NO. 91-540 

IN THE SUPRERE COURT OF THE STATE OF MONTANA 

1992 

ROBERT W. ROBINSON, 

claimant and Appellant, 

-vsSTATE OF MONTANA, 

Employer, 

and 

STATE COMPENSATION MUTUAL INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, 

The Honorable Timothy W. Reardon, 

Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lon J. Dale and Kristine L, Foot, Milodragovich, 

Dale & Dye, Missoula, Montana 

For Respondent: 

Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, 

Helena, Montana 

Filed: 

Submitted on Briefs: April 23, 1992 

Decided: July 10, 1392 
Justice R. C. McDonough delivered the Opinion of the Court. 

Robert W. Robinson appeals from a judgment entered by the 

Workers'Coompensatior, Court which concluded that Robinson failed to 

prove his alieged head injury is the result of a September 1986 

work related injury. We affirm. 

Although several issues are submitted on appeal, we find only 

one necessary for our review: 

Whether substantial credible evidence supports the Workers' 

Compensation Court's determination that Robinson failed to prove by 

a preponderance of the evidence that his alleged head injury is the 

result of a work related fall. 

On September 16, 1986, Robinson fell outside the Sugar And 

Spice Day Care Center following a routine inspection as a deputy 

fire marshal. On tie following afternoon Robinson went to tine 

emergency room at Kalispell Regional Hospital. Robinson was 

treated by Gregory Harrah, M.D. Robinson reported he tripped and 

fell injuring his right ankle and left shoulder. On September 17, 

1986, Robinson reported the accident to his employer, the Montana 

Department of Justice, Fire Marshal Bureau. He reported he fell at 

the day care center, spraining his ankle and injuring his back. 

Robinson was given until November I, 1986 to submit medical 

certification of his ability to return to work, for reasons 

unrelated Robinson was terminated from his position. 

Robinson received disability related to his back injury 

resulting from the fall from the State Compensation Mutual 

Insurance Fund (State Fund). Be filed an action with the Workers' 

2 
Compensation Court seeking a determination that the state Fund be 

ordered to pay benefits related to the alleged head injury he 

received during the fall at the day care center, including 

domiciliary care services and attorney fees. The Workers' 

Compensation Court concluded that the State Fund was not liable far 

Robinson" alleged head injury. This appeal followed. 

Fwllowinc; Rsbinson s emergency room visit with Dr, Harrah, PLE 

has been seen by numerous doctors and psychologists, The Workers1 

Compensation Court reviewed the testimony from the various 

physicians and psychologists as well as the testimony of family 

members, friends, and attorneys who worked with Robinson. 

Dr. Harrah, the emergency room physician, treated claimant far 

a shoulder strain and a right ankle sprain. Dr. Harrah reported no 

evidence of a head injury. Dr. Harrah opined to a reasonable 

degree of medical certainty that Robinson was not suffering from a 

head injury at the time of his emergency room visit. On November 

17, 1986, Robinson was treated by Dr. Jerome Wildgen for low back 

pain, left leg pain, and tenderness over the tailbone. Dr. Wildgen 

testified that he made no record of a head injury? nor did he 

recollect finding any symptoms of a head injury, or other 

indications of organic brain damage. Dr. Wildgen continued to see 

Robinson until September 8, 1987. 

The first indication in the records that Robinson reported a 

head injury was December 15, 1987 when he saw Dr. Gary Cooney. 

Robinson complained of headaches and reported he hit his head when 

he fell in September of 1986, Dr Cooney made no diagnosis of brain 
injury to Robinson. Robinson maintains that he initially reported 

a head injury to his employer. In fact, an attachment to the 

written report Robinson submitted to the Workers7 Compenation 

~ivision in October of 1966 states that his ead, back, and Le 

hurt after the fall. 

Robinson" treating physicians, with the exception of Dr. 

Susan Bertrand, a p&ysiatrist. did not make a diagnosis of a head 

injury . Dr. Bertrand did not begin treating Robinson until 

February 21, 1989, two years and five months after Robinson fell. 

Dr. Donald Nockleby, a clinical psychologist, referred Robinson to 

Dr. Bertrand for treatment of depression. Dr. Nockleby has not 

testified in this case. Dr. Nockleby noted in his referral that 

Robinson suffered a head injury. The Workers' Compensation Court 

found that Dr. Bertrand assumed from the beginning that Robinson 

suffered from a head injury. 

Dr. Bertrand treated Robinson for back pain and depression. 

She diagnosed Robinson with diffuse axonal damage to the brain. 

she testified this type of damage could occur as a result of a 

minor fall. Dr. Bestrand based her diagnosis upon reports from 

psychologists Heider, Trontel, Nockleby, Webber, and Robinson and 

his wife. These reports indicate that Robinson has cognitive 

problems. 

Dr. Bertrand testified that symptoms resulting from head 

injuries arise fairly quickly; within thirty-six hours. However, 

she also stated that if you are not looking for a head injury, it 

would be easy to miss the diagnosis. She stated that tine problems 
with Robinson's tangential thinking would have been apparent back 

in November of 1986. Dr. Bertrand did not review the records of 

either Dr, Harrah or Dr. Wildgen. She noted that Dr. Cooney did 

not perfom. a mental status examination, Althcu h she did not 

perform one either, she states that Robinson had similar tests done 

prior to seeing her. 

Cliff Edwards, a Billings attorney; worked with Robinson in 

1985 and 1986 in a lawsuit arising out of a school fire. Edwards 

testified that after the accident he first saw Robinson in January 

or February 1987. Robinson appeared to be a different man. He 

couldn't keep a train of thought and appeared nervous and 

depressed. Dana Christensen, a Kalispell attorney, also worked 

with Robinson prior to his fall. Christensen did not see Robinson 

after his fall until early 1989. At that time Christensen 

described Robinson as being much smaller, very nervous, agitated, 

very forgetful and repetitive. Robinson seemed like an entirely 

different person than the robust, intelligent fire marshal he 

previously worlced with. However, Dan Hileman, a Kalispellattorney 

who represented one ofthe defendants in Robinson8s lawsuit against 

the day care center, testified that in November of 1987 Robinson 

appeared competent, and answered questions appropriately. 

Our standard of reviewing a decision of the Workers' 

Compensation Court is to determine if there is substantial evidence 

to support the findings and conclusions of that court. When there 

is substantial evidence to support the Workers8 Compensation Court, 

this Court cannot overturn the decision. Wood v. Consolidated 
Freightways (1991), 248 Mont. 26, 28, 808 P.2d 502, 504; Garcia v. 

State Fund (1391), Monte -, P, 2d - 49 St.Rep. 440. 

When the findings are based on conflicting evidence, our function 

is to determine whether there is substantial evidence to sup 

such findings. Sshrapps v. Safeway Stores, Inc. :1989), 238 Kont. 

not liable for the head injury claimant alleges to have suffered 

during the course and scope of his employment on September 16, 

1986. Robinson must prove by a preponderance of the probative 

credible evidence that his head injury is the result of his 

September 1986 fall at the Sugar and Spice Day Care Center. Dumont 

v. Aetna Fire Underwriters (1979f, 183 Mont. 190, 598 P.2d 1099; 

Martin v. Phillips Petroleum Co. (1987), 229 Mont. 529, 747 P.2d 

1363. Further, "evidence demonstrating only a medical possibility 

does not mandate a conclusion that the claimant has met the 

burden." Schraa~s at 357, 777 P.2d at 888. Substantial evidence 

exists to support the Workers' Compensation Court's finding. As 

stated above, the physicians who examined Robinson after his fall 

did not diagnose a head injury. Dr. Susan Bertrand did diagnose a 

diffuse axonal damage to Robinson's brain. However, Dr. Bertrand's 

singular testimony that a fall of this type could result in injury 

to the brain does not "mandate a conclusion that the claimant has 

met his burden." 

Robinson relies on Harmon v. Harmon (1991), 249 Mont. 387, 816 

P.2d 1032, to support his case. In Harmon we reversed the Workersc 
Compensation Court's finding that the claimant had not proved by a 

preponderance of the evidence that he was permanently totally 

disabled. Dr. Lovitt, Harmon's treating physician, testified that 

Harmon" soandition was caused by a 1973 acci 

a diagnosis after performing a special x-ray examination. However, 

the Workersi Compensation Court relied on the testimony of Dr. 

Johnson, Dr, Johnson testified that he agreed witk Dr. Lob-itt s 

diagnosis, but stated he did not look into the cause of the 

condition. Harmon at 391, 816 P.2d at 1034. We stated that Dr. 

Johnson's testimony stating he did not relate the condition to a 

specific accident did not rise to substantial evidence to support 

the Workers' Compensation Court's conclusion that Harmon did not 

meet his burden of proof. Harmon at 392, 816 P.2d at 1035. 

In the case before us, Robinson's first three post-accident 

physicians did not diagnose Robinson with a head injury. Further 

medical tests performed on Robinson were negative for a head 

injury. Over two years post-accident, Dr. Bertrand, Robinson's 

physician, made a diagnosis of diffuse axonal injury. The 

Workers' Compensation Court relied on the testimony of Drs. Harrah, 

Wildgen, and Cooney, none of whom diagnosed Robinson with a head 

injury. 

We conclude that substantial credible evidence exists to 

support the Workers' Compensation Court's determination that 

Robinson failed to prove by a preponderance of the evidence that 

his alleged head injury is a result of a September 1986 work 

related fall. 
A£ firmed. 

Pursuant to Section 1, Farayraph 3(c), Montana Suprene Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of chis Court and by a report cf its result to the 

West Publishing Company. 

We Concur: 
CERTIFICATE OF SERVICE 

I iiereby certify that the fo!iowing order ws sent by United States mail. prepaid, to the following 

nzmx!: 

Kristine L. Foot 

Milodragovich, Dale & Dye 

P.O. Box 4947 

Missoula, MT 59806-4947 

Oliver H. Goe 

Browning, Kaleczyc, Berry 8: Hoven 

P.O. Box 1697 

Helena, MT 59624 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA