No. 83-538 INTHE SUPWMECOURTOF THE STATEOF MONTANA 1984

RUSSELLA. LAMB, Claimant and Respondent,

-vsMISSOULA IMPORTS,INC.,Employer, and UNIVERSAL INSURANCECO., DefendantandAppellant.

APPEAL FROM: TheWorkers'CompensationCourt,TheHonorableTimothy Reardon,Judgepresiding.

COUNSELOF RECORD: ForAppellant: Garlington, Lohn & Robinson; Robert

### E. Sheridan, Missoula,Montana For Respondent: Williams Law Firm;SusanRoy, Missoula, Montana

SubmittedonBriefs: May 3, 1984 Decided: July 26, 1984

ClerkMr. Justice John Conway Na.rrison delivered the Opinion of the Court. Appellants raise this appeal from the Workers' Compensation Court's findings, conclusions and ruling that respondent's epileptic seizures stemmed from an industrial accident and therebywere compensable. Missoula Imports employed Russell Lamb as a janitor. On the evening of September 11, 1978, as Lamb was washing the floor, he slipped and fell striking his head on the floor. He claims he remembers little or nothing during the few hours following his fall. Lamb called his girlfriend and told her of the accident. His parents picked him up at the workplace and took him to the hospital emergency room for treatment. Dr. McMullin diagnosed him as having had a mild concussion and sent Lamb home with instructions to contact him if complications arose. Both of his parents observed him during the next several days. Mrs. Lamb testified as to the memory problems on respondent's part which extended to more than twenty-four hours after the accident. 

### He kept asking the same question as to what had happened and had apparently been unable to remember the

answersgiven to him inprevious days. In February, 1979, respondent went to Dr. Johnson (a neurologist). Dr. Johnson performed an electroencephalogram and determined respondent suffered from epilepsy. He prescribed medication to control the seizures. However, respondent continued to have occasional seizures. On March 9, 1982,he suffered a seizure while driving his car on Brooks Street in Missoula, Montana. Witnesses reported that his car veered off to the rightand hit a treeina localpark. Respondent claimshe remembers nothing of the accident or the events leading up to the accident and remained inan intensive careunit for aconsiderable length of time. Respondent's mother testified that he had never had any indication of a prior epileptic seizure. She also testifiedthatno one in thefamilyhad everhad anyhistory of epileptic seizures. Following the filing of the claim, the parties took depositions from three doctors regarding the cause of respondent's seizures. Even though Dr. Johnson concluded the industrial accident probably did not cause respondent's seizures, he did admit the risk factor of encountering seizures as the resultof thetype of head injury sustained by respondent was somewhere between one and three percent. Dr. Dewey (a neurosurgeon), after reviewing all of the medical dataand related information, concluded theslipand fall probably caused the seizures. Dr. Bertrand (a rehabilitation expert for seizure and trauma patients) expressed her belief that thehead injury incurred from the fallcaused the seizures. The Workers' Compensation Court, following a hearing, determined respondent's fall at Missoula Imports was the direct and proximate cause of the seizure disorder. Appellantsraise their appeal from thatorder. Weaffirm. Appellantsraiseone issueon appeal. Did sufficient evidence existto support theWorkers' Compensation Court's findings that the industrial accident constitutedtheproximate causeof respondent's seizures? Appellants assert insufficient probative credibleevidence exists to prove respondent's fall at Missoula Imports caused his seizures. They direct this Court to examine the meilical evidence, and accord it the proper weight. They believe the evidence shows the respondent's industrial accident merely caused a mild concussion and failed tocause the seizures. Wedisagree. We stated the standard for review for sufficiency of evidence in Little v. Structural Systems (1980), 614 P.2d

"First of all, in examining the contentions by the parties to this appeal, it should be pointed out that thisCourt has consistentlyheld thetest of sufficiency of the evidence to be whether there is substantial evidence to support the court's findings of fact. See Stamatisv. BechtelPower Co. (1979), Mont., 601 P.2d 403, 36 St.Rep. 1866; Head v. Larson (1979), Mont., 592 P.2d 507, 36 St.Rep. 571; Strandberg v. Reber Company (1978), Mont., 587 P.2d 18, 35 St.Rep. 1742; Jensen v. Zook Brothers Construction Company (1978), Mont., 582 P.2d 1191, 35 St.Rep. 1066. In Stamatis and Jensen, this Court further held that where the findings are based on conflicting evidence, this Court's function on review is confined to determining whether there is substantial evidence to support the findings and not to determine whether there 

### is sufficient zvidence tosupportcontrary findings." In Jones v. St. Regis Paper Co. (1981), 196Mont. 138, 639 P.2d 1140, we said this Court may determine the proper weight of critical medical testimony entered through depositions: "Ordinarily, this Court will not substitute its judgment for that of the Workers' Compensation Court in determining theweight and credibilityto be given testimony. The reason for this is that this Court defers to the lower court's assessment of the demeanor and credibility of witnesses. Rule 52(a), M.R.Civ.P. However, when the critical evidence, particularly medical evidence,

### is entered by deposition, we have held that 

### 'this Court, although sitting in review, is in as good a position as the Workers

## ' Compensation Court to judge the weight to be given to such record testimony, as distinguished from oral testimony,where the trial court actually observes the character and demeanor of thewitness on the stand.

### ' " 

### Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 359-360, 584P.2d 656,659. Appellants stress thisCourt should giveDr. Johnson's testimony themost weight because he is the most qualified expert witness. His testimony that it is unlikely the fall caused respondent's seizures proves appellant's contention that no connection exists between the industrial accident and the subsequent seizures. We reject this argument. In careful examination of the deposition by the three medical experts, it is clear to this Court that medical science remains sufficiently undeveloped in the area of epilepsy and seizures to rely on any one witness's statements as dispositive. In Conway v. Blackfeet Indian Developers, Inc. (Mont. 1983), 669 P.2d 225, 40 St. Rep. 1427,we followed the rationaleof Moffet

### v. Bozeman Canning Co. (1933), 95 

### Mont. 347, 26 P.2d 973. In both of those cases medical testimony failed to definitively state that the industrial accident caused the subsequent affliction. We stated: "'The record contains no direct evidence fromwhich it canbe said that the injury was the proximate cause of claimant's present condition; this, not because of failure on the part of claimant properly to present his case,but because, on the frank admission of thedoctors,noman on earth knows positively the exact causeof such an affliction in any given case; medical science has not advanced to a point where it can positively trace back from the effect and declare the cause of the disease in a given patient, but this fact alone need notbar the claimant from

### recovery, if, on the record, it can be said that he is entitled thereto."' 669 

### P.2d at 228. 

### A review of the medical experts' depositions reveals that none of the doctors deposed respondent 

### at the time of the industrial accident. Dr. Johnson assumed respondent merely suffered a mild concussion which most likely would not cause the seizures. However, that type of testimony must be compared to the testimony of the other physicians who considered the memory lapses demonstrated by the respondent and his epileptic seizures which have followed. Dr. Dewey stated he believed the accident amuch more severe trauma and thatbe believed the accident atMissoula Imports

was the probable cause of the epilepsy. Dr. Bertrand believed the accident caused the seizures. These experts all appeared sufficiently qualified to render their opinion in this matter. When these two physicians considered all the factsof the case they concluded therewas a significant probability the epileptic seizures were the result of the industrial accident. Based on this evidence, we can only conclude that substantial medical evidence exists to support the Workers' Compensation Court's findings. We see no

reason to accord Dr. Johnson's testimony any greater weight than the testimony of the other two doctors. He demonstrated no substantially greater understanding of this topic than the other witnesses. We affirm theWorkers' CompensationCourt.Weconcur: 

### 9A&$&dd4 Chief Justice