NO. 88-252 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IRENE FJOOD, 

Claimant and Appellant, 

-vsULMER'S CAR AND TRUCK, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

;I\' t' 

Defendant, Respondent and Appellant. . . c-' ny 

APPEAL FROM: The Workers' Compensation Court, The Honorable Ti-mothv 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R.V. Bottomly; Rottomly 1,aw Offices, Great. Falls, 

Montana 

For Respondent: 

Mike McCarter; Hughes, Kellner, Sul.livan & Alke, 

Helena, Montana 

Filed : 

Submitted on Briefs: Dec. 1.6, 1988 

Decided: March 7, 1989 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal and cross-appeal from the Workers' 

Compensation Court involves a claim for widow's benefits. 

The State Compensation Insurance Fund (Fund), appeals the 

lower court's decision finding claimant's husband suffered an 

injury resulting in death under the Montana Workers' 

Compensation Act. The claimant, Irene Wood, cross appeals 

contending that the lower court erred in refusing to provide 

attorney fees due from the insurer in a lump sum. We affirm 

the lower court's decisions in regard to the appeal and the 

cross-appeal. 

Appellant's Issue 

Whether the Workers' Compensation Court erred in 

awarding benefits to the widow of a worker based on the 

conclusion that the worker's exposure to carbon monoxide 

caused his heart attack? 

The relevant facts are as follows: Irene's husband, 

Duane Wood, worked approximately ten years as a mechanic at 

Ulmer's Car & Truck in Great Falls. Duane suffered from 

hypertension and an enlarged heart, musculoskeletal problems, 

low potassium levels, and cardiovascular disease. Duane was 

49 years old when he died of a heart attack on October 29, 

1984. 

Duane's doctor had diagnosed and treated most of his 

various ailments, but had no knowledge of his moderate to 

severe coronary artery disease until after Duane's autopsy. 

The autopsy revealed moderate to severe narrowing due to 

coronary arteriosclerosis. 

Duane smoked a pipe. He had switched from cigarettes to 

a pipe a few years before his death. Irene testified he did 

not inhale the pipe smoke. Duane also liked to drink one or 
two beers after work. The last two years his pace in 

completing repairs at Ulmer's slowed considerably. 

Duane worked the Friday before his death. On Friday 

evening Duane skipped dinner and went straight to bed 

complaining of extreme fatigue and shoulder pain. On 

Saturday morning he collapsed and was taken to the hospital. 

When he arrived at the hospital he was suffering from cardiac 

arrest probably due to ventricular fibrillation. Two days 

later he died. Duane's behavior on Friday night indicated he 

experienced the onset of a myocardial infarction. 

Irene testified that approximately two months before his 

death Duane began to exhibit loss of balance and appetite. 

During this period he also lost weight and experienced 

breathlessness and coughing. These symptoms, according to 

Irene, increased in September of 1984. Duane also complained 

of cold and fumes at work. 

Ulmer's Car and Truck operates in a building containing 

seven service bays. The business employs five mechanics and 

two mechanic's helpers. The helpers perform routine service 

and the mechanics handle minor to major repairs. The bays 

are often full with vehicles undergoing servicing or repair. 

Carbon monoxide escapes into the air from the exhaust of 

cars driven in and out of [Jlmer's shop. When an auto is run 

in the shop, workers hook a hose to the auto's tail pipe. 

The hoses channel the carbon monoxide outside the building. 

Even when exhaust escapes outside through the hoses, leaky 

manifolds and other sources associated with running the cars 

inside contribute to the presence of carbon monoxide in the 

air of the garage. 

A twenty four inch fan in the wall of the garage and two 

ceiling fans help to circulate air and dissipate the carbon 

monoxide. Employees also help to rid the garage of the gas 

by opening windows and the doors that access the bays. 
Employees open the doors and windows more often on warmer 

days than on colder days. The high temperature recorded in 

Great Falls on Duane's last day of work was 51 degrees 

Fahrenheit. 

Irene hired Dr. Anderson to testify on the possible 

effects of carbon monoxide on individuals with cardiovascular 

disease. Anderson testified that individuals suffering from 

cardiovascular disease risk precipitating a heart attack by 

breathing carbon monoxide. The risk exists, according to 

Anderson, because carbon monoxide molecules bond more 

strongly to hemoglobin than oxygen molecules. Anderson 

testified that where concentrations of carbon monoxide in the 

air exist, the strength with which carbon monoxide binds to 

hemoglobin allows it to displace a portion of the oxygen one 

would normally obtain by breathing. The already reduced 

ability of individuals suffering from cardiovascular disease 

to supply the heart with oxygen, when combined with the 

effects of breathing air contaminated by concentrations of 

carbon monoxide, may precipitate a heart attack, accordinq to 

Anderson. 

Anderson considered the likelihood that inhalation of 

carbon monoxide caused Duane's heart attack. Testing done on 

February 26, 1985, when the high temperature in Great Falls 

reached 43 degrees Fahrenheit demonstrated the presence of 

carbon monoxide in the air of the garage. Anderson testified 

that the levels of the gas present at that time could have 

posed a health risk to Duane. Anderson also noted inhalation 

of the gas in amounts sufficient to cause oxygen deprivation 

may result in headaches, dizziness, confusion, and coughinq. 

Amounts too small to cause symptoms in ordinary individuals 

may nevertheless affect those sufferinq from cardiovascular 

disease. 
Rased. on the presence of carbon monoxide concentrations 

in the garage, the compatibility of Duane's symptoms with the 

effects of carbon monoxide in the blood, and a lengthy 

hypothetical propounded by claimant's counsel incorporating 

Irene ' s testimony and Duane ' s autopsy report, th.e fol.1owi.n~~ 

exchange occurred: 

Q Taking into account the symptoms suggested 

by the question over the preceding month period and 

on the night of decedent's collapse, and takinq 

into account the levels of carbon monoxide 

concentrations reported in the question, in your 

opinion did such levels of carbon monoxide 

aggravate his underlying heart disorder? 

A It certainly is probable that it did. 

Q Would the symptoms listed by the decedent 

be consistent with the levels of carbon monoxide 

reported in the question? 

A Yes. 

Q Taking into account the decedent's heart 

condition, as reported in the autopsy, and the 

levels of carbon monoxide reported, could these 

levels trigger or precipitate a new stage of 

pathology or a new dysfunction in the heart 

condition? 

A Yes, it could. 

Q In your opinion, did the levels of carbon 

monoxide aggravate, hasten, trigger or precipitate 

a new stage of pathology or a new dysfunction in 

his heart condition? 

A It was a precipitating factor, I think. 

Q And in your opinion, did they do so? 

A All I can say is that it's probable that 

the high levels of carbon monoxide were a 

precipitating factor in the final stage of events 

that led to his dea.th. 
On cross-examination, Anderson testified as follows: 

Q Okay, I think I asked you earlier, but as I 

understand it, it is not your opinion that the 

carbon monoxide exposure triggered his heart 

attack? 

Mr. Bottomly [claimant's counsel objecting]: 

Wait a minute, that is contrary to his opinion. 

Q Well, let's ask you what your opinion is. 

A Okay, my opinion is that it's a risk factor 

that certainly could have triggered -- we don't 

know, you know, it did with certainty, but it's 

certainly a risk factor. 

Q It's a risk factor, hut you don't know for 

certain? 

A Right. 

Q And there were a number of other risk 

factors in this case? 

A That's correct. 

Q The cigarette smoking, the hypertension; 

correct? 

A Right, for developing coronary artery 

disease, right. 

Q Was carbon monoxide any greater risk factor 

than those factors? 

A Carbon monoxide was a risk factor just in 

the final event, not in the development of the 

coronary artery disease, so the others played a 

role in developing the coronary artery disease, put 

him at higher risk for having a myocardj-a1 

infarction, but the carbon monoxide was only with 

respect to having symptoms from coronarv disease 

and eventual]-y developing a myocardi-a1 infarction. 

Q I guess what I'm asking here is can you 

attribute his heart attack and his sudden death to 
carbon monoxide as opposed to cigarette smoking: 

hypertensio~ or anything else, for that matter. 

A No. 

The Fund contends that Irene failed to carry the burden 

of proving inhalation of carbon monoxide caused an injury 

resulting in death under 39-71-721 (I), 39-7'1.-119, MCA 

(1983) : 

39-?l-721. Compensation for injury causing death. 

(1) if an iniured emplovee - .- - dies and the iniurv was 

the proximate cause of such death ... 

39-71-119. Injury or iniured defined. 

"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, except as provided in subsection (2) of 

this section ... 

(3) death resulting from injury. 

The Fund cites several cases where this Court affirmed 

the Workers' Compensation Court because the claimant failed 

to demonstrate causation even though "medical possibility" 

evidence existed. See, Brown v. Ament (Mont. 1988), 752 P.2d 

1?1, 45 St.Rep. 508; Currey v. 10 Minute Lube (Mont. 19871, 

736 P.2d 113, 44 St.Rep. 790, Ferdinand v. Lodge No. 456 

(Mont. 1986), 719 P.2d 775, 43 St.Rep. 955, Wheeler v. 

Carlson Transport (Mont. 1985), 704 P.2d 49, 42 St.Rep. 1177. 

The Fund contends that the similarity of this case to the 

cited cases mandates the conclusion that Irene failed to 

demonstrate causation. We disagree. 
In Brown, the claimant failed to come forward with 

sufficient evidence to corroborate testimony revealing the 

medical possibility of causation. Brown, 752 P.2d at 175. 

In Curry, the medical evidence conflicted. Curry, 736 P.2d 

at 116. The medical experts in Ferdinand never offered 

testimony that the claimed injury more probably than not 

caused claimant's heart attack. Ferdinand, 719 P.2d at 777. 

And in Wheeler, conflicting evidence also led this Court to 

affirm denial of benefits. Wheeler, 704 P.2d at 54. 

Here, Anderson testified carbon monoxide was probably a 

precipitating factor in causing Duane's death. Irene ' s 

testimony corroborates Anderson's opinion. Thus, substantial 

evidence supports the decision of the lower court. 

The Fund contends that Anderson contradicted his earlier 

testimony under cross-examination when he stated that he 

could not attribute the heart attack to carbon monoxide as 

opposed to other factors which could have caused the attack. 

However, the Fund questioned Anderson only on whether or not 

he was certain that carbon monoxide caused the fatal illness. 

Anderson never refuted or explained away his opinion that 

carbon monoxide probably precipitated events leading to 

Duane's death. Moreover, the lower court has the duty to 

resolve conflicts in the evidence, and this Court may not 

substitute its judgment for the judgment of the lower court 

when substantial evidence supports the lower court's 

decision. Ferdinand, 719 P.2d at 776. Thus the we affirm 

the lower court's finding on causation. 

The Fund also contends that insufficient evidence 

supports the lower court's finding that the heart attack met 

the requirement of time definiteness for finding an injury 

under 5 39-71-119, MCA. We disagree. 

Evidence disclosed the worsening effects of oxygen 

deprivation on Duane's health two months prior to his death. 
The night before his death, the lower court found that oxygen 

deprivation precipitated the heart attack. Anderson 

testified that Irene's description of Duane's symptomatology 

on the Friday before he collapsed indicated the onset of a 

myocardial infarction probably triggered by inhalation of 

carbon monoxide. Thus, while Duane's cardiovascular disease 

developed over time, the event that deprived his heart of 

enough oxygen to continue pumping probably occurred on his 

last day of work. Under these circumstances, substantial 

evidence supports the finding of time definiteness by the 

lower court. Daniels v. Kalispell Regional Hospital. (Mont. 

1988), 750 P.2d 455, 45 St.Rep. 310. 

Cross Appellant's Issue 

Whether the lower court erred in denying lump sum 

attorney fees for future benefits? 

On cross-appeal Irene contends that the lower court 

erred in refusing to provide the attorney fees due from the 

Fund for future benefits in a lump sum. We disagree. The 

applicable statute, S 39-71-611, MCA /1983), provides for an 

award of attorney fees and costs from the insurer. The 

amount and kind of fees, lump sum or periodic, must he 

reasonably established by the Workers' Compensation Court. 

The lower court acts reasonably and within its discretion by 

refusing to lump sum attorney fees owed for benefits which 

may never accrue. Davis v. Jones (Mont. 1987), 745 P.2d 362, 

365, 44 St.Rep 1859, 1862. Thus, we affirm the cross appeal. 
// 

Justices 
Mr. Justice John C. Sheehy, concusrinq in part and dissent-ing 

in part: 

I concur with that portion of the opinion that finds 

that the decedent suffered a compensable injury. I dissent 

from that portion of the opinion that relates to the 

attorney's fees. 

When this case first came before our conference for the 

purpose of classification, I contended that we should have 

oral argument relating to the attorney's fee issue. The 

evolution of the opinion convinces me that my position was 

correct. The attorney's fee issue is decided in a single 

paragraph and its rationale is limited strictly to a 

conclusion that the Workers' Compensation Court acted 

reasonably. A lower court's decision is not "reasonable" 

simply because we sav it is. Ipse dixit (he said so) is not 

a substitute for judicial dissection and discussion of an 

issue. 

In this case we have record evidence that the claimant 

is in perfect health and has a life expectancy of 25.2 years. 

The attorney representing her is near retirement age. 

Actuarially, the claimant will outlive her attorney, and 

under our decision here, the attorney's estate may be paid 

For the work the attorney performed in his lifetime. I hope 

that does not happen, but the possibility shows how absurd 

the Workers' Compensation law has become. 

The claimant's attorney compiled a record in this case 

which deserves the attention of this Court. He called an 

expert witness, Gene Picotte, a lawyer with 38 years of 

practice behind him, who specializes in representinq 

compensation clients. Mr. Picotte testified from his 

experi ence that cont.ingent arrangements are "absolutely 
necessary in representing claimants." Without the 

possibility of contingent arrangements, most claimants could 

not afford attorneys or procure them on a fee basis. Indeed 

if the attorney must advance the costs, as we must admit 

occurs many times, long delays in collecting his fees can 

cause prohlems with cash flow, as Mr. Picotte testified. 

Mr. Picotte also indicated that attorneys in the past 

have always anticipated that there would be lump sum payments 

in compensation cases. They anticipate receiving as fees a 

percentage of future benefits. It was his opinion that 

lawyers will not take cases with long-deferred fees because 

they cannot afford to do so. Denial of lump sum attorney's 

fees for future benefits frustrates the public policy of 

compensation for those who cannot competently represent 

themselves. 

Especially, Mr. Picotte emphasized, long-deferred 

payments would have an adverse effect on older attorneys 

whose retirement security is compromised. 

That record deserves some discussion. It is as 

important to the proper legal administration of workers' 

compensation cases to have an able claimant's bar available 

for workers as it is to have fully compensated defense 

lawyers for the insurers. We are forcing the available bar 

to become unbalanced. 

The position of this Court that there can be no 

attorney's fee recovery for future benefits until received is 

out of sync with respected authority in the field. Thus in 

Quam v. Minnesota (1986), 391 N.W.2d 803, the Minnesota Court 

said: 

We agree with a respected commentator in the 

workers' compensation field, . . . , that "[als a 

general matter, the claimant's attorney's fee 
should be based on the facts as to his services in 

the compensation case as of the time the services 

were rendered, and should not be at the mercy of 

subsequent or collateral events over which he has 

no control." 3 A. Larson, The Law of Workmen's 

Compensation, S 83.13 (i) (1983) . 

Indeed Larson goes on to say that paying the attorney in 

driblets from weekly installments over a long period means a 

disproportionate amount of bother for everyone concerned. & 

83.13(j), id. 

There is no statute in Montana requiring that an 

attorney be required to wait over a period of 25 years for 

his attorney's fee as it comes in drihs and dabs. The only 

requirement of 5 39-71-611, MCA, once the right to attorney's 

fees is established, is that the fees be "reasonabl-e." Who 

can contest that the payment of attorney's fees for services 

fully rendered over a score or more years is unreasonable? 

The standard of appellate review of attorney's fees in 

workers' compensation cases is vrhether the Workers' 

Compensation Court abused its discretion in determinFng 

reasonable attorney's fees. Conway v. Blackfeet Indian 

Developers Inc. (1985), - Mont . - , 702 P.2d 970. Here 

the contingency fee contract was approved but the attorney is 

deprived of the benefit of his contract. There is no reason 

why the FJorkers' Compensation Court could not award 

reasonably the attorney a percentage of future benefits by a 

discount factor to determine the present value of the future 

payments. The attorney in this case offered such a basis. 

The offer is completely reasonable and should not be denied 

simply because the worker might die or the widow might 

remarry. Certainly the Board has enough experience in its 

own files to determine how many of its widows remarry during 

the compensation payment period from which a factor could be 

deri~red to be applied. As to the actuarial. life expectancy 
of the claimant, the whole business of insurance relies on 

actuarial tables and it would not be unreasonable for the 

Workers' Compensation Court to rely on tables in computj.nq 

attorney's fees for future benefits. 

We have a serious problem developing in this field. 

Reputable attorneys who in the past have represented 

claimants for workers' compensation are leaving the practice 

because of the niggardly compensation afforded them by the 

Workers' Compensation Division, by the Workers' Compensation 

Court, and lately by this Court. The development of an able 

compensation bar is being hindered. A chilling effect on the 

workers' ability to obtain adequate representation is 

occurring. Davis v. Homestake Mining Company (N.M. Ct. App. 

1986), 727 P.2d 941. We have blessed contingent attorney's 

fees as necessary in the field, but we abrogate the 

contingent fee contracts by proceeding as we have here. The 

requirement that no attorney's fee be paid for future 

benefits until received is an invention of this Court. and we 

ouqht to change it. n ah. 

Justice