No. 85-433 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

GERALD G. FERDINAND, Claimant and Appellant,

LODGE #456,B.P.O.E., LEWISTOWN, MONTANA, Employer, and INTERMOUNTAIN INSURANCECOMPANY, Defendantand Respond.ent.

APPEAL FROM: TheWorkers' Compensation Court, The Honorable Timothy Reardon, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Robert L. Johnson,Lewistown,Montana

For Respondent: K. Dale Schwanke,Great Falls,Montana

Submitted on Briefs: March 13, 1986 Decided: June 5, 1986

Filed: 

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# -19sMr. Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the Workers' Compensation Court of the State of Montana. The order of judgment adopted findings of fact and conclusions of law of Workers' Compensation hearing examiner Larry W. Jones. We affirm. Gerald Ferdinand, claimant and appellant, was employed
as the salaried manager of the Lewistown Elk's Club. Ferdinand's age, sex, weight, blood pressure, personality, and cigarette smoking habit made him a classic candidate for heart trouble. During the week immediately before he suffered a myocardial infarction (heart attack) at his home in the early evening, he had worked longer hours than usual at the Club. He also had been under more than the usual amount of stress. The day of Ferdinand's heart attack, he went to the Elk's Club only until shortly after noon hecause the Clubwas closed thatday. After eating lunch at home,he did some yard work for two hours or so. Late in the afternoon a partial truck-load of cement was delivered and dumped into an 8-foot square formFerdinandhad prepared some weeks earlier. He was not expecting the cement that day and was not prepared to smooth it out. A neighbor stopped to help him and Sandy Ebel, with whom he lived, smooth it out. Itwas an unusuallywarm day,and after the jobwas finished, Ferdinand and the neighbor drank a soda. The neighbor left. Soon thereafter Ferdinand told Sandy he did not feel well. He said he felt like someone was gripping him and he was a chalky color. Sandy called a doctor in Lewistown and took Ferdinand to the hospital, where he was admitted and diagnosed ashaving suffered a myocardial infarction. Duringhis ten-dayhospitalization hewas terminated from his job at the Elk's Club. Ferdinand filed a petition with the Workers' Compensation Court to secure benefits for the non-fatal heart attack, which he argues to be job-related. Judgment was entered denying benefits to Ferdinand and he appeals. The issue on appeal is whether the Workers' Compensation Court erred in ruling Ferdinand's heart attack
was not a compensable injury under the Workers' Compensation Act. An injury for Workers' Compensation purposes isdefined 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

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# . Section 39-71-119,MCA. A compensahle injury under the Workers' Compensation Act must meet the definitional requirements of the statute. Hurlbutv. Vollstedt Kerr Co. (1975), 167Mont. 303, 306, 538 P.2d 344, 346. Thisburden has two prongs: (1)there must be
a tangible happening of a traumatic nature, and (2) the tangible happening must be shown to be the cause of the physical harm. A claimant must be able to meet both prongs in order to claim a compensable injury. Thisburden ismost difficult in cases such as this, which do not involve physical trauma. Conflicting evidence is necessarily offered

# . In reviewing the findings of the Workers' CompensationCourt, [W]e have firmly adhered to the view thatwhere the findings are based on conflicting evidence, this Court's function on review is confined to determining whether there issubstantial evidence to support contrary findings. [Citing cases.] Davis 

### v. Mountain West Farm Bureau Mutual Insurance Company

(Mont. 1985), 701 P.2d 351, 353,42 St. Rep. 840, 843. Thus the Court will not reverse the Workers' Compensation Court unless its findings of fact or conclusions of law are clearly erroneous:

ThisCourt's function

# . .. is not to substitute its judgment in place of the trier of fact but rather is "confined to determining whether there is substantial credible evidence to support" the findings of fact and conclusions of law. Although conflicts may exist in the evidence presented, it is the duty and function of the trial judge to resolve such conflicts. His findings will notbe disturbed on appeal where they are based on substantial though conflicting evidence. Tenderholt v. Royal Ins. Co. ofArner. (Mont. 1985), 709 ~.2d

Ferdinand first must show a tangible happening of a traumaticnature. A tangible happening must be a perceptible happening. Webster's Third New International Dictionary. Some action or incident,or chain of actions or incidents, must be shown which may be perceived as a contributing cause of the resulting injury.

# .. [A] tangible, real happening must be a cause of the condition. [Citationsomitted.] Erhartv. Great Western Sugar Co. (19761,169Mont. 375, 381,

He argues the kinds of stress he worked under are in fact tangible happenings of a traumatic nature. He cites instances ofhaving to try topleasemembers and theirwives, of being under fire for not paying certain bills when the fundswere unavailable, ofbeing particularly castigatedby aLodge officer for failure to pay the Lodge's bills at a time when that officer's IOUs were in the till unpaid, of not having enough help at the bar on occasion, and recently the fear he was about to be terminated. Ferdinand is unable, however, to show that a tangible, real happening, which is related to his employment,caused his heart atta.ck. Not only must a claimant prove her case by a preponderance of the evidence, she must do so by a preponderance of the probative credible evidence. [A] possiblility is not probative credible testimony and will not, withoutmore, supply evidence. Dumont v. Wikens Bros. Construction Co. (1979), 183 Mont.

There is expert medical testimony in the record regarding possible causal relationships between the claimant's work and.his heart attack. But the claimant has claimed compensation benefits on the theory that his work
more probably than not caused his heart attack. Therefore, he can prevail on his claim only if the expert medical testimony establishes his work more probably than not caused his heart attack. Schienov. City of Billings (Mont. 1984)

## , 683 P.2d 953, 955, 41 St. Rep. 1157, 1159. The medical experts never were pressed to state what in their opinions more probably than not caused Ferdinand's heart attack. Medical testimony shows more probably than not,Ferdinandhad coronary artery disease prior to his heart attack. Medical testimony also shows more probably than not, the emotional and physical stress resulting from Ferdinand's job did not
cause his heart attack. Nor did it aggravate his pre-existing coronary artery disease and thereby cause his heart attack.In Erhart, supra,we said either a claimant ormedical witnessmust be "abletopoint to one ormore tangible,real, perceptible happenings as the sole or contributory cause of claimant's

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# . .condition." Erhart at 381, 546 P.2d 1058. Because Ferdinand cannot show that a tangible,real happening which is related to his employment caused his heart attack, he has not carried his burden ofproof and cannot qualify for benefits under the statute. After careful scrutiny of the record, we find substantial credible evidence to support the Workers' Compensation Court's conclusion Ferdinand did not sustain a compensable injury. There simply is not a preponderance of affirmative evidence establishing that the cl-aimant'sworking conditions and his alleged anxiety caused his heart attack. TheWorkers' Compensation Courtproperly concludedasa matter of law themyocardial infarction Ferdinand suffered is not an injury that arose out of and in the course of his employment. The judgment is affirmed.

ustice

I We concur: 

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