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 INSURANCE COMPANY, 

Defendant and Respond.ent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert L. Johnson, Lewistown, Montana 

For Respondent: 

K. Dale Schwanke, Great Falls, Montana 

Submitted on Briefs: March 13, 1986 

Decided: June 5, 1986 

Filed: JUN 5 - 19s 
Mr. 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 Club was closed that day. 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 form Ferdinand had 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. 

It was an unusually warm day, and after the job was 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 as having suffered a myocardial infarction. During 
his ten-day hospitalization he was 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 is defined 

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 . . . 

Section 39-71-119, MCA. 

A compensahle injury under the Workers' Compensation 

Act must meet the definitional requirements of the statute. 

Hurlbut v. Vollstedt Kerr Co. (1975), 167 Mont. 303, 306, 538 

P.2d 344, 346. This burden 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. This burden is most 

difficult in cases such as this, which do not involve 

physical trauma. Conflicting evidence is necessarily 

offered . In reviewing the findings of the Workers' 

Compensation Court, 

[W]e have firmly adhered to the view 

that where the findings are based on 

conflicting evidence, this Court's 

function on review is confined to 

determining whether there is 
substantial 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: 

This Court'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 not be disturbed on appeal where 

they are based on substantial though 

conflicting evidence. 

Tenderholt v. Royal Ins. Co. of Arner. (Mont. 1985), 709 ~.2d 

Ferdinand first must show a tangible happening of a 

traumatic nature. 

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. [Citations omitted.] 

Erhart v. Great Western Sugar Co. (19761, 169 Mont. 375, 381, 

He argues the kinds of stress he worked under are in 

fact tangible happenings of a traumatic nature. He cites 

instances of having to try to please members and their wives, 

of being under fire for not paying certain bills when the 

funds were unavailable, of being particularly castigated by a 
Lodge 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, 

without more, 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. Schieno v. 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, Ferdinand had 

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 or medical 

witness must be "able to point to one or more tangible, real, 

perceptible happenings as the sole or contributory cause of 

claimant's . . . 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 of proof 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's working 

conditions and his alleged anxiety caused his heart attack. 

The Workers' Compensation Court properly concluded as a 

matter of law the myocardial 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: i 'I