LAMB v MISSOULA IMPORTS INC
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No. 83-538 IN THE SUPWME COURT OF THE STATE OF MONTANA 1984 RUSSELL A. LAMB, Claimant and Respondent, -vsMISSOULA IMPORTS, INC., Employer, and UNIVERSAL INSURANCE CO., Defendant and Appellant. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant : Garlington, Lohn & Robinson; Robert E. Sheridan, Missoula, Montana For Respondent : Williams Law Firm; Susan Roy, Missoula, Montana Submitted on Briefs: May 3, 1984 Decided: July 2 6 , 1984 Clerk Mr. Justice John Conway Na.rrison delivered the Opinion of the Court. Appellants raise this appeal from the Workers' Compensation Court's findings, conclusions and ruling that respondent's epileptic seizures stemmed from an industrial accident and thereby were compensable. Missoula Imports employed Russell Lamb as a janitor. On the evening of September 11, 1978, as Lamb was washing the floor, he slipped and floor. fell striking his head on the He claims he remembers little or nothing during the few hours following his fall. and told her of the accident. Lamb called his girlfriend His parents picked him up at the workplace and took him to the hospital emergency room Dr. McMullin diagnosed him as having had a for treatment. mild concussion and contact him observed sent Lamb home with if complications arose. him during the next instructions to Both of his parents several days. Mrs. Lamb testified as to the memory problems on respondent's part which extended accident. to more than twenty-four hours after the He kept asking the same question as to what had happened and had apparently been unable to remember the answers given to him in previous days. In February, 1979, respondent went to Dr. Johnson (a neurologist). Dr. Johnson performed an electroencephalogram and determined respondent suffered from epilepsy. prescribed medication to control the seizures. He However, respondent continued to have occasional seizures. On March 9, 1982, he suffered a seizure while driving his car on Brooks Street in Missoula, Montana. Witnesses reported that his car veered off to the right and hit a tree i n a l o c a l park. R e s p o n d e n t c l a i m s h e remembers n o t h i n g of the accident or t h e e v e n t s l e a d i n g up t o t h e a c c i d e n t and remained i n an i n t e n s i v e c a r e u n i t f o r a c o n s i d e r a b l e l e n g t h of t i m e . Respondent's mother any indication of a testified prior t h a t he had epileptic never had She also seizure. t e s t i f i e d t h a t no o n e i n t h e f a m i l y had e v e r had a n y h i s t o r y of e p i l e p t i c s e i z u r e s . Following t h e f i l i n g of depositions from three respondent's seizures. t h e claim, doctors the parties regarding took cause of Johnson Even t h o u g h D r . the concluded the i n d u s t r i a l accident probably did not cause respondent's seizures, he did admit the risk factor of encountering s e i z u r e s a s t h e r e s u l t of t h e t y p e of h e a d i n j u r y s u s t a i n e d by r e s p o n d e n t was somewhere b e t w e e n o n e and t h r e e p e r c e n t . Dr. Dewey (a neurosurgeon), after reviewing all of the m e d i c a l d a t a and r e l a t e d i n f o r m a t i o n , c o n c l u d e d t h e s l i p and fall probably caused the rehabilitation expert for seizures. Dr. s e i z u r e and Bertrand trauma (a patients) e x p r e s s e d h e r b e l i e f t h a t t h e head i n j u r y i n c u r r e d from t h e f a l l caused t h e s e i z u r e s . The W o r k e r s ' determined direct and Compensation C o u r t , f o l l o w i n g a h e a r i n g , respondent's fall proximate cause at of Missoula the I m p o r t s was seizure A p p e l l a n t s r a i s e t h e i r a p p e a l from t h a t o r d e r . the disorder. We affirm. A p p e l l a n t s r a i s e o n e i s s u e on a p p e a l . Did s u f f i c i e n t e v i d e n c e e x i s t t o s u p p o r t t h e W o r k e r s ' C o m p e n s a t i o n Cour t ' s f i n d i n g s t h a t t h e i n d u s t r i a l a c c i d e n t c o n s t i t u t e d t h e proximate cause of respondent's s e i z u r e s ? Appellants assert insufficient probative credible evidence exists Imports caused examine the weight. prove his respondent's seizures. meilical They industrial to They evidence, believe accident fall direct and accord at this it t h e e v i d e n c e shows t h e merely caused f a i l e d t o cause the seizures. a mild Missoula Court the to proper respondent's concussion and We disagree. W e s t a t e d t h e s t a n d a r d f o r r e v i e w f o r s u f f i c i e n c y of evidence in Little v. S t r u c t u r a l Systems ( 1 9 8 0 ) , 614 P.2d "First of all, in examining the c o n t e n t i o n s by t h e p a r t i e s t o t h i s a p p e a l , it s h o u l d b e p o i n t e d o u t t h a t t h i s Court has consistently held the test of s u f f i c i e n c y of t h e e v i d e n c e t o be whether t h e r e is s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e c o u r t ' s f i n d i n g s of f a c t . S e e S t a m a t i s v. B e c h t e l Power Co. ( 1 9 7 9 ) , Mont., 6 0 1 P.2d 4 0 3 , 36 S t . R e p . 1866; 592 P.2d Head v . L a r s o n ( 1 9 7 9 ) , Mont., 5 0 7 , 36 S t . R e p . 571; S t r a n d b e r g v. R e b e r Company ( 1 9 7 8 ) , Mont., 587 P.2d 1 8 , 3 5 St.Rep. 1742; J e n s e n v. Zook B r o t h e r s C o n s t r u c t i o n Company ( 1 9 7 8 ) , Mont., 582 P.2d 1 1 9 1 , 35 S t . R e p . 1 0 6 6 . In Stamatis and J e n s e n , t h i s C o u r t f u r t h e r h e l d t h a t where the findings are based on conflicting evidence, this Court's f u n c t i o n on review is c o n f i n e d to d e t e r m i n i n g w h e t h e r t h e r e is s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e f i n d i n g s and n o t t o d e t e r m i n e whether t h e r e is s u f f i c i e n t zvidence t o support contrary findings." I n J o n e s v. St. P.2d we 1140, weight of R e g i s P a p e r Co. said critical this ( 1 9 8 1 ) , 1 9 6 Mont. Court medical may determine testimony 1 3 8 , 639 the entered depositions: "Ordinarily, this Court w i l l not s u b s t i t u t e i t s judgment f o r t h a t of t h e Workers' Compensation Court in d e t e r m i n i n g t h e w e i g h t and c r e d i b i l i t y t o be g i v e n t e s t i m o n y . The r e a s o n f o r t h i s is t h a t t h i s C o u r t d e f e r s t o t h e l o w e r c o u r t ' s a s s e s s m e n t o f t h e demeanor and c r e d i b i l i t y of witnesses. Rule 5 2 ( a ) , M.R.Civ.P. However, when t h e c r i t i c a l evidence, p a r t i c u l a r l y medical evidence, proper through is entered by deposition, we have held that ' this Court, although sitting in review, is in as good a position as the Workers ' Compensation Court to judge the weight to be given to such record testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witness on the stand. ' " Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 359-360, 584 P.2d 656, 659. Appellants stress this Court should give Dr. Johnson's testimony the most weight because he is the most qualified expert witness. His testimony that it is unlikely the fall caused respondent's seizures proves appellant's contention that no connection exists between the industrial accident and the subsequent seizures. We reject this argument. In careful examination of the deposition by the three medical experts, it is clear to this Court that medical science remains sufficiently undeveloped epilepsy and seizures to statements as dispositive. rely on in the area of any one witness's In Conway v. Blackfeet Indian Developers, Inc. (Mont. 1983), 669 P.2d 225, 40 St. Rep. 1427, we followed the rationale of Moffet v. Bozeman Canning Co. (1933), 95 Mont. 347, 26 P.2d 973. In both of those cases medical testimony failed to definitively state that the industrial accident caused the subsequent affliction. We stated: "'The record contains no direct evidence from which it can be said that the injury was the proximate cause of claimant's present condition; this, not because of failure on the part of claimant properly to present his case, but because, on the frank admission of the doctors, no man on earth knows positively the exact cause of such an affliction in any given case; medical science has not advanced to a point where it can positively trace back from the effect and declare the cause of the disease in a given patient, but this fact alone need not bar the claimant from recovery, if, on the record, it can be said that he is entitled thereto."' 669 P.2d at 228. A review of the medical experts' depositions reveals that none of the doctors deposed respondent at the time of the industrial accident. Dr. Johnson assumed respondent merely suffered a mild concussion which most likely would not cause the seizures. However, that type of testimony must be compared to the testimony of the other physicians who considered the memory lapses demonstrated by the respondent and his epileptic seizures which have followed. Dr. Dewey stated he believed the accident a much more severe trauma and that be believed the accident at Missoula Imports was the probable cause of the epilepsy. Dr. believed the accident caused the seizures. Bertrand These experts all appeared sufficiently qualified to render their opinion in this matter. When these two physicians considered all the facts of the case they concluded there was a significant probability the epileptic seizures were the result of the industrial accident. Based on this evidence, we can only conclude that substantial medical evidence exists to support the Workers' Compensation Court's findings. We see no reason to accord Dr. Johnson's testimony any greater weight than the testimony of the other two doctors. He demonstrated no substantially greater understanding of this topic than the other witnesses. We affirm the Workers' Compensation Court. W e concur: 9A&$&dd4 Chief J u s t i c e
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