No. 14248 INTHE SUPREME CCURT QF THE STATEOFMONTANA 1978

ClaimantandAppellant,

BECHTEL CORPORATION, Einployer, aIfi INDUSTFIX,INDEMNITY CQMPANY, Defendantand Respondent.

Appeal frcnn: hbrkers' CcanpensationCourt HonorableWilliam E. Hunt, Judge presiding. Counsel of Record: ForAppllant: Burgess, Joyce, ProtheroandWhelan, Butte, Mntana For Respondent: Marra, Wenz, Iwen andJohnson, GreatFalls, Wntana

Sutmittedonbriefs: November 3, 1978 

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## 1379 Decided. Filed: 

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- "9%Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Charles E. McGee, claimant, appeals from the amended findings of fact, conclusions of law and judgment dated March 6,1978,entered by theWorkers' Compensation Court, sitting in the Butte area, county of Deer Lodge. McGee's employer at the time of the industrial accident was Bechtel Corporation,and Industrial Indemnity Company was the industrial accident insurer for Bechtel. TheWorkers' Compensation Court by its judgment decided that McGee was not entitled to permanent total disability benefits under theWorkers' Compensation law and limited his recovery to the benefits recoverableunder the specific injury statute (section 92-709,R.C.M. 1947) and to such temporary total disability compensationbenefits as he had received while convalescing. We sustain the decision of theWorkers' Compensation Court. McGee, then 35years old,married and the father of fourminor children, was employed as a pipefitter-plumber foreman in 1974by Bechtel Corporation in the construction of theArbiter Plant in Anaconda. About June 26, 1974, McGee's vision became blurred at work,not the result of any traumatic injury. That evening he consulted Dr. Burton,

a Butte eye specialist, who diagnosed a detached retina in the right eye. On arrangements made by Dr. Burton,McGee was examined by Dr. F. Tempe1 Riekhof, a Salt Lake City ophthalmologist, who specialized in ophthalmologic surgery. Dr. Riekhof found a giant tear in the retina of the right eye (a "giant tear" is onewhich extends more than 90degrees around the peripheral part of the retina, in this case a tearextending 150 to 160degrees). He also found two areas of retinaldegeneration and beginning detachment in the left eye, resulting from a genetic condition. The condition in the left eye was described as "latticedegeneration". The patient had no complaints regarding his left eye at the time of his initial examination. On July 2, 1974,Dr. Reikhof performed surgery to reattach the retina of the claimant's right eye and during the sameprocedure also performed surgery on the left eye which he termed a "cryopexy",a procedure consisting of spot welding the two small areas where holes appeared in the lattice degeneration of the left eye. Following his surgery,McGee returned home to recover. Sometime in July 1974,his vision had improved and he was released towork in a supervisory capacity. He returned to work as foreman on July 27, 1974. The apparent return to normality of the claimant'svisionwas an encouraging indication of the successful reattachmentof the retina, according to Dr. Reikhof. On July 27, 1974,while at work reading a blueprint, claimantwas soundly slapped on the back by a well-wishing fellow employee. McGee immediatelynoticed the deterioration of the sight in his right eye and again soughtmedical treatment in Butte, Salt Lake City (Dr. Reikhof was not available), and finally in San Francisco,where Dr. Roger E. Atkins, attempted in surgical procedure to reattach the retina of the right eye. The attemptwas unsuccessful. Dr. Atkins contemplated a second operation once the vitreous fluids cleared and the optic nerve became visible, and meanwhile advised McGee to return to Butte and consult his local eye specialist,Dr. Francis P. Nicholson, a Butte ophthalmologist.InAugust 1974,McGee returned to San Francisco, where Dr. Atkins concluded the right eye retina could not be reattached. A vitreous fluid transplantwas performed to avoid enucleating the right eye. However,vision in the eye

was completely and permanently lost. Before the Workers' Compensation Court, the employerinsurer contestedwhether an industrial accident had occurred here. The Workers' Compensation Court found that the injury did arise out of and in the course of his employment and was compensable. No appeal is taken by the employer-insurer on that point. The main thrust of the proceedings before the Workers' Compensation Court was to determine whether McGee was permanently and totally disabled as a result of the loss of vision in his right eye, under the particular circumstances of this case. McGee was advised by Dr. Atkins, Dr. Nicholson, and also by Dr. George Sale, aMissoula ophthalmologist, that he should never return towork as a plumber, or any other work requiring rapid movement and physical strain because of the danger of a further detachment of the retina of his left eyewith resulting total blindness, this being considered by the doctors a risk too great to take. The letter from Dr. Atkins, dated March 31, 1976, states he did not feel thatMcGee was "inany way qualified from a physical standpoint to continuewith this sort of heavy physical labor he had previously done. The only way inwhich he could become employable would be through a deep rehabilitative process which took him into a sedentary occupation requiring rather little in theway of reliance of good vision." Dr. Nicholson's letter of March 23, 1976, stated: 

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. . It is reasonable to expect further visual deterioration in Mr. McGee's left eyein the future, and with this inmind,

## - regardless of visual efficiency charts or complex computative formulae,

### - in my opinion,Mr. McGee has sustained almost 100% visual disability. "There is no question inmy mind that he should be proscribed from working for the rest of his life." 

### Dr. Sale's letter of March 22, 1976, stated: "Mr.McGee's occupation is that of a pipefitter, which is entirely unsuitable for a personwho has had bilateral retinal detachments

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### -" The condition of McGee at the time of the hearing was that he had total and permanent loss of vision of his right eye, and his left eyewas correctable to 20/25, which according to theA.M.A. evaluation of permanent visual impairment comes to fivepercent loss of central vision in his left eye. Hisvisual field in the left eye is normal. Dr. Reikhof's opinion is completely contradictory to that of the other doctors. Dr. Reikhof testified, in essence, that assuming that the retina in the left eye were successfully repaired by the cryosurgerywhich he performed,he would have no objection to Mr. McGee "goingback to any type of employmentwhich did not carry a significance of a direct blow to his head. Ibelieve that the reading of the morning paper, if youwill, is aspotentially as traumatic to the vitreous and the retina inside the eye, as anything he will do on the job, any job. 

# .." Dr. Reikhof would have no objection toMcGee picking up a 150pound bale of hay, or straining to have a bowelmovement or any such thing that might involve physical strain. His opinion was that there

was no way that those kinds of things could result in a retinal tear or a retinal detachmentof the left eye. He furtherdiscounted thepossibility of an adverse influence

on the good eye from a physiological interference arising out of the loss of the right eye.The Workers' Compensation Court specifically found that the lattice degenerationof the left eye of McGee and the small area of detachment found there originally did not result from an industrial accident,nor was the condition

one that arose out of his employment. It further found that there was no evidence to sustain a finding that the claimant lost the sight of his left eye or that therewas any causal connectionbetween the deficiencies sustained by the claimant in the use of his left eye and any injury arising out of his work.Thus, the net effect of the findingsby the Workers' Compensation Court is that the claimant McGee lost the sight of his right eye in an industrial accident, but that the present condition of his left eye is genetically induced and is not the result of an industrial accident. McGee further contends on appeal that he is in fact totally disabled because he has not engaged in any gainful employment since July 27, 1974 and that he dare not engage in work because of the danger of a further retinal detachment of his left eye. In its amended finding of factNo. 15, the Workers' Compensation Court noted the disagreementof Dr. Reikhof and Dr. Nicholson as to whether a person who has had a detachment of the retina in one eye ismore susceptible to a detachment of the other eye. While the court did not specifically indicatewhich doctor it agreed with, impliedly it accepted the testimony of Dr. Reikhof that further detachment of the retina in the good eye is uncommon, where the lattice degeneration in the good eye has been arrested by cryopexy. The Workers' CompensationCourt awarded claimant benefits under the specified injury statute allowing him 140 weeks of compensation for total blindness of one eye, in addition to the 26 weeks of convalescent disability benefits he had already received. -6-The issue confronting us in this case is clear. On the

one hand the claimantMcGee claims he is totally disabled, and has not worked since the industrialaccident. Three doctors, including the surgeonwho last operated on him, indicate he cannot do heavy physicalwork. On the other hand, the surgeon who performed the cryopexy and the first reattachmentof the retina on his right eyemaintains that the danger of bilateral detachment in his case is remote and commendshim for any kind of physical labor, where he is not in danger of receiving a direct blow on the head. The Workers' Compensation Court found in accordance with the latter opinion. Whether this Court agrees is of no moment. Since credible and substantial evidence appears in the record in support of the Workers' Compensation Court,we are bound by its decision on the facts. Rule 52(a), Mont.R.Civ.P.; Smithv. Pierce Packing Co. and Pacific InsuranceCo.

(19781, Mont. 

## , 581 P.2d 834, 35 St.Rep. 979; Robins v. Anaconda Aluminum Company (1978), Mont

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, 575 P.2d 67, 35 St.Rep. 213; Bond v. St. Regis Paper Company (1977), Mont

# . , 571 P.2d 372, 34 St.Rep. 1227, 1238. The decision of the Workers' Compensation Court is affirmed. -

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