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, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: 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 Workers1Compensation Court err in denying the petition for new trial? Paul Eastman (Eastman)was employed as a pick up and delivery driver for Garrett Freightlines (laterANR 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. Eastman8sfirst 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. Eastmandid not miss anywork

as a resultof the injury. However,Eastman filed a claim for,and 2Transport paid, compensation for medical expenses. Eastman received chiropractic treatment from Dr. Pardis until Transport required him to have an independent medical examination. Eastman

was examinedby Dr. GastonSyrenne, a neurosurgeon, inApril, 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' compensationclaims. These claims concerned injuries to Eastman's middle back, legsand elbow. During this time,Eastmanreceivedno 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, strokeor spinalchord injury. Hediagnoseddegenerative 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 furthermalalignment. 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.OnJune 19,1990,Eastmanpetitioned theWorkers' Compensation Court for medical expenses, temporary total disability benefits, and permanent partial or permanent total disability benefits, claiming thathisdisabilityarose 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 conditionwas causedby 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 sawEastman onApril 8,1982,andnoted that Eastmanprobably had developed amild degenerative joint diseaseby 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, Eastmandescribed theprecipitating injuryto Dr. Syrenneas 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 spondylosishad 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 injurywas not aprimary factor in Eastman's pain. Once Dr. Gorsuch learned ofprior neck injuries,he testified thatthe 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 reviewingadecision 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 credibleevidence that 1.) he sufferedan 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 currentcondition. Eastman's neck conditionpredated 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 soughtnomedical attention or treatment forhis neckfrom 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 theAugust, 1981, injury. Similarly,Dr. Gorsuchwrote Eastman's counsel in August of 1990 and attributed Eastman's pain symptomatologyto theAugust, 1981, injury, althoughhe 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 eachphysician 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 hisneckbefore and after the August, 1981, injury. Once these facts were disclosed,Dr. Hindecouldnot attributeEastman'smild spondylosis in 1982, or its progression to severe spondylosis, to a specificinjury. Dr. Gorsuch testified that the August, 1981, injury was relatively mild compared to previous neck injuries and was therefore mechanically less likelyto cause the exacerbation ofhis symptoms. Eastman relies on deposition testimony from Dr. Hinde and Dr. Gorsuchto establishthat itwasmedicallypossible fortheAugust, 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 claimanthasmet his burden of proving causation under the Workers1 CompensationAct. Eastman1s contention is an oversimplification of wellestablished principles concerningmedical possibilityevidence. 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 tobe weighed just as any other evidence; if supportedby other, independentevidence it is 'acceptable' to be used by the court in making its determination. Medical possibility evidence by itself, though,doesnot mandate the conclusionthat the claimant has met his burden of proof under the Act." Curreyv. 10Minute 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 8Mont. 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 recordsare notprobativeconcerning the issueof whether Eastmants August, 1981, injury caused his currentdisability. Eastman's own statements attributehis currentdisabilityto 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 Eastmanhasmet hisburden 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 theWorkerstCompensation Court err in denying thepetition 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 findingswere supported by substantial, credible evidence and that there were no grounds for a new trial. Eastmancontendsthat theWorkers' CompensationCourterred 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. Eastmanasserts that the finding of temporary aggravation negates theWorkers' Compensation Court's original findingsand isnot supportedby therecord. 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 supportedby the record. Eastman experienced headaches, soreneck and shoulder,and numbness inarms andhands prior toAugust, 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 mildcervical spondylosis became severe. Dr. Hinde and Dr. Gorsuch attributed thedeteriorizationtonatural degeneration,aswell as other factors. Allen v. Treasure State Plumbing (1990), 246 Mont. 105, 803 P.2d 644, is onpoint. 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 conditionand 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 theWorkers' Compensation Court's finding that theAugust, 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 causehis currentdisability. We hold that the Workers' Compensation Court did not err in denying Eastman's petition for new trial. Affirmed.Weconcur: ., 

# qfd.yHG Chief Justice 

## A-November 12, 1992 CERTIFICATEOFSERVICE I hereby certify that the followingorderwas sentbyUnited Statesmail,prepaid, to the following named:

RichardJ.Martin Alexander,Baucus&Limell P.O. Box2629 Great Falls,MT 59403 SaraR.Sexe Marra,Wenz,Johnson&Hopkins P.O. Box 1525 Great Falls,MT 59403-1525

ED SMITH CLERKOFTHESUPREME COURT