No. 13639
IN THE SUPREP?E COURT OF THE STATE OF MONTANA
1977
LESLIE A. BOND,
Claimant and Respondent,
-vs-
ST. REGIS PAPER COMPANY, Employer,
and
ST. REGIS PAPER COMPANY,
Defendant and Appellant.
Appeal from: Workers' Compensation Court,
William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Warden, Walterskirchen and Christiansen, Kalispell,
Montana
Merritt N. Warden argued, Kalispell, Montana
For Respondent :
Joe Roberts argued, Libby, Montana
Submitted: October 6, 1977
Decided : NQV - 4 1977
\I . - 2 -:--
A
Filed:
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
Employer, St. Regis Paper Company, enrolled under Plan
I of the Workers' Compensation Act, appeals from a Workers'
Compensation Court award to claimant of temporary total disabil-
ity benefits, medical costs and attorney fees.
The employer hired claimant in 1973 to perform tasks
requiring physical labor. In August, 1975, claimant's left
wrist was injured during work. Upon consulting a doctor, claim-
ant was advised that he had tendonitis and to rest the wrist for
a few days. Following, in October, 1975, the same wrist was
again injured during work. X-rays were taken revealing an old,
un-united fracture in the left wrist. Claimant was referred to
a bone specialist who advised that the wrist needed surgical
treatment. Bone grafting was done in November, 1975. Claimant
did not return to regular work until June, 1976.
In December, 1975 claimant filed a Workers' Compensation
claim. The claim was denied by the employer. A hearing was then
held before the Workers' Compensation Court and compensation was
awarded to claimant. From this award employer appeals.
Employer raises this issue on appeal:
Was the Workers' Compensation Court justified in adopt-
ing conclusions of law to the effect that the claimant's injuries
aggravated a pre-existing condition, that claimant was entitled
to compensation benefits by reason thereof, that claimant was
entitled to payment of medical costs incident to bone grafting
procedures for a pre-existing condition, and to attorney fees
and costs?
Employer argues that the incidents of August and October,
1975, were not of such a nature and severity as to cause injuries
to claimant which made the bone grafting necessary or medically
advisable. The main question, therefore, is whether any medical
evidence exists to support the findings of the trial court
that aggravation of a pre-existing injury occurred. Employer
contends there was no medical testimony to that effect. The
loss of time from work and the medical expenses incurred from
the bone graft were not job related, and were not proximately
caused by the incidents of August and October, 1975. We disagree.
The function of this Court is to determine whether there
is substantial evidence to support the findings and conclusions
of the Workerst Compensation Court. Flansburg v. Pack River Co.,
Mont . , 561 P.2d 1329, 34 St.Rep. 183 (1977); Kimball
v. Continental Oil Co., Mont . , 550 P.2d 912, 33 St.Rep.
517, (1976). This Court will not substitute its judgment for
that of the trial court as to the weight of the evidence on ques-
tions of fact. Brurud v. Judge Moving & Storage Co., Inc., Em-
ployer and Transportation Insurance Co., Mont . , 563 P.2d
558, 34 St.Rep. 260 (1977). Where there is substantial evidence
to support the findings of the Workerst Compensation Court, this
Court will not overturn the decision. Skrukrud v . Gallatin Laundry
CO., Inc., Mont . , 557 P.2d 278, 33 St.Rep. 1191 (1976).
In the case at hand the supporting evidence consists in
part of the following:
(1) Claimant was hired in 1973 to perform physical labor.
From the commencement of employment and continuing for 13 months,
claimant worked pulling wet, heavy lumber off the green chain.
(2) Claimant was then transferred into the sawmill where
he performed a variety of jobs requiring physical labor. While
working in the mill, the incidents of August and October, 1975,
occurred. Following the incidents claimant consulted medical
experts for alleviation of pain in his wrist.
(3) Witness, Gary Seybald, testified working alongside
claimant for 15 months and that claimant performed his job without
difficulty before the incidents.
(4) Witness Seybald also testified knowing claimant's
activities outside the job. These activities included various
physical tasks which were performed without difficulty before
the incidents. Following the incidents claimant was not able
to handle the same physical labors.
(5) Witness Robin Swimley testified claimant neither
had problems with work nor complained about his wrist prior to
the incident in August, 1975.
(6) The summarized testimony of co-workers Haines and
Snyder likewise substantiates claimant's job performance.
(7) Medical evidence was given by Dr. Nerud that bone
grafting was needed. Dr. Nerud stated that it was a definite
possibility that the old un-united fracture was aggravated by
the incidents at the mill.
In the case at hand it is undisputed that claimant had a
long standing un-united fracture of the left wrist. There is
evidence that claimant performed the physical labors required of
him up until the time of the injuries. There is evidence that
the incidents of August and October, 1975 caused aggravation to
claimant's wrist. It is well established in Montana that an
employer takes his employee subject to the employee's physical
condition at the time of employment. Birnie v. U.S. Gypsum Co.,
134 Mont. 39, 328 P.2d 133 (1958); Peitz v. Industrial Accident
Board, 127 Mont. 316, 264 P.2d 709 (1953). An employee who
suffers from a pre-existing condition is entitled to compensation
if the condition was aggravated by an industrial injury. Rumsey
v. Cardinal Petroleum, 166 Mont. 17, 530 P.2d 433 (1975); Weakley
v. Cook, 126 Mont. 332, 249 P.2d 926 (1952). While no medical
testimony was presented at the hearing held before the Workers'
Compensation judge, there were medical reports and opinions
contained in the file before the court. It is not an abuse of
discretion for the Workers' Compensation judge to consider the
contents of the reports. Brurud v. Judge Moving & Storage Co.,
Inc., supra. Based upon what the Workers Compensation judge
had at his disposal, the contents of claimant's file containing
medical reports and opinions, the testimony of witnesses and
claimant, there was sufficient evidence to support his findings.
The order of the Workers' Compensation Court is
affirmed. , ---7
-
Chief Justice
1 i
We concur: