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 COMPENSATIONMUTUAL 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, 1392Justice R. C. McDonough delivered the Opinion of the Court.

Robert W. Robinson appeals from a judgment entered by the Workers'Coompensatior,Courtwhich concludedthat Robinson failedto 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' CompensationCourt'sdeterminationthatRobinson failed toprove by

apreponderance of theevidence that his allegedhead 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 Departmentof Justice,FireMarshal 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 (StateFund). Be filed an actionwith the Workers' 2Compensation 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 Fundwas not liable far Robinson" alleged head injury. This appeal followed. Fwllowinc;Rsbinson s emergency roomvisitwith Dr, Harrah, PLE has been seenby numerous doctors and psychologists, TheWorkers1 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, theemergency roomphysician,treated claimant far

a shoulder strainand a rightankle sprain. Dr. Harrah reported no evidence of a head injury. Dr. Harrah opined to a reasonable degree of medical certainty that Robinsonwas 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 tendernessover 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 Septemberof 1986, Dr Cooney made no diagnosis ofbraininjurytoRobinson. Robinson maintainsthathe initiallyreported

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 afterthe 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 fivemonths afterRobinson fell. Dr. Donald Nockleby, a clinicalpsychologist, referredRobinson to Dr. Bertrand for treatment of depression. Dr. Nockleby has not testified in this case. Dr. Nockleby noted inhis 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 arenot looking for a head injury, it would be easy tomissthediagnosis. She stated thattine problemswith 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 statesthat Robinsonhad similartests done prior to seeing her. Cliff Edwards, a Billings attorney;

### worked withRobinson 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,DanHileman,aKalispellattorney who represented one ofthedefendants inRobinson8slawsuitagainst 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 todetermine if there is substantial evidence to support the findings and conclusionsof that court. When there is substantial evidenceto supportthe Workers8CompensationCourt, this Court cannot overturn the decision. Wood v. ConsolidatedFreightways (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), 238Kont.

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 SpiceDay 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, "evidencedemonstrating 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 diffuseaxonal damage toRobinson'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 onHarmonv. Harmon (1991), 249Mont. 387, 816 P.2d 1032, to supporthis case. InHarmonwe reversed theWorkerscCompensation Court's finding that the claimanthad notproved by a preponderance of the evidence that he was permanently totally disabled. Dr. Lovitt, Harmon's treating physician, testified that Harmon" soanditionwas caused by a 1973 acci

a diagnosisafterperforming a specialx-ray examination. However, the Workersi Compensation Court relied on the testimony of Dr. Johnson, Dr, Johnson testified that he agreed witk Dr. Lob-itts 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' CompensationCourt relied on the testimonyof 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 shallbe published by itsfiling as a public document with the Clerk of chis Court and by a report cf its result to the West Publishing Company.

We Concur:CERTIFICATEOFSERVICE Iiierebycertifythat thefo!iowing orderwssentby United States mail.prepaid, to the following nzmx!:

KristineL.Foot Milodragovich,Dale&Dye P.O. Box4947 Missoula,MT 59806-4947 Oliver H. Goe Browning, Kaleczyc,Berry8:Hoven P.O. Box 1697 Helena, MT 59624

ED SMITH CLERKOFTHE SUPREME COURT STATEOFMONTANA