No. 87-271
I N THE SUPREME COURT O F THE STATE O F MONTANA
1988
MARK G I A C O L E T T O ,
C l a i m a n t and R e s p o n d e n t ,
-vs-
S I L V E R BOW P I Z Z A PARLOR,
Employer,
and
I N D U S T R I A L INDEMNITY COMPANY,
Defendant and Appellant,
A P P E A L FROM: T h e Workers C o m p e n s a t i o n C o u r t , The H o n o r a b l e T i m o t h y
R e a r d o n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
G a r l i n g t o n , Lohn & Robinson; L a r r y W. Jones,
M i s s o u l a , Montana
For Respondent:
E a r l Genzberger, Butte, Montana
S u b m i t t e d on B r i e f s : March 3, 1988
Decided: March 2 2 , 1988
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Industrial Indemnity Company (Indemnity)
appeals the June 2, 1987, decision of the Workers' Compensa-
tion Court. The court concluded that Giacoletto, while
employed by Silver Bow Pizza Parlor (Pizza), bumped his lower
back thereby causing an abscess. We affirm.
Indemnity raises four issues for our review:
1. Did the Workers' Compensation Court abuse its
discretion in denying Indemnity's motions to compel and
vacate?
2. Did the Workers' Compensation Court abuse its
discretion in denying Indemnity's motion to strike?
3. Does substantial evidence support the decision of
the Workers' Compensation Court?
4. Did claimant intentionally fail to follow medical
treatment and thus prolong his disability?
Claimant Giacoletto, then age seventeen, began working
part-time as a dishwasher for Pizza in October 1983. On July
1, 1984, Giacoletto bent over to lift a bucket of cheese in
Pizza's supply area. He testified that he felt a "pulling
sensation" in his lower back and then stumbled backwards.
Claimant finished his shift. He worked the next shift on
July 2 and was scheduled off on July 3 and 4, 1984. On July
5, 1984, claimant went to the emergency room of the local
hospital because of back pain.
Dr. Paulo Giacomini treated the claimant in the emer-
gency room. Dr. Giacomini is a general practitioner and the
Giacoletto family physician. Claimant told Dr. Giacomini
about lifting the bucket but made no mention of falling
against anything. Upon examination, Dr. Giacomini detected a
bump on the groove between claimant's buttocks. Dr.
Giacomini suspected a pilonidal abscess, which is an
infection caused by ingrown hair. Claimant was then admitted
to the hospital.
Dr. Giacomini asked Dr. George Poore, a surgeon, to
examine claimant in the hospital. On July 7, 1984, Dr. Poore
diagnosed an abscess located next to the anus. Dr. Poore
specifically asked claimant about any trauma to the area, but
claimant made no mention of hitting or bumping the area of
the infection. Dr. Poore performed surgery on the abscess in
July and again in September of 1984. Dr. Poore testified
that claimant failed to regularly bathe and pack the area in
accordance with the treatment plan, resulting in chronic
infection. Claimant has subsequently had several more sur-
geries for the same condition.
On August 3, 1984, Giacoletto filed a claim for compen-
sation, alleging that he was injured in the scope and course
of his employment. Pizza was enrolled under Plan I1 of the
Montana Workers' Compensation Act, and Indemnity was Pizza's
compensation carrier. Indemnity paid some benefits to claim-
ant under a reservation of rights and without assuming
liability.
After a hearing on October 8, 1986, the court entered
its decision on June 2, 1987. The court concluded that
claimant had suffered an injury in the course of his employ-
ment with Pizza and that Indemnity was liable for the payment
of compensation benefits. The court acknowledged that claim-
ant's evidence was not overwhelming:
Admittedly, the evidence in this case is
a close call. . .. Some time after his
original treatment, the claimant report-
ed that in addition to straining his
back when he lifted the cheese, he also
struck his low back on the edge of a
beer keg.
There is no question that the defendant
had legitimate reasons to question the
claimant's credibility. As recently as
the day of trial, during his deposition,
the claimant did not relate having
struck his back on the beer keg when
questioned by defense counsel . . .
Such inconsistencies standing alone
would put serious doubt in the Court's
mind as to claimant's veracity.
However, the court then stated that it based its con-
clusion primarily on the medical depositions, which tended to
support claimant's testimony.
Issue 1. Motions to compel and vacate.
On August 4, 1986, Indemnity served its interrogatories
on claimant. Under the rules, claimant then had twenty days
to serve his answers. However, claimant did not serve his
answers until September 26, 1986. In the meantime, Indemnity
had filed motions to compel discovery and to vacate the
hearing date on October 8, 1986. Indemnity argued that its
discovery rights were prejudiced because claimant failed to
comply with discovery rules in a timely manner.
The Workers' Compensation Court denied Indemnity's
motion. The denial was discretionary. The court tolerated
claimant's failure to answer interrogatories within the
twenty-day limit, noting that "neither party can claim 'clean
hands' in this case." The claimant was eventually deposed,
which mitigated any prejudice to Indemnity caused by claim-
ant's late answers. The hearing then proceeded as scheduled.
We find no abuse of discretion in the court's decision.
Issue 2. Motion to strike.
During his deposition on the morning of October 8,
1986, Giacoletto made no mention of striking his back when he
lifted the bucket of cheese. His case was tried that after-
noon. At the hearing, claimant stated that he struck his
"lower back" on a beer keg when he stumbled backwards. On
cross-examination, claimant testified that he erred in his
deposition because defense counsel made him nervous. Seven
months after his deposition, claimant amended his deposition
testimony by filing a correction sheet in which he stated he
struck his "tailbone."
Indemnity contends that claimant amended his version of
the incident to conform with the mechanism of injury in the
medical testimony. Indemnity argues that the Workers' Compen-
sation Court abused its discretion when it allowed claimant
to "tailor his testimony."
In reviewing this issue, we note that the Workers'
Compensation Court may be guided by the Montana Rules of
Civil Procedure. Moen v. Peter Kiewit & Sons Co. (1982), 201
Mont. 425, 434, 655 P.2d 482, 486. Under Rule 12 (f),
M.R.Civ.P., the court may strike inappropriate material.
In denying Indemnity's motion to strike, the Workers'
Compensation Court noted the substantial discrepancy between
the deposition and the correction sheet. However, the court
found that claimant's trial testimony about the trauma was
substantially the same as his correction sheet. The court
also noted that Indemnity cross-examined claimant during
trial about the discrepancies between his deposition and his
trial testimony. The court concluded that the correction
need not be stricken because "the weight given to the changes
in the correction sheet will be - minimus."
de The court
properly placed the greatest weight on claimant's trial
testimony. We find no error in the court's discretionary
decision.
Issue 3. Substantial evidence.
Indemnity contends that the evidence does not support
the court's conclusion. Indemnity argues that the incident
with the cheese bucket was not the mechanism of the injury,
and that claimant's testimony about striking his lower back
lacks credibility. Indemnity also argues that if claimant
struck anything, it was not the area of the abscess. Indemni-
ty asserts that a pilonidal cyst encasing ingrown hair rup-
tured spontaneously.
When reviewing a decision of the Workers' Compensation
Court, we will not substitute our judgment for that of the
trier of fact unless the decision was clearly erroneous.
Nelson v. ASARCO, Inc. (Mont. 1987), 739 P.2d 943, 945, 44
St.Rep. 1074, 1077. The Workers' Compensation Court had the
opportunity to observe the demeanor and assess the credibil-
ity of witnesses. Although conflicts may exist in the evi-
dence presented, the trial judge has the duty and function to
resolve such conflicts. Tenderholt v. Royal Ins. Co. (Mont.
1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1795.
In the instant case, the chain of evidence is tenuous.
Both doctors testified that the abscess "could" have been
caused by trauma to the area. Regarding the proximity of
trauma necessary to trigger the infection, Dr. Poore testi-
fied that the blow would have to be to the exact area of the
cyst. Dr. Poore later elaborated: "Indeed, if the blow was
directly to the area and indeed there was a blow, I doubt
that it would have caused the initial cyst but it could have
caused a subsequent infection."
Claimant gave conflicting testimony of where and if the
trauma occurred, progessively defining the area as "back,"
"lower back," "below the belt line," and "tailbone." Howev-
er, the court gave credence to claimant's testimony. The
court also viewed the doctors' trauma speculation as support-
ive of claimant's testimony. Under the standard of
Tenderholt, 709 P.2d at 1013, 42 St.Rep. at 1795, we cannot
try this case "de novo." Accordingly, ve defer to the lower
7
court as the trier of fact and find that the evidence suffi-
ciently supports its conclusion.
Issue 4. Misconduct.
Indemnity contends that claimant failed to follow his
medical treatment, which prescribed applying topical antibi-
otics every four hours and bathing the wound several times a
day. Indemnity argues that claimant's conduct has prolonged
the period of his disability.
On review of this issue, we note that the degree of
claimant's misconduct required to break the chain of causa-
tion must be "intentional conduct which is clearly unreason-
able." Larson, Workman's Compensation Law, Vol. 1, S 13.22
at 3-425.
At the hearing, claimant's mother and father testified
that claimant followed the medical treatment. Claimant's
condition was best summarized by Dr. Giacomini in his
deposition:
But you see, the problem is not just
physical. We have to look at the sub-
...
ject as a whole. You know this kid
has to go around with diapers, let's put
it that way. ... It has interfered in
his social relation with girls, it has
interfered socially with his job avail-
ability. It has put a lot of strain in
the family, in the household, to have a
kid that's just loitering around, sit-
ting in the bathtub all the time.
Dr. Giacomini further testified that claimant has become
emotionally disturbed over the continuing condition.
The evidence is conflicting on the degree of claimant's
cooperation. However, the Workers' Compensation Court rea-
sonably assumed that claimant did not intentionally endure
two years of pain, embarrassment, and multiple surgeries. In
light of all the evidence and in deference to the lower
court, w e find that claimant's actions did not rise t o the
level of intentional misconduct. We hold that claimant's
conduct did not break the causal connection to his original
injury.
Affirmed.
LbL+L&+g
ChTef Justice .
. .
We concur:
Justices
Mr. Justice John Conway Harrison, dissenting.
I find that the significant, substantial and
inappropriate changes in the deposition testimony of
Giacoletto made over some 29 weeks after the hearing should
have been stricken from the record. Here the decision of the
Workers' Compensation Court should be reversed for a lack of
substantial credible evidence and an order issued directing
the Workers' Compensation Court to find the Industrial
Indemnity Company not liable to the respondent for the
payment of any workers' compensation benefits.
In addition, I would find that the respondent's refusal
to follow prescribed medical treatment constituted a
superseding, intervening cause that broke any chain of
causation from his alleged injury to the disability for which
he complains.
Mr. Justice L. C. Gulbrand joins i n l h e foregoing
dissent of Justice John C. Harrison.