Nave v. State Compensation Mutual Insurance Fund

No. 91-451

IN THE SUPREME COURT OF THE STATE OF MONTANA

DEBRA NAVE, as surviving widow of
LAWRENCE E. NAVE, JR., and as Personal
Representative of the Estate of LAWRENCE
E. NAVE, JR., and as conservator of the
Estate of BEAU NAVE,
Petitioner and Appellant,
-vs-
STATE COMPENSATION MUTUAL INSURANCE FUND,
Respondent,
-vs- JUL2 0 1992
.-,I " i ,
MARY LOU WEYER, as conservator of the ,&:I;:& a t (
Estate of RAND1 MARIE NAVE, ,-Lc~+< SI~~RI;.T:.: COURT
STAYE 0 ;rdO~qTAlrA
1
Intervening party.

APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Lloyd E. Hartford; Billings, Montana
For Respondent:
Joe C. Maynard; Crowley, Haughey, Hanson, Toole &
Dietrich, Billings, Montana

Submitted on Briefs: April 2, 1992
Decided: July 20, 1992
Filed:

Clgrk
Justice John Conway Harrison delivered the Opinion of the Court.

Appellant Debra Nave, claimant's widow, appeals from an order
and judgment of the Montana Workers' Compensation Court. The
Workers' Compensation Court Hearings Examiner's findings of fact
and conclusions of law stated that Mr. Nave's (Nave) suicide was
not causally related to his on-the-job injury and denied
appellant's request for attorney's fees and a twenty percent
penalty award. We affirm.
We review the following dispositive issue: Whether the
Workers' Compensation Court erred in determining that: Nave's on-
the-job injury was not the proximate cause of his suicide.
Nave was a forty-two-year-old male who graduated from high
school in 1964 and served in the U.S. Army. He earned college
credits but did not obtain a higher education degree. During his
life, he was employed in various capacities including construction,
farming and driving a truck as a teamster.
At the time of trial it was unclear how many children Nave
had, but it was established that he was married numerous times,
twice to Debra Nave, who had children from a previous marriage.
His third marriage was to Mary Lou Weyer and the couple had one
child, Randi Marie Nave. Nave's marriage to Weyer ended after less
than a year. Debra and Nave re-married and the couple had a son,
Beau.
On July 15, 1985, while working for Byron Construction, Nave
was injured on the job when, in the course of his employment, he
attempted to start a water pump engine requiring him to utilize a
hand crank. The engine apparently backfired and the crank handle
struck him on the left side the face, which knocked him unconscious
for a short period of time. Nave was evaluated at a medical
facility in Broadus, Montana, and treated at the Miles City,
Montana h o s p i t a l . He returned t o work within a few days after the
accident. Nave continued to work until August 8, 1985, when he
voluntarily quit his position and began drawing unemployment
benefits. Later, after becoming eligible for Workers' Compensation
benefits, Nave was required to repay the unemployment benefits.
As a result of his injury, Nave experienced headaches,
numbness, neck and upper back pain. Nave consulted numerous
doctors about his condition and also was treated by a chiropractor
and via physical therapy.
Though disputed by the appellant, there was evidence that Nave
was a heavy drinker prior to his injury. After the accident, Nave
continued to consume large quantities of alcohol which increased
over time. After receiving several D U I s , his driving privileges
were taken away and he was admitted to the Sheridan, Wyoming, VA
hospital for alcoholism treatment in February of 1987. He resumed
drinking only days after this treatment.
In August of 1987, Nave began experiencing seizures which
worsened over time. Other life events went particularly poorly for
Nave such as the closure of the second-hand business he established
with the help of his parents.
Eventually, Nave became more abusive to his family, Debra
testified that he struck her, and that sometime during the last
week of his life he apparently shot at her with a rifle as she
pulled into their driveway. His drinking continued until he drank
almost constantly. Finally, Debra fled the family home with the
coupletsson fearing for their safety. Nave committed suicide by
a self-inflicted gun shot wound on August 18, 1989.
Two days later Debra informed respondent, State Compensation
Fund, of Nave's suicide and demanded payment for survivorst
benefits. Respondent refused payment and terminated Workers1
Compensation benefits as of August 19, 1989. Debra filed a
petition for an emergency hearing due to financial hardship in
September, 1989. The matter came before Hearings Examiner Robert
3. Campbell on April 16 and 17, 1990, who issued findings of fact
and conclusions of law on April 3, 1991. The court concluded that
the appellant failed to establish that Mr. Navels injury was a
substantial or significant contributing cause of his suicide. The
court also determined that the appellant was not entitled to
receive a twenty percent penalty under § 39-71-2907, MCA, or the
award of cost and attorney's fees under 5 5 39-71-611 or -612, MCA.
Debra petitioned for a rehearing on May 9, 1991, which was denied,
and she now appeals to this Court.
The appellant focuses primarily on issues involving the
Workerst Compensation Court's determination of witness'
credibility, especially as it relates to Nave's drinking history.
The parties hotly disputed whether Nave's severe drinking problems
arose before or after his on-the-job injury on July 15, 1985. This
issue arose since the seizures Nave experienced were related to his
long term excessive alcohol consumption. The court stated that
"[tlhe extensive medical evidence presented from Billings
neurosurgeon Dr. Neil T. Meyer, Dr. Dale M. Peterson, Louis
Robinson, Dr. Donald See, and Dr. Susan English contain no evidence
to relate the July 15, 1985 injury to the grand ma1 seizure of
August 6, 1987, the increasing dependency on alcohol or the
depression that would result in Mr. Nave's suicide."
The appellant claims that substantial credible evidence did
not exist to support the findings and conclusions of the Hearings
Examiner. We disagree. For example, at trial, appellant testified
that during the course of her first marriage to Nave, which was
prior to the injury, he drank "maybe two or three beers a couple
times a week.'' However, in her deposition she stated that on a day
he was not working, "he possibly drank through the whole day maybe
a six-pack or a little over a day of beer." Again, appellant
testified that she never discussed Nave's drinking problem with any
of his treating physicians. However, Dr. Carlson's deposition
revealed that he did have a discussion with Debra about Nave's
drinking, in which she stated that Nave began drinking more heavily
after the injury. Appellant also acknowledged that in 1974 Nave
had surgery and was treated for pancreatitis, but she denied this
condition was related to Nave's alcohol consumption. Dr. English,
however, indicated that Nave's pancreatitis was caused by alcohol
consumption.
Appellant later testified that she really did not know how
much Nave drank while working, prior to his injury:
Q. The fact of the matter is, ma'am, you really don't
know how much your husband drank before his injury, do
you?
A. Not exactly how much he drank when he was working, he
worked away from home.
Q. He was gone for up to six weeks at a time?
A. When he was driving over the road.
Q. And when he wasn't driving over the road, he was home
sometimes on weekends; isn't that correct?
A. Yes.
Q. Would it be fair to say that the information you
provided Dr. Carlson concerning your husband's drinking
habits was guesswork?
A. It was the best that I knew, which - -
The court also detailed independent evidence of Nave's severe
alcohol problems prior to his injury. A hospital record dated June
29, 1985, approximately two weeks before his injury, indicated that

Nave went to Deaconess Hospital Emergency Room for a DUI blood test
after being picked up by the sheriff. The test revealed a blood
alcohol content of .26G and a diagnosis of walcohol intoxication,"
even though Nave said he did not believe he was drunk.
In addition to other evidence of Nave's severe drinking habits
prior to the injury, an alcohol dependency counselor, Lynn Ramsey,
also confirmed Nave's excessive alcohol consumption. She stated in
her deposition that in her evaluation of Nave, he told her that he
drank in excess of a six pack of beer a day since he reached the
age of twenty-one.
The appellant's voluminous and repetitive brief is filled with
various alleged errors committed by the Workers' Compensation
Court, errors too numerous to mention here, which fall squarely
into the witness' credibility arena. We need not address them
individually, except to say that the Workers1 Compensation Court is
in the best position to observe the witnesses, including their
demeanor and credibility. Giacoletto v. Silver Bow Pizza Parlor
(1988), 231 Mont. 191, 195, 751 P.2d 1059, 1062; citing Tenderholt
v. Royal Ins. Co. (1985), 218 Mont. 523, 525-526, 709 P.2d 1011,
1013. "In addition to observing the demeanor of the witness, the
trier of fact can take into account the witness' capacity to
recollect events, his inconsistent statement, and other evidence
contradicting the witness' testimony." Hartfield v. City of
Billings (1990), 246 Mont. 259, 264-265, 805 P.2d 1293, 1297. We
previously have said:
This Court will not substitute its judgment for that of
the Workers' Compensation Court concerning the
credibility of witnesses or the weight of their
testimony. When conflicting evidence is presented, the
scope of review is to establish whether substantial
evidence supports the lower court's findings, not whether
evidence may support contrary findings.
Smith-Carter v. Amoco Oil Co. (1991), 248 Mont. 505, 510, 813 P.2d
405, 408. The Workers1 Compensation Court can choose whether or
not to believe a witness and, in the case at bar, obviously did not
find the evidence and testimony of appellant's witnesses
persuasive. Instead, the court chose to give more weight to the
statements of the witnesses who indicated that Nave's drinking
problem existed long before his on-the-job injury.
On appeal, this Court has set forth the appropriate standard
of review in Workers' Compensation cases. The Workers '
Compensation Court's conclusions of law will be upheld if the
tribunal's interpretation of the law is correct. Grenz v. Fire and
Casualty of Connecticut (1991), 250 Mont. 373, 378, 820 P.2d 742,
745; citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470,
474-475, 803 P.2d 601, 603. The Workers' Compensation Court's
findings of fact will be upheld if supported by substantial
credible evidence. Nelson v. Semitool, Inc. (Mont. 1992), 829 P.2d

Section 39-71-721, MCA (1985), sets forth compensation for
injury causing death as follows:
(1) If an injured employee dies and the injury was the
proximate cause of such death, then the beneficiary of
the deceased, as the case may be, is entitled to the same
compensation as though the death occurred immediately
following the injury, but the period during which the
death benefit is paid shall be reduced by the period
during or for which compensation was paid for the injury.
... [Emphasis added.]
We agree with the quotation by the Workers' Compensation Court
of the following from Breen v. Industrial Accident Board (1968),
150 Mont. 463, 472-473, 436 P.2d 701, 706-707:
What is meant by "proximate cause1 under the above
 statute [ § 39-71-721(1)]? Exactly the same thing it has
meant under definitions of this court since time
immemorial. The proximate cause of a person's death is
that cause which in a natural and continuous sequence,
unbroken by any new and independent cause, produces his
death, and without which it would not have occurred.
(See McNair v. Berqer, 92 Mont. 441, 15 P.2d 834, and
cases cited therein; also see MJIG, Instruction No.
15.00). This, of course, does not mean that the injury
must be the sole cause of death, but it does mean that
the iniurv must be a substantial contributinq cause in
the sense that death would not have occurred but for such
iniuries. In determining the range of compensable
consequences from an industrial accident, Larson states
the basic rule in this manner: "When the primary injury
is shown to have arisen out of, and in the course of
employment, every natural consequence that flows fromthe
injury likewise arises out of the employment, unless it
is the result of an independent interveninq cause
attributable to claimant's own intentional cond~ct.'~
(Larson's Workmen's Compensation Law, Vol. 1, 5 13.00).
[Emphasis added.]
In Breen, the widow's claim for compensation was denied
because the husband's injury was not the proximate cause of his
death. Mr. Breen drank a considerable amount for years, both
before and after his injury. Breen, 150 Mont. at 468-469, 436 P.2d
at 704. Mr. Nave's present case is analogous to Breen. Appellant
has failed to show that Mr. Nave's injury was the proximate cause
of his death.
We have carefully reviewed the extensive record and conclude
there was substantial evidence to support the findings with regard
to Mr. Nave's suicide. We hold there is substantial evidence to
support the judgment conclusion that appellant had failed to
establish that the injury of July 15, 1985, was the proximate cause
of Mr. Nave's death, as proximate cause is defined in Breen. We
therefore affirm the determination by the Workers' Compensation
Court that Mr. Nave1s on-the-job injury was not the proximate cause
his suicide.

Affirmed.

f
hief Justice

-
Justf c e s
Justice Terry N. Trieweiler specially concurring.
I concur in the result of the majority opinion. However, I do

not agree with all that is said therein. In particular, I do not
agree with the majority's confusing and unnecessary discussion of
causation which uses "proximate cause," "the substantial factor
test, and the '@butfor test" interchangeably. The three concepts
are not the same, However, the distinctions among them are not
relevant to the outcome of this case.
 July 20, 1992

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

LLOYD E. HARTFORD
Attorney at Law
P.O. Box 1517
Billings, MT 59103-1517

Joe C. Maynard
Crowley, Haughey, Hanson, Toole & Dietrich
P.O. Box 2529
Billings, MT 59103-2529

Peter T. Stanley
Attorney at Law
P.O. Box 1980
Billings, MT 59103-1980

ED SMITH
CLERK OF THE SUPREME COURT

BY: