### Xo. 84-354 

### INTHE SUPREME COURT OF 

### THE STATEOF 

### MONTANA 1985

JOHNA. DAVIS (FATAL) VIVIAN MARIE DAVIS, Claimant and Respondent,

GEORGE

### W. JONES, Employer, and MOUNTAINWEST FA,W BUREAU MUTUAL INSURANCECOMPAYY

# , DefendahtandAppellant.

APPEAL FROM: Workers' Compensation Court, TheHonorableTimothy Reardon, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Utick,Grosfield & 

### Uda;Andrew J. Utick, Helena, Montana

ForRespondent: JosephE. Engel, 111,Great Falls,Montana

Submitted onBriefs: March 28, 1985 Decided: June 13, 1985



## --- ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Defendant Mountain West appeals from an order of the Workers' Compensation Court finding employer and insurer liable to claimant for benefits under the Workers' Compensation Act. This 

### is a continuation of a case that has previously been before this Court. In Davis v. Jones (Mont. 1983), 661 P.2d 859, 40 St.Rep. 570, we held that the employer, Jones,

was estopped from assertingthe statuteof limitations tobar claimant's request for compensation. The present action 

### is

an appeal from the Workers' Compensation Court's determination that Davis' fatal heart attack was a compensable injury. Testimony indicated the following facts: On February 16, 1980, John Davis was working as a ranch hand. One of his duties was to chop through the 

### ice covering cattlewatering holes sothat the cattle could drink. To do this, he used a dull ax tobreak the 

### ice and a shovel orpitchfork torpmove the broken 

### ice from the hole. Hewould have tochop a hole through the ice two feet wide and ten feet long. This activity usually led to Davis getting 

### wet from the knees down, and otherwise was very strenuous work. On the date in question, the air temperature was somewhere between -10 and +20 degrees Fahrenheit, with a wind chill down to -31 degrees. Prior to 10:30 a.m. on February 16, Davis had already chopped one watering hole. Sometime during that morning he began to experience a sensation like a brick on his chest while chopping ice to make the second watering hole. 

### One

### time he passed out on the ice and when regaining consciousness feltvery cold. At 

### approximately 10:30 a.m., after Davis regained consciousness, the employer and a 

### co-employee, Louis Velasco, found him sittingorkneeling on the ice and leaning against the handle of his ax he used to chop through the ice. The employer spokewith employee Davis who complained of chest pain and said that he did not feel well. The employer suggested that he leave work and see a doctor. Shortly thereafter, Davis left the water hole and proceeded tohis vehicle. He 

### continued toexperience chest pain, although 

### less 

### severe than originally experienced. Between approximately noon and 1:00 p.m., he was sittingin hisvehicle and continuingtoexperiencemoderate chestpain. He declined to help 

### a co-employee. Davis told another co-employee that he was going to 

### see a doctor and that he feltsick, asthough he had the flu. At 

### approximately 1:00 p.m. that day, Davis arrived at the home of Judy and Ralph Paddock. While standing in the front yard, he complained toJudy Paddock about having felt like there was a brick on his chest while chopping 

### ice, passing out, and feeling very cold when regaining consciousness. He 

### complained of still 

### being cold, of chest pain, and repeatedly saidhe wanted tocallDr. 

### Sidensticker. Other complaints were of numbness inhishands and aching in his arms; and while he did so he rotated his shoulders and

arms. To Judy Paddock, he appeared pale, cold and "shook-up." In the Paddock house, Davis told Ralph Paddock that he had passed out while chopping ice that morning and that right then he felt cold and had a chest pain. RalphPaddock testified that Davis appeared upset, nervous and scared. Davis left the Paddocks' house at approximately 4:30 p.m. While driving home he almost blacked-out three 

### times and had to stop his vehicle on each occasion. When he arrived home about 7:30 or 8:00 p.m., he immediately asked his wife, the claimant, for something cold to drink, complaining about having been thirsty allday and about not havingbeen able

### togetenough cold fluidstodrink. Hethen sat down and drank approximately a gallon of 

### ice tea. He looked tired, gray and was shaking. He told hiswife that while chopping

### ice duringthemorning he had passed outafter experiencing chest pain. He also complained of having "hard chest pains on and off all day." A 

### little bit later while sittingatthe dinner table, Davis complained of chest pains and numbness inone arm. He didnot finishdinner. Heasked for something cold to eat and then ate two bowls of 

### ice

cream. Hiswife ran a tub of hotwater sothathe could take his usual bath, but he said that he was too tired, and that he would rather 

### lie down. 

### He then got up from the dinner table and went into the bedroom. Soon after Davis leftthe kitchen and while hiswifewas removing thedinner dishes she heard him moaning in the bedroom. She entered the bedroom and saw that he had vomited. He was rolling on the bed holding hischest and moaning, actingasthough hewas unable togetenough air. Vivian Davis, the claimant, got her husband into the family car and then drove to a nearby gasoline service station. As they pulled up tothe gas stat-ion, John Davis grabbed his chest and starting gasping for breath and

### rocking. The claimant attempted to clear his throat. He suddenlyquitbreathing. She gave him artificial respiration and revived him temporarily. His

### heartattack continued, and severalminutes laterhe sighed deeply and died. TheWorkers' Compensation Court found thatthedecedent died of 

### a heart attack. It 

### also found thathisheart attack began while he was chopping 

### ice tomake a second watering hole on the morning of February 16, 1980 and continued throughout theday and ended withhisdeaththatevening. On those findings, the Workers' Compensation Court held that employer and insurer 

### were liable for claimant's benefits under the Workers' Compensation Act. 

### Appellant, Mountain West 

### Farm Bureau, presents the following issues for review: (1) Whether there was a causal relati-onship between John Davis' myocardial infarction and resultingdeath and his work activities. (2) Whether, even assuming there was a causal relationship between John Davis' myocardial infarction and his work activities, such myocardial infarction 

### is a compensable injury under the Montana Workers' Compensation Act. 

### The Workers' Compensation Court held thatthe decedent died from a myocardial infarction and that this injury was sufficientlywork related soastobring 

### it within the ambit of the Workers' Compensation Act. 

### In challenging this determination, the appellant raises inconsistencies and weaknesses in claimant's case, alleging an insufficient causal relationship between claimant's work activities and the heart attack. In considering such an argument, 

### we have firmly adhered 

### tothe

### view thatwhere the findings arebased

### 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 evidence to support contrary findings

# . Little

v. Structural Systems (1980), 188 Mont. 482, 614 P.2d 516; Jensen 

### v. Zook Brothers Construction Company (1978), 178 Mont. 59, 582 P.2d 1191; see also Jones v. St. Regis Paper Company (1981),196 Mont. 138, 639 P.2d 1140. We find that the Workers' Compensation Court's order

was based on substantial credible evidence in the record. In

a well-reasoned and comprehensive opinion, the Workers' Compensation Court addressed many factors thatwent into its decision. The claimant herself was found to be a 

### very credible witness. The claimant's hypothetical question presented to each party's expert was found to be accurate. The claimant1 s medical expert was found to be more qualified and his opinion was accorded greater weight. Finally, the nature of decedent's work and the particular activity he was engaged in at the time the initial heart attack occurred lends support to the Workers' Compensation Court's order. Given the presumption of correctness that accompanies the Workers' Compensation Court's findings when they reach this Court, we will not overrule this order, Erhart v. Great Western Sugar Company (1976), 169 Mont. 375, 546 P.2d 1055; Hurlbutv. Vollstedt Kerr Company (1975),167Mont. 303, 308, 538 P.2d 

### 344, 346; Hunt and Luinstra, "TheMontana Workers' Compensation Court" 41Mont.L.Rev. 1, 18, (1980). As 

### to the second issue,we have in the past held that in certain casesheart attacks are cornpensable injuries under Montana Workers' Compensation Act. See, Rathbun v. TaberTank Lines, Inc. (1955), 129 Mont. 121, 283 P.2d 966, (compensation allowed); Dumont v. Wickens Bros. Constr. Company (1979), 183 Mont. 190, 598 P.2d 1107; Hurlbut v. Vollstedt 

### Kerr Company, supra; Ness v. Diamond Asphalt Company (1964)" 143 Mont. 560, 393 P.2d 43, (compensation denied)

# . See also Grosfield

## , Montana Workers

## ' Compensation Manual 53.40 (1979). The question of whether an employee suffered a job related "tangiable happening of a traumatic nature from an unexpected cause or unusual strain resulting in

# . .. harm," section 39-71-119, MCA, 

### is one of fact. In thatregard thecourtmust "relyon crediblemedical evidence to determine" whether the injury 

### is compensable, Jones v. Bair's Cafe (1968), 152Mont. 13, 19, 445 P.2d 923, 926, 

### see alsoDumont 

### v. Wickens Bros. Constr. Company, supra, at205, 206, 598 P.2d at 1107. The lower court inthiscase noted that "in the instant case, the decedent was performing strenuous physical labor and

# .. .the medical evidence proved 

### it caused his heart attack.I' The Hurlbut case, supra, upon which appellant 

### relies 

### is distinguishable in the fact that this Court, quoting the medical 

### witness, noted that he could 

## - not state what was the cause of Mr. Hurlbut's heart attack and held: "Claimant failed to carry his burden and therefore cannot qualify under the statute for benefits." In accord are Dumont

## , supra Hurlbut, supra, Ness

## , supra, and Rathbun

## , supra.Again, 

### we are presented with the question of whether there 

### is substantial evidence on the record to support the Workers' Compensation Court's determination that the decedent's heart attack was caused by his work. Expertstestified on behalf of each side. Each elaborated upon the

cause of decedent's heart attack. The court heard this testimony, and held that the claimant had established by a preponderance of the credible medical evidence that decedent's heart attack was work related. We find there 

### is substantial evidence in therecord and the court's order 

### is, therefore, affirmed.

We concur: N 

### /' 

# i Justice