No. 14756 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

ODESSEY S. STAMATIS (Fatal)

## , JESSIEM. STAMATIS,Claimant and Appellant,

BECHTEL POWER CORPORATION, Employer, and INDUSTRIAL INDEMNITY COMPANY, Defendant and Respondent.

Appeal from: Workers' Compensation Court HonorableWilliam E. Hunt, Judge presiding. Counsel of Record: ForAppellant: Lewis E. Brueggemann argued, Billings,Montana For Respondent: Marra, Wenz, Iwen and Johnson, Great Falls,Montana Charles R. Johnson argued, Great Falls,Montana

Submitted: September 20, 1979 Decided: 

## OCT2

# :7979Mr. Chief Justice Frank I. Haswell delivered theOpinion of theCourt. Claimant appeals from a judgment of theWorkers' Compensation Court denyingWorkers' Compensation benefits for the death of her husband. We affirm. Claimant's husband, Odessey S. Stamatis, was employed

as an electricianby Bechtel Power Corporation ata plant

near Colstrip, Montana, on March 3, 1976. He collapsed on thejob, was taken by ambulance toa Forsyth hospital, and

was pronounced dead on arrival. Hiswidow filed a claim forbenefits under theWorkers' Compensation Actagainst Industrial Insurance Company, Bechtel's Plan I1 carrier. A hearing was held before the Workers' Compensation Court atwhich much conflictingevidence

was introduced by the respective parties. Roderick Switzer, a fellowemployee of decedent, testified they spent themorning of his death installing conduit sectionsweighing 10to 15pounds a piece and pulling severalwires through 50 to 100 feetof the conduit. Switzer indicated thiswas very strenuouswork involving liftingwith your whole body on a pull from below your knees and crawling through a spaceof about three feetbetween the floor and bottom of a generator inthework area. Switzer testified he did not take his lunch break with decedent, but thatwhen he returned towork thereafter he saw decedent collapse ashe picked up some materials from a work bench. The other version of what happened on the day of decedent's death came from the testimony of Gordon Ziegeldorf,

a fellow employee, and Michael Laslovich, decedent's foreman. Ziegeldorf testified thathe and decedent worked together that day carrying light fixtures from a warehouse intothe Bechtel plant and cleaning them preparatory to installation.This activity involved walking 50 to 100 yards from the plant to the warehouse, carrying a single light fixture weighing about 20 pounds back to the plant each trip, loading the fixtures on an elevator that transported them to the 120 foot level of the plant, and cleaning them with soap and water at the 120 foot level. Ziegeldorf testified the work was not strenuous,did not involve heavy lifting, and did not involve climbing stairs. According to Ziegeldorf, decedent at no time complained that the work was tiring or causing him any physical discomfort. Decedent and Ziegeldorf took a coffee break at about 2:30 in the afternoon and as they were returning to work thereafter, decedent collapsed while walking ahead of Ziegeldorf and fell back into his arms. Foreman Laslovich recalled that decedent worked with Ziegeldorf on the day of his death stocking and cleaning light fixtures. Laslovich testified that he saw decedent collapse in Ziegeldorf's arms as the men walked back towork following the afternoon coffee break. He stated that it was customary to assign decedent nonstrenuous jobs like bringing up fixtures because of decedent's age. The foreman never recalled assigning decedent to install conduit or pull wire, but admits decedent could have performed that type of work since his job as foreman did not require him to continuously supervise themen under him. After decedent collapsed, first aid consisting of cardiopulmonary resuscitation was administered on the job site. Decedent was taken by ambulance to a hospital in Forsyth, a distance of about 35miles. Dr. Deone Hanson pronounced decedent dead on arrival at 4:45 p.m. The Rosebud County coroner examined the body and determined the cause of death to be acute coronary thrombosis. The coroner testified his examination was not extensive enough to rule out thepossibility that decedent died of myocardial infarction rather than coronary thrombosis. No autopsywas performed, The body was cremated. The record shows that decedentwas a large man standing 6'2" and weighing 250 pounds. Hewas 54years old atthe timeof hisdeath and had no pastmedical historyof heart disease. He smoked twopacks of cigarettes a day and had been smoking sinceage 13. In themonth preceding hisdeath, decedenthad worked 21 shiftstotalling 190hours foran average of about nine hoursper shift. The Saturday before he died, February 28, he worked an eight-hour overtime shift. On the day of hisdeath, the temperature atColstrip, a few miles from the Bechtel plant recorded a high of +18OF and a lowof -18OF, The temperature inside the plantwas somewhere between +40°F and +50°F. The medical testimony conflictedat severalpoints. Dr. Walter Degnan, a cardiologist, testified by deposition thatdecedent died of what is medically known as sudden death. Sudden death occurs when thepatient dies within severalhours of the onsetof symptoms and is statisticallyrelated to coronarydisease 80percent of the time. According to Dr. Degnan sudden death frequently occurs without traumatic causeor previous symptoms. The doctor testified thatwhile unusual strain increases the probability of sudden death, normal exertionwillnotproduce a heart attack. Hedid not feelthat the temperature the day of decedent's death had any relationship tohisdeath. Responding toa hypothetical question based on the effectof stocking and cleaning lightfixturesby a man of decedent's age and physical condition, Dr. Degnan testified thatexertionwas not a causal factor inhisdeath. Dr. PatrickByorth, a specialistininternalmedicine,was also deposed. He agreed that decedent died from sudden death and that sudden death is related to a coronary incident in 80 percent of the cases. However, his opinion was that vigorous physical activity precipitated the heart problems. Responding to a hypothetical question encompassing the facts testified by witness Switzer, Dr. Byorth stated physical exercisewas a probable contributing factor to decedent's death. When presented with a hypothetical question positing facts similar to the testimony of witnesses Ziegeldorf and Laslovich, Dr. Byorth testified that the physical exertion involved in decedent's activities contributed toprecipitating the heart attack. The doctor further testified that working in cold weather could contribute to a heart attack. The essence of the findings of fact by the Workersv Compensation Court was that decedent had been engaged in the task of cleaning light fixtures in the few hours prior to his collapse after a coffee break at approximately 2:45 p.m. on March 3, 1976, and that his activity was not of a strenuous physical nature, norwas it unusual, nor was the outside air temperature a factor in precipitating his collapse. The gist of the court's conclusions of lawwas that the preponderance of competent and credible evidence failed to sustain a conclusion that decedent suffered a compensable injury as defined in the WorkersvCompensation Act. Judgmentwas entered denying claimant any benefits thereunder or attorney fees. Two issues are presented for review in this appeal: 1. The sufficiency of the evidence to support the findings of the Workers1Compensation Court. 2. Did decedent suffer a compensable injury under the Workers' CompensationAct? The test of sufficiency of the evidence is whether there is substantial evidence supporting the court's findingsof fact. Head v. Larson (1979), Mont. 

## , 592 P.2d 507, 510, 36 St.Rep. 571, 575; Strandberg v. Reber Company (1978), Mont

# . , 587 P.2d 18, 20, 35 St.Rep. 1742, 1745; Jensen

v. Zook Bros. Construction Co. (1978), Mont

# . , 582 P.2d 1191, 1193, 35 St.Rep. 1066, 1068. This Court will not substitute its judgment for that of the Workers' Compensation Court concerning the credibility of the witnesses or the weight to be given their testimony. Dumont v. Wickens Bros. Construction Co. (1979), Mont. 

## , 598 P.2d 1099, 1106, 36 St.Rep. 1471, 1479-1480; Steffes v. 93 Leasing Co., Inc. Mont

# . (1978) I 

## , 580 P.2d 450, 452-453, 35 St.Rep, 816, Mont

# . 818; Crittendon

### v. City of Butte (1977, 

## , 559 P.2d 816, 817,/34 St.Rep. 3, 4. Thus, where the findlngs are ba-on conflicting evidence, our function of review is confined to determining whether there is substantial evidence supporting such findings. Jensen, supra, 582 P.2d at 1194. Conversely, our function is not to determine whether there is sufficient evidence to support contrary findings. Here the evidence is conflicting concerning the cause of death. Claimant's witnesses testified decedent performed strenuous physical activity on the job prior to his death and the exertion had a causal connection with his death. Respondent's witnesses testified that decedent did nothing strenuous or unusual and that his activities on the job in the hours preceding his death had no causal relationship to his collapse and subsequent death. The Workers' Compensation Court found respondents' witnesses more credible, gave greater weight to their testimony, and entered findings accordingly. Substantial evidence supporting such findings is found in the testimony of Ziegeldorf, Laslovich, and Dr. Degnan, summarized previously. The second issue for review iswhether decedent suffered

a compensable injury under the Workers' Compensation Act. This question has two facets: (1)Did decedent suffer an injuryas defined by theAct? (2) Was such injury causally related to decedent's death? Dumont, supra, 598 P.2d at 1106-1109. The Act in pertinent part defines an injury in this language: "'Injury' or 'injured'means: "(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom

# . .." Section 39-71-119(1), MCA.

We have previously interpreted this language to mean that a claimant can recover if the physical harm suffered is unusual either from the standpoint of cause or effect. Love v. Ralph's Food Store (1973), 163 Mont. 234, 242, 516 ~.2d 598, 602; Robins v. Ogle (1971), 157Mont. 328, 333, 485 P.2d 692, 695;Jones v. Bair's Cafe (1968), 152Mont. 13, 19, 445 P.2d 923, 926. However, claimant must stillprove a tangible happening of a traumatic nature. Dumont v. Wickens Bros. Construction Co., supra, 598 P.2d at 1108;Erhart v. Great Western Sugar Company (1976), 169Mont. 375, 380-381, 546 P.2d 1055, 1058; Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 303, 306-307, 538 P.2d 344, 346. We have explained the meaning of a tangible happening of a traumatic nature in these words. "A tangible happening must be a perceptible happening. [Citationsomitted.] Some action or incident, or chain of actions or incidents,must be shownwhich may be perceived as a contributing cause of the resulting injury. This court has found neurosis compensable, but a tangible, real happeningmust be the cause of the condition

[Citationsomitted.] 

# . . . In the recent case of Love where a gradual buildup of back pain was found compensable, this Court emphasized two specific incidents of strainwere perceptible from the record." Erhart, supra, 169Mont. at 381. Here, there is no tangible happening of a traumatic nature. The Workers' Compensation Court found that claimant had been engaged in cleaning light fixtures preceding his collapse and that this activity was not of a strenuous physical nature, norunusual, nor was the outside air temperature a factor in precipitating his collapse. Taking this view of the facts, there is simply no evidence in the record of any real, perceptible or identifiable incident, action or happening of a traumatic nature within the definition of injury in the Act. Finding no injury, the required causal connection likewise fails. Accordingly, we hold there is no compensable injury as defined in the Workers' CompensationAct. Affirmed.

Chief Justice

Justices

I