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: 

For Appellant: 

Don Edgar Burris, Billings, Montana 

For Respondent: 

James G. Edmiston, 111, Billings, Montana . . 

i 

Submitted on Briefs: January 13, 1994 

MAR 1 0 1994 Decided: March 10, 1994 

Filed;. 22 .S?iitk .. P I 

CLERK OF SVPRE~E COURT *, ,, 

f,!j ;$ STATE @F NSSYTANA ,&:I 

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4 

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Justice James C. Nelson delivered the Opinion of the Court. 

The claimant, Larry C. Plainbull (Plainbull), appeals from 

Findings of Fact, Conclusions of Law, and a Judgment entered by the 

Workerst Compensation Court in favor of the respondent. We reverse 

and remand. 

The issue on appeal is whether the Workers' 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 other material 

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 saw no abrasions or foreign bodies. 

Plainbull's claim for workerst compensation benefits was 

initially accepted as a medical-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 the May 10, 1991 incident, and was thus not a compensable 

injury. 

A hearing on the matter was held on September 22, 1992, and 

depositions were 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. Shaub diagnosed a corneal abrasion. On May 15, 1991, Plainbull 

again saw Dr. Shaub, complaining of persistent discomfort in the 

left eye. Dr. Shaub diagnosed a corneal abrasion with a possible 

foreign body. 

On May 16, 1991, Plainbull saw Muzaffar 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 a macular 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. On August 12, 1991, Dr. Priddy indicated 

that he was not able to say that the choroidal rupture predated 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 

rupture with macular involvements. However, Dr. Gingrich did not 

make this diagnosis. He testified that such a diagnosis was 

outside his field expertise and that the diagnosis was 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 

comments and opinions regarding the choroidal rupture were based 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 other medical records were submitted to the Workers1 

Compensation Court. 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 the 
previous year when he was hit in the left eye with a rock and that 

Plainbull had suffered from intermittent pain off-and-on since 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, Plainbull went to the emergency room with 

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 eye pain. 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 Plainbull had 

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 the May 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 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. On May 

13, 1991, Dr. Shaub recorded Plainbull's corrected left eye visual 

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 the period 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 

whether the workersf compensation judge's interpretation of the law 

is correct. Steer, Inc. v. Deplt of Revenue (1990) , 245 Mont. 470, 

474-75, 803 P.2d 601, 603. 

The Workers' Compensation Court determined that Plainbull had 
failed 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 

insures who 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 the claimant establishes it is more probable 

than not that: 

(i) a claimed injury has occurred; or 

(ii) a claimed injury aggravated a preexisting condition. 

(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), 

248 Mont. 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 shovel and a marble-sized rock struck him in the eye. 

The court concluded that "the deteriorating 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 it was "medically more probable than not that 

the accident described by the claimant caused his eye injury." 

We hold that the Workersf Compensation Court erred in so 
concluding and find that Plainbull established his burden 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 statute provides that a medical 

possibility that a claimed injury occurred 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 that his injury occurred out of and in the course of his 
employment, 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, the Workers' 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 is nothing in the workersr compensation 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, (See Viets v. Sweet Grass County (1978) , 

178 Mont. 337, 583 P.2d 1070; Hash v. Montana Silversmith (1991), 

248 Mont. 155, 810 P.2d 1174), we have also held that causation may 

be established by indirect evidence where medical science is unable 

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), 95 Mont. 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 than not" that his injury or aggravation of a preexisting 

condition occur out of and in the course of his employment and, 

implicitly, under the case law, that the injury cause 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, depends on the facts and circumstances of his particular 

case, the nature of the claimed injury, and the evidence available. 

We emphasize that the burden of proof remains the claimant's. 

He is entitled to prove his case with 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 

susceptible to proof without medical evidence, the causation of the 

claimant's condition may very well require medical evidence if the 

claimant is to successfully meet his burden of proof, especially in 

the face of contrary medical evidence presented by the carrier. 

While we will not read into the statute and into claimant's burden 

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 the above, we review the 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 evidence to 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 Workers1 Compensation Court 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 asked what 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 ophthalmologist who did not testify. 

Two ophthalmologists who examined Plainbull diagnosed a 

choroidal rupture in the left eye. Dr. Kirmani testified that he 

was unable to ascertain the age of the injury at the examination on 

May 16, 1991, but did not testify that the condition predated the 
May 10 injury. Dr. Kirmani also testified that, initially after 

the injury, hemorrhaging would appear around the rupture site, but 

that the hemorrhage would disappear within a few days, 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 it was old. In addition, on April 

21, 1992, Dr. Priddy indicated that he believed it was possible 

that Plainbull's injury was 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 that he was outside his field 
of 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 the doctors 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 "medically more probable 

than not" standard must be satisfied to establish a compensable 

injury. Moreover, we hold that Plainbull satisfied his burden of 

proof that it was more probable than not 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 the 
Workers' compensation Court found in favor of the insurer, it never 

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: 
March 10. 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

DON EDGAR BURRIS 

Attorney at Law 

P.O. Box 2344 

Billings, MT 59103-2344 

James G. Edmiston, I11 

Attorney at Law 

P.O. Box 7187 

Billings, MT 59103-7187 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA