No. 93-432 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

LARRY C. PLAINBULL, petitioner and Appellant,

TRANSAMERICA INSURANCE COMPANY/ DRANEY INFORMATION SERVICE, Defendant/Employer and Respondent.



### APPEAL FROM: Workers' Compensation Court State of Montana The Honorable Timothy W. Reardon, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Don Edgar Burris, Billings, Montana For Respondent: James G. Edmiston, 111, Billings, Montana

.. i Submitted on Briefs: January 13, 1994 

### MAR

### 10

## 1994 Decided: March 10, 1994 Filed;. 

# 22.S?iitk



## .. P



### I CLERKOFSVPRE~E COURT *, ,, f,!j ;$ STATE @FNSSYTANA ,&:I .,>; c,'!k.' 4 ClgrkJustice James C. Nelson delivered the Opinion of the Court.

The claimant, Larry C. Plainbull (Plainbull), appeals from Findings of Fact,Conclusionsof Law,and a Judgmententeredby the WorkerstCompensation Court in favorof the respondent. We reverse and remand. The issueon appeal iswhethertheWorkers' Compensation Court correctly interpreted 39-71-407, MCA (1989). The facts of this case are straightforward and essentially undisputed. On May 10, 1991, Plainbull was employed as a laborer for Draney Information Service (Draney) on the movie set for "The Irish Storyf1 (later renamed "Far and Awayf1). Plainbull was cleaning the walls of a train tunnel when a rock or othermaterial hit him in the left eye. Plainbull was initially treated by Draney's on-location registered nurse, Sandie Sharkey-Knox

(Sharkey-Knox), who washed out the eye and placed an ointment in it. At that time, Sharkey-Knox sawno abrasionsor foreignbodies. Plainbull's claim for workerst compensation benefits was initially accepted as amedical-only claim and he was paid medical benefits. Respondent Transamerica Insurance Company Draney's insurer, contended that the choroidal rupture in the left eye predated theMay 10, 1991 incident,and was thusnot a compensable injury. A hearing on the matter was held on September 22, 1992, and depositionswere taken and submitted to the Workers' Compensation Court. The following testimony was before the Workers' Compensation Court and is the basis for its findings and

2

### conclusions. On May 13, 

### 1991, Plainbull saw Stephen R. 

### Shaub, D.O. (Dr. Shaub)

## , who noted that the injury occurred on May 10, 1991, and that Plainbull had experienced pain in the eye since that time. Dr. Shaubdiagnosed a corneal abrasion. OnMay 15, 1991,Plainbull again saw Dr. Shaub, complaining of persistent discomfort in the left eye. Dr. Shaub diagnosed a 

### corneal abrasion with a possible foreignbody. On May 16, 1991,Plainbull sawMuzaffar H. 

### Kirmani,M.D. (Dr. Kirmani), an ophthalmologist, who diagnosed a choroidal rupture with a macular hole. Dr. Kirmani was unable to ascertain the age of the lesion. On June 14, 1991, Dr. Kirmani reported that Plainbull's left eye vision was "compromised secondary to trauma and choroidal rupture with amacular hole and a complete posterior vitreous detachment of the left eye." On July 2, 1991, Plainbull saw another ophthalmologist, J. 

### Thomas Priddy, M.D. (Dr. Priddy), who also diagnosed a choroidal rupture in the left eye. OnAugust 12,1991,Dr. Priddy indicated thathewas not able to say that the choroidalrupturepredated the May 10 injury. In a letter dated January 14, 1992, Dr. Priddy stated that he saw nothing about the injury that suggested it was old. On April 21, 1992,Dr. Priddy indicated that he believed it

was possible that Plainbull's injury was caused by the May 10 

### accident. On August 6, 

### 1991, Plainbull visited an optometrist, John T. 

### Gingrich,O.D. (Dr.Gingrich), and told Dr. Gingrich that the eye

### injury occurred on May 10, 

### 1991. Dr. Gingrich noted a choroidal rupturewith macular involvements. However, Dr. Gingrich did not make this diagnosis. He testified that such a diagnosis was outsidehis field expertise and that thediagnosiswas the opinion of Dr. Fishburn, a retinal specialist who practiced in the same office. At deposition, Dr. Gingrich opined that the May 10 

### incident did not cause the left eye condition. However, when questioned further on the basis of that opinion, including questioning as to what could cause a choroidal rupture with macular involvements,Dr. Gingrich repeatedly testified that certain questions were "out of the scope of [his] expertise" and "out of [his] range of expertise." Dr. Gingrich also testified that he was suspicious^



### as to why Plainbull "waited three months to come in to see me,!! apparently unaware that Plainbull had been to a number of other doctors. In addition, Dr. Gingrich admitted that all of his commentsand opinionsregarding thechoroidal rupture werebased on Dr. Fishburn's opinions and were not his own, as he was clearly outside his area of expertise. He stated he based his opinions regarding the cause of the injury "on the opinion of the expert," Dr. Fishburn. Various othermedical records were submitted to the Workers1 CompensationCourt. These included a note dated January 18, 1992, 

### by Gary D. Mundy, M.D., indicating that Plainbull had visited the emergency room with complaints of a headache and pain behind the left eye. He noted that Plainbull suffered an eye injury theprevious yearwhen he was hit in the left eye with a rock and that Plainbullhad suffered from intermittentpain off-and-onsince that time. Another note, dated January 21, 1992,by Deniz Tek, M.D., indicated Plainbull had been suffering from recurrent headaches centered about the left eye over the past one and one-half years. On February 4,1992,Plainbullwent to the emergencyroomwith left eye pain. A July 20, 1992 record from St. Vincent Hospital indicated that Plainbull complained of a headache from an old injury,which occurred when he was hit in the left eye with a rock

on May 10, 1991. Plainbull returned to the emergency room on August 5,1992, again complaining of left eyepain. Plainbull was eventually referred to the Billings Clinic for a neurological examination. This examination took place on October 5, 1992. The report from this examination indicated that Plainbullhad suffered severe head injuries in the mid-1970s and that he underwent a right parietal craniectomy to remove a subdural hematoma in 1974. Roger S. Williams, M.D. (Dr. Williams), summarized that Plainbull had neuralgia and possibly vascular pain in the left orbit in the territory branches of the left external carotid artery. Dr. Williams further stated that the injury could have been caused by theMay 10 incident if Plainbull's description of the incident was correct and if his pain did not predate the injury. On October 18, 1992, records indicate that Plainbull went to the emergency room complaining of pain in the eyes caused when Plainbull was hit in the left eye with a rock.Plainbull presented evidence regardinghisvision prior to the May 10 incident. In a firefighter's physical dated June 9, 1988, Plainbull's uncorrected left 

### eye visual acuity was 20/40. On 

### May 13, 1991,Dr. Shaub recorded Plainbull's corrected left eyevisual acuity at 20/50. On 

### May 6,1991, Dr. Kirmani recorded the corrected vision to be 20/70. 

### By June 14, 1991, Dr. Kirmani indicated Plainbull's corrected vision was 20/200. On July 2, 1991, Dr. Priddy recorded the corrected vision in the left eye at 20/400. On August 6, 1991, 

### Dr. Gingrich also recorded the corrected left eye vision at 20/400. Plainbull testified that he did not have any problems 

### or suffer from any injuries 

### to his left eye during theperiod of time from his last eye examination on January 14, 1989, until the May 10, 1991, incident. Based on this testimony, the Workersf Compensation Court entered Findings of Fact, Conclusions of Law,and Judgment on July 26, 1993, concluding that 5 39-71-407, MCA (1989), required Plainbull to prove that it was medically more probable than not that 

### the injury 

### of 

### May 10, 1991,

### caused his medical condition and that Plainbull had failed to establish his burden of proof. From those findings, conclusions,and judgment, Plainbull appeals. Our standard of review relating to conclusions of law is whethertheworkersfcompensation judge's interpretationof the law is correct. Steer, Inc. v. DepltofRevenue (1990)

### , 245Mont. 470, 474-75, 803 P.2d 601, 603. TheWorkers' Compensation Court determined that Plainbullhadfailed to carry his burden of proof pursuant to 5 39-71-407, MCA (1989),which provides, in pertinent part: (1) Every insurer is liable for the payment of compensation 

# . . 

# . to an employee of an employer it insureswho receives an injury arising out of and in the course of his employment. 

## . . 

# .

(2)(a) An insurer is liable for an injury as defined in 39-71-119 if theclaimant establishesit ismore probable than not that: (i) a claimed injury has occurred; or (ii)a claimed injury aggravateda preexistingcondition. (b) Proof that it was medically possible that a claimed injury occurred or that such claimed injury aggravated a preexisting condition is not sufficient to establish liability. The claimant must also prove that the work-related injury caused the condition at issue. See Norman v. City of Whitefish (1991), 248Mont. 490,812 P.2d 1259; see also Welch v. Am. Mine Services, I~c. (1992),253 Mont. 76, 831 P.2d 580. The Workers' Compensation Court found that Plainbull was injured on May 10, 1991, while employed by Draney, and that the injury occurred when Plainbull was cleaning the walls of a train tunnel with a shoveland amarble-sized rock struck him in the eye. The courtconcluded that "thedeteriorating condition of claimant's eye sight seems to indicate an inciting event occurring sometime around the date of injury.

## " The court further concluded, however, that the medical testimony and opinions of the doctors did not support Plainbull's claim for compensation, because Plainbull had not established that itwas "medicallymore probable than not that the accident described by the claimant caused his eye injury." We hold that the Workersf Compensation Court erred in soconcluding and find that Plainbull establishedhisburden of proof 

### with respect 

### to both the occurrence and cornpensability of the May 10, 1991 injury. section 39-71-407, MCA (1989), cited above, requires that Plainbull establish 

### that 

### it is "more probable than not" that a claimed injury has occurred or that a claimed injury aggravated a preexisting condition. In this case, Plainbull contends that an injury occurred on May 10, 1991, which caused his left eye condition and that he had no preexisting condition prior to that time. In fact, the Workers' Compensation Court found that Plainbull had suffered a work-related injury on May 10, 1991. However, the court went on to conclude that the injury was not compensable because Plainbull did not establish that it was medically more probable than not that the 

### injury caused the condition. Section 39-71-407(2), MCA (1989), does not require that a claimant establish that the injury occurred through medical testimony. subsection (b) of that statuteprovides that amedical possibility

### that a claimed injuryoccurred is insufficient proof to establish liability. However,nothing in subsection (a) requires a medical opinion 

### as to whether the injury actually occurred or not. Given traditional 

### rules of statutory interpretation, 

### we decline to read the "medical opinion1# language of subsection (b) into the burden of proof contained in subsection (a). Under the plain language of the statute, 

### it is not necessary that Plainbull establish thathis injury occurred out of and in the course of hisemployment, pursuant to 5 39-71-407, MCA (1989), through medical testimony. The claimant's burden under 

### 5 39-71-407 (2)(a)

### , MCA

(1989), is met when, with or without medical evidence, he , establishes that it is "more probable than not" that his injury occurred out of and in the course of his employment. In this case, theWorkers' Compensation Court concluded that Plainbull had suffered a work-related injury, but also concluded that he did not establish that the work-related injury caused the condition at issue. The court held that medical testimony was required to establish this causal connection, and that the testimony presented by Plainbull did not establish that it was "medically more probable than not" that the injury caused the condition. Again, there isnothing in theworkersrcompensation statutes relevant here that requires that the causal connection, which we referred to in Norman, be established through the use of medical testimony. While 

### 5 39-71-407(2)(b), MCA (1989),provides,and our prior case law holds, that simply proving, without more, that a causal connection between the injury and condition is "medically possible1'is insufficient,

### (SeeVietsv. Sweet Grass County (1978)

### , 178 Mont. 337, 583 P.2d 1070;Hash v. Montana Silversmith (1991), 248Mont. 155, 810P.2d 1174),wehave alsoheld that causationmay be establishedby indirectevidence wheremedical science isunable to provide definitive proof. 

### See Conway v. Blackfeet Indian Developers, Inc. (1983), 205 Mont. 459, 669 P.2d 225; Hengel v. Pacific Hide & Fur Depot (1986), 224 Mont. 525, 730 P.2d 1163;Moffett v. Bozeman Canning Co. (1933), 95Mont. 347, 26 P.2d 973. Under our present statutory scheme, all that the legislature has required of a claimant is that he establish that it is "more probable thannot" thathis injury or aggravation of a preexisting condition occur out of and in the course of his employment and, implicitly, under the case law,thatthe injurycause the condition for which he is seeking workers' compensation benefits. Whether the claimant chooses to meet that burden with medical evidence, non-medical evidence or a combination of both, is up to him and, obviously, dependsonthe factsand circumstances of his particular case,thenature of the claimed injury,and the evidenceavailable. We emphasize that theburden of proof remains the claimant's. He is entitled to prove his casewith whatever probative evidence he chooses or has available. In order that claimants not read into this case more than is intended, we also point out, however, that in most cases, while the occurrence of the injury may be susceptibletoproof without medical evidence,the causation of the claimant's conditionmay very well require medical evidence if the claimant isto successfully meet hisburden of proof, especially in the face of contrary medical evidence presented by the carrier. While wewill not read into the statute and into claimant'sburden to prove causation the requirement that he use medical evidence, neither do we, here, in any manner, eliminate the necessity for such evidence where that sort of evidence is a necessary part of the claimant's case and where, without medical evidence, he will not successfully meet his burden of proof.Applying theabove,we reviewthe record of the lower court to determine whether the evidence presented establishes that Plainbull's condition was more probably than not caused by the work-related injury of May 10, 1991. The Workers' Compensation Court concluded that Plainbull did not establish that the injury caused his condition. Our standard of review of the Workers' Compensation Court decision is to determine whether there is substantial credible evidenceto support the findings and conclusions of the court. EBI/Orion Group v. State Comp. Mutual Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d 1070, 1072. The Workers1CompensationCourt relied entirely on the opinion testimony of Dr. Gingrich, an optometrist,who testified that, to a reasonable degree of medical certainty, the injury of May 10, 1991, did not cause the left eye condition. Dr. Gingrich was unable to give an opinion as to what did cause the left eye condition,and when askedwhat could cause the diagnosed choroidal rupture with macular involvements, Dr. Gingrich was unable to

answer. 

### He repeatedly testified that certain questions were "out of the scope of [his] expertise" and "out of [his] range of expertise." He also admitted that he based his opinions on the opinions of Dr. Fishburn, an ophthalmologistwho did not testify. Two ophthalmologists who examined Plainbull diagnosed a choroidal rupture in the left eye. Dr. Kirmani testified that he was unable toascertainthe age of the injuryat the examination on May 16, 1991, but did not testify that the condition predated theMay 10 injury. Dr. Kirmani also testified that, initially after the injury, hemorrhagingwould appear around the rupture site,but that thehemorrhagewould disappear within a fewdays,and all that would be left would be the rupture itself. He stated that the injury causing the rupture to the eye could have occurred on May 10, 1991. Dr. Priddy indicated on August 12, 1991, that he was unable to say that the choroidal rupture predated the May 10 injury,but in a letter dated January 14, 1992, stated that he saw nothing about the injury that suggested itwas old. In addition,on April 21, 1992, Dr. Priddy indicated that he believed it was possible that Plainbull's injurywas caused by the May 10 accident. In addition, Plainbull testified that he had no eye injuries prior to the May 10 injury. He also presented evidence regarding his vision prior to the May 10 incident. In a firefighter's physical dated June 9, 1988, Plainbull's uncorrected left eye visual acuity was 20/40. Three days after the injury, on May 13, 1991, Dr. Shaub recorded Plainbull's corrected left eye visual acuity at 20/50. Within six days after the injury, the left eye corrected vision 

### was 20/70, and by July 2, 1991, the corrected vision in the left eye was 20/400. Based 

### on this record,

### we find that there is not substantial credible evidence to support the Workers' Compensation Court's findings and conclusions that the May 10 injury did not cause Plainbull's condition. The court relied on the opinion of an optometrist who repeatedly testified thathewas outsidehis fieldof expertise and who admitted that the opinions he gave were not his own. Prior to May 10, 1991, Plainbull had no left eye condition and less than two months after the injury his condition had deteriorated substantially. None of thedoctors with expertise in the area testified that the May 10, 1991 injury did not cause Plainbull's condition and, in fact, one of the doctors testified that the injury could have caused the condition. In fact, the Workers' Compensation Court concluded that the deteriorating condition of Plainbull's eye "seem[ed] to indicate an inciting event occurring sometime around the date of injury." Taken together, the medical and non-medical evidence presented in this case proves beyond a medical possibility the causal connection between Plainbull's injury and his condition. Such evidence, in fact, establishes that Plainbull's injury more probably than not caused the condition for which he seeks workers1 compensation benefits; that is all that the law requires. Based on this record as a whole,we hold that the Workers' Compensation Court erred in holding Plainbull to a higher standard of proof than that required by the statute and in concluding that the "medicallymore probable than not" standard must be satisfied to establish a compensable injury. Moreover, we hold that Plainbull satisfied his burden of proof that itwas more probable thannot that his injury arose out of and in the course of his employment, and that the injury caused the left eye condition. We note that Plainbull has requested an award of attorney's fees and the statutory twenty percent penalty. Because theWorkers' compensationCourt found in favor of the insurer, itnever reached those issues. Inasmuch as we are reversing for entry of judgment in favor of Plainbull, we also remand to the Workers' Compensation Court for a determination of whether an award of the penalty and attorney's fees is appropriate and, if so, the amount to be awarded. Reversed and remanded.

1 We Concur:

### March10. 1994 CERTIFICATEOFSERVICE Ihereby certifythatthefollowingorderwassentbyUnitedStatesmail,prepaid, tothefollowing named:

DONEDGARBURRIS Attorneyat

### Law P.O. Box2344 Billings,MT 59103-2344 JamesG.Edmiston,I11 Attorneyat

### Law P.O.Box7187 Billings,MT 59103-7187

EDSMITH CLERKOFTHESUPREME COURT STATEOF MONTANA