No. 13639 IN THE SUPREP?ECOURT OF THE STATE OF MONTANA 1977

LESLIE A. BOND, Claimant and Respondent,

-vsST. REGIS PAPER COMPANY, Employer, and ST. REGIS PAPER COMPANY, Defendant and Appellant.

Appeal from: Workers' Compensation Court, William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Warden, Walterskirchen and Christiansen, Kalispell,

Montana Merritt N. Warden argued, Kalispell,Montana For Respondent: Joe Roberts argued, Libby,Montana

Submitted: October 6, 1977 Decided: 

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A Filed:Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Employer, St. Regis Paper Company, enrolled under Plan I of the Workers' CompensationAct, appeals from a Workers' Compensation Court award to claimant of temporary total disability benefits, medical costs and attorney fees. The employer hired claimant in 1973 to perform tasks requiring physical labor. InAugust, 1975,claimant's left wrist was injured during work. Upon consulting a doctor, claimantwas advised that he had tendonitis and to rest the wrist for

a few days. Following, in October, 1975, the samewrist was again injured during work. X-rays were taken revealing an old, un-united fracture in the leftwrist. Claimant was referred to

a bone specialist who advised that the wrist needed surgical treatment. Bone grafting was done in November, 1975. Claimant did not return to regular work until June, 1976. In December, 1975 claimant filed a Workers' Compensation claim. The claimwas denied by the employer. A hearing was then held before the Workers' Compensation Court and compensationwas awarded to claimant. From this award employer appeals. Employer raises this issue on appeal: Was the Workers' Compensation Court justified in adopting conclusions of law to the effect that the claimant's injuries aggravated a pre-existing condition, that claimantwas entitled to compensationbenefits by reason thereof, that claimant was entitled to payment ofmedical costs incident to bone grafting procedures for a pre-existing condition,and to attorney fees and costs? Employer argues that the incidentsof August and October, 1975,were not of such a nature and severity as to cause injuries to claimantwhich made the bone grafting necessary or medically advisable. The main question, therefore, is whether any medicalevidence exists to support the findingsof the trial court that aggravation of a pre-existing injury occurred. Employer contends therewas no medical testimony to that effect. The loss of time from work and the medical expenses incurred from the bone graft were not job related, and were not proximately caused by the incidents ofAugust and October, 1975. We disagree. The function of this Court is to determine whether there is substantial evidence to support the findings and conclusions of the WorkerstCompensation Court. Flansburg 

### v. Pack River Co., Mont

# . , 561 P.2d 1329, 34 St.Rep. 183 (1977);Kimball

v. Continental Oil Co., Mont

# . , 550 P.2d 912, 33 St.Rep. 517, (1976). This Court will not substitute its judgment for that of the trial court as to the weight of the evidence on questions of fact. Brurud v. Judge Moving & Storage Co., Inc., Employer and Transportation InsuranceCo., Mont

# . , 563 P.2d 558, 34 St.Rep. 260 (1977). Where there is substantial evidence to support the findingsof the WorkerstCompensation Court, this Court will not overturn the decision. Skrukrud v. Gallatin Laundry CO., Inc., Mont

# . , 557 P.2d 278, 33 St.Rep. 1191 (1976). In the case at hand the supporting evidence consists in part of the following: (1)Claimantwas hired in 1973 to perform physical labor. From the commencement of employment and continuing for 13months, claimantworked pulling wet, heavy lumber off the green chain. (2)Claimant was then transferred into the sawmill where he performed a variety of jobs requiring physical labor. While working in themill, the incidentsofAugust and October, 1975, occurred. Following the incidents claimant consultedmedical experts for alleviation of pain in his wrist. (3)Witness, Gary Seybald, testified working alongside claimant for 15months and that claimantperformed his jobwithoutdifficulty before the incidents. (4)Witness Seybald also testified knowing claimant's activities outside the job. These activities included various physical tasks which were performed without difficulty before the incidents. Following the incidents claimantwas not able to handle the samephysical labors. (5)Witness Robin Swimley testified claimant neither had problems with work nor complained about his wrist prior to the incident in August, 1975. (6) The summarized testimony of co-workers Haines and Snyder likewise substantiatesclaimant's job performance. (7) Medical evidence was given by Dr. Nerud that bone grafting was needed. Dr. Nerud stated that itwas a definite possibility that the old un-united fracturewas aggravated by the incidents at the mill. In the case at hand it is undisputed that claimant had a long standingun-united fracture of the left wrist. There is evidence that claimant performed the physical labors required of him up until the time of the injuries. There is evidence that the incidents ofAugust and October, 1975 caused aggravation to claimant'swrist. It iswell established in Montana that an employer takes his employee subject to the employee's physical condition at the time of employment. Birnie v. U.S. Gypsum Co., 134Mont. 39, 328 P.2d 133 (1958);Peitzv. Industrial Accident Board, 127Mont. 316, 264 P.2d 709 (1953). An employee who suffers from a pre-existing condition is entitled to compensation if the conditionwas aggravated by an industrial injury. Rumsey 

### v. Cardinal Petroleum, 166 Mont. 17, 530 P.2d 433 (1975);Weakley

v. Cook, 126 Mont. 332, 249 P.2d 926 (1952). While no medical testimony was presented at the hearing held before the Workers' Compensation judge, there were medical reports and opinionscontained in the file before the court. It is not an abuse of discretion for the Workers' Compensation judge to consider the contentsof the reports. Brurud v. Judge Moving & Storage Co., Inc., supra. Based upon what the Workers Compensation judge had at his disposal, the contents of claimant's file containing medical reports and opinions, the testimony of witnesses and claimant, therewas sufficient evidence to support his findings. The order of the Workers' Compensation Court is affirmed. ,- ---7

Chief Justice 

# 1i We concur: