No. 88-522 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

MICHAEL E. SCHRAPPS, 

Claimant and Appellant, 

-vsSAFEWAY STORES, INC., Employer, 

and 

HOME INSURANCE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby, Butte, Montana 

For Respondent: 

Alan L. Joscelyn; Gough, Shanahan, Johnson & Waterman, Helena, Montana 

Filed: 

Submitted on Briefs: June 1, 1989 

a 

'Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case comes on appeal from a judgment entered by 

the Workers' compensation Court, the Honorable ~imothy 

Reardon presiding, which concluded the claimant, ~ichael 

Schrapps, was not entitled to permanent partial disability 

benefits under § 39-71-703, MCA. We affirm. 

Claimant injured his lower back on December 20, 1977, 

while employed by Safeway Stores, Inc., as a forklift 

operator at its Butte, Montana warehouse. The injury 

occurred when Mr. Schrapps was pinned between his forklift 

and an iron beam. After the accident, claimant was taken to 

St. James Community ~ospital and treated for injuries to his 

stomach and back. The employer accepted liability for the 

injury and paid temporary total disability compensation and 

medical benefits from the date of injury through July 4, 

1978. 

In February, 1978, the claimant returned to his job 

with Safeway. However, he was able to work only four hours, 

and claimed lower back pain prevented him from performing his 

usual job duties. Since the accident, claimant has been 

employed as a car salesman. 

After his initial hospitalization and doctor's release 

to return to work, claimant complained of radiating lower 

back pain and numbness in his left leg. Thereafter, claimant 

sought treatment with numerous physicians, orthopedic 

surgeons, neurosurgeons and chiropractors. He also underwent 

an extensive evaluation at the university of Washington 

Medical Center in Seattle, Washington. 

Claimant filed a petition for hearing against Safeway 

Stores, Inc. and its insurer in March, 1987, alleging a 

continued physical limitation due to his 1977 injury. On 
July 25, 1988, the Workers' Compensation Court entered 

judgment, in which it concluded the medical evidence shows 

claimant's reduction in earnings was not due to his 1977 

industrial injury. The court stated the medical reports 

uniformly failed to reflect objective evidence to support the 

claimant's contention. 

On review, claimant challenges the Workers' 

compensation Court's decision. He argues the judgment is not 

supported by substantial evidence. We disagree. 

c his Court will not substitute its judgment for that of 

the Workers' Compensation Court concerning the credibility of 

the witnesses or the weight to be given their testimony. 

Where the findings are based on conflicting evidence, our 

function of review is confined to determining whether there 

is substantial evidence to support such findings. ide en our 

v. ~quity Supply Co. (1983), 204 Mont. 473, 483, 665 P.2d 

783, 788. However, the instant case deals primarily with 

deposition testimony, which allows this Court to examine the 

evidence more closely: 

" [W] hen the critical evidence, 

particularly medical evidence, is entered 

by deposition, we have held that 'this 

Court, although sitting in review, is in 

as good a position as the Worker's [sic] 

Compensation Court to judge the weight to 

be given to such record testimony, as 

distinguished from oral testimony, where 

the trial court actually observes the 

character and demeanor of the witness on 

the stand.'" 

Frost v. Anaconda Co. (1985), 216 Mont. 387, 389, 701 P.2d 

987, 988, quoting Shupert v. Anaconda ~luminum Company 

(1985), 215 Mont. 182, 187-88, 696 p.2d 436, 439. 

Initially, claimant has the burden of proving a causal 

connection by a preponderance of the evidence. "Evidence 

demonstrating only a medical possibility 'does not mandate 
the conclusion that the claimant has met his burden of proof 

under the Act. '" Brown v. Ament (Mont. 19881, 752 P.2d 171, 

174, 45 St.Rep. 508, 512, citing Currey v. 10 Minute Lube 

(Mont. 1987), 736 P.2d 113, 116, 44 St.Rep. 790, 793. The 

medical evidence does not reveal structural or neurological 

abnormalities which support claimant's subjective complaints. 

A brief examination of the medical reports illustrates this 

point : 

IMPRESSION: (1) No evidence of 

organic neurologic disorder. (2) Low 

back pain and leg paresthesias described, 

etiology undetermined. The distribution 

of the lumbar pain might suggest a low 

back strain but this is not supported by 

the lack of any relationship to physical 

activity or posture and the lack of 

muscle spasm, etc. Also the duration of 

symptoms unchanged approaching six months 

suggests low back strain as unlikely. 

[Report of Dr. Johnson, June 7, 1978.1 

Mr. Schrapps has been seen by me on 

numerous occasions with a vague complaint 

of low back pain over the entire back. I 

have examined him on numerous occasions 

and find no reason for his low back pain. 

[Report of Dr. Murphy, June 19, 1978.1 

In my opinion, on his last visit 

there was no permanent impairment, and I 

could find no organic basis to 

substantiate his subjective complaints at 

that time. [Report of Dr. Blom, 

September 22, 1978.1 

As a result of my examination, I am 

not able to find any significant 

orthopaedic impairment in this patient. 

He does have significant nonorganic signs 

e., overreaction and nonanatomical 

sensory change . . . I feel that no 

further treatment is indicated. [Report 

of Dr. ~riedrick, September 16, 1987.1 
After an extensive examination, the University of Washington 

Medical Center was also unable to locate an objective cause 

for claimant's complaints. Claimant's only support rests 

with the testimony of Dr. Baggenstos, a neurosurgeon who 

first examined the claimant in 1985. Dr. Baggenstos stated 

that claimant had chronic back pain with localized back 

tenderness. However, in accord with the other physicians, 

Dr. Baggenstos could not identify solid, objective evidence 

to support the claimant. Dr. Baggenstos' diagnosis did not 

result from diagnostic studies, such as myelograms and 

x-rays, but rather from claimant's statements to him during 

the various medical examinations. 

Numerous physicians examined the claimant following his 

industrial injury, and without exception all were unable to 

medically explain claimant's complaints. We find that the 

claimant has not proved by a preponderance of the evidence 

that his lower back problems were caused by the 1977 

industrial injury. 

Affirmed. 

We concur: