No. 91-436 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

PAUL EASTMAN, 

Petitioner and Appellant, 

TRANSPORT INSURANCE COMPANY 

AND GARRETT FREIGHTLINES, INC., 

Insurer, Defendant 

Employer and Respondents. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Martin, Alexander, Baucus & Linnell, 

Great Falls, Montana 

For Respondents: 

Sara R. Sexe, Marra Wenz, Johnson & Hopkins, Great 

Falls, Montana 

- *. 
Justice Karla M. Gray delivered the Opinion of the Court. 

Paul Eastman appeals from the Workers1 Compensation Courtls 

determination that he did not prove by a preponderance of the 

evidence that an August, 1981, injury caused his disability and 

from the order denying a new trial. We affirm. 

We state the issues on appeal as follows: 

1. Did the Workers8 Compensation Court err in concluding 

that the August, 1981, injury did not cause claimant's disability? 

2. Did the Workers1 Compensation Court err in denying the 

petition for new trial? 

Paul Eastman (Eastman) was employed as a pick up and delivery 

driver for Garrett Freightlines (later ANR Freight Systems) from 

1964 until March 31, 1990, when the Great Falls terminal closed. 

His job required the loading and delivery of heavy freight. 

During the course of his employment, Eastman sustained four 

injuries to his neck. Eastman8s first injury occurred on July 19, 

1979, when falling freight struck his neck. On May 21, 1980, 

Eastman injured his neck while stacking tires. On March 19, 1981, 

Eastman fell down the steps of the loading dock. Truck Insurance 

Exchange was the insurer on risk at the time of these injuries. 

After each injury, Eastman received medical treatment from Dr. 

Pardis, a Great Falls chiropractor. 

On August 31, 1981, Eastman injured his neck a fourth time 

while stacking pallets. Respondent Transport Insurance Company 

(Transport) was the insurer on risk. Eastman did not miss any work 

as a result of the injury. However, Eastman filed a claim for, and 

2 
Transport paid, compensation for medical expenses. Eastman 

received chiropractic treatment from Dr. Pardis until Transport 

required him to have an independent medical examination. Eastman 

was examined by Dr. Gaston Syrenne, a neurosurgeon, in April, 1982. 

Dr. Syrenne's diagnosis was mild neck sprain superimposed upon a 

degenerative disc disease and neurological deficit at C5-6. 

Between 1983 and 1987, Eastman filed six additional workers' 

compensation claims. These claims concerned injuries to Eastman's 

middle back, legs and elbow. During this time, Eastman received no 

treatment on his neck. Eastman continued to perform the heavy 

duties of a pick up and delivery driver until the terminal closed 

in March of 1990. During this time, Eastman did not miss work due 

to his neck condition. 

In 1988, Dr. Hachigan, a physician treating injuries to 

Eastman's knee and foot, referred Eastman to Dr. James Hinde for 

treatment of continuing problems in Eastman's neck and right 

shoulder. Dr. Hinde, a physiatrist, specializes in rehabilitating 

persons whose physical functions have been impaired by trauma, 

stroke or spinal chord injury. He diagnosed degenerative arthritis 

of the discs and joints in the neck (cervical spondylosis). Dr. 

Hinde stated that since 1982, Eastman's mild cervical spondylosis 

had become severe due to biomechanical forces operating over a 

decade on an injured spine, causing further disc narrowing and 

further malalignment. Dr. Hinde confirmed a deficit at C5-6 and 

referred Eastman to Dr. Paul Gorsuch, a neurosurgeon. Dr. Gorsuch 

performed anterior disc removal and fusion surgery on June 29, 
1990. 

On June 19, 1990, Eastman petitioned the Workers' Compensation 

Court for medical expenses, temporary total disability benefits, 

and permanent partial or permanent total disability benefits, 

claiming that his disability arose out of the August, 1981, injury. 

The hearing examiner concluded that Eastman did not prove by a 

preponderance of the credible evidence that the August, 1981, 

injury caused his disability. The Workers1 Compensation Court 

adopted the examiner's Findings of Fact and Conclusions of Law and 

Proposed Judgment. Subsequently, the Workers' Compensation Court 

denied Eastman's petition for new trial, finding that the August, 

1981, injury was only a temporary aggravation of Eastman's preexisting degenerative disc disease. Eastman now appeals the 

judgment and order denying a new trial. 

Did the Workers' Compensation Court err in concluding that the 

August, 1981, injury did not cause claimant's disability? 

The Workers' Compensation Court determined that Eastman did 

not prove by a preponderance of the evidence that his current neck 

condition was caused by the August, 1981, injury. According to the 

court, Eastman's neck condition resulted from the gradual 

degeneration of his spondylosis and occasional aggravations to his 

neck. 

The Workers' Compensation Court considered reports or 

deposition testimony from three physicians. Dr. Gaston Syrenne 

first saw Eastman on April 8, 1982, and noted that Eastman probably 

had developed a mild degenerative joint disease by that time. Dr. 
Syrenne opined that degenerative arthritis was the main cause of 

Eastman's continuing neck pain. Dr. Syrenne noted that Eastman 

attributed the neck pain to an August, 1981, injury; however, 

Eastman described the precipitating injury to Dr. Syrenne as a fall 

down five steps at the dock, an injury that occurred on March 19, 

1981. 

Dr. James Hinde treated Eastman in 1988 and 1989. Dr. Hinde 

testified that since 1982, Eastman's mild cervical spondylosis had 

become severe. Dr. Hinde attributed Eastman's neck condition to 

many incidents, including everyday trauma and work activities, 

repetitive trauma and individual traumatic events. Dr. Hinde could 

not attribute Eastman's cervical spondylosis to a specific injury. 

Like Dr. Syrenne, Dr. Hinde testified that Eastman had attributed 

his neck and shoulder condition to a fall down five steps at the 

dock. 

Dr. Paul Gorsuch concurred with Dr. Hinde that Eastman's 

degenerative condition was difficult to attribute to a specific 

event. Rather, Dr. Gorsuch attributed Eastman's condition to 

degenerative disc disease, cervical spondylosis, heavy work 

conditions and various trauma to his neck. Based on Eastman's 

representation that his pain intensified with the August, 1981, 

injury, Dr. Gorsuch initially concluded that that injury was 

primarily responsible for Eastman's condition. However, Dr. 

Gorsuch testified that if Eastman had the same symptoms prior to 

the injury, the injury was not a primary factor in Eastman's pain. 

Once Dr. Gorsuch learned of prior neck injuries, he testified that 
the August, 1981, injury was relatively mild and less likely to 

exacerbate Eastman's symptoms. 

Based on this medical evidence, the Workers' Compensation 

Court determined that the August, 1981, injury did not cause 

Eastman's current condition. Our standard for reviewing a decision 

of the Workers' Compensation Court is to determine if substantial 

evidence supports its findings and conclusions. When there is 

substantial evidence to support the Workers' Compensation Court, 

this Court cannot overturn the decision. Wood v. Consolidated 

Freightways, Inc. (1991), 248 Mont. 26, 28, 808 P.2d 502, 504. 

In this case, Eastman must prove by the preponderance of the 

credible evidence that 1.) he suffered an injury arising out of and 

in the course of his employment; and 2.) the injury was the 

proximate cause of his disabling condition. Frost v. Anaconda 

Company (1985), 216 Mont. 387, 390, 701 P.2d 987, 988. Taken as a 

whole, the medical evidence supports the Workers' Compensation 

Court's determination that the August, 1981, injury did not cause 

Eastman's current condition. Eastman's neck condition predated the 

August, 1981, injury. Eastman received 65 chiropractic 

manipulations on his neck prior to that date. As a result of the 

August, 1981, injury, Eastman resumed chiropractic treatment with 

Dr. Pardis. At Transport's request, Eastman received medical 

treatment from Dr. Syrenne in April and May of 1982. The record 

reflects that this treatment was successful. Eastman testified 

that after Dr. Syrenne's treatment, his symptoms, as a whole, 

subsided. He sought no medical attention or treatment for his neck 
from 1983 through 1987. Eastman continued to perform the heavy 

manual labor of a pick up and delivery driver until March of 1990, 

when the Great Falls terminal closed. During this time, Eastman 

did not miss any work as a result of his neck condition. Eastman 

testified that he would have continued working in that position if 

the terminal had remained open. 

In July of 1989, Dr. Hinde reported that Eastman's condition 

related to the August, 1981, injury. Similarly, Dr. Gorsuch wrote 

Eastman's counsel in August of 1990 and attributed Eastman's pain 

symptomatology to the August, 1981, injury, although he determined 

that that injury did not cause Eastman's degenerative neck 

condition. Dr. Hinde's report and Dr. Gorsuch's correspondence 

subsequently were discredited by the doctors themselves. Drs. 

Hinde and Gorsuch testified to the importance of an accurate and 

detailed medical history in treating and determining the cause of 

a medical condition. However, Eastman failed to inform Dr. Hinde 

and Dr. Gorsuch of essential facts before each physician concluded 

that the August, 1981, injury caused his current condition. 

Eastman did not inform Drs. Hinde and Gorsuch of the July, 1979 or 

May, 1980, injuries, or injuries subsequent to August, 1981; that 

the fall down the dock steps occurred in March, 1981; that the 

August, 1981, injury involved reaching for freight; or the 

substantial number of chiropractic manipulations of his neck before 

and after the August, 1981, injury. Once these facts were 

disclosed, Dr. Hinde could not attribute Eastman's mild spondylosis 

in 1982, or its progression to severe spondylosis, to a specific 
injury. Dr. Gorsuch testified that the August, 1981, injury was 

relatively mild compared to previous neck injuries and was 

therefore mechanically less likely to cause the exacerbation of his 

symptoms. 

Eastman relies on deposition testimony from Dr. Hinde and Dr. 

Gorsuch to establish that it was medically possible for the August, 

1981, injury to cause his current disability by aggravating his 

pre-existing condition. Eastman contends that where a claimant 

proves that it is medically possible for an injury to aggravate a 

pre-existing condition, the claimant has met his burden of proving 

causation under the Workers1 Compensation Act. 

Eastman1s contention is an oversimplification of wellestablished principles concerning medical possibility evidence. It 

is true that when a claim is based on an aggravation of a preexisting injury, as Eastman bases this claim, proof of medical 

possibility, in conjunction with other evidence, can support a 

grant of workers1 compensation benefits. Hash v. Montana 

Silversmith (1991), 248 Mont. 155, 160, 810 P.2d 1174, 1177. 

However, we do not consider medical possibility evidence in a 

vacuum. 

"'Medical possibility' is to be weighed just as any other 

evidence; if supported by other, independent evidence it 

is 'acceptable' to be used by the court in making its 

determination. Medical possibility evidence by itself, 

though, does not mandate the conclusion that the claimant 

has met his burden of proof under the Act." 

Currey v. 10 Minute Lube (1987), 226 Mont. 445, 449, 736 P.2d 113, 

116 (citing Wheeler v. Carlson Transport (1985), 217 Mont. 254, 

261, 704 P.2d 49, 53-54); Laber v. Skaggs Alpha Beta (lggl), 247 

8 
Mont. 172, 177, 805 P.2d 1375, 1378. 

Eastman contends that his medical possibility evidence is 

supported by the records of Drs. Pardis and Syrenne and his own 

testimony. The record reflects that Eastman has not been examined 

by either physician for his neck condition since 1983. Their 

records are not probative concerning the issue of whether Eastmants 

August, 1981, injury caused his current disability. Eastman's own 

statements attribute his current disabilityto the injury involving 

a fall down loading dock steps or, alternatively, to the August, 

1981, injury. Such inconsistent statements do not provide 

significant corroboration of the medical possibility evidence. 

Accordingly, applying Currev to the record before us does not 

mandate a conclusion that Eastman has met his burden of proving the 

causal link between the August, 1981, injury and his current 

condition. 

We conclude that substantial credible evidence supports the 

Workers' Compensation Court's determination that Eastman did not 

prove by a preponderance of the credible evidence that his 

disability was caused by the August, 1981, injury. The Workers' 

Compensation Court did not err. 

Did the Workerst Compensation Court err in denying the petition for 

new trial? 

Eastman filed a petition for new trial alleging that the 

Workerst Compensation Court omitted certain findings of fact, 

considered erroneous findings of fact, and failed to address his 

theory of aggravation of a pre-existing condition. The Workers' 
Compensation Court denied the petition. 

The Workers' Compensation Court's authority to grant a new 

trial is found in A.R.M. 24.5.344 and guided by the general rules 

of civil procedure. A new trial may be granted in cases tried by 

the court when an irregularity in the proceedings, accident or 

surprise, or newly discovered evidence materially affects 

substantial rights of a party. Sections 25-11-102 (1) , (3) , (4) ; 

25-11-103, M.R.Civ.P. (1991). Here, the Workersv Compensation 

Court determined that the findings were supported by substantial, 

credible evidence and that there were no grounds for a new trial. 

Eastman contends that the Workers' Compensation Court erred in 

determining in its order denying the petition for new trial that 

the August, 1981, injury was merely a temporary aggravation of 

Eastman's pre-existing condition. Eastman asserts that the finding 

of temporary aggravation negates the Workers' Compensation Court's 

original findings and is not supported by the record. We disagree. 

The finding of temporary aggravation is consistent with the 

Workers' Compensation Court's judgment denying benefits. Both the 

finding and the judgment are based on the same salient fact: 

namely, that the August, 1981, injury did not cause Eastman's 

current condition. The finding of a temporary aggravation is 

supported by the record. Eastman experienced headaches, sore neck 

and shoulder, and numbness in arms and hands prior to August, 1981, 

indicating that his neck condition predated the injury. Eastman 

testified that his symptoms, as a whole, subsided after Dr. 

Syrenne's treatment. Between 1982 and 1988, Eastman's mild 
cervical spondylosis became severe. Dr. Hinde and Dr. Gorsuch 

attributed the deteriorization to natural degeneration, as well as 

other factors. 

Allen v. Treasure State Plumbing (1990), 246 Mont. 105, 803 

P.2d 644, is on point. In u, the claimant suffered successive 

injuries to his back, once in 1974, and again in 1977. The 

claimant filed a claim for permanent partial disability with the 

Workers8 Compensation Court in 1987. The Workers' Compensation 

Court found, and we affirmed, that the 1977 injury was only a 

temporary aggravation of the claimant's pre-existing condition and 

was not the cause of claimant's disability in 1987. Thus, the 

insurer on risk in 1977 was liable only for benefits reasonably 

related to the temporary aggravation of claimant's condition. 

Here, Transport has paid the benefits reasonably related to the 

August, 1981, injury. 

We conclude that substantial credible evidence exists to 

support the Workers' Compensation Court's finding that the August, 

1981, injury temporarily aggravated Eastman's pre-existing 

condition. The finding of a temporary aggravation is consistent 

with the Workers8 Compensation Court's determination that the 

August, 1981, injury did not cause his current disability. We hold 

that the Workers' Compensation Court did not err in denying 

Eastman's petition for new trial. 

Affirmed. 
We concur: ., 

qf d.yHG Chief Justice A- 
November 12, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Richard J. Martin 

Alexander, Baucus & Limell 

P.O. Box 2629 

Great Falls, MT 59403 

Sara R. Sexe 

Marra, Wenz, Johnson & Hopkins 

P.O. Box 1525 

Great Falls, MT 59403-1525 

ED SMITH 

CLERK OF THE SUPREME COURT