NO. 86-151 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ARLENE GULBRAA, 

Claimant and Appellant, 

-vsALCO ENERGY PRODUCTS, Employer, 

and 

THE HARTFORD INSURANCE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nye & Meyer; Jerrold L. Nye argued, Billings, 

Montana 

For Respondent: 

Alexander & Baucus; J. David Slovak argued, Great 

Falls, Montana 

Submitted: December 2, 1986 

Decided: February 3, 1987 

Filed :,. pFr':j ;? ." "-!f>-f 

' ,". !' 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Arlene Gulbraa appeals a Workers' Compensation Court 

decision that she had not suffered a compensable injury under 

the Montana Workers' Compensation Act. The issue on appeal 

is whether there is substantial credible evidence to support 

the lower court's decision. We affirm. 

Gulbraa was employed by Alco Energy Products in 

Billings, Montana from April 1983 to May 1985, as a telephone 

solicitor. Her job was to contact potential customers, 

deliver a sales "pitch" and hopefully arrange for a personal 

appointment by a company sales representative. When such an 

appointment was arranged, it was designated a "lead." In 

April 1985, after being passed over for a promotion, Gulbraa 

suspected that the leads she had collected were not being 

acted upon by the company. After meeting with her supervisor 

on May 13, 1985, Gulbraa was terminated from her position at 

Alco. Since approximately 1971, Gulbraa has been treated by 

Dr. Rich, a Billings psychiatrist, for depression and related 

problems. Gulbraa's depression required frequent 

hospitalization between 1972 and 1975 before finally 

stabilizing. While working for Alco, Gulbraa saw Dr. Rich a 

total of three times--once for anxiety associated with 

scheduled foot surgery and two other times for routine 

check-ups. Nine days after her termination, Gulbraa saw Dr. 

Rich and expressed concern about losing her job rather than 

the working conditions of the job. 

Gulbraa was hired by Sears as a telephone solicitor 

four days after being fired by Alco but quit approximately 

one month later because of problems with her depression. She 

then worked two weeks for Meadowlark Agency in a similar 

capacity before she and the owner agreed that the employment 
would have to end because of her depression. Gulbraa was 

hospitalized the last week of June 1985, and again for 

several days in July 1985, because of her depressed 

condition. As of October 1985, Dr. Rich found Gulbraa 

incapable of working for at least three months, and at the 

time of trial Gulbraa was still unable to return to work. 

The Workers1 Compensation Judge concluded that Gulbraa 

had not suffered a compensable injury under the Montana 

Workers1 Compensation Act and was not entitled to 

compensation or medical benefits. 

The standard of review of workers1 compensation cases 

is whether substantial, credible evidence supports the 

Workers1 Compensation Court decision. Courser v. Darby 

School Dist. No. 1 (Mont. 1984), 692 P.2d 417, 419, 41 

St.Rep. 2283, 2285. Section 39-71-119, MCA, reads in 

relevant part: 

"Injury" or "injured" means: 

(1) 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 Workers1 Compensation Act is to be liberally construed in 

favor of the claimant. See 5 39-71-104, MCA. But this 

liberal construction does not allow us to disregard clear 

statutory provisions or to use it to the point of repealing 

or abrogating a statute. Wassberg v. Anaconda Copper Co., 

(Mont. 1985), 697 P.2d 909, 913, 42 St.Rep. 388, 392. 

Section 39-71-119, MCA, clearly requires proof of 

physical harm, either external or internal, stemming from an 

incident at the workplace. The burden of proof is on the 
claimant. Aho v. Burkland Studs (1969), 153 Mont. 1, 452, 

P.2d 415. 

In the recent case of Tocco v. City of Great Falls 

(Mont. 1986), 714 P.2d 160, 43 St.Rep. 310, job-related 

physical and emotional stress which aggravated a preexisting 

physical ailment qualified the claimant for workers' 

compensation. Claimant in Tocco was suffering from 

arteriosclerosis and hypertension when he began part-time 

work for the City of Great Falls. Claimant was assigned a 

difficult sanitation route one day and knew the City was 

going to add several full-time positions in the near future. 

Claimant suffered a fatal heart attack attempting to lift a 

box into the garbage truck. The treating physician testified 

that claimant's job-related emotional and physical stress may 

have played a very direct role in his sudden death by 

aggravating his preexisting ailments of arteriosclerosis and 

hypertension. This Court affirmed the Workers' Compensation 

Court's decision to award benefits, stating that the medical 

testimony "provided the final link between [claimant's] 

preexisting conditions, his physical and emotional injuries, 

and his sudden death." Tocco, 714 P.2d at 165. 

Therefore when it is medically proven that a 

work-related incident may have aggravated a preexisting 

physical ailment of the claimant, a compensable injury has 

been established. 

In this case, Gulbraa suffered serious bouts of 

depression from 1971-75 requiring frequent hospitalization. 

During her employment with Alco, as previously stated, 

Gulbraa saw Dr. Rich for reasons unrelated to the working 

conditions at Alco. In his deposition Dr. Rich stated that 

Gulbraa's depression problems were partly biological in 

origin but that a particular percentage could not be 

estimated with any degree of medical certainty. 
THE DEPONENT: To put it into my words, I 

believe that there is a component of her 

depression that is definitely physically 

based, meaning a biochemical sort of 

thing, needing medications. What 

percentage of that as opposed to what 

percentage is psychological, I don't 

know. 

Regardless of whether Gulbraa's depression qualified as a 

preexisting physical ailment, it is important to note that 

the aggravation or reemergence of Gulbraa's depression did 

not occur, according to Dr. Rich, until May 22, 1985, nine 

days after Gulbraa had been fired. 

Q Is it fair to say that her most recent 

acute exacerbation would have occurred 

shortly before or during the visit of May 

22nd of 1985? 

A Strictly speaking, I guess that would 

be the beginning of the exacerbation. 

Q Prior to the May 22, 1985, occurrence, 

there was a relatively stable period of 

time, correct? 

A Yes. 

Q When she did express any concern about 

her employment with Alco, it was on May 

22nd of 1985 after she had been 

terminated for some period of time; is 

that correct? 

A Let's see. That's the first time I 

made a note regarding the employment. 

Dr. Rich further mentioned that Gulbraa appeared to be 

happy in her job at Alco. 

Q And reviewing your note, it would 

appear that her concerns focused on the 

actual termination from employment as 

opposed to the employment itself? 
A That's correct. 

Now, regarding my answer to the 

previous question, in February of '85, I 

did indicate here that she was working 

for Alco Energy Products. Next line I 

said she's maintaining very well. And I 

didn't make notes about the work, but I 

think my earlier answer still holds. I 

have a ;ecollection that she seemed to be 

happy in that job. (Emphasis added.) 

We believe Gulbraa has failed to meet the test of 

5 39-71-119, MCA, because she did not prove a physical harm 

stemming from an incident at the workplace. Even assuming 

that Dr. Rich's opinion as to the physical origins of 

Gulbraa's depression is correct, it was not proven that the 

Alco job aggravated the depression. In fact, just the 

opposite was shown, that the aggravation of Gulbraa's 

depression occurred after she was fired by Alco. 

We conclude that there is substantial, credible 

evidence to support the decision of the Workers' Compensation 

Court. 

Affirmed. 

We concur: 4 / Justice 
Justices