NO. 93-270
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
JAMES R. WALKER,
Claimant and Appellant,
v.
UNITED PARCEL SERVICE, Employer, and
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Defendant and Respondent.
APPEAL FROM: Workers ' Compensation Court
State of Montana
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen C. Pohl, Bozeman, Montana: Chris J. Ragar,
Bozeman, Montana
For Respondent:
Larry W. Jones, Missoula, Montana
Submitted on Briefs: October 28, 1993
Decided: December 16, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a decision by the Workers' Compensation
Court denying permanent partial disability benefits. We reverse.
The sole issue before us is whether the Workers' Compensation
Court erred by determining that claimant's current medical
condition was not caused by the 1985 injury.
James R. Walker (Walker) began his employment with United
Parcel Service (UPS) in 1981 and delivered packages in the Bozeman
area. Prior to 1985, Walker was in excellent health and was
considered to be an excellent employee. On September 12, 1985,
Walker suffered a back injury while working for UPS. He stepped
off a loading dock, struck his knee against a structure, and
strained or sprained his back.
Because of the ensuing pain, Walker was forced to quit work
early. The day after the injury, Walker was in severe pain and was
unable to move out of his bed. Ultimately, Walker's wife called an
ambulance and Walker was taken to the emergency room and thereafter
admitted. Medical personnel determined that Walker's back was in
spasms because of an injury to the ligaments in his lower back.
Walker remained in the hospital for four days and was released
while still experiencing pain.
He did not work for approximately two and one-half months
following his injury. Walker returned to work and continued
working for six more years before quitting his employment in
January of 1992. He claims that his back has flared up on a number
of occasions and that he has had to call the office while on his
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delivery route for a relief driver. Walker maintains that since
the 1985 accident, he has had a persistent, dull pain in his back
and that towards the end of every week it would get worse.
Walker's pain became more severe in July of 1991 and remained
with him continually. After calling in for a relief driver in
January of 1992, UPS sent Walker home and told him not to return to
work until his back was 100% well. He has not returned to work at
UPS.
Northwest Mutual notified Walker that he would be receiving
benefits because of an occupational disease. Walker believed,
however, that he had sustained an injury. In 1992, he filed a
petition with the Workers ' Compensation Court for permanent partial
disability benefits based upon his 1985 injury. The Workers'
Compensation court heard the matter in December of 1992. The court
issued its decision on May 7, 1993, finding that Walker was not
permanently disabled as a result of the 1985 injury. Walker
appealed.
Did the Workers' Compensation Court err in denying permanent
partial disability benefits based on its conclusion that claimant's
current medical condition was not caused by the 1985 injury?
Walker contends that despite repeated and various treatments
for his back condition, his back has never returned to its pre-1985
condition. Walker testified that he had received various
treatments from different doctors in the last 6 years but that none
of these treatments had completely taken the pain away. He
testified that following the 1985 accident, he has experienced
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flare-ups which caused his pain to escalate severely. On that
basis, he contends that he is entitled to permanent partial
disability benefits.
Respondents argue that Walker did not prove that the 1985
injury caused his disability. According to respondents, Walker
sustained subsequent injuries which were the cause of his current
condition.
The Workers' Compensation Court stated:
Because the claimant reached maximum healing prior to the
subsequent injuries the Court concludes that the
claimant's current disability was not proximately caused
by his September 1985 injury. The claimant's return to
his time of injury job for a period of about six years
coupled with subsequent injuries creates a causal chain
that is too tenuous to conclude that the 1985 injury is
the cause of claimant's current condition. The medical
evidence presented does not establish by a preponderance
of the evidence that the claimant's current condition was
caused by his 1985 injury. The doctors generally agree
that the 1985 injury weakened the claimant's back making
him more susceptible to injury, however, no doctor would
testify that the claimant's current condition would exist
had he not returned to work at UPS. Nor did any of the
medical doctors testify that the claimant's subsequent
injuries were mere temporary aggravations of his prior
condition and that he had returned to his post 1985
injury condition. The claimant has failed to carry his
requisite burden of proof in establishing that the 1985
injury caused his current condition.
The long established standard of review for this Court when
considering the decision of the Workers' Compensation Court is to
determine whether there is substantial credible evidence to support
the Workers' Compensation Court's decision. O'Brien v. Central
Feeds (1990), 241 Mont. 267, 786 P.2d 1169. When critical medical
testimony is presented through depositions in workers' compensation
proceedings, this Court can assess evidence as well as the lower
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court. Smith-Carter v. Amoco Oil Co. (lPPl), 248 Mont. 505, 813
P.2d 405.
It is the claimant's burden of proof to present a
preponderance of the evidence to show that he has sustained an
injury and that the injury occurred while he was on the job.
Gerlach v. Champion International (1992), 254 Mont. 137, 836 P.2d
35; 5 39-71-119, MCA. The claimant must also prove by a
preponderance of the evidence that a causal connection exists
between his work accident and his current condition. Brown v.
Ament (1988), 231 Mont. 158, 752 P.2d 171.
Here, the Workers' Compensation Court states that no doctor
would testify that Walker's condition was caused by the 1985
accident. The court appears to rely exclusively on Dr. Mohr's
testimony that Walker's pain was intermittent. Dr. Duane Mohr
first saw Walker in 1991. Mohr is a pain management specialist.
When asked if he had any way of knowing to a reasonable
medical probability one way or another whether Walker's ongoing
symptoms were caused by that initial injury (in 1985) or whether
the ongoing symptoms were caused by simply the requirements of the
job, Mohr's response was: "I can't be certain." Dr. Mohr then
qualified his answer about Walker's work activity by indicating
that Walker suffered from two different conditions. He stated that
he felt the bulging discs from which Walker suffered in 1991 were
caused by the day-to-day stress of Walker's job. The chronic
strain in the lower back region was a condition for which he did
not have an opinion as to its cause. Nowhere in Mohr's testimony
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is there an unqualified refusal to attribute Walker's total
condition to the 1985 injury. Because Dr. Mohr's testimony is so
equivocal, it is not substantial evidence when weighed against the
balance of the medical testimony.
Although the Workers' Compensation Court stated that no doctor
would testify that Walker's condition sprang from the 1985
accident, the record before us does not substantiate the court's
statement. Walker first saw Dr. Bernard M. Varberg, an orthopedic
surgeon, when he was injured in 1985. Dr. Varberg testified that
Walker had sustained a lower lumbosacral strain or sprain in which
the back's ligaments were stretched. In his deposition, Dr.
Varberg testified that Walker's current condition and the symptoms
that he continues to experience are a result of the 1985 injury and
his continuing to work. Dr. Varberg last saw Walker in 1986,
before he moved from the Bozeman area.
In 1986, Walker was treated by a chiropractor, Dr. Lundgren.
Dr. Lundgren's notes say that Walker's condition stems from a
lifting incident that is similar to an accident for which he was
treated in 1985. Dr. Lundgren's records do not state whether the
1986 incident was an l'accident" which caused permanent damage
different from that of the 1985 accident or whether it was an
aggravation of the 1985 injury. However, we note that Dr. Lundgren
did state that he anticipated Walker to be able to return to his
pre-1986 condition. This seems to indicate that whatever happened
in 1986 was not a permanent injury.
Dr. John D. Campbell is an orthopedic surgeon who saw Walker
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in 1991. He stated during his deposition that the cause of
Walker's condition was the 1985 injury and not Walker's normal
working conditions at UPS. Dr. Gary Cooney, a physician
specializing in neurology who has seen Walker from 1991 until the
present, testified in his deposition that: "It's my opinion that
the patient's present back problems are related to an injury that
he sustained in a fall in 1985 which never completely healed."
The court also cites and respondents argue that Walker
returned to work in December of 1985 and continued to work for six
years. However, this does not mean that Walker was pain free or
that his return to work precludes recovery for workers'
compensation benefits because of the 1985 injury.
In a similar 1990 case, this Court stated that a worker who
returned to work with carpal tunnel syndrome following an injury
and subsequently performed his job better than anyone else was
still eligible for disability compensation because of the injury.
Kraftv. Flathead Valley Labor & Contractors (1990), 243 Mont. 363,
792 P.2d 1094. Likewise, the fact that Walker returned to his
regular job does not indicate that he was completely well or that
he was experiencing no pain. His return to work is not relevant to
the causation issue.
The Workers' Compensation Court stated that Walker reported
six different accidents to his physicians. There is nothing in the
record to support this statement. The court states several times
that these "accidents" were identifiable and reported.
An accident is an unexpected traumatic incident or unusual
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strain which is identifiable by time and place of occurrence,
identifiable by member or part of the body affected, and caused by
a specific event on a single day or during a single work shift.
Section 39-71-119(Z), MCA. The record does not corroborate six
accidents occurred. While it is clear that following the 1985
injury, Walker saw doctors on and off until 1991 when he began to
experience continual severe pain, the record does not indicate
whether the incidents that prompted the visits to the doctors were
discrete injuries or whether they were aggravations to the 1985
injury.
Because we determine that the claimant has met his burden of
proof that his injuries sprang from a 1985 accident, the burden of
proof concerning any post-1985 accidents which permanently damaged
claimant's back must fall upon the carrier. Lee v. Group W Cable
TCI of Montana (1990), 245 Mont. 292, 800 P.2d 702; § 39-71-703 &
seq., MCA. Lee is significant in that the claimant there suffered
from what was diagnosed by the doctors as two distinct back
injuries. Lee failed to prove that his current problems stemmed
from the earlier injury and not the later one as argued by the
carrier. Lee is informative because it focuses attention on the
importance of medical testimony in workers' compensation cases.
The doctors in Lee specifically noted two distinct injuries.
One of the doctors in Lee specifically stated that the second back
injury, from which claimant missed three months of work, was also
an exacerbation of the earlier back injury. Lee, 245 Mont. at 298,
800 P.2d at 705. The doctors here have not indicated that Walker
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suffered from two discrete injuries, suffered at two distinct
times. While alleging that six additional "accidentsl' occurred to
Walker's back, the carrier has not presented evidence that the
incidents it alludes to have met the legislature's definition of
accident. Further the carrier has not shown that a causal
connection exists between a post-1985 injury and Walker's current
condition. Thus, the carrier has not met its burden concerning any
subsequent accidents and the court did not have substantial
evidence from which to determine that Walker's injuries were caused
by a post-1985 accident.
We conclude that Walker has met his burden satisfactorily
concerning the proximate cause of his current problems. Therefore,
we hold that the Workers' Compensation court did not have
substantial evidence from which to determine that claimant is
unqualified for permanent partial disability benefits or that
subsequent injuries have caused the disability.
Reversed and remanded for further proceedings consistent with
this opinion.
We Concur: