No. 92-354 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ROBERT PEPION. 

Petitioner and Appellant, 

-vsBLACKFEET TRIBAL INDUSTRIES, 

Employer, 

and 

STATE COMPENSATION MUTUAL INSURANCE FUND, 

Insurer and Respondent. 

APPEAL FROM: Workers' Compensation Court, 

For the State of Montana 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald R. Marble, Marble Law Office, Chester, 

Montana 

For Respondent: 

Richard E. Bach, Legal Counsel, State Compensation 

Mutual Insurance Fund, Helena, Montana 

..,,- .. .~ > 

Submitted on Briefs: March 11, 1993 

Decided: April 6, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from a judgment of the Workers1 compensation 

Court denying Robert ~epion's claim for workersf compensation 

benefits. Robert J, Campbell was appointed the hearing examiner 

and the findings and judgment prepared by him were adopted by the 

Workers1 Compensation Court. We affirm. 

While appellant Robert Pepion (Pepion) sets forth five issues 

to be considered by this Court, the primary and controlling issue 

is whether the findings and conclusions of the Workers1 

Compensation Court are supported by substantial and credible 

evidence. 

Pepion, an employee of Blackfeet Tribal Industries, alleges 

that on August 22, 1985, he suffered a cerebral vascular accident 

(stroke) during the course and scope of his employment for the 

Blackfeet Tribe (Tribe). Be submitted a claim for compensation on 

June 24, 1987, just two months short of two years after the date of 

the alleged accident. In his claim Pepion alleges that the injury 

was caused by "heavy lifting." A similar notation on the 

employer's first report of injury refers to "heavy lifting." 

On the day of his alleged injury Pepion was working as 

maintenance supervisor for the Tribe. He was checking the 

thermostats and furnaces in the main Tribal building in Browning, 

Montana. He testified that in order to reach the furnaces on the 

roof of the building, he carried two ladders to a corner of the 

building. He placed the heavier ladder against the roof of a 

walkway and climbed to the top of the walkway. He then pulled the 

2 
lighter ladder to the roof of the walkway and used it to get to the 

roof of the building. He went up and down the ladders several 

times. On his last trip to the roof, he says, he felt tired and 

dizzy, and when coming down the first ladder he fell or slipped 

from the ladder to the roof of the walkway. He claims that he 

cannot remember coming down the second ladder to the ground or 

whether he took the ladders down himself. He was hospitalized that 

day in Great Falls and treated for stroke. Hospital records 

indicate that he had suffered a stroke while on the job. 

Pepion took sick and annual leave until November 15, 1985. He 

then returned to work but due to problems on the job he lost his 

supervisor position and thereafter worked as a safety inspector 

until he was terminated in February 1988. 

Pepion1s statement that he was going up and down the ladders 

to the roof of the Tribal building first appears in a report by his 

family physician, Dr. Randolph Rottenbiller, dated November 22, 

1988, more than three years after the date of the alleged accident. 

Shortly thereafter Melvin Running Rabbit, a security guard for the 

Tribe, signed a written statement dated December 22, 1988, which 

"reduced to writing [his] oral statement made to . . . [the] 

attorney for Robert Pepion, on September 11, 1987." The alleged 

conversation between Pepion1s attorney and Mr. Running Rabbit took 

place over two years after Pepion's stroke of August 22, 1985. Mr. 

Running Rabbit's statement includes the following: 

I remember him going up and down a ladder to the roof to 

work on the furnace. . . . I saw him at one time on the 

ladders. He may have been up and down five (5) times, 

but I am quite sure it was at least twice. 
In his deposition, however, Mr. Running Rabbit contradicted this 

statement. He said that he had seen Pepion going up and down the 

ladders a few days before, but not on the day of his stroke. 

Two other Tribal employees were deposed in an attempt to 

ascertain whether anyone recalled Pepion's activities on the day of 

his stroke. Gerald Silvas, an electrician for Blackfeet Tribal 

Industries, was on the maintenance crew supervised by Pepion. He 

was at the shop on the morning of the alleged accident. Mr. Silvas 

testified that normally two people are needed to work on the 

heating and air conditioning units on the roof of the Tribal 

building. According to Mr. Silvas, Pepion was not qualified to go 

up on the roof and work on the units. Although Mr. Silvas was a 

member of the maintenance crew and normally the one who would work 

on the units, he was not aware that anyone had gone up on the roof 

on the day of Pepion's stroke. 

Another member of the maintenance crew, Larry Jordan, was in 

the shop all morning on the day of Pepion's stroke. He was not 

aware that Pepion had ever gone up on the roof by himself to work 

on the furnaces, or that he had used the ladders to go up on the 

roof on the day of his stroke. 

Pepion had a complicated medical history prior to the time of 

his stroke on August 22, 1985. It includes rheumatic valvular 

heart disease, an enlarged heart, and a prosthetic mistral valve 

implanted in 1964. He had a history of intermittent atrial 

fibrillation and ventricular dysrhythmia. Because of the 

artificial heart valve and his history of intermittent arterial 
fibrillation, Pepion was at risk for blood clots and had been 

treated with Coumadin, an anti-coagulant medication. 

On the date of Pepion1s stroke and for several months prior to 

that time, his blood was tested for the time it took to form clots 

(prothrombin- or Itprow-time). During this period his pro-time 

levels were subtherapeutic, which meant that pepion did not have 

enough Coumadin in his blood to prevent blood clots from forming in 

his system. Indian Health service reports from 1979 on indicated 

that Pepion had a history of inconsistent compliance with his 

medical regime. 

On the day of his stroke, Pepion was seen initially at 

Browning, and was then transported to Great Falls, where he was 

placed in the care of Dr. Larry Kincer, a cardiologist, and also 

was seen by Dr. Dennis Dietrich, a neurologist, for neurological 

problems. 

Dr. Kincer stated in his deposition that Pepion1s condition at 

the time of his stroke was such that he was Very prone to heart 

irregularitie~;~~ that his risk of embolization tlwould not be 

expected to be greatly increased by physical activity, whether it 

be walking to the bathroom or walking up a ladder to the roof ;'I and 

that Pepion's risk of stroke llwould not be expected to be much 

different with some strenuous activity.If 

Dr. Dietrich stated in his deposition that Pepion "had plenty 

of reason to have a stroke regardless of any activity that he was 

or wasn't engaged in," and that the mechanism of the stroke as he 

believed it occurred "did not require the presence of any 
exertion. In other words, Dr. Dietrich believed that Pepion ' s 

activity at work had no contributing effect on the stroke. 

Pepion's attorney eventually referred him to two other medical 

specialists, Dr. Keith Weeks and Dr. Albert Joern. Dr. Weeks, a 

Kalispell cardiologist who saw Pepion for the first time in 

September, 1991, testified that it was medically possible that 

Pepion's work activity on August 22, 1985 aggravated his preexisting condition. Dr. Joern, a Kalispell neurosurgeon, concluded 

after examining Pepion in August, 1989 that "it was medically 

possible for the physical exertion and events of August 22, 1985 to 

precipitate [Pepion's stroke].'' But Dr. Dietrich, who had seen 

Pepion shortly after his stroke occurred and recalled Pepion's 

condition on the day of the stroke, reviewed Dr. Joern's report and 

disagreed with its conclusions because lrsome of his postulations 

are speculative, and others are clearly incorrect, in error." 

Pepion's family physician in Browning, Dr. Rottenbiller, saw 

him shortly after his stroke and treated him thereafter. Dr. 

Rottenbiller's opinion was that Pepion's stroke was caused by a 

blood clot in his heart, which broke loose and travelled to his 

brain. Be stated that l1it's hard . . . to establish a cause-andeffect relationship between this clot breaking loose . . . and any 

activity that he was undergoing at the time." Dr. Rottenbiller 

concluded that given the subtherapeutic level of anti-coagulant 

medication in Pepion's blood that day, the stroke could have 

occurred at any time, and that medical evidence could not provide 

any degree of certainty as to the exact cause. 
This Court will not substitute its judgment for that of the 

Workers1 compensation Court where there is substantial credible 

evidence to support the court's findings of fact. Laber v. Skaggs 

Alpha Beta (1991), 247 Mont. 172, 175, 805 P.2d 1375, 1377. Even 

though conflicting evidence may exist in the record, it is the duty 

of the Worker's compensation Court, and not this Court, to resolve 

such conflicts. smith v. united Parcel Service (Mont. 1992), 835 

P.2d 717, 49 St.Rep. 629; Currey v. 10 Minute Lube (1987), 226 

Mont. 445, 736 P.2d 113. 

Here, the Workers' Compensation Court, faced with conflicting 

medical testimony from Doctors Joern and Dietrich, concluded that 

it should defer to the opinion of "the doctor with the greater 

knowledge of the claimant's medical condition,'I that is, Dr. 

Dietrich, who testified that Pepion's work activity had no 

contributing effect on his stroke and that the stroke could have 

occurred regardless of Pepion's physical activity. Dr. Dietrich's 

testimony was consistent with that of the treating cardiologist, 

Dr. Kincer, and Pepion's family physician, Dr. Rottenbiller. All 

three physicians concluded that if pepion did climb ladders and 

work on the Tribal building's heating system on the day of his 

stroke, this activity played no role in his stroke. 

Doctors Rottenbiller, ~incer, and Dietrich are or were the 

physicians who treated pepion for his stroke and managed his care 

afterward. We hold that the Workersb Compensation Court properly 

accorded their testimony greater weight than that of Doctors Joern 

and Weeks, who did not see Pepion until four and six years, 
respectively, after he had his stroke, and then only on referral by 

Pepion's attorney. See Snyder v. San Francisco Feed & Grain 

(1987), 230 Mont. 16, 27, 748 P.2d 924, 931, in which we held that 

as a general rule, the testimony of a treating physician is 

entitled to greater evidentiary weight. 

In short, Pepion failed to demonstrate by a preponderance of 

substantial, credible evidence that his work activities on August 

22, 1985 were causally related to the stroke he had on that date. 

The judgment of the Workers' Compensation Court is affirmed.