Schieno v. City of Billings

NO. 83-327
IN THE SUPREME COURT OF THE STATE OF YONTAPJA
1984

PAUL SCHIENO,
Claimant and Appellant,
-vs-

CITY OF BILLINGS, Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.

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

COUNSEL OF RECORD:
For Appellant:
Victor R. Halverson; Halverson & Sheehy, Billings,
Montana

For Respondent :

Allen B. Chronister, Assistant Attorney General,
Helena, Montana

Submitted on ~riefs: March 30, 1984
Decided: June 19, 1984

Filed:

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.-
-
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

Claimant, Paul Schieno, appeals a judgment of the
Worker's Compensation Court, denying him permanent total
benefits under section 39-71-119(2), MCA, for coronary heart
disease. Schieno claimed that his 26 years as a Billings
firefighter contributed to the development of the disease, or
at least aggravated it, and therefore he was entitled to full
benefits. The trial court, however, determined from the
evidence, including expert medical testimony, that the
claimant's condition had been neither caused nor aggravated
by his employment, and that Schieno's personal risk factors
such as heavy smoking, strong family history of heart
disease, and high blood pressure were the probable causes of
the condition. The trial court also denied claimant his
attorney fees under section 39-71-611, MCA, and the statutory
20% penalty under section 39-71-2907, MCA. We affirm.
The essential issue is whether substantial credible
evidence exists to support the findings and conclusions of
the trial court that claimant's employment as a firefighter
did not cause or aggravate his coronary heart disease.
Claimant is a 48-year-old retired Billings firefighter
who suffers from coronary arteriosclerosis, or narrowing of
the arteries leading to the heart. The blockage is caused by
cholesterol plaque buildup on the interior lining of the
arteries. Schieno began his career as a fireman in 1955 when
he was hired as a combat firefighter. Durinq the next 26
years, he was promoted several times and had recently become
fire marshal when in 1981 he underwent double-bypass heart
surgery and was forced to retire.
 Schieno seeks permanent total benefits under section
39-71-1 19 (2), MCA, the "fireman's statute." That section
extends the definition of compensable "injury" as defined in
section 39-71-119(1) to include "cardiovascular or pulmonary
or respiratory" diseases contracted by a fireman while he or
she is still employed. However, the "fireman's statute,"
section 39-71-119 (2) , specifically requires a causal
relationship between the employment and the disease. The
statute provides that the above named diseases are
compensahl-e if they are ". . . caused by overexertion in
times of stress or danger in the course of his employment by
proximate exposure or cumulative exposure over a period of 4
years or more to heat, smoke, chemical fumes, or other toxic
gases . . ."
The uncontradicted evidence shows that during his 26
years as a firefighter, Schieno was exposed to substantial
amounts of smoke and fumes, and also was subject to
considerable stress. It is shows that claimant smokes two to
three packages of cigarettes per day, has three brothers who
have either had heart attacks or have had bypass surgery
because of coronary artery disease, has high blood pressure,
and sporadically abuses alcohol.
Both medical doctors who testified agreed that there is
no known medical cause of coronary artery disease; rather,
there are only known high risk factors. The recognized high
risk factors are smoking, high blood pressure, and a family
history of heart disease. Other factors include male sex,
diabetes, and, to a lesser extent., stress. As mentioned,
claimant is a very heavy smoker, has high blood pressure, and
has a strong family history of heart disease.
 Relying on the opinions of these two experts, Doctors 1,.
W. Etchardt and R. M. Zirpoli, the trial court found that
when compared with the high risk factors present in the
claimant, the stress and exposure to smoke while a fireman
did not cause claimant's heart disease. Dr. Etchardt further
stated in his deposition that Paul Schieno ". . . could have
had a non-stressing job as a clerk in a shoe store and he
would probably be at the same place and state of health at
this time in his life." When asked whether, in his opinion,
he thought claimant's occupation for 26 years "caused"
claimant's condition, Dr. Zirpoli replied, ". . . my opinion
on that would be no."
Claimant further contends that he is entitled to full
benefits because he proved it was "medically possible" that
his occupation could have aggravated his preexisting
condition. It is true that as a general rule an employer
takes his employees "as he finds them," e.g., with or without
preexisting conditions. Gaffney v. Industrial Accident Board
of Montana (1955), 129 Mont. 394, 287 P.2d 256. It is also a

general rule in Montana that if a worker proves that it is
"medically possible" that an industrial injury aggravated a
preexisting weak condition, the worker is entitled to
compensation for the total disability. Strandberg v. Reber
Co. (1978), 179 Mont. 173, 587 P.2d 18. However, the
"medically possibl-e" rule has been established under section
39-71-1 19 (1), MCA, the "tangible happening" def initjon of
industrial injury. Although section 39-71-119 (2), MCA, does
not require a "tangible happening of a traumatic nature," it
does require that the disease contracted by the fireman be
"caused" by the occupation. The rule in most jurisdictions,
including Montana, is that a worker must show that it is
"medically probable" that the occupation caused the disabling
injury or disease. Medical proof of causation of an injury
in a worker's compensation proceeding must be greater than
proof of that which is "possible." Victs v. Sweet Grass
County (1978), 178 Mont. 337, 583 P.2d 1070.
The expert medical testimony in this case falls short of
establishing a "medical possibility," let alone proof of
"medical probability" of causation, which is the required
showing under section 39-71-119 (2) , MCA. Because the three
highest risk factors for coronary artery disease--smoking,
high blood pressure, and family history of heart disease -
were all present in the claimant, both medical experts
testified that claimant's occupation did not cause his heart
disease. Furthermore, Dr. Zirpoli stated that only because
he could not rule it out medically, it was "medically
possible, but unlikely" that Schieno's occupation accelerated
or aggravated his preexisting condition. Dr. Etchardt,
however, did state that repetitive smoke inhalation and
extended exposure to toxic gases and fumes could aggravate an
artery disease such as claimant's. But, the question is one
of causation, not aggravation, and substantial evidence
supports the trial court's finding that the stress of
claimant's occupation, and the extended exposure to smoke and
fumes, did not cause Schieno's disabling heart condition.
Because we have affirmed the trial court's jud.gment
denying claimant benefits under section 39-71-119(2), MCA,
the judgment denying him attorney fees and the statutory
penalty must also he affirmed.
We hold that substantial credible evidence supports the
judgment of the Workers' Compensation Court denying claimant
benefits under section 39-71-119(2), and therefore the

judgment is affirmed.

We Concur:

Chief Justice \

Justices

Mr. Justice John C. Sheehy, deeming himself disqualified, did
not participate.
Mr. Justice Frank B. Morrison, Jr. specially concurs as
follows:
I concur in the result. However, I would affirm because
there is substantial credible evidence to support the
Workers' Compensation Court.
Specifically, I take exception to the language about
causation proof. The majority opinion states:
"Medical proof of causation of an injury in a
workers' compensation proceeding must be greater
than proof of that which is 'possible.'"
This statement may be misleading. We do permit medical
testimony in support of causation proof, to be based upon a
"possibility" rather than a "probability". However, the
finder of fact must find that there is a probability that
causation exists based upon the medical testimony and all
other facts in the record.
Medical testimony based upon a possibility may form the
basis for a finding that injury is in fact related to a
certain trauma. However, in this case there is substantial
credible evidence supporting the Workers' Compensation Court
finding that causation did not exist. Therefore, I concur in
the affirmance.