No. 95-102 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1995

GERALDWILSON,

Petitioner andAppellant,

Employer.

APPEAL FROM: Workers' Compensation Court, State of Montana

The Honorable Mike McCarter, Judge presiding.

COUNSELOFRECORD:

For Appellant: Richard J. Pyfer, Attorney at Law; Small, Hatch, Doubek &Pyfer, Helena, Montana For Respondent: Larry W.Jones, Attorney at Law; Liberty Northwest Insurance, Missoula, Montana

Filed: Submitted onBriefs: August 17, 1995 Decided: September 26, 1995Justice Karla M. Gray delivered the Opinion of the Court.

Gerard Wilson (Wilson) appeals from the Findings of Fact, Conclusions of Lawand Judgment of the Workers' Compensation Court denying his claim for permanent partial disability benefits for his 1986 and 1988 work-related injuries. Weaffirm. Weconsider the following issue onappeal: Is the Workers' Compensation Court's finding that Wilson failed to establish that his present back condition was caused by his work-related injuries supported by substantial credible evidence? Wilson began working for United Parcel Service (UPS) as a porter in 1979. Within two years, hewas employed as afull-time package-car driver. Wilson suffered two work-related injuries while employed by UPS, one onApril 16, 1986, and one on December 27, 1988. At the time of both of these injuries, UPS' workers' compensation insurer was Liberty Mutual Fire Insurance Company (Liberty). Liberty accepted liability for both injuries. Wilson's 1986 work-related injury occurred while loading packages onto aUPStruck. Ashelifted abox to about eye level, he felt a "major pop" in his upper back. As a result of this injury, Wilson missed work from May5, 1986, through June 2, 1986. Various doctors examined Wilson after his 1986 injury. Dr. Michael Strekall, Dr. William Batey andDr. Kenneth Carpenter each diagnosed Wilson with someform of back strain. OnMay 30, 1986,

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### Dr. Carpenter released Wilson to return to work full-time as a

package-car driver. Wilson did not seek additional medical treatment regarding back complaints until hesustained his 1988 injury.OnDecember27, 1988, Wilson injured his backwhenheslipped andfell onaUPScustomer's driveway after delivering apackage. Helanded onhis back, headandelbows. Thefollowing day, Dr. Batey examined Wilson; hediagnosed a contusion of the lumbar spine andprescribed rest, heat andMotrin for the next two to three days. Heobserved that Wilson did not appear to bein asignificant amountof pain. Wilson followed up with Dr. Batey onJanuary 4, 1989, andinformed Dr. Batey that he had returned to work but the pain had persisted. Dr. Batey diagnosed alumbar strain. Wilson left his job with UPSin March of 1990. Hedid not seek additional medical treatment regarding his back complaints until October 26, 1990, whenhewasexamined byDr. Harris Hanson. Dr. Hanson noted that Wilson felt apop in his back afew days prior to this visit anddiagnosed back strain in the lumbar and dorsal areas. At that time, Wilson wasemployed by Sweetheart Bakery asadelivery-car driver. Wilson didnot seekfurther medical attention relating toback problems until May26, 1993. At that time, hesawDr. Batey and told himthat hehadbeenexperiencing ongoing backpain since his 1986and1988injuries. Dr. Batey examined Wilson anddiagnosed

3chronic lumbar strain. On June 9, 1993, Dr. Batey noted no

improvement and referred Wilson to Dr. Allen Weinert. Dr. Weinert diagnosed degenerative disc disease in the ~4-5 and L5-Sl levels and opined that Wilson suffered from chronic discogenic pain. His diagnosis was based primarily on Wilson's medical history. Dr. Weinert provided afive percent impairment rating with respect to Wilson's back condition, apportioned as three percent for Wilson's 1986 injury, one percent for the 1988 injury, and one percent for "his March of 1990 injury." Liberty paid Wilson afive percent indemnity award based onDr. Weinert's impairment rating. At Liberty's request, Dr. Robert Chambers examined Wilson on March 9, 1994. He disagreed with Dr. Weinert's diagnosis of degenerative disc disease and diagnosed Wilson with chronic back pain syndrome. Upon receipt of Dr. Chambers' report, Liberty denied further liability for permanent partial disability benefits. In May of 1994, Wilson petitioned the Workers' Compensation Court for permanent partial disability benefits. After ahearing
on Wilson's claim, the Workers' Compensation Court found that Wilson failed to establish that his present back problems were attributable to his 1986and 1988work-related injuries. Thecourt concluded, onthat basis, that hewas not entitled to permanent partial disability benefits. Wilson appeals. Is the Workers' Compensation Court's finding that Wilson failed to establish that his present back condition was caused by his work-related injuries supported by substantial credible evidence?
4Thelaw in effect at the time of awork-related injury governs

the determination of workers' compensation benefits. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Here, the 1985version of the Workers' Compensation Act (the Act) applies toWilson's 1986back injury andthe 1987version of the Act applies to his 1988 injury. Pursuant to both versions of the Act, aclaimant must establish that awork-related injury caused his disabling condition. See §§39-71-116(U), MCA(1985), and 39-71-116(14), MCA (1987). After considering the evidence presented at trial, the Workers' Compensation Court found it more likely that Wilson's 1986 and 1988 injuries were strains which were wholly resolved within weeks and, therefore, that Wilson had not established a causal connection between those injuries and his present back problems. This finding is pivotal because, absent Wilson establishing the statutorily-required causal connection, he is not entitled to permanent partial disability benefits. Our standard in reviewing findings of the Workers' Compensation Court is whether they are supported by substantial credible evidence. Miller v. Frasure (19911, 248 Mont. 132, 137, 809 P.2d 1257, 1260. Substantial evidence is more than amere scintilla of evidence but maybe less than apreponderance of the evidence. Miller, 809 P.2d at 1261. Wewill not substitute our judgment for that of the trial court whenthe issue relates to the weight given to certain evidence or the credibility of the

5witnesses. Burns v. Plum Creek Timber Co. (1994), 268 Mont. 82,

84, 885 P.2d 508, 509 (citation omitted). Wilson points out that, because the medical evidence in this
case was presented through depositions, we are in as good a position asthe Workers' Compensation Court to judge the weight to be given to that evidence. Wehave stated, however, that our review of medical evidence presented through depositions must be considered in the context of the other evidence presented at trial which was relevant to the medical issue. Caekaert v. State Compensation Mutual Ins. Fund (1994), 268Mont. 105, 110, 885 P.2d 495, 498; citing McIntyre v. Glen Lake Irrigation District (1991), 249 Mont. 63, 68, 813 P.2d 451, 454. Therefore, although Wilson correctly states our standard in reviewing medical evidence presented through depositions on a stand-alone basis, we will uphold the decision of the Workers' Compensation Court where substantial credible evidence supports that overall decision. Sciuchetti v. Hurt Construction (1989), 238 Mont. 170, 174, 777 P.2d 308, 311. Here, the Workers' Compensation Court weighed conflicting evidence regarding whether Wilson's present back problems were caused by his 1986 and 1988 work-related injuries and made credibility determinations. Having done so, the court found it
more likely that Wilson's 1986 and 1988work-related injuries were strains which were wholly resolved within weeks than that the earlier injuries caused Wilson's current back problems. The court

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### relied, inpart, onDr. Chambers' testimony.

Dr. Chambers interviewed Wilson andconsidered his medical history. Healso reviewed reports prepared by the doctors who examined Wilson subsequent to his 1986 and 1988 injuries. Dr. Chambers examined Wilson on March 9, 1994. During Wilson's physical examination, Dr. Chambers observed that "no supporting objective findings could bedetected that would support orexplain [Wilson's] peripheral complaints onaphysical basis." Heopined that the progression of Wilson's subjective complaints was consistent with the natural history of chronic backpain syndrome andconcluded that Wilson did not sustain anypermanent impairment
asaresult of his 1986and1988injuries. Dr. Chambers subsequently had x-rays of Wilson's spine forwarded to him for his review. After reviewing andcomparing four sets ofx-rays taken between January 4, 1989, andSeptember 7, 1993, Dr. Chambersconcluded that the x-rays "shownoevidence of changethat could reflect anongoing reactive process that could be related to either of [Wilson's] industrial incidents." Additional medical evidence buttresses Dr. Chambers' opinion. Dr. Batey reviewed x-rays of Wilson's lumbar spine taken onMarch 26, 

### 1990, andconcluded that they appeared normal. Additionally, Dr. DanAlzheimer x-rayed Wilson's lumbar spine at Dr. Weinert's request and reported that Wilson's lumbar spine wasnormal and "demonstrate[dl noevidence ofdisc spacecompromise." Dr. Weinert agreed with this report.It is true, as Wilson argues, that other portions of Dr.

Weinert's testimony support Wilson's claim that he has suffered ongoing back pain since his work-related injuries. Our standard, however, is not whether evidence supports findings different from those made by the Workers' Compensation Court, but whether substantial credible evidence supports the court's findings. Caekaert, 885 P.Zd at 498 (citation omitted). In any event, the Workers' Compensation Court determined that Dr. Weinert's testimony wasproblematic in several respects. Dr. Weinert repudiated his earlier apportionment of one percent of Wilson's five percent impairment rating to an unconfirmed March 1990 injury and simply amended the impairment rating to exclude reference to the 1990 injury. In doing so, hereapportioned the five percent impairment rating between the 1986 and 1988 injuries. Furthermore, Dr. Weinert adhered to his medical opinion that Wilson suffers from degenerative disc disease attributable to the 1986 and 1988 work-related injuries notwithstanding his agreement with Dr. Alzheimer's report that Wilson's lumbar spine was normal. Moreover, Dr. Weinert's diagnosis wasbased primarily onthe medical history provided by Wilson. The Workers' Compensation Court had anopportunity at trial to observe Wilson's demeanor and to consider his testimony in light of all of the evidence presented. Thecourt found that Wilson wasnot acredible witness. It is well-settled that wewill not substitute our judgment for that of the Workers' Compensation Court concerning the credibility

8of witnesses orthe weight to begiven their testimony. Shupert v.

Anaconda Aluminum Co. (1985), 215Mont. 182, 187, 696 p.2d 436, 439 (citation omitted). Wilson asserted that hehas suffered ongoing back pain since his 1986 and 1988 injuries. However, other evidence presented at trial directly contradicted Wilson's testimony. OnApril 20, 1988, Wilson underwent aUnited States Department ofTransportation (DOT) physical examination in which the examining physician noted that Wilson had pulled muscles in his back but that, regarding this problem, there was "nothing on going." Wilson underwent another DOTexamination onMarch 26, 1990. Dr. Batey noted "no problems" andthat Wilson was "doing well." Approximately six months later, Dr. Batey examined Wilson regarding an eye problem. Henoted no changes in Wilson's health since the March DOTexamination and approved Wilson to take afire-fighter physical examination. On March 23, 1992, Wilson underwent another DOTexamination. Wilson passed the examination and there was no indication of any back problems at that time. Additionally, it appears from the record that Wilson did not tell any doctor that hehad suffered ongoing back pain since his work-related injuries until May26, 1993, when hewas examined by Dr. Batey. Weconclude that substantial credible evidence supports the Workers' Compensation Court's finding that the 1986 and 1988 injuries were strains which were wholly resolved within weeks and, therefore, that Wilson failed to establish that his present back

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### condition wascausedbythose injuries

Affirmed.

Weconcur:

Justices



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### Justice Terry N. Trieweiler specially concurring.

I concur with the majority's conclusion that there was substantial evidence to support the judgment of the Workers' Compensation Court. Therefore, I would affirm that judgment. However, I donot agree with all that is said in the majority opinion.

Justice William E. Hunt, Sr., joins in the foregoing specially concurring opinion.

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