from her industrial accident at UPS was the proximate cause
of her disabling condition.
On May 8, 1990, trial was held. The record was left open for
the taking of post-trial depositions. The Workers' Compensation
Court ordered counsel, pursuant to stipulation by the parties, to
simultaneously submit by mail proposed findings of fact and
conclusions of law and supporting briefs on November 15, 1990.
Defense counsel was granted a motion for an additional day to file.
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The Workers' Compensation Court ordered the parties to serve reply
briefs no later than November 30, 1990. The court granted
respondent's motion to allow parties to file reply briefs no later
than December 5, 1990.
On February 11, 1991, the court issued its findings of fact
and conclusions of law in favor of respondent. In the order, the
court refusedto consider appellant's proposed findings of fact and
conclusions of law and supporting brief because they were not
timely filed. Appellant appeals the findings of the Workers'
Compensation Court.
I.
Did the Workers' Compensation Court err when it adopted
respondent's proposed findings of fact and conclusions of law
almost verbatim?
Appellant asserts that she was prejudiced when the Workers'
Compensation Court adopted respondent's proposed findings of fact
and conclusions of law verbatim because appellant did not timely
file her proposed findings of fact and conclusions of law.
The Workers' Compensation Court did adopt appellant's
employment history almost verbatim from respondent's proposed
findings of fact and conclusions of law. However, the Workers'
Compensation Court independently adopted its own conclusions
regarding the medical testimonies of Dr. Walter H. Peschel and Dr.
Robert J. Seim, an orthopedic specialist. We hold that the
Workers' Compensation Court did not abuse its discretion in not
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considering appellant's untimely proposed findings of facts and
conclusions of law.
LL.
Was there substantial credible evidence to support the
Workers' Compensation Court's findings of fact that claimant's
injury was not proximately caused by an industrial accident which
occurred at UPS?
We will uphold the Workers' Compensation Court's findings if
they are supported by substantial credible evidence. Tenderholt v.
Travel Lodge International (1983), 218 Mont. 523, 526, 709 P.2d
1011, 1013. Even though conflicting evidence may exist in the
record, it is the Workers' Compensation Court's, and not this
Court's, duty to resolve such conflicts. Olson v. Westfork
Properties, Inc. (1976), 171 Mont. 154, 157, 557 P.2d 821, 823.
Dr. Seim, appellant's treating physician, testified that in
his opinion, she would have had to have been asymptomatic for at
least 12 months before he could conclude that her back problems
resulted from the second employer. He also opined that she reached
maximum medical improvement in the months after her first injury at
UPS. In addition, appellant testified that she had no serious back
problems while attending Portland State. She continued a full
range of activities which included varsity basketball, a full
college credit load, and working part-time.
Appellant contends that there was no evidence that a second
injury occurred at Gallagher Cedar Products. The record reflects
that appellant signed a claim for compensation which stated that
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she hurt her back when she picked up a bundle of cedar shakes to
put on a stack of bundles. Because of this claim, she received
temporary total disability and medical benefits from the State
Fund. In response to a question on the application for employment
form for Gallagher Cedar Products, appellant stated that she did
not have any physical condition which would limit her ability to
perform her job. We hold that there was substantial credible
evidence to support the Workers' Compensation Court's conclusion
that appellant's back injury was not proximately caused by her
industrial accident at U P S .
We affirm.
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