No. 92-140
IN THE SUPREME COURT OF THE STATE OF MONTANA
PAMELA J. HOUTS,
Claimant/Petitioner/Respondent,
v.
KARE-MOR, INC., d/b/a BUTTE PARK ROYAL CONVALESCENT CENTER,
and HORIZON HEALTHCARE CORP., d/b/a BUTTE PARK ROYAL
CONVALESCENT CENTER, and STATE COMPENSATION MUTUAL INSURANCE FUND,
and
HORIZON HEALTHCARE CORP., d/b/a BUTTE PARK ROYAL CONVALESCENT
CENTER, and GENERAL INSURANCE COMPANY OF AMERICA,
APPEAL FROM: The Workers' Compensation Court
The Honorable Timothy W. Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Geoffrey R. Keller, Matovich, Addy & Keller,
Billings, Montana (General Insurance)
For Respondent:
R. Lewis Brown, Attorney at Law, Butte, Montana
(Houts); Michael McCarter, Hughes, Kellner,
Sullivan & Alke, Helena, Montana (State Fund)
." >
Submitted on Briefs: October 22, 1992
Decided: February 19, 1993
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant General Insurance Company of ~merica appeals a
decision of the Workers1 om pens at ion Court finding that respondent
Pamela J. Houtsl current medical condition, resulting from surgery
on April 11, 1988, stemmed from her April 4, 1988, industrial
injury.
We affirm.
General Insurance presents two issues for review. Houts
believes that the two issues can be combined into one. We will
review the following issues:
1. Is there substantial evidence to support the Workers1
Compensation Court's Findings of Fact and Conclusions of Law?
2. Did the Workersi Compensation Court err in finding that
General Insurance unconditionally accepted liability for Houts'
April 4, 1988, claim?
Pamela 3 . Houts worked as a nursefs aide at Butte Park Royal
Convalescent Center from September 4, 1984, until her employment
was terminated on October 27, 1988. During that period, she
reported six workersf compensation injuries. The insurer, the
State Fund, accepted claims for four injuries occurring from 1985
through 1987. General Insurance was the insurer for two injuries
that occurred in 1988.
Houtsf first industrial injury occurred on October 7, 1985.
She suffered an inguinal hernia while lifting a patient. She filed
a claim and received temporary total disability benefits from the
State Fund. The hernia was repaired by surgery on November 11,
1986, after which she received temporary total disability benefits.
On January 15, 1987, she returned to work without restrictions as
a nursesv aide.
On March 22, 1986, Houts sprained her lower back while putting
a patient to bed. She filed her claim and received temporary total
disability benefits until April 4, 1986, when she returned to work.
On April. 22, 1987, Houts injured her lower side abdomen while
lifting patients. Her condition was diagnosed as nerve entrapment
for which she had surgery on May 12, 1987. At the time of trial,
the State Fund was still paying her temporary total disability
benefits attributable to this injury.
Houts fourth industrial injury occurred on December 24, 1987,
when she was lifting a patient into a wheelchair and she felt a
pain on her left side, Nouts reported the accident and filed a
claim which was accepted by the State Fund, but no medical expenses
or wage loss was reported.
On April 4, 1988, Houts was injured when she was lifting a
patient and felt a sharp pain in her left side. The insurer at
this point was General Insurance. Houts was examined by Dr.
John M. Gallus, her treating physician, who concluded that the
problem was a continuation of her previous medical problems on her
left side. Houts continued to experience discomfort and on
April 7 , 1988, Dr. Gallus referred her to Dr. R. E. Nehls in Butte
who was board certified in obstetrics and gynecology. On
April 11, 1988, Dr. Nehls performed a laparoscopic examination of
her abdomen which revealed for the first time that her left tube
and ovary were attached to her abdominal wall by dense adhesions.
Dr. Nehls decided to perform general surgery and remove the
abnormal condition of the tube and left ovary. Following the
surgery, Houts' abdominal pain was gone, however, she now had pain
in the front area of her left thigh. She was then referred to Dr.
W. T. Escober, a neurologist, for a neurological exam. Houts
received temporary total disability benefits from April 18, 1988,
through mid-August 1988, when she returned to work.
The last industrial injury Houts suffered occurred on
October 26, 1988, when she was attempting to place a shirt on a
patient and was punched in the stomach. No disability was alleged
from the incident. Houts was terminated the following day when her
supervisor told her that they had no light duty positions available
for her.
A petition for hearing was filed on January 16, 1991, and was
heard before the hearing examiner on September 4, 1991. On
February 28, 1992, the Workers' Compensation Court adopted the
hearing examiner's findings of fact and conclusions of law which
stated that Houts' current symptoms arose from the April 11, 1988,
surgery stemming from her April 4, 1988, claim. General Insurance
appeals the decision of the Workers' Compensation Court.
I.
Is there substantial evidence to support the Workers'
Compensation Court's Findings of Fact and Conclusions of Law?
Our standard of review in a workers' compensation case is that
this Court will not substitute its judgment for that of the
Workers' Compensation Court where there is substantial evidence to
support the court's findings of fact. Laber v. Skaggs Alpha Beta
(1991), 247 Mont. 172, 805 P.2d 1375. Our responsibility is not to
determine whether sufficient evidence supports a contrary finding.
Hall v. Atlantic Richfield Co. (lggl), 248 Mont. 484, 812 P.2d
1262. The claimant is required to prove by the preponderance of
the evidence that her current disability was caused by an injury
sustained on the job. w, 812 P.2d at 1264. Therefore, we will
not overturn the Workers' Compensation Court unless its findings
are not supported by substantial evidence.
In its conclusions of law, the Workers' Compensation Court
determined that during the laparoscopic examination Dr. Nehls
discovered that Houts' left ovary was attached to the abdominal
wall and covered with dense adhesions. This abnormal condition
would be aggravated by lifting and ovulation.
General Insurance contends that with these conclusions it is
impossible to reconcile the Workers' Compensation Court's
conclusion that the April 11, 1988, surgery to remove the
adhesions, which were neither caused nor permanently aggravated by
the April 4, 1988, lifting incident, was not a result of that
injury. Houts counters that the cause of the adhesions is not the
critical factor, but whether the lifting incident exacerbated the
intermittently painful ovarian adhesions by producing the severe
pain that caused her to seek medical assistance.
It is well established that an employer takes an employee as
he finds him. Roadarmel, 772 P.2d at 1263. Although an employee
5
may be suffering from a pre-existing disease or disability, the
condition does not preclude compensation if the disease or
disability is aggravated or accelerated by an industrial injury
arising out of or in the course of employment. Roadamel, 772 P.2d
We have stated that:
[Mledical possibility evidence that an industrial
accident or injury aggravated a pre-existing condition,
may together with other evidence, establish a compensable
disability. However, medical possibility evidence, in
and of itself, does not necessarily extinguish claimant's
burden to prove her case by a preponderance of the
evidence.
Laber, 805 P.2d at 1378.
Tn this case, Dr. Nehls testified that any strain, including
lifting, could cause tension in the adhesive process and cause some
discomfort. Dr. Gallus testified that Houtsq pain was exacerbated
by her lifting at work. Dr. Gallus also stated that the adhesions
can tear away with heavy lifting or exertion. He further stated
that it was a real possibility that the adhesion tore away from the
attachments and exacerbated Houtsl condition.
The medical testimony raised the possibility that Houtsi
pre-existing condition was aggravated by the April 4, lifting
injury. The medical possibility must be corroborated by
independent evidence. Houtsl testimony supports the doctors1
contention that lifting and ovulation would aggravate the injury.
At the hearing, she testified to the following:
Q. Was that higher, as far as more towards your navel
than the pain that you experienced in your groin
area?
A. It was above the incision from the hernia, it was
like up, moving up.
Q. So it was higher, more toward your navel?
A. Yes.
Q. Do you recall, if anything, what brought on that
pain?
A. No, just from lifting and working, I'd be very
painful down there. I mean it would be sore down
there, but when I had my periods, it was worse.
The fact that Houts experienced pain in the exact location of
the adhesion prior to, and on April 4, 1988, as well at the
laparoscopic exam, further corroborates the doctors1 testimony.
Dr. Nehls performed surgery to remove the ovary which caused
Houts' pain. The surgery was successful but resulted in
intermittent pain from Houts' left thigh to her knee. Doctors
Charles 33. Beuler, an orthopedic surgeon, and neurologist Gary
Cooney, testified that her leg pain resulted from the April 11,
1988, surgery. A preponderance of the medical evidence establishes
a causal relationship between Houtsl present pain in her left thigh
and the April 11 surgery resulting from the lifting injury. We
hold that there is substantial evidence to support the Workers1
compensation Court's findings of fact and conclusions of law.
11.
Did the Workers' Compensation Court err in finding that
General Insurance unconditionally accepted liability for Houts'
April 4, 1988, claim?
As previously stated, Houts has met her burden of proof that
she sustained a compensable injury arising out of and in the course
of her employment for which her employer and insurer are liable.
Whether General Insurance accepted liability is immaterial because
liability attaches as a matter of law. We hold that the Workers'
Compensation Court did not err in finding that General Insurance
accepted liability for Houts' injury.
We affirm. /
Justice
We concur:
Chief Justice