No. 93-432
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
LARRY C. PLAINBULL,
petitioner and Appellant,
TRANSAMERICA INSURANCE COMPANY/
DRANEY INFORMATION SERVICE,
Defendant/Employer and Respondent.
APPEAL FROM: Workers' Compensation Court
State of Montana
The Honorable Timothy W. Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don Edgar Burris, Billings, Montana
For Respondent:
James G. Edmiston, 111, Billings, Montana
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Submitted on Briefs: January 13, 1994
MAR 1 0 1994 Decided: March 10, 1994
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Justice James C. Nelson delivered the Opinion of the Court.
The claimant, Larry C. Plainbull (Plainbull), appeals from
Findings of Fact, Conclusions of Law, and a Judgment entered by the
Workerst Compensation Court in favor of the respondent. We reverse
and remand.
The issue on appeal is whether the Workers' Compensation Court
correctly interpreted 39-71-407, MCA (1989).
The facts of this case are straightforward and essentially
undisputed. On May 10, 1991, Plainbull was employed as a laborer
for Draney Information Service (Draney) on the movie set for "The
Irish Storyf1 (later renamed "Far and Awayf1). Plainbull was
cleaning the walls of a train tunnel when a rock or other material
hit him in the left eye. Plainbull was initially treated by
Draney's on-location registered nurse, Sandie Sharkey-Knox
(Sharkey-Knox), who washed out the eye and placed an ointment in
it. At that time, Sharkey-Knox saw no abrasions or foreign bodies.
Plainbull's claim for workerst compensation benefits was
initially accepted as a medical-only claim and he was paid medical
benefits. Respondent Transamerica Insurance Company Draney's
insurer, contended that the choroidal rupture in the left eye
predated the May 10, 1991 incident, and was thus not a compensable
injury.
A hearing on the matter was held on September 22, 1992, and
depositions were taken and submitted to the Workers' Compensation
Court. The following testimony was before the Workers'
Compensation Court and is the basis for its findings and
2
conclusions.
On May 13, 1991, Plainbull saw Stephen R. Shaub, D.O. (Dr.
Shaub) , who noted that the injury occurred on May 10, 1991, and
that Plainbull had experienced pain in the eye since that time.
Dr. Shaub diagnosed a corneal abrasion. On May 15, 1991, Plainbull
again saw Dr. Shaub, complaining of persistent discomfort in the
left eye. Dr. Shaub diagnosed a corneal abrasion with a possible
foreign body.
On May 16, 1991, Plainbull saw Muzaffar H. Kirmani, M.D. (Dr.
Kirmani), an ophthalmologist, who diagnosed a choroidal rupture
with a macular hole. Dr. Kirmani was unable to ascertain the age
of the lesion. On June 14, 1991, Dr. Kirmani reported that
Plainbull's left eye vision was "compromised secondary to trauma
and choroidal rupture with a macular hole and a complete posterior
vitreous detachment of the left eye."
On July 2, 1991, Plainbull saw another ophthalmologist, J.
Thomas Priddy, M.D. (Dr. Priddy), who also diagnosed a choroidal
rupture in the left eye. On August 12, 1991, Dr. Priddy indicated
that he was not able to say that the choroidal rupture predated the
May 10 injury. In a letter dated January 14, 1992, Dr. Priddy
stated that he saw nothing about the injury that suggested it was
old. On April 21, 1992, Dr. Priddy indicated that he believed it
was possible that Plainbull's injury was caused by the May 10
accident.
On August 6, 1991, Plainbull visited an optometrist, John T.
Gingrich, O.D. (Dr. Gingrich), and told Dr. Gingrich that the eye
injury occurred on May 10, 1991. Dr. Gingrich noted a choroidal
rupture with macular involvements. However, Dr. Gingrich did not
make this diagnosis. He testified that such a diagnosis was
outside his field expertise and that the diagnosis was the opinion
of Dr. Fishburn, a retinal specialist who practiced in the same
office.
At deposition, Dr. Gingrich opined that the May 10 incident
did not cause the left eye condition. However, when questioned
further on the basis of that opinion, including questioning as to
what could cause a choroidal rupture with macular involvements, Dr.
Gingrich repeatedly testified that certain questions were "out of
the scope of [his] expertise" and "out of [his] range of
expertise." Dr. Gingrich also testified that he was suspicious^
as to why Plainbull "waited three months to come in to see me,!!
apparently unaware that Plainbull had been to a number of other
doctors. In addition, Dr. Gingrich admitted that all of his
comments and opinions regarding the choroidal rupture were based on
Dr. Fishburn's opinions and were not his own, as he was clearly
outside his area of expertise. He stated he based his opinions
regarding the cause of the injury "on the opinion of the expert,"
Dr. Fishburn.
Various other medical records were submitted to the Workers1
Compensation Court. These included a note dated January 18, 1992,
by Gary D. Mundy, M.D., indicating that Plainbull had visited the
emergency room with complaints of a headache and pain behind the
left eye. He noted that Plainbull suffered an eye injury the
previous year when he was hit in the left eye with a rock and that
Plainbull had suffered from intermittent pain off-and-on since that
time. Another note, dated January 21, 1992, by Deniz Tek, M.D.,
indicated Plainbull had been suffering from recurrent headaches
centered about the left eye over the past one and one-half years.
On February 4, 1992, Plainbull went to the emergency room with
left eye pain. A July 20, 1992 record from St. Vincent Hospital
indicated that Plainbull complained of a headache from an old
injury, which occurred when he was hit in the left eye with a rock
on May 10, 1991. Plainbull returned to the emergency room on
August 5, 1992, again complaining of left eye pain. Plainbull was
eventually referred to the Billings Clinic for a neurological
examination. This examination took place on October 5, 1992.
The report from this examination indicated that Plainbull had
suffered severe head injuries in the mid-1970s and that he
underwent a right parietal craniectomy to remove a subdural
hematoma in 1974. Roger S. Williams, M.D. (Dr. Williams),
summarized that Plainbull had neuralgia and possibly vascular pain
in the left orbit in the territory branches of the left external
carotid artery. Dr. Williams further stated that the injury could
have been caused by the May 10 incident if Plainbull's description
of the incident was correct and if his pain did not predate the
injury.
On October 18, 1992, records indicate that Plainbull went to
the emergency room complaining of pain in the eyes caused when
Plainbull was hit in the left eye with a rock.
Plainbull presented evidence regarding his vision prior to the
May 10 incident. In a firefighter's physical dated June 9, 1988,
Plainbull's uncorrected left eye visual acuity was 20/40. On May
13, 1991, Dr. Shaub recorded Plainbull's corrected left eye visual
acuity at 20/50. On May 6 , 1991, Dr. Kirmani recorded the
corrected vision to be 20/70. By June 14, 1991, Dr. Kirmani
indicated Plainbull's corrected vision was 20/200. On July 2,
1991, Dr. Priddy recorded the corrected vision in the left eye at
20/400. On August 6, 1991, Dr. Gingrich also recorded the
corrected left eye vision at 20/400.
Plainbull testified that he did not have any problems or
suffer from any injuries to his left eye during the period of time
from his last eye examination on January 14, 1989, until the May
10, 1991, incident.
Based on this testimony, the Workersf Compensation Court
entered Findings of Fact, Conclusions of Law, and Judgment on July
26, 1993, concluding that 5 39-71-407, MCA (1989), required
Plainbull to prove that it was medically more probable than not
that the injury of May 10, 1991, caused his medical condition and
that Plainbull had failed to establish his burden of proof. From
those findings, conclusions, and judgment, Plainbull appeals.
Our standard of review relating to conclusions of law is
whether the workersf compensation judge's interpretation of the law
is correct. Steer, Inc. v. Deplt of Revenue (1990), 245 Mont. 470,
474-75, 803 P.2d 601, 603.
The Workers' Compensation Court determined that Plainbull had
failed to carry his burden of proof pursuant to 5 39-71-407, MCA
(1989), which provides, in pertinent part:
(1) Every insurer is liable for the payment of
compensation . . . to an employee of an employer it
insures who receives an injury arising out of and in the
course of his employment. . . .
(2)(a) An insurer is liable for an injury as defined in
39-71-119 if the claimant establishes it is more probable
than not that:
(i) a claimed injury has occurred; or
(ii) a claimed injury aggravated a preexisting condition.
(b) Proof that it was medically possible that a
claimed injury occurred or that such claimed injury
aggravated a preexisting condition is not sufficient to
establish liability.
The claimant must also prove that the work-related injury caused
the condition at issue. See Norman v. City of Whitefish (1991),
248 Mont. 490, 812 P.2d 1259; see also Welch v. Am. Mine Services,
I ~ c .(1992), 253 Mont. 76, 831 P.2d 580.
The Workers' Compensation Court found that Plainbull was
injured on May 10, 1991, while employed by Draney, and that the
injury occurred when Plainbull was cleaning the walls of a train
tunnel with a shovel and a marble-sized rock struck him in the eye.
The court concluded that "the deteriorating condition of claimant's
eye sight seems to indicate an inciting event occurring sometime
around the date of injury. " The court further concluded, however,
that the medical testimony and opinions of the doctors did not
support Plainbull's claim for compensation, because Plainbull had
not established that it was "medically more probable than not that
the accident described by the claimant caused his eye injury."
We hold that the Workersf Compensation Court erred in so
concluding and find that Plainbull established his burden of proof
with respect to both the occurrence and cornpensability of the May
10, 1991 injury.
section 39-71-407, MCA (1989), cited above, requires that
Plainbull establish that it is "more probable t h a n not" that a
claimed injury has occurred or that a claimed injury aggravated a
preexisting condition. In this case, Plainbull contends that an
injury occurred on May 10, 1991, which caused his left eye
condition and that he had no preexisting condition prior to that
time. In fact, the Workers' Compensation Court found that
Plainbull had suffered a work-related injury on May 10, 1991.
However, the court went on to conclude that the injury was not
compensable because Plainbull did not establish that it was
medically more probable than not that the injury caused the
condition.
Section 39-71-407(2), MCA (1989), does not require that a
claimant establish that the injury occurred through medical
testimony. subsection (b) of that statute provides that a medical
possibility that a claimed injury occurred is insufficient proof to
establish liability. However, nothing in subsection (a) requires
a medical opinion as to whether the injury actually occurred or
not. Given traditional rules of statutory interpretation, we
decline to read the "medical opinion1#language of subsection (b)
into the burden of proof contained in subsection (a). Under the
plain language of t h e statute, it is not n e c e s s a r y that Plainbull
establish that his injury occurred out of and in the course of his
employment, pursuant to 5 39-71-407, MCA (1989), through medical
testimony. The claimant's burden under 5 39-71-407 (2)(a), MCA
(1989), is met when, with or without medical evidence, he ,
establishes that it is "more probable than not" that his injury
occurred out of and in the course of his employment.
In this case, the Workers' Compensation Court concluded that
Plainbull had suffered a work-related injury, but also concluded
that he did not establish that the work-related injury caused the
condition at issue. The court held that medical testimony was
required to establish this causal connection, and that the
testimony presented by Plainbull did not establish that it was
"medically more probable than not" that the injury caused the
condition.
Again, there is nothing in the workersr compensation statutes
relevant here that requires that the causal connection, which we
referred to in Norman, be established through the use of medical
testimony. While 5 39-71-407(2)(b), MCA (1989), provides, and our
prior case law holds, that simply proving, without more, that a
causal connection between the injury and condition is "medically
possible1'is insufficient, (See Viets v. Sweet Grass County (1978),
178 Mont. 337, 583 P.2d 1070; Hash v. Montana Silversmith (1991),
248 Mont. 155, 810 P.2d 1174), we have also held that causation may
be established by indirect evidence where medical science is unable
to provide definitive proof. See Conway v. Blackfeet Indian
Developers, Inc. (1983), 205 Mont. 459, 669 P.2d 225; Hengel v.
Pacific Hide & Fur Depot (1986), 224 Mont. 525, 730 P.2d 1163;
Moffett v. Bozeman Canning Co. (1933), 95 Mont. 347, 26 P.2d 973.
Under our present statutory scheme, all that the legislature
has required of a claimant is that he establish that it is "more
probable than not" that his injury or aggravation of a preexisting
condition occur out of and in the course of his employment and,
implicitly, under the case law, that the injury cause the condition
for which he is seeking workers' compensation benefits. Whether
the claimant chooses to meet that burden with medical evidence,
non-medical evidence or a combination of both, is up to him and,
obviously, depends on the facts and circumstances of his particular
case, the nature of the claimed injury, and the evidence available.
We emphasize that the burden of proof remains the claimant's.
He is entitled to prove his case with whatever probative evidence
he chooses or has available. In order that claimants not read into
this case more than is intended, we also point out, however, that
in most cases, while the occurrence of the injury may be
susceptible to proof without medical evidence, the causation of the
claimant's condition may very well require medical evidence if the
claimant is to successfully meet his burden of proof, especially in
the face of contrary medical evidence presented by the carrier.
While we will not read into the statute and into claimant's burden
to prove causation the requirement that he use medical evidence,
neither do we, here, in any manner, eliminate the necessity for
such evidence where that sort of evidence is a necessary part of
the claimant's case and where, without medical evidence, he will
not successfully meet his burden of proof.
Applying the above, we review the record of the lower court to
determine whether the evidence presented establishes that
Plainbull's condition was more probably than not caused by the
work-related injury of May 10, 1991.
The Workers' Compensation Court concluded that Plainbull did
not establish that the injury caused his condition. Our standard
of review of the Workers' Compensation Court decision is to
determine whether there is substantial credible evidence to support
the findings and conclusions of the court. EBI/Orion Group v.
State Comp. Mutual Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d
1070, 1072.
The Workers1 Compensation Court relied entirely on the opinion
testimony of Dr. Gingrich, an optometrist, who testified that, to
a reasonable degree of medical certainty, the injury of May 10,
1991, did not cause the left eye condition. Dr. Gingrich was
unable to give an opinion as to what did cause the left eye
condition, and when asked what could cause the diagnosed choroidal
rupture with macular involvements, Dr. Gingrich was unable to
answer. He repeatedly testified that certain questions were "out
of the scope of [his] expertise" and "out of [his] range of
expertise." He also admitted that he based his opinions on the
opinions of Dr. Fishburn, an ophthalmologist who did not testify.
Two ophthalmologists who examined Plainbull diagnosed a
choroidal rupture in the left eye. Dr. Kirmani testified that he
was unable to ascertain the age of the injury at the examination on
May 16, 1991, but did not testify that the condition predated the
May 10 injury. Dr. Kirmani also testified that, initially after
the injury, hemorrhaging would appear around the rupture site, but
that the hemorrhage would disappear within a few days, and all that
would be left would be the rupture itself. He stated that the
injury causing the rupture to the eye could have occurred on May
10, 1991.
Dr. Priddy indicated on August 12, 1991, that he was unable
to say that the choroidal rupture predated the May 10 injury, but
in a letter dated January 14, 1992, stated that he saw nothing
about the injury that suggested it was old. In addition, on April
21, 1992, Dr. Priddy indicated that he believed it was possible
that Plainbull's injury was caused by the May 10 accident.
In addition, Plainbull testified that he had no eye injuries
prior to the May 10 injury. He also presented evidence regarding
his vision prior to the May 10 incident. In a firefighter's
physical dated June 9, 1988, Plainbull's uncorrected left eye
visual acuity was 20/40. Three days after the injury, on May 13,
1991, Dr. Shaub recorded Plainbull's corrected left eye visual
acuity at 20/50. Within six days after the injury, the left eye
corrected vision was 20/70, and by July 2, 1991, the corrected
vision in the left eye was 20/400.
Based on this record, we find that there is not substantial
credible evidence to support the Workers' Compensation Court's
findings and conclusions that the May 10 injury did not cause
Plainbull's condition. The court relied on the opinion of an
optometrist who repeatedly testified that he was outside his field
of expertise and who admitted that the opinions he gave were not
his own. Prior to May 10, 1991, Plainbull had no left eye
condition and less than two months after the injury his condition
had deteriorated substantially. None of the doctors with expertise
in the area testified that the May 10, 1991 injury did not cause
Plainbull's condition and, in fact, one of the doctors testified
that the injury could have caused the condition. In fact, the
Workers' Compensation Court concluded that the deteriorating
condition of Plainbull's eye "seem[ed] to indicate an inciting
event occurring sometime around the date of injury." Taken
together, the medical and non-medical evidence presented in this
case proves beyond a medical possibility the causal connection
between Plainbull's injury and his condition. Such evidence, in
fact, establishes that Plainbull's injury more probably than not
caused the condition for which he seeks workers1 compensation
benefits; that is all that the law requires. Based on this record
as a whole, we hold that the Workers' Compensation Court erred in
holding Plainbull to a higher standard of proof than that required
by the statute and in concluding that the "medically more probable
than not" standard must be satisfied to establish a compensable
injury. Moreover, we hold that Plainbull satisfied his burden of
proof that it was more probable than not that his injury arose out
of and in the course of his employment, and that the injury caused
the left eye condition.
We note that Plainbull has requested an award of attorney's
fees and the statutory twenty percent penalty. Because the
Workers' compensation Court found in favor of the insurer, it never
reached those issues. Inasmuch as we are reversing for entry of
judgment in favor of Plainbull, we also remand to the Workers'
Compensation Court for a determination of whether an award of the
penalty and attorney's fees is appropriate and, if so, the amount
to be awarded.
Reversed and remanded.
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We Concur:
March 10. 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
DON EDGAR BURRIS
Attorney at Law
P.O. Box 2344
Billings, MT 59103-2344
James G. Edmiston, I11
Attorney at Law
P.O. Box 7187
Billings, MT 59103-7187
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA