No. 85-92
IN THE SUPREME COURT OF THE STATE OF MONTANA
1.985
MABEL C. TENDERHOLT,
Claimant and Respondent,
-vs-
TRAVEL LODGE INTERNATIONAL, Employer,
and
ROYAL INSURANCE COMPANY OF AMERICA,
Defendant and Appellant.
APPEAL FROM.: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Herndon, Harper & Munro; James G. Edmiston, Billings,
Montana
For Respondent :
Lynaugh, Fitzgerald & Hingle; Michael Eiselein,
Billings, Montana
Submitted on Briefs: July 11, 1985
Decided: December 5, 1985
Filed:
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The Workers' Compensation Court held that claimant's
disability was proximately caused by an industrial accident
while working at Travel Lodge International (Travel Lodge)
and awarded Mabel C. Tenderholt temporzry total disability
benefits. Travel Lodge and Royal Insurance Company of
America (Royal Insurance) appeal. We affirm.
The issues on appeal are:
1. Did the Workers' Compensation Court err in
concluding that Mrs. Tenderholt's disability was proximately
caused by an industrial accident while employed at Travel
Lodge?
2. Is Royal Insurance entitled to seek indemnity from
subsequent insurers?
In September 1981, while employed as a maid for Travel
Lodge, Mrs. Tenderholt experienced a sharp pain in her back
as she unraveled the cord of a vacuum cleaner. She finished
her shift and went home. Later that evening, she went to the
emergency room after increased pain made it impossible for
her to walk without her husband's help. At the emergency
room, X-rays were taken, medication prescribed and advi-ce
given to see a specialist, Dr. Hayward.
Dr. Hayward, an orthopedic surgeon, saw Mrs. Tenderholt
on October 6, October 16, November 13 and December 11, 1981.
During the November visit, Dr. Hayward advised her that she
could probably return to work the foll-owing week but should
wear a corset.
Travel Lodge accepted liability for Mrs. Tenderholt's
injury and paid weekly temporary total disability benefits
through November 15, 1981.
Mrs. Tenderholt sought to return to work at Travel Lodge
but was told her position had been filled. On or about
November 20, 1981, she went to work at Lewis and Clark Inn as
a maid and worked until April 1982. In August 1982, she went
to work as a maid for Picture Court Motel. After a month,
she returned to Lewis and Clark Inn where she remained until
back pain caused her to quit, in May 1983.
Mrs. Tenderholt returned to Dr. Haywood for office
visits on Janua-ry 11, January 20, February 3, March 16 and
April 11, 1984. After extensive examination, she was
diagnosed as having extra dural defects and possibly a
herniated nucleus pulposus. In order to relieve the
pressure, Dr. Hayward recommended surgery, which requires
exploration of three different levels in the spine. In July
1984, Mrs. Tenderholt filed a claim against Travel Lodge. In
December 1984, the Workers' Compensation Court ordered Royal
Insurance to pay temporary total disability benefits until
Mrs. Tenderholt submits to and recovers from surgery.
Did the Workers' Compensation Court err in concluding
that Mrs. Tenderholt's disability was proximately caused by
an industrial accident while employed at Travel Lodge?
At issue is the question of whether Mrs. Tenderholt's
injury ever reached a medically stable condition. Stated
otherwise, was Mrs. Tenderholt's low back injury restored as
far as the permanent character of her injuries would permit?
Travel Lodge and its insurer argue that Mrs.
Tenderholt's low back injury reached a point of maximum
healing prior to the time she returned to work as a maid at
another motel. Mrs. Tenderholt contends she has suffered
constant pain since the industrial accident at Travel Lodge,
and that her low back injury never reached a medically stable
condition.
In his testimony, Dr. Hayward stated that Mrs.
Tenderholt had reached a medically stable condition in
December 1981. Travel Lodge argues that this terminates its
responsibility for the first injury, and that the subsequent
injury therefore should be charged to subsequent employers.
Normally that would be an appropriate conclusion. However,
following his 1984 examinations, Dr. Hayward concluded that
the hernia.ted nucleus pulposus was a development which can be
medically traced baclc to the original back injury and is not
a separate problem.
The court found Mrs. Tenderholt to be a credible
witness. Mrs. Tenderholt unequivocally testified that from
the time of the first injury in 1981 up until the 1984
examinations by Dr. Hayward, she continued to experience the
sa.me, constant, severe pain in her lower back. In addition,
she testified that there were no intervening events in
subsequent employments which ha.d aggravated her back or
constituted a reinjury.
The Workers' Compensation Court concluded. that Mrs.
Tenderholt's present disability was proximately caused by the
original 1981 industrial accident while employed at Travel
Lodge.
This Court will not reverse the Workers' Compensation
Court on the issue of proximate cause unless the findings of
fact or conclusions of law are clearly erroneous. Rule
52(a), M.R.Civ.P., states in pertinent part:
Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge of the
credibility of the witnesses.
Findings of fact are not clearly erroneous if supported
by substantial credible evidence. As this Court stated in
Olson v. Westfork Properties, Inc. (1976), 171 Mont. 154,
157, 557 P.2d 821, 823:
This Court's function ...
is not to substitute
its judgment in place of the trier of facts but
rather it is "confined to determining whether there
is substantial credible evidence to support" the
findings of fact and conclusions of law. Although
conflicts may exist in the evidence presented, it
is the duty and function of the trial judge to
resolve such conflicts. His findings will not be
disturbed on appeal where they are based on
substantial though conflicting evidence.
The court's findings were based on conflicting evidence.
"[Tlhis Court's function on review is confined to determining
whether there is substantial evidence to support the
findings, and not to determine whether there is sufficient
evidence to support contrary findings." Davis v. Mtn. West
Farm Bur. Mut. Ins. Co. (Mont. 19851, 701 P.2d 351, 353, 42
While we have not set forth all of the testimony on the
part of Mrs. Tenderholt and Dr. Hayward, we have reviewed the
record carefully. There is substantial credible evidence to
support the Workers' Compensation Court's conclusion that
Mrs. Tenderholt's disability was proximately caused by an
industrial accident while employed at Travel Lodge.
In view of this holding, we are not required to address
the second issue with regard to indemnity from subsequent
insurers. Recause Travel Lodge is responsible for the
benefits to be paid to the claimant, it has no right to seek
indemnity from a third party. See Belton v. Carlson
Transport (Mont. 1983), 658 P.2d 405, 40 St.Rep. 158.
We affirm the Workers' Compensation Court.
We Concur:
Ju t i c e s