NO. 87-244 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

DALLAS 0. BROWN, 

Claimant and Appellant, 

-vsDONALD AMENT, d/b/a 

A & R TRANSPORT, 

Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

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

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Whalen & Whalen; Michael J. Whalen, Billings, Montana 

For Respondent: 

Crowley, Haughey, Hanson, Toole & Dietrich; William 

J. Mattix, Billings, Montana 

Submitted on Briefs: Feb. 4, 1988 

Decided: March 18, 1988 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the Workers' Compensation Court, 

before the Honorable Timothy Reardon. Judgment was rendered 

May 28, 1987 and it was determined that defendant, the State 

Compensation Insurance Fund, was not liable for the 

claimant's injury beyond the liability previously accepted 

and the benefits previously paid. We affirm. 

On July 31, 1978, the claimant, Dallas 0. Brown, 

suffered an accidental injury while at work. While unloading 

bricks from a truck, Brown accidentally fell backwards and 

injured his back. Both parties agree this injury was an 

accidental injury arising out of and in the course of 

employment. Brown's employer at that time was Donald Ament, 

d/b/a A & R Transport. The employer carried workers' 

compensation insurance through the State Compensation 

Insurance Fund at the time of the injury. Liability was 

accepted for the injury to Brown's back and temporary-total 

disability benefits were paid starting August 1, 1978 and 

ending October 27, 1978. 

In January of 1986, claimant Brown was diagnosed as 

having a herniated disk which required surgery. Brown 

contends there is a causal connection between his back injury 

sustained on July 31, 1978 and the back problems sustained in 

1986, and therefore the State Compensation Insurance Fund is 

responsible for paying certain Workers' Compensation 

benefits. The relevant events occurring between these two 

events are somewhat involved and difficult to trace. This 

will be addressed in more detail under the first issue 

discussed in this opinion. 

The insurer denied liability and Brown filed a Workers' 

Compensation petition to resolve the dispute. The Workers' 
Compensation Court granted a motion by defendant to bifurcate 

and trial proceeded as to the issues of liability and 

claimant's entitlement to temporary total disability. All 

other issues were dismissed without prejudice to the parties. 

Trial was held September 16, 1986 and the Workers' 

Compensation Court entered findings of fact, conclusions of 

law, and a judgment on May 28, 1987 concluding that 

"defendant is not liable for claimant's hack condition beyond 

the liability accepted and the benefits paid in 1978." 

Appellant raises six issues for our consideration on 

appeal : 

1. Did the Workers' Compensation Court correctly 

conclude that claimant did not. provide sufficient proof to 

establish a causal link between his 1978 injury and his back 

condition experienced in 1986? 

2. Did the Workers' Compensation Court commit error in 

refusing to admit certain exhibits into evidence? 

3. Did the Workers' Compensation Court commit error in 

denying an award of attorney's fees and costs to claimant? 

4. Is the claimant entitled to temporary-total 

disability benefits for the three years that he was not 

working by reason of his physical condition between July 31, 

1978 and the time of trial, and a,-so into the future? 

5. Is the claimant entitled to be reimbursed, or have 

paid, the medical expenses incurred by him for treatment of 

his back injury between July 31, 1978 and the current date, 

where they have not already been paid by the defendant? 

6. Is the claimant entitled to receive a 20% penalty 

for unreasonable delay or refusal to pay by the defendant? 

Our determination of issues one and two will make it 

unnecessary to determine the remaining issues. 
1. Causal Connection. 

Claimant contends that the back injury diagnosed in 

1986 actually began with his injury on July 31, 1978, and 

that he has experienced one continuous injury with periodic 

manifestations. Brown states his back problems resulted in 

the loss of a significant amount of employment from October 

19?8 to 1986, and that he worked only sporadically for at 

least seven different employers during that time. Brown 

contends he lost a total of approximately three years 

employment due to his back condition. Counsel for Brown 

states that further workers' compensation claims were not 

entered because Brown was told he was not eligible for 

further benefits. 

Claimant's precise employment history between October 

1978 and 1986 is somewhat difficult to trace and claimant 

appears to have had mixed reasons for leaving each of his 

jobs during this time period. Following his accident, Brown 

first worked on an intermittent basis for P & S Trucking, 

hauling hay and other various loads. In the spring of 1979, 

Brown worked a short period for Hi-Ball Trucking and left 

either because he was terminated or due to a difference of 

opinion with a dispatcher. Brown then worked for 

K & S Trucking for approximately six months. He stated he 

worked exclusively as a driver and was working approximately 

70 hours a week. His employment was terminated at K & S 

Trucking when the business closed. Brown then worked loading 

trucks for the Coca Cola Company from July 1980 to December 

1980. He loaded trucks approximately 38 hours a week and was 

apparently terminated due to a disagreement with a night 

manager. Brown then commenced work driving a truck with E.R. 

Young in January 1981. The job involved little loading or 

unloading and Brown stated he hired help if he encountered a 

problem. The employment with E.R. Young lasted approximately 
one year, and ended when the company sold its trucks. Brown 

also drove a truck for Robert Ganson for a short period and 

left over a pay dispute. Finally, claimant worked for H & H 

Lumber from December 1982 to September 1985. Brown states he 

left H & H Lumber because he had difficulty performing his 

job due to his back. 

In addition to the above work history, the Workers' 

Compensation Court entered a thorough statement in its 

findings of fact regarding claimant's medical history between 

July 31, 1978 and his injury in 1986. Claimant initially 

sought chiropractic treatment from Dr. Gary V. Dols on August. 

2, 1978. Dr. Dols treated claimant a number of times and 

eventually referred him to Dr. John R. Dorr, an orthopedic 

surgeon. Dr. Dorr treated claimant on several occasions and 

prescribed a specially molded seat and a corset to assist 

claimant in his work. Claimant last visited Dr. Dorr on 

October 23, 1978 and Dr. Dorr believed it was unlikely 

claimant would have any permanent physical impairment. 

Claimant saw Dr. Dols on October 17, 1978 and Dr. Dols noted 

claimant was doing "fair." After experiencing a strain while 

stacking hay, claimant again visited Dr. Dols on December 1, 

1978. 

The claimant did not seek any medical attention for his 

back from December 1, 1978 to June 18, 1982, at which time he 

again consulted Dr. Dols. Claimant consulted Dr. Dols four 

times in June 1982 and four times again in September 1982. 

Claimant saw Dr. Dols again in June 1983, and the doctor 

noted claimant was doing rather well. Claimant had a 

physical exam on January 17, 1984 and the examination report 

noted a "tender over lumbasac [sic] joint." Dr. Dols was 

again visited on February 16, 1984 for claimant's back 

problems. Claimant experienced back pain while assisting in 

movi-ng a stuck truck and saw Dr. Dols again on September 24 
and October 15, 1984. There is no claim that claimant sought 

any medical attention again until January 1986. 

On January 18, 1986, Dr. Dols noted that claimant's 

condition was "far more severe than it had been in the past." 

Apparently, claimant strained his back while unloading a 

truck and shoveling snow. Claimant was eventually referred 

to Dr. Maurice C. Smith, a neurosurgeon. Dr. Smith diagnosed 

a herniated disc and performed surgery on claimant January 

30, 1986. Following the surgery, Dr. Smith stated clai-mant 

could not return to work as a truck driver. 

In attempting to determine whether claimant's surgery 

in January 1986 was the result of the injury on July 31, 

1978, the Workers' Compensation Court considered deposition 

testimony by the treating physicians. Dr. Dorr, who treated 

claimant in September and October of 1978, stated he believed 

it was unlikely that claimant suffered permanent physical 

impairment at that time. At his deposition on September 3, 

1986, Dr. Dorr stated he had not specifically identified a 

disk problem in claimant during the treatment. Dr. Dols, the 

treating chiropractor, was deposed and refused to state that 

the back problem in 1986 was a direct result of the injury 

sustained in 1978. Dr. Smith, claimant's surgeon, stated in 

his deposition that it was "virtually impossible for [him] to 

state with a degree of medical certainty that the herniated 

disk that [he] operated on was a direct result of an injury 

occurring in 1978." 

In Rightnour v. Kare-Mor, Inc. (Mont. 1987), 732 P.2d 

829, 830-831, 44 St.Rep. 141, 143, we stated: 

The essential element to be proved by a 

claimant is a direct relationship between 

the claimant's employment - - and the injury. 

Schwartzkopf v. Industrial Accident Board 

(1967), 149 Mont. 488, 493, 428 P.2d 468, 

470. That is, a subsequent injury is 

compensable if it is the direct and 
natural result of a compensable primary 

injury, and not the result of ari 

independent intervening cause 

attributable to the claimant's own 

intentional conduct. See Breen v. 

Industrial Accident Board (1968) , 150 

Mont. 463, 436 P.2d 701. When a 

subsequent injury is compensable, the 

claimant is entitled to receive those 

benefits which are payable because of 

medical treatment necessitated by the 

original injury pursuant to S 39-71-407, 

MCA, and § 39-71-704, MCA, including any 

medical benefits reserved. 

In Rightnour, the claimant's subsequent injury was found 

compensable because the medical evidence demonstrated, with a 

reasonable degree of medical certainty, that her subsequent 

injury was the direct and natural result of her previous 

injury. The claimant's previous injury was compensable under 

workers' compensation. 

Claimant Brown 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." Currey v. 10 Minute Lube (Mont, 1987), 736 

P.2d 113, 116, 44 St.Rep. 790, 793 (citing, Wheeler v. 

Carlson Transport (Mont. 1985), 704 P.2d 49, 53-54, 42 

St.Rep. 1177, 1183). However, evidence demonstrating a 

medical possibility is acceptable evidence and may be used by 

the Workers' Compensation Court to support its decision if 

supported by other independent evidence. Currey, 736 P.26 at 

Both parties have devoted a significant amount of 

argument as to the standard of our review in regards to 

medical testimony submitted by deposition. In Currey we 

stated: 
This Court will not substitute its 

judgment for that of the Workers' 

Compensation Court concerning the 

credibility of witnesses nor the weight 

to be given their testimony except where 

critical medical evidence is entered by 

deposition. In cases where depositions 

are the evidence, "this court, although 

sitting in review, is in as good a 

position as the Workers' Compensation 

Court to judge the weight to be given 

such record testimony, as distinguished 

from oral testimony, where the trial 

court actually observes the character and 

demeanor of the witness on the stand." 

Shupert v. Anaconda Aluminum Company 

(Mont. 1985), 696 P.2d 436, 439, 42 

St.Rep. 277, 281-282 citing Hert v. J.J. 

Newberrv Co. (1978). 178 Mont. 355, 360, 

Currey, 736 P.2d at 115, 44 St.Rep. at 792. This rule 

remains unchanged. 

Following a careful review of the medical testimony 

submitted by deposition plus the remaining evidence 

submitted, we find that the Workers' Compensation Court 

correctly concluded that there was insufficient evidence to 

establish a causal link between claimant's two injuries. The 

medical evidence is inconclusive and, at best, establishes 

only a possibility of a causal link. As noted by the 

Workers' Compensation Court, this is a difficult case to 

chart and "too much time has passed without explanation and 

without a tracing of the injury through that time.'' 

Following December 1, 1978, claimant did not seek any medical 

attention for his back for approximately three and one-half 

years. The evidence presented fails to sufficiently 

demonstrate that treatment rendered after that period was a 

direct result of the injury received in 1978; and the 

decision of the Workers ' Compensation Court is affirmed. 
2. Evidence. 

Claimant contends the Workers' Compensation Judge 

improperly denied the admission of five exhibits into 

evidence. Exhibits 1 and 2 consist of correspondence between 

claimant's attorney and a claims examiner for the insurer. 

Exhibit 3 is a letter from Dr. Smith's medical secretary to 

the Workers' Compensation Division notifying the Division of 

claimant's injury. Exhibit 4 is a "memorandum to file" by 

Julie McGee noting that claimant requested "that the medical 

[file] on his July 78 accident be re-opened." Finally, 

exhibit 10 was denied admission and consisted of a letter 

from claims examiner Smith to claimant's attorney, 

accompanied with a "File Routing/Tracking Form" indicating 

that the Division might have to assume responsibility for the 

latter injury. Claimant asserts all of these exhibits should 

have been admitted and relies on statutes governing the Rules 

of Evidence, including statutes regarding hearsay and its 

exceptions and limitations. 

According to the statutory law in effect at the time of 

the hearing, the Workers' Compensation Court was not bound by 

the rules of evidence. Section 39-71-2903, MCA (1985). 

Although it has no effect on this case, we note this statute 

has been amended so as to apply the rules of evidence to 

proceedings in the Workers' Compensation Court. Section 

39-71-2903, MCA (1987) . Claimant's arguments based on 

statutes contained within the rules of evidence do not 

control in this case. 

We have stated that it is within the discretion of the 

Workers' Compensation Judge to accept or reject "hearsay" 

testimony. Tocco v. City of Great Falls (Mont. 1986), 714 

P.2d 160, 166, 43 St.Rep. 310, 318 (citing, Krause v. Sears 

Roebuck (1982), 197 Mont. 102, 641 P.2d 458). Even if the 

exhibits had been admitted, claimant would not have 
sufficiently established a causal connection as discussed in 

part one of this opinion. We find no abuse of discretion by 

the Workers' Compensation Court. 

For the foregoing reasons, we affirm the decision of 

the Workers' Compensation Court. 

We concur: