FROST v ANACONDA CO
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No. 84-313 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 ODEAN L. FROST, Claimant and Respondent, -vsTHE ANACONDA COMPANY, Employer-Defendant and Appellant. APPEAL FROM: Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Utick, Grosfield Montana & Uda; Andrew J. Utick, Helena, For Respondent : Neil J. Lynch & R. Lewis Brown, Butte, Montana Submitted on Briefs: March 21, 1985 Decided: June 25, 1985 JU& . Filed : i 4s 1y J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court. Mr. T h i s i s a n a p p e a l b y Anaconda Aluminum Company, judgment in favor of claimant, Odean Frost, L. from a by the Workers' Compensation C o u r t . On October 21, 1974, claimant was injured while c l i m b i n g down an ore s h o v e l o p e r a t i n g i n Anaconda Company's mine i n Butte, the ore shovel, lower back. burning accident l a d d e r on l a n d i n g on t h e t r a c k o f t h e s h o v e l w i t h h i s Immediately a f t e r t h e a c c i d e n t , h e experienced a sensation remaining C l a i m a n t s l i p p e d from a Montana. six to in his hours his of lower back. his shift. Claimant but supervisor medical a t t e n t i o n . C l a i m a n t worked not did reported immediately the the seek Claimant continued working f o r seventeen months u n t i l h e f i r s t s o u g h t t r e a t m e n t b e c a u s e o f c o n t i n u e d b a c k p a i n a n d d i m i n i s h e d c o n t r o l o v e r h i s l e f t l e g and f o o t . On March 9, 1976, B u e h l e r examined t h e Dr. claimant. Dr. B u e h l e r d i a g n o s e d c l a i m a n t ' s c o n d i t i o n a s a n L5-S1 h e r n i a t e d disc. I n August o f 1976, D r . disectomy. Claimant B u e h l e r p e r f o r m e d a l e f t L5-S1 testified that the back and discomfort continued a f t e r t h e surgery. I n March o f the cease persistent pain forced claimant to leg 1976, working for Anaconda Company. Claimant "METRO" of received program, benefits from Anaconda Company's i n l i e u o f Workers' Compensation from A p r i l 1976 u n t i l A p r i l o f 1 9 8 3 , o n w h i c h d a t e a l l b e n e f i t s w e r e terminated. Claimant Compensation within injury. The had one Workers' not year filed a claim following Compensation Court the f o r Workers' date of his f o r b a d e Anaconda Company from a s s e r t i n g t h e o n e y e a r s t a t u t e o f l i m i t a t i o n s a s a bar to claimant's recovery of benefits. This Court affirmed the Workers' Compensation Court's decision in Frost v. Anaconda Company ( 1 9 8 2 ) , 1 9 8 Mont. 2 1 6 , 6 4 5 P. 2d 4 1 9 , and held that the employer's payment of "benefits substantially comparable to or greater than the benefits available to the . . . employee under the Workers' Compensation Act" tolled the statute of limitations for filing his claim. On June 1 3 , 1 9 8 3 , a second hearing was held before the Workers' Compensation permanent total Court. disability The claimant benefits. was awarded Anaconda Company appeals from the judgment of the Workers' Compensation Court. The issue on appeal is whether substantial evidence supports the Workers' Compensation Court's determination that the claimant is entitled to compensation for permanent total disability. The basic premise of Anaconda Company's appeal is that the claimant failed to meet his burden of establishing a causal relationship between claimant's low back and the leg industrial condition. accident The and Workers' Compensation Court determined that the claimant established causality: "The cause of the herniated disc and the surgery it necessitated was the claimant's October 2 1 , 1 9 7 4 industrial the cause of the accident claimant's continuing back and leg pain is the herniated disc he suffered in his October 2 1 , 1 9 7 4 , industrial accident or from the scarring in the area of the L5-S1 disc protrusion." ... Anaconda Company argues that there is a total absence of medica 1 proof to support a finding of causal relationship. Anaconda Company argues that the Workers' Compensation Court improperly relied on claimant's testimony. Anaconda Company further maintains that because the claimant was in error when he testified as to the first date he saw a doctor that this was intentional and made his testimony inherently incredible. The testimony of two witnesses, Charles E. Buehler, M.D. and the claimant, is critical to the determination of the existence of causal relationship. Anaconda Company submits, because Dr. Buehler's testimony was by deposition, the standard of review should be governed by Anaconda Aluminum Company Sbupert v. (Mont. 1985), 696 P.2d 436, 42 . . . when the critical evidence, particularly medical evidence, is entered by deposition, we have held that "this Court, although sitting in review, is in as good a position as the Workers1 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."'" (Citations omitted.) 696 P.2d at 439. If I We will adhere to this standard in reviewing Dr. Buehler's deposition testimony. However, in reviewing the testimony of the claimant, deference will be accorded to the Workers1 Compensation Court's findings as to weight and credibility. Section 39-71-119 (I), MCA in pertinent part defines an injury as: "a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury " ... The claimant must prove by a preponderance of the evidence: (1) that he suffered an injury arising out of and in the course of employment; and (2) that such injury was the proximate cause of his disabling condition. Viets v. Sweet Grass County (1978), 178 Mont. 337, 5 8 3 P.2d ( 1 9 7 5 ) , 1 6 7 Mont. and S t o r a g e Co. 1070. McQuiston v. See a l s o , 4 2 3 , 539 P . 2 d Hubbard 380; V e t c h v. H e l e n a T r a n s f e r ( 1 9 6 9 ) , 1 5 4 Mont. 1 0 6 , 460 P.2d The s t a n d a r d o f r e v i e w f o r m e d i c a l 757. proof of causation c a s e s h a s b e e n s e t f o r t h i n e a r l i e r cases. I n Viets "Medical p r o o f o f c a u s a t i o n o f a n i n j u r y must be greater than 'possible' in Workers' Compensation c a s e s . C l a r k v. H i l d e C o n s t r u c t i o n Co. ( 1 9 7 8 ) , M o n t . , 576 P.2d 1 1 1 2 , 35 S t . R e p . 353; E r h a r t v . G r e a t W e s t e r n S u g a r Company ( 1 9 7 6 ) , 1 6 9 Mont. 3 7 5 , 546 P.2d 1 0 5 5 ; McAndrews v. S c h w a r t z v . G l a c i e r G e n e r a l A s s u r a n c e Co. ( 1 9 7 4 ) , 1 6 4 Mont. 4 0 2 , 5 2 3 P.2d 1379; (1966), S t o r d a h l v . Rush I m p l e m e n t Co. 1 4 8 Mont. 1 3 , 417 P.2d 9 5 ; L a F o r e s t v. S a f e w a y S t o r e s ( 1 9 6 6 ) , 1 4 7 Mont. 4 3 1 , 414 P.2d 2 0 0 . " Dr. Buehler 's symptomatology from could fairly (i) to which conclude Upon consulting set testimony the that Workers' claimant medical Compensation did referral by D r . Buehler, physicians, Dr. Alexander Cooney, t h a t h e t o o k a f a l l a t work. forth suffer an Court injury: claimant reported Johnson and Dr. Since the injury he has i n c r e a s i n g l y s u f f e r e d back p a i n r a d i a t i n g t o h i s l e f t lower extremity. (ii) D r . Buehler performed a myelogram and d i a g n o s e d t h e c l a i m a n t ' s c o n d i t i o n a s a n L5-S1 h e r n i a t e d d i s c . (iii) D r . Buehler (iv) Buehler Dr. performed noted e x p e r i e n c e back and l e g p a i n . physical activity. Dr. a that l e f t L5-S1 claimant disectomy. continued to The p a i n w o u l d i n c r e a s e w i t h B u e h l e r c o n c l u d e d t h a t t h e p a i n was secondary t o t h e prolonged duration o f h i s herniated d i s c o r t o scarring i n the area of t h i s disc protrusion. (v) Dr. Buehler testified that a s s o c i a t e d l e g c o n d i t i o n i s permanent. clai-mant's back and The Anaconda Company has failed to produce any evidence, medical or otherwise, as to the specific cause of claimant's injury. Anaconda Company witness to disprove causation. called no medical The record shows that the claimant had no previous back problems or a history of injury that might even remotely affect his back. Prior to the accident, he was able to perform his job with no orthopedic problems. Dr. Buehler informed Anaconda claimant could not return to heavy labor. Company that The claimant testified that the increased pain associated with physical activity made it difficult for him to walk, to bend or even to climb stairs. The claimant further testified that he presently takes muscle relaxants and analgesics for pain. Anaconda Company maintains that the Workers ' Compensation Court erred in considering claimant's testimony of his continued pain following the accident. We have long recognized the Workers' Compensation Court's right to rely on the testimony of the claimant. Co. (Mont. 1984), 682 P.2d Anaconda Aluminum Co. The Workers' McCormack v. Sears-Roebuck 1357, 41 St.Rep. 979; Robins v. (1978), 175 Mont. 514, 575 P.2d Compensation Court's own & finding that 67. the claimant was a credible witness and not a malingerer further discounts Anaconda Company's allegation. The record shows a conscientious working man, who although injured on the job, chose to complete his work additional hours. day and endure pain for six The fact that he did not seek medical attention for seventeen months following the accident does not lessen the injury nor minimize the pain he experienced. The medical evidence, including Dr. Buehler's testimony and the herniated disc trauma itself, establishes a firm basis for claimant's complaints of pain. We hold the record supports the Workers' Compensation Court's findings and conclusions that a causal relationship between the accident and the resulting physical disability was sufficiently established. Accordingly, the judgment o f the Workers ' Compensation Court is affirmed. Justic s 7'
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