No. 13783
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
SEWELL A ROBINS,
Claimant and Respondent,
-vs-
ANACONDA ALUMINUM COMPANY, Employer
Defendant and Appellant.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Warden, Walterskirchen & Christiansen, Kalispell,
Montana
Merritt Warden argued, Kalispell, Montana
For Respondent :
H. James Oleson argued, Kalispell, Montana
Submitted: January 24, 1978
Decided : FE%14 1978
Filed: FEB 14 IS@
Mr. Justice Frank I. Haswell delivered the,Opinion of the Court.
his is an appeal by an employer from a judgment in favor
of its employee by the Workers' Compensation Court. That court
held that the claimant is totally and permanently disabled and is
unable to engage in any gainful occupation; that he is entitled to
compensation for his total disability (or for compensation for
partial disability for total loss of wages), and that the employer
is entitled to deduct a credit for Social Security of one-half of
the federal periodic benefits paid per week from September 9, 1973,
the date of commencement of these benefits, to January 3, 1974,
the date the healing period ended. Following a rehearing, requested
by both parties, the employer appeals.
Claimant sustained an injury in an industrial accident in
1964 while employed by appellant, Anaconda Aluminum Company at
Columbia Falls, Montana. The accident consisted of a fall of ap-
proximately 16 or 18 feet. Claimant fractured his skull and some
other bones; and he sustained a concussion and was unconscious for
some time. As a result of this accident, he had difficulty with
his speech, memory, and physical coordination. However, the em-
ployer re-employed claimant, full time, at a lower wage and a
lighter job. The employer paid him $1,825.51 as a settlement for
his being employed at a lower wage.
While engaged in this employment, claimant sustained a
second industrial accident on January 26, 1973. He stepped up
onto a piece of equipment and fell off, sustaining an injury to his
back.
He was first seen by Dr. Kauffman of Whitefish, Montana,
his family physician, who diagnosed his condition as an "acute back
strain". Claimant was later seen by Dr. Laidlaw, an orthopedist,
in Kalispell, Montana. He diagnosed claimant's condition as a
"nerve root compression at the S-1 vertebra level". On April 3,
1973, Dr. Laidlaw performed a partial laminectomy at the L5-S1 level.
Compensation and medical expenses were paid by the employer.
Dr. Laidlaw released claimant for work on July 10, 1973.
He worked for three days. On August 20, 1973, Dr. Laidlaw again
released claimant for work and he worked until February 11, 1974.
For the third time, Dr. Laidlaw released claimant for work on May
6, 1974. He worked until December 3, 1974, and has not returned to
his former employment since then.
During the periods he was not working, the employer paid
compensation to claimant. From September 9, 1973 through July 15,
1975, claimant was receiving Social Security disability benefits.
At the request of the employer, Dr. Laidlaw, on July 11,
1975, made an evaluation of claimant. Dr. Laidlaw determined that
claimant was worthy of an award of 20 percent permanent partial dis-
ability of the body as a whole as a result of the January 26, 1973
accident.
In October, 1975, claimant filed a petition for a hearing
with the Workmen's Compensation Division. A hearing was held before
the Workers' Compensation Court on April 6, 1976. The court entered
findings of fact and conclusions of law in favor of claimant on
June 3, 1976. Both parties petitioned for a rehearing which was
held on September 9, 1976. Findings of fact and conclusions of law
were entered in favor of claimant on March 9, 1977. The employer
appeals.
The sole issue on appeal is the sufficiency of the evidence
to support the findings of fact and conclusions of law of the Work-
ers' Compensation Court. Specifically, appellant questions the
findings and conclusions in two areas:
1. Sufficiency of the evidence to support the finding and
conclusion that the claimant is entitled to compensation for per-
manent total disability; and
2. Sufficiency of the evidence to support the finding and
conclusion that the healing period for the claimant ended on Janu-
ary 3, 1974.
The appropriate test to be applied in reviewing decisions
of the Workers' Compensation Court was recently discussed in Bond
v. St. Regis Paper Co., (1977), Mont . , 571 P.2d 372, 34
St.Rep. 1227, 1238, where we stated:
"The function of this Court is to determine
whether there is substantial evidence to sup-
port the findings and conclusions of the
Workers' Compensation Court. Flansburg v.
Pack River Co., Mont. , 561 P.2d 1329,
34 St.Rep. 183 (1977); Kimball v. Continental
Mont .
-
Oil Co., , 550 P.2d 912, 33 St.
Rep. 517 (1976). This Court will not substi-
tute its judgment for that of the trial court
as to the weight of the evidence on questions
of fact. Brurud v. Judge Moving & Storage Co.,
Employer 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 Workers' Com-
pensation Court, this Court will not overturn
the decision. Skrukrud v. Gallatin Laundry
CO. , Inc., Mont. , 557 P.2d 278, 33
St.Rep. 1191 (1976) ".
Appellant raises three questions in its first issue: (1)
whether claimant has met the burden of proving that his disability
resulted from the 1973 injury and not from a disease; (2) whether
the "settlement" of the 1964 injury precludes a consideration of
that injury in determining claimant's amount of disability; and
(3) whether the medical evidence supports an award of permanent
total disability.
The Workers' Compensation Court found that the claimant is
permanently disabled (Finding of Fact No. 10):
"That the medical evidence shows that the
claimant's prior industrial injury while em-
ployed by the same employer and the subsequent
industrial injury rendered the claimant totally
disabled and that he is at the present time
entitled to compensation for injury producing
disability permanent in character. That he is
entitled to compensation for permanent total
disability by virtue of Section 92-702, R.C.M.
1947 (1971) ."
Appellant contends that there is insufficient evidence to support
this finding. We disagree.
Appellant argues that claimant's problems with his back
were caused by a pre-existing condition and are, therefore, non-
compensable, citing LaForest v. Safeway Stores, Inc. (1966), 147
Mont. 431, 414 P.2d 200. The appellant is relying on the testimony
of Dr. Laidlaw that the claimant had a congenital abnormality of
the lumbosacral junction as the pre-existing condition barring com-
pensation.
The well established rule in Montana is that an employer
takes his employee subject to the employee's physical condition
at the time of employment. Schumacher v. Empire SteelManufacturing
Co. and Employers Mutual Liability Insurance Co. (1977), Mont.
-I - P.2d , 34 St.Rep. 1112. Close v. St. Regis Paper
Co., (1977), - Mont .- I - P.2d , 34 St.Rep. 1528. The fact
tha?. an employee is suffering from or afflicted with pre-existing
disease or disability does not preclude compensation if the disease
or disability is aggravated or accelerated by an industrial acci-
dent. Birnie v. U. S. Gypsum Co. (1958), 134 Mont. 39, 328 P.2d
133; Rumsey v. Cardinal Petroleum (1975), 166 Mont. 17, 530 P.2d
433.
The record reflects that claimant was not bothered by his
congenital back condition prior to the accidents. He was able to
perform his job with no orthopedic problems.
The testimony indicates that his last injury may have aggra-
vated this pre-existing condition. Dr. Laidlaw testified that
claimant had an unfavorable result from the surgery and a fusion
may be necessary. He testified that the laminectomy was performed
in the area of the lumbosacral junction. Further, Dr. Laidlaw
testified that it was in the X-rays he took in July, 1975, after
the surgery, when he noticed the abnormality of this junction. On
cross-examination, Dr. Laidlaw stated that people who have this
abnormality have more problems with their backs than those who do
not. Prior to his injuries, even with this condition, the testimony
indicates that claimant could perform his job without back problems.
We find that claimant carried his burden of proof to show
that his disability was not the result of disease. The evidence
shows that prior to his accidents, claimant did not have any prob-
lems with his back. Claimant's abnormality in his lumbosacral junc-
tion does not preclude him from compensation for his disability.
The evidence shows that his disability was from his accidents and
not his congenital back condition.
Next appellant argues that in determining claimant's dis-
ability, only the effects of the 1973 injury can be considered.
Appellant's contention is that any disability claimant has from
the 1964 injury cannot be a factor in determining claimant's cur-
rent disability. The basis behind this argument is that appellant
and claimant agreed to a settlement of that injury. Furthermore,
appellant argues that the evidence fails to show an aggravation of
the earlier injury by the latter injury.
As was stated earlier, the rule is that an employer takes
his employee subject to the employee's physical condition at the
time of employment. Schumacher v. Empire Steel Manufacturing Co.
and Employers Mutual Liability Insurance Co., supra. An employee
afflicted with a disability is not precluded from compensation if
the disability is accelerated or aggravated by an industrial acci-
dent. Birnie v. U. S. Gypsum Co., supra.
The evidence shows that, as a result of the 1964 injury,
claimant had difficulty with his speech, memory and physical coor-
dination. This is according to the testimony of Dr. Kauffman, claim-
ant, and claimant's wife. Claimant testified that when appellant
rehired him, after that injury, he was employed at a lighter job
and a lower wage. Thus, the evidence shows that claimant had a
disability when appellant rehired him and appellant took him sub-
ject to that disability.
When claimant was injured in 1973, the evidence shows that
it was then that he had problems with his back. Both Dr. Laidlaw
and Dr. Kauffman testified that claimant was suffering from back
pain as a result of his injury. Claimant testified that when he
dug a little hole by his house, he could not move for a week after-
wards. His wife testified that she has to pull him out of chairs
and put on his shoes and socks for him. This evidence shows that
the 1973 injury impaired claimant's mobility and caused him to be
in pain. The 1964 injury caused claimant to have some disability.
However, he was able to return and did return to work. The 1973
injury caused additional disability. After this injury, claimant
tried but could not return to work. Thus, this last injury com-
bined with the prior injury entitles claimant to compensation to
the extent he is now disabled. In determining the degree of dis-
ability, we conclude that both injuries must be considered.
Appellant argues that the medical evidence only supports
an award of 20 percent permanent partial disability. This argu-
ment is based on Dr. Laidlaw's testimony concerning the disability
rating he gave claimant. Dr. Laidlaw testified:
"Q. All right. Did you arrive at a conclusion
as to his disability? A. At that time it was
my feeling that his injury was worthy of an
award of 20 percent permanent-partial disability
of the body as a whole."
We recently held, in Ramsey v. Duncan (1977), Mont. I
571 P.2d 384, 385, 34 St.Rep. 1277, what effect was to be given
medical impairment ratings. We stated:
"Many factors in addition to medical impairment
ratings may be properly considered by the court
in determining a claimant's disability. For
this reason, impairment ratings do not conclu-
sively establish limits on compensation awards
in all cases; rather, such medical impairment
ratings by physicians are simply expert opinion
evidence constituting but one item of evidence
to be considered along with other evidence per-
sented. Brurud v. Judge Moving & Storage Co.,
Inc., Mont. , 563 P.2d 558, 34 St.Rep.
260 (1977)."
The disability rating given by Dr. Laidlaw only concerns
the 1973 injury. This was what he was asked for. He was not asked
to determine claimant's overall disability from both injuries. He
testified that claimant could return to work depending upon how
much pain he was willing to endure. Dr. Kauffman did not determine
a percentage disability rating for claimant. He did testify as to
the effects of the earlier injury in 1964 on claimant. He also
testified that in his opinion, based on claimant's medical history,
claimant could not return to the type of work he had been perform-
ing because of the pain that accompanied working. Claimant and his
wife testified that he was suffering pain in his back. This testi-
mony, taken together, is sufficient medical evidence to support the
court's award.
We are of the opinion that the question of disability is
not a purely medical question. In 3 Larson, Workmen's Compensation
Law, S79.53, it is pointed out:
" * * * disability is not a purely medical ques-
tion: It is a hybrid quasi-medical concept, in
which are commingled in many complex combinations
the inability to perform, and the inability to
get, suitable work. * * * "
In determining claimant's degree of disability, another
factor must be considered, and that is pain. Dr. Laidlaw testified
that pain is a subjective factor and the amount of pain a person is
suffering cannot be determined objectively. He testified that it
was his professional feeling that claimant has some degree of pain,
but that his extent of pain is unknown. Dr. Kauffman, claimant and
his wife all testified that claimant was experiencing pain in his
lower back when he attempted to work. All of the evidence indicates
that claimant was experiencing pain in his back.
"Louisiana has produced a long line of cases
finding total disability when work is accom-
panied by pain. Several other states, including
Texas, Nebraska, Illinois and Florida, have
produced similar decisions, or have at least
recognized pain as a relevant factor in disabil-
ity determinations." 2 Larson, Workmen's Com-
pensation Law, 557.51.
Here, both doctors testified that claimant's work was ac-
companied by pain. Dr. Laidlaw testified that claimant could work
if he could endure the pain. Dr. Kauffman testified that claimant
could not work because he could not take the pain. The issue then
becomes a matter of weight and credibility, which must be concluded
by the judge hearing the matter. Flansburg v. Pack River Co. (1977),
Mont . . 561 P.2d 1329, 34 St.Rep. 183.
We find then that the evidence is sufficient to support a
determination that claimant is totally and permanently disabled.
The evidence shows that as a result of both injuries claimant can-
not work without pain and he cannot endure the pain to work. This
constitutes substantial evidence supporting a finding of total per-
manent disability.
Appellant asks us to review the sufficiency of the evidence
to support the finding and conclusion that the healing period ended
on January 3, 1974. Appellant argues that there is no evidence to
prove that the healing period ended on January 3, 1974. They in-
sist that the only date for the end of the healing period that can
be supported by the evidence is July 11, 1975, when Dr. Laidlaw
determined claimant's disability rating. We disagree.
We find sufficient evidence to support the Worker's Compen-
sation Court finding and conclusion that the healing period ended
January 3, 1974. The only testimony in the record on the healing
period is that of Dr. Laidlaw. He testified:
"Q. The idea then is that the healing never
really stops, it continues through a whole life
process, is that correct? A. I think that with
back surgery you've reached your maximum benefit
somewhere between six and twelve months. If you
pick a day I'd say nine months."
Nine months from the time of surgery, April, 1973, would
be January, 1974. Appellant chose not to rebut this testimony.
Sufficient evidence is therefore present to support the finding.
The judgment of the Workers' Compensation Court is affirmed.
%&a Justice '
We Concur:
~ctinb
Chief austice