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

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## .~ > Submitted on Briefs: March 11, 1993 Decided: April 6, 1993Justice John Conway Harrison delivered 

### the Opinion of the Court. This 

### isan appeal 

### froma judgment of 

### theWorkers1compensation Court denying Robert ~epion'sclaim for workersf compensation benefits. Robert J, Campbell was appointed the hearing examiner and the findings and judgment prepared by him were adopted by the Workers1Compensation 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 twomonths short of two years after thedate of 

### the alleged accident. Inhis 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 thewalkway. He thenpulled the 2lighter ladder to the roof of thewalkway 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 whetherhe took the laddersdownhimself. Hewas hospitalized that day in Great Falls and treated for stroke. Hospital records indicate that he had suffered a stroke while on the job. Pepiontook sickand 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. Pepion1sstatement that he was going up and down the ladders to the roof of the Tribalbuilding first appears ina reportby his family physician, Dr. Randolph Rottenbiller, dated November 22, 1988,more than three yearsafter thedate of the allegedaccident. ShortlythereafterMelvin RunningRabbit, a securityguard 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 Pepion1sattorney andMr. Running Rabbit took place over two years after Pepion's stroke of August 22, 1985. Mr. Running Rabbit's statement includes the following: Irememberhim 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 

### Iam 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 fewdays before, but not on the day of his stroke. Two other Tribal employees were deposed in an attempt to ascertain whether anyonerecalled Pepion'sactivities on theday of his stroke. Gerald Silvas, an electrician for Blackfeet Tribal Industries,was on the maintenance crew supervisedby Pepion. He

was at the shop on themorning 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 toMr. Silvas,Pepionwas not qualified to go up on the roof and work on the units. Although Mr. Silvas was a member of themaintenance crewand normally the one who would work

on the units,he was not aware that anyonehad 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 Pepionhad 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. Pepionhad a complicatedmedical historyprior 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 arterialfibrillation, Pepion was at risk for blood clots and had been treatedwith Coumadin, an anti-coagulantmedication. On the date of Pepion1s strokeand 

### forseveralmonthsprior 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 enoughCoumadin inhisblood toprevent 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 inhisdepositionthatPepion1s conditionat the time of his stroke was such that 

### he was Very prone to heart irregularitie~;~~ that his risk 

### of embolization tlwouldnot 

### be expected to be greatly increased by physical activity,whether it bewalking to thebathroom or walkingup a ladder to the roof;'I and that Pepion's risk of stroke llwould not be expected to be much differentwith some strenuous activity.If Dr. Dietrich stated inhis deposition that Pepion "hadplenty 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'sattorney eventually referred himto two othermedical 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, aKalispellneurosurgeon,concluded after examining Pepion in August, 1989 

### that "it was medically possible for thephysical exertionand events ofAugust 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 thedayof the stroke,reviewedDr. Joern's reportand disagreed with its conclusions because lrsomeof his postulations

are speculative,and others are clearly incorrect, in error." Pepion's familyphysician 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'shard 

# . . . to establish a cause-andeffect relationship between this clotbreaking 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 thatmedical 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 findingsof fact. Laber

### v. Skaggs Alpha Beta (1991), 247

### Mont. 172, 175, 805 P.2d 1375, 1377. 

### Even though conflicting evidence

### may exist inthe record, it is theduty of 

### theWorker's compensationCourt,andnot this Court,

### to resolve such conflicts. smithv. 

### 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, 

### theWorkers' Compensation Court, facedwith 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 

### familyphysician,

### 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 WorkersbCompensation Court properly accorded their testimonygreater

### weight thanthat 

### of Doctors Joern and 

### Weeks, who did not see 

### Pepion until four and six years,respectively, afterhehadhis stroke,and then only on referralby Pepion's attorney. See Snyder v. San Francisco Feed & Grain

(1987), 230Mont. 16, 27, 748 P.2d 924, 931, inwhich 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.