No. 95-102 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

GERALD WILSON, 

Petitioner and Appellant, 

Employer. 

APPEAL FROM: Workers' Compensation Court, State of Montana 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

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 on Briefs: August 17, 1995 

Decided: September 26, 1995 
Justice Karla M. Gray delivered the Opinion of the Court. 

Gerard Wilson (Wilson) appeals from the Findings of Fact, 

Conclusions of Law and Judgment of the Workers' Compensation Court 

denying his claim for permanent partial disability benefits for his 

1986 and 1988 work-related injuries. We affirm. 

We consider the following issue on appeal: 

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, he was employed as a full-time 

package-car driver. Wilson suffered two work-related injuries 

while employed by UPS, one on April 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 a UPS truck. As he lifted a box to about eye level, 

he felt a "major pop" in his upper back. As a result of this 

injury, Wilson missed work from May 5, 1986, through June 2, 1986. 

Various doctors examined Wilson after his 1986 injury. Dr. 

Michael Strekall, Dr. William Batey and Dr. Kenneth Carpenter each 

diagnosed Wilson with some form of back strain. On May 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 he sustained his 1988 

injury. 

On December 27, 1988, Wilson injured his back when he slipped 

and fell on a UPS customer's driveway after delivering a package. 

He landed on his back, head and elbows. 

The following day, Dr. Batey examined Wilson; he diagnosed a 

contusion of the lumbar spine and prescribed rest, heat and Motrin 

for the next two to three days. He observed that Wilson did not 

appear to be in a significant amount of pain. Wilson followed up 

with Dr. Batey on January 4, 1989, and informed Dr. Batey that he 

had returned to work but the pain had persisted. Dr. Batey 

diagnosed a lumbar strain. 

Wilson left his job with UPS in March of 1990. He did not 

seek additional medical treatment regarding his back complaints 

until October 26, 1990, when he was examined by Dr. Harris Hanson. 

Dr. Hanson noted that Wilson felt a pop in his back a few days 

prior to this visit and diagnosed back strain in the lumbar and 

dorsal areas. At that time, Wilson was employed by Sweetheart 

Bakery as a delivery-car driver. 

Wilson did not seek further medical attention relating to back 

problems until May 26, 1993. At that time, he saw Dr. Batey and 

told him that he had been experiencing ongoing back pain since his 

1986 and 1988 injuries. Dr. Batey examined Wilson and diagnosed 

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chronic 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 a five 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 a five percent indemnity award based on Dr. 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 a hearing 

on Wilson's claim, the Workers' Compensation Court found that 

Wilson failed to establish that his present back problems were 

attributable to his 1986 and 1988 work-related injuries. The court 

concluded, on that basis, that he was 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? 

4 
The law in effect at the time of a work-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 1985 version of the Workers' Compensation Act 

(the Act) applies to Wilson's 1986 back injury and the 1987 version 

of the Act applies to his 1988 injury. Pursuant to both versions 

of the Act, a claimant must establish that a work-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 a mere 

scintilla of evidence but may be less than a preponderance of the 

evidence. Miller, 809 P.2d at 1261. We will not substitute our 

judgment for that of the trial court when the issue relates to the 

weight given to certain evidence or the credibility of the 

5 
witnesses. 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 as the Workers' Compensation Court to judge the weight to 

be given to that evidence. We have 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), 268 Mont. 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 1988 work-related injuries were 

strains which were wholly resolved within weeks than that the 

earlier injuries caused Wilson's current back problems. The court 

6 
relied, in part, on Dr. Chambers' testimony. 

Dr. Chambers interviewed Wilson and considered his medical 

history. He also 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 be detected that would support or explain 

[Wilson's] peripheral complaints on a physical basis." He opined 

that the progression of Wilson's subjective complaints was 

consistent with the natural history of chronic back pain syndrome 

and concluded that Wilson did not sustain any permanent impairment 

as a result of his 1986 and 1988 injuries. 

Dr. Chambers subsequently had x-rays of Wilson's spine 

forwarded to him for his review. After reviewing and comparing 

four sets of x-rays taken between January 4, 1989, and September 7, 

1993, Dr. Chambers concluded that the x-rays "show no evidence of 

change that could reflect an ongoing 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 on March 

26, 1990, and concluded that they appeared normal. Additionally, 

Dr. Dan Alzheimer x-rayed Wilson's lumbar spine at Dr. Weinert's 

request and reported that Wilson's lumbar spine was normal and 

"demonstrate[dl no evidence of disc space compromise." 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 was problematic 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, he reapportioned 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 was based primarily on the 

medical history provided by Wilson. The Workers' Compensation 

Court had an opportunity at trial to observe Wilson's demeanor and 

to consider his testimony in light of all of the evidence 

presented. The court found that Wilson was not a credible witness. 

It is well-settled that we will not substitute our judgment for 

that of the Workers' Compensation Court concerning the credibility 

8 
of witnesses or the weight to be given their testimony. Shupert v. 

Anaconda Aluminum Co. (1985), 215 Mont. 182, 187, 696 p.2d 436, 439 

(citation omitted). 

Wilson asserted that he has suffered ongoing back pain since 

his 1986 and 1988 injuries. However, other evidence presented at 

trial directly contradicted Wilson's testimony. On April 20, 1988, 

Wilson underwent a United States Department of Transportation (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 

DOT examination on March 26, 1990. Dr. Batey noted "no problems" 

and that Wilson was "doing well." Approximately six months later, 

Dr. Batey examined Wilson regarding an eye problem. He noted no 

changes in Wilson's health since the March DOT examination and 

approved Wilson to take a fire-fighter physical examination. On 

March 23, 1992, Wilson underwent another DOT examination. 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 he had suffered ongoing 

back pain since his work-related injuries until May 26, 1993, when 

he was examined by Dr. Batey. 

We conclude 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 

9 
condition was caused by those injuries 

Affirmed. 

We concur: 

Justices 

10 
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 do not 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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