No. 87-313 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

DELBERT D. SNYDER, 

Claimant and Appellant, 

-vsTHE ANACONDA COMPANY, 

Employer/Defendant and Respondent, 

APPEAL FROM: The Workers1 Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Burgess, Joyce & Whelan; Thomas J. Joyce, Butte, 

Montana 

For Respondent: 

Michael J. McKeon, Anaconda, Montana 

Submitted on Briefs: Jan. 7, 1988 

Decided: March 22, 1988 

Filed: &MAR 2 2 B88 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This is an appeal from a Workers' Compensation Court 

judgment entered on July 16, 1987, denying claimant Delbert 

Snyder's petition for permanent disability benefits. We 

affirm. 

Mr. Snyder presents the following issues for review: 

(1) Did the Workers' Compensation Court err by failing 

to find that Mr. Snyder had reached maximum healing and that 

the work injury had totally and permanently disabled Mr. 

Snyder, and what effect, if any, should Mr. Snyder's car 

accident following the work injury have on his entitlement to 

benefits? 

(2) Did the lower court err in requiring Mr. Snyder to 

prove that his disability was caused by his work injury 

rather than his preexisting condition and the car accident? 

Mr. Snyder injured his back operating a mechanical 

shovel for the Anaconda Company on January 6, 1982. 

Following the injury Mr. Snyder petitioned for benefits. The 

Anaconda Company (Anaconda) denied liability contending that 

the injury was not work related. Mr. Snyder petitioned for a 

hearing before the Workers1 Compensation Court, and on 

October 11, 1985, the court held that Mr. Snyder's injury 

entitled him to medical and temporary total disability 

benefits from the date of the injury to December 28, 1982. 

The lower court refused to "speculate whether any additional 

temporary total disability benefits may be due beyond that 

date" because Mr. Snyder reinjured his back in a car wreck on 

December 28, 1982. The lower court reasoned that I' [tlhe 

claimant still has the burden of proving his case and it 
simply has not been proven that his problems after the auto 

accident are in any way related to his employment." 

Following this judgment Mr. Snyder petitioned for 

permanent disability benefits. Again the Workers1 

Compensation Court held that Mr. Snyder had failed to prove 

his case. According to the lower court, 

Claimant is, in a sense, a victim because we 

do believe he is suffering, but given the lengthy 

pre-injury medical care and subsequent car accident 

in December, 1982, he has not been able to 

establish any entitlement to additional 

compensation benefits beyond December, 1982. 

As noted by the lower court, the crux of the issue here 

is whether Mr. Snyder's disability resulted from the work 

injury, or from the 1982 car accident and his preexisting 

back problems. The medical evidence used to resolve this 

issue consisted of two depositions from James B. Mossman, Mr. 

Snyder's chiropractor, and a deposition from Charles E. 

Buehler, an orthopedic surgeon who examined Mr. Snyder at the 

request of Anaconda's claim's adjustment firm. The lower 

court also heard Mr. Snyder's testimony at the hearing held 

pursuant to his petition. 

Dr. Mossman testified that prior to the work injury he 

treated Mr. Snyder for "myositis" and associated muscle 

inflammation from the neck to the lower back. After the work 

injury Dr. Mossman stated that Mr. Snyder complained of new 

pain in the lower back. The new pain, according to Dr. 

Mossman, was probably caused by an awkward sitting position 

Mr. Snyder was forced to assume while pushing foot pedals on 

the shovel he operated for Anaconda. The position and the 

machine's vibration would "tend to cause micro-traumatic 

strain and sprain problems." 
Dr. Mossman also treated Mr. Snyder after he reinjured 

the back in the December 28, 1982 car accident. Just prior 

to the car accident, according to Dr. Mossman, Mr. Snyder's 

condition was improved but continuing and chronic. Dr. 

Mossman stated that the car accident aggravated the work 

injury and caused problems in Mr. Snyder's neck. However, by 

March of 1984, according to Dr. Mossman, Mr. Snyder's back 

had returned to its pre-accident condition. 

Dr. Mossman characterized the condition of Mr. Snyder's 

back in March of 1984 as stable and referred to it as a 

disabling "underlying chronic lumbar problem." Dr. Mossman 

also deposed that jarring and jostling of the spine at work 

probably caused the lumbar condition. However, Mr. Snyder's 

preexisting osteoarthritis of the spine also contributed to 

his disability, according to Dr. Mossman. Dr. Mossman also 

deposed that Mr. Snyder's osteoarthritis could have been 

aggravated and accelerated by Mr. Snyder's job duties. 

Dr. Buehler testified that when he examined Mr. Snyder 

in May of 1982, Mr. Snyder was suffering from. osteoarthritis 

of the lumbar spine. The osteoarthritis, according to Dr. 

Buehler, would predispose Mr. Snyder to repeated injuries if 

Mr. Snyder continued to perform the sort of duties he 

performed for Anaconda. However, on the date of his 

examination, according to Dr. Buehler, there was no evidence 

that work related trauma to the back was causing Mr. Snyder's 

problems. The problem at that time, according to Dr. 

Buehler, was the result of osteoarthritis which was severe 

for a man Mr. Snyder's age, and which predated the injury. 

The relationship between the arthritis and the work injury 

was explained in Dr. Buehler's deposition as follows: 

Q. Okay. When you examined him in May of 

1982 and made your diagnosis of diffuse arthritis, 

did you in any way conclude that the condition 
which you diagnosed in May of 1982 was caused by 

the incident he referred to while pushing on the 

pedals of the machine? 

A. No. I do not think that the arthritis in 

his back was caused while pushing on the pedals on 

the machine in January of 1982. I do think that 

maneuvers such as he described, pushing on the 

pedals, could have exacerbated a preexisting back 

condition. 

Q. Okay. Now, when you say 'could have 

exacerbated, ' are you referring to a temporary 

type of exacerbation? 

A. Probably a temporary type of exacerbation, 

yes. 

Q. Explain that if you would. 

A. I think this man has marked changes in his 

back, radiographically, with osteoarthritis that's 

going to predispose him to injuries to his back. 

His back is wearing out. There are going to be 

things that will irritate it. Usually the history 

of this problem is that these things will irritate 

it. 

He may develop some muscle spasm, some pain in 

his back for a period of time. Usually that will 

get better with proper care in taking care of it. 

But, again, he's going to have, then, repeated 

incidents. I think that's going to be the history 

of this man's back. 

Dr. Buehler did not testify as to whether or not work 

duties which demanded jarring and jostling of the spine could 

have aggravated and accelerated the osteoarthritis. Both of 

the medical experts deposed in this case agree that Mr. 

Snyder's condition prevents him from returning to the job he 

performed at the time of the work injury. 

Mr. Snyder testified that for three months after the 

work injury, extreme pain prevented him from being able to 

stand for any appreciable amount of time. Mr. Snyder also 

testified that four or five months after the work injury it. 
"leveled off" and improved. According to Mr. Snyder, as long 

as he was "more or less inactive", the injury was not a 

constant bother. 

Mr. Snyder also stated that following the 1982 car 

accident the aggravated back problem once again restricted 

him. However, Mr. Snyder testified that the aggravation 

caused by the car accident was less severe than the back 

problem he suffered from immediately after the work injury. 

Mr. Snyder also testified that around three months after the 

car accident his back improved and stabilized once again. 

Mr. Snyder equated his back problems at that time to the 

condition he suffered from just prior to the 1982 car 

accident. 

ISSUE 1 

Did the Workers' Compensation Court err by failing to 

find that Mr. Snyder had reached maximum healing and that the 

work injury had totally and permanently disabled Mr. Snyder, 

and what effect, if any, should Mr. Snyder's car accident 

following the work injury have on his entitlement to 

benefits? 

Mr. Snyder contends that the lower court improperly 

failed to find that his employment caused his disability. We 

disagree and affirm the lower court's decision to deny a 

permanent disability because substantial evidence supports 

the lower court's decision. 

The claimant bears the burden of showing an entitlement 

to benefits under the Workers' Compensation Act. Metzger v. 

Chemetron Corp. (Mont. 1984), 687 P.2d 1033, 1035, 41 St.Rep. 

1788, 1790. And in reviewing the lower court's findings, we 

will not overturn a Workers' Compensation Court decision 

supported by substantial evidence. Metzger, 687 P.2d at 

1035. 
To receive an entitlement to permanent disability 

benefits, Mr. Snyder must show by a preponderance of the 

probative credible evidence that an injury caused his 

disability. Ferdinand v. Lodge # 456, B.P.O.E., Lewistown 

(Mont. 1986), 719 P.2d 775, 777, 43 St.Rep. 955, 956-57. 

Findings based on substantial though conflicting evidence 

will not be disturbed on appeal. Ferdinand, 719 P.2d at 777. 

In this case, the medical evidence is conflicting as to 

whether or not a work related injury caused or contributed to 

Mr. Snyder's disability. In this regard, Dr. Mossman deposed 

that a series of micro-traumas occurring to Mr. Snyder's back 

culminated in the injury which caused his current disability. 

However, Dr. Buehler deposed that no sign of the injury was 

present at the time of his examination, and that 

osteoarthritis caused Mr. Snyder's disability. Dr. Buehler's 

deposition provides substantial though conflicting evidence 

that the work injury was not a factor in causing Mr. Snyder's 

disability. Thus, the lower court's findings are adequately 

supported in the record, and we affirm on this issue. 

ISSUE 2 

Did the lower court err in requiring Mr. Snyder to prove 

that his disability was caused by the work injury rather than 

the auto accident and his preexisting condition? 

As stated previously, permanent disabilities under the 

1981 Workers' Compensation Act are compensable where they 

result from what the Act defines as an "injury". See $§ 

39-71-116 (12) , 39-71-116 (13) , MCA (1981) , and see Schieno v. 

City of Billings (Mont. 1984), 683 P.2d 953, 955, 41 St.Rep. 

1157, 1159. In this case, part of Mr. Snyder's burden was a 

showing that the work injury rather than other causes 

resulted in his disability. Schieno, 683 P.2d at 955. 
Mr. Snyder contends that the evidence irrefutablv shows 

that the work injury at least contributed to his disability. 

However, Dr. Buehler's deposition provides substantial 

evidence that the injury was completely healed prior to the 

car accident. The lower court found on the basis of this 

evidence that the work injury did not contribute to the 

disability. Thus, we affirm. 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I dissent in this case where the Workers' Compensation 

Court completely missed the point it should have decided, and 

now this Court has missed it too. 

The point to be decided is this: Ts Delbert Snyder now 

totally disabled from a compensable industrial accident which 

occurred on or about January 6, 1982? Unequivocally, the 

answer should be yes. 

To begin with, the employer in Montana takes the 

physical condition of his employee, as he finds it. If the 

physical condition of the employee is fragile, from whatever 

cause, susceptible to injury and aggravation, the risk is on 

the employer. It is the compensable injury, regardless of 

the physical condition of the worker at the time, and the 

direct results of the compensable injury that determine the 

worker's right to compensation benefits. Gaffney v. 

Industrial Accident Board (1955), 129 Mont. 394, 287 P.2d 

256. 

In January, 1982, Delbert Snyder was in fragile physical 

condition. He got that way from more than 35 years of hard 

labor working for the Anaconda Company. When he was 20 years 

old, he went to work for the Anaconda Company as a contract 

miner for about two years, when he went into the armed 

services. Upon his return from the service, in 1946, he 

returned to the Anaconda Company except for a short stint at 

Hanson Packing Company. 

His first industrial accident at the Anaconda Company 

occurred in 1943. As he was coming up the Belmont Mine 

shaft, at the 3,800 foot level, something he could not 

identify hit him and he was rendered unconscious. He 
suffered a neck injury, was in the hospital, and his neck was 

"put in restriction" for a couple of weeks. 

In 1958, working as a contract miner in the Leonard 

Mine, he was involved in an underground cave-in. His left 

leg was broken between the knee and the ankle; he lost two 

toes, his middle toe is a hammer toe, his toe next to the big 

toe is stiff, and his big toe is the only useable toe on his 

left foot. He was off work with these injuries for 16 

months. Ever since he has walked with a slight limp. At the 

site of the leg fracture he has developed osteomyelitis for 

which he must wear a metal shield to avoid bumping. 

In 1960, as he was employed as a shovel oiler by the 

Anaconda Company, he and a fellow worker were attempting to 

move the shovel which required the operation of a lever. 

Because the machinery was partly worn, the lever did not work 

properly and they extended the length of the lever by 

covering it with a 4-foot length of 2-inch pipe. As they 

shoved and pulled this lever, the machine kicked the lever 

out, and Delbert was struck on the chest, and suffered two 

broken ribs. 

The last occasion prior to his final injury was when he 

was riding a bus supplied by the Anaconda Company to 

transport employees into the pit area. It was raining and 

the road had been changed. The bus driver got confused, took 

a wrong turn and drove the bus into a 10-foot deep ditch. 

Delbert Snyder was rendered unconscious, and when he came to 

found himself sitting on the back of the seat immediately in 

front of him with his left leg twisted under him. He had 

slit open his left leg over the old break. 

Delbert Snyder eventually became a shovel operator. 

This is a job for a strong back. The shovel itself 

constantly vibrates and rattles. The teeth of the shovel 

must frequently be changed, and the teeth are heavy. Many 
parts of the machine have to be repaired or replaced and 

require heavy lifting. In the fall of 1981, Delbert Snyder 

found it necessary to seek treatment from Dr. James B. 

Mossman, for the condition of his back. Dr. Mossman 

testified that Delbert Snyder's back had deteriorated from 

the constant assaults upon his body of micro-traumas. A 

doctor, employed by the Anaconda Company in May, 1982, to 

examine Delbert's back, Dr. Charles Buehler, found that 

Delbert had sustained marked degenerative changes in the 

lumbar spine due to osteoarthritis, and that the condition 

had existed for at least a year and perhaps more. He also 

found osteomyelitis of the left leg. Dr. Buehler testified 

that the same person, a year earlier in May, 1981, if Dr. 

Buehler had examined him then, would have been restricted in 

any attempt to perform certain functions because of his 

diffuse arthritis throughout his spine. With respect to his 

osteomyelitis, he would also have had restrictions because of 

the danger of the left leg being refractured. 

Thus, Delbert Snyder, in January, 1982, was unknowingly 

awaiting the inevitable, literally, the straw that would 

break the camel's back. It occurred when he was put to work 

on a new shovel for which the Anaconda Company had changed 

the seat cushion. The result of the change was that to work 

the levers which turn the shovel left or right, Delbert had 

to stretch his legs and twist his body in order to operate 

the levers. Delbert knew he was being hurt, but he finished 

his shift and brought the matter to the attention to the 

foreman. On the next day when he reported to work, the 

cushion had not been changed as promised, and he refused to 

go back on the shovel. His low back bothered him so that he 

was examined again by Dr. Mossman whose report of the 

incident, dated January 6, was found in Dr. Mossman's records 
and noted by the Workers' Compensation Court in finding no. 

13 in its first decision of October 11, 1985: 

How accident occurred: had been having minor 

problem with low back--used new seat and shovel and 

low back went out causing extreme pain. 

Delbert Snyder had worked his last shift for the 

Anaconda Company. He saw Dr. Mossman on several occasions 

through the summer and early fall of 1982 when his condition 

appeared to stabilize, but he was never again in condition to 

return to work. 

On December 28, 1982, Delbert Snyder was involved in an 

automobile accident, where his neck and back sustained 

in juries. When his case came before the Workers' 

Compensation Court, the argument was then made by the 

Anaconda Company that his condition was a result of the car 

accident, and not of a compensable injury. The Workers' 

Compensation Court rejected this contention, holding on 

October 11, 1985 in paragraph 2 of its conclusions of law: 

. . . here the evidence clearly establishes that 

claimant was being treated for back problems prior 

to January, 1982. Nonetheless, Dr. Mossman 

specifically noted in his deposition that claimant 

had new symptoms resulting from his having to work 

on a new shovel with different physical 

requirements. This evidence coupled with the 

claimant's testimony establishes by a preponderance 

that the claimant's condition was aggravated by the 

shift he worked on the Buyrus Erie shovel. 

The Workers' Compensation Court ordered the Anaconda 

Company to pay temporary total disability benefits and 

medical benefits to Delbert from January 6, 1982 to December 

28, 1982. The court said it was not in a position to 

speculate as to whether there was any additional temporary 

total disability due because of lack of evidence in the 

cause. 
The matter returned to the Workers' Compensation Court 

on claimant's petition that he was totally disabled, and 

entitled to total disability benefits until he reached age 

65, and thereafter to permanent partial disability benefits. 

The Anaconda Company produced -- no new medical evidence -- of its 

- own. The only practitioner to testify was a chiropractor, 

Dr. Mossman, against whom counsel for the Anaconda Company 

continually contended that since he was not a medical doctor 

he could not give an opinion as to the status of the injuries 

and condition of Delbert Snyder, and thus succeeded in 

downgrading Dr. Mossman's testimony before the Workers' 

Compensation Court. Entering its findings and conclusions 

against Delbert Snyder on July 16, 1987, the Workers' 

Compensation Court used selected portions of Dr. Buehler's 

testimony from his examination in May, 1982, and from Dr. 

Mossman's cross-examination of December 10, 1986, to 

determine: 

. . . we do not find sufficient evidence to support 

the claim. It is difficult to believe that a 

non-traumatic incident such as awkward posture 

could result in the extensive disability being 

claimed. In our prior order, we awarded just under 

a year's worth of total disability benefits. At 

that time claimant was in an auto accident, which 

by its very nature is more traumatic. Though 

claimant tries to emphasize the physical complaints 

of the auto accident as being primarily to the 

upper back, there is no question that the low back 

was also affected acutely. Dr. Mossman is simply 

unable to sort out the post-injury, pre-auto 

accident condition to the post-auto accident 

complaints to persuade the court that additional 

benefits are owed. Additionally, claimant has been 

in yet another accident after the trial. Claimant 

appears --- to have some permanent disability as a 

result of his -- January 1982 injury. On the record 

before us, however, it is not possible to determine 

the extent of that disability under these facts. 

Claimant is clearly not totally disabled because of 

the January, 1982 injury. . . (Emphasis supplied.) 
As we said, the point of Delbert Snyder's claim is that 

his compensable injury of January 6, 1982, resulted in his 

total disability and that since January 6, 1982, he has been 

and is now totally disabled. The fact that he had two 

automobile accidents in the intervening time, out of which he 

sustained significant injuries, does not change the fact that 

he still is in the same condition now that he was in 

September-December, 1983, before the first accident. He was 

and is totally disabled. The automobile accidents are 

irrelevant. 

Dr. Mossman testified: 

Q: With respect to time, Doctor, we are talking 

about the time period covered in the reports that 

you just described from, say, September to December 

of 1983 generally. A: During that time in this 

stabilized period, Mr. Snyder was still primarily 

incapable of active employment as such. (An 

objection was made at this point, on which the 

Workers' compensation Court did not rule.) 

A. Mr. Snyder's condition at that point precluded 

him from lifting anything excessive probably 25 

lbs., especially from the floor, bending and 

lifting; especially twisting and lifting would not 

be advisable. We suggested to him to stay away 

from any type of consistent vibration, which seems 

to have brought on the chronic problem earlier of 

the micro-traumatic exposure. 

Beyond that, any type of consistent reaching 

overhead would have been somewhat difficult for him 

also. Such as, if you would like an expansion on 

that, such as maybe electric work overhead which he 

might do in a remodeling situation or something 

where he would be reaching with his head up or his 

arms up. That would have been difficult for him 

because of the neck problem also. 

As to Dr. Mossman's "release" of Delbert following the 

automobile accident, Dr. Mossman testified: 
A. There are many forms of "release" in our 

practice. We use release asymptomatic, which means 

release without symptoms; released pre-clinical, 

which means generally speaking, released in the 

condition [sic] of the patient was prior to the 

previous injury or to that injury. We may also 

release with residual, which means they have an 

underlying problem still but that it may have 

reached maximum healing and we don't expect it to 

make any major change one way or the other. 

In Dells case, I believe, I released him in a 

pre-clinical condition, which relates --- back to the 

condition --- he was in prior --- to the auto accident. 

(Emphasis supplied. ) 

The clear import of Dr. Mossman1 s testimony is that the 

automobile accident made no change in the condition of 

Delbert Snyder. He was unable to work before the accident; 

he is unable to work after the accident. The responsibility 

for his total disability necessarily falls on the Anaconda 

Company. 

The second automobile accident occurred on December 31., 

1986, after the second hearing but before the decision of the 

Workers1 Compensation Court. It also occurred while Delbert 

was and remains totally incapacitated. Nothing in the 

evidence indicates any change in that condition. 

The Anaconda Company offered no "medical" evidence to 

controvert the testimony of Dr. Mossman. 

There you have it. The same Workers1 Compensation Court 

that found a cornpensable injury on January 6, 1982, and 

awarded Delbert Snyder nearly a year of total disability 

resulting therefrom, now refers to the incident as 

"non-traumatic," and inconsistent with total disability. In 

so doing, the Workers1 Compensation Court ignores substantial 

evidence in the record from Dr. Mossman establishing that 

Delbert Snyder was totally disabled in December, 1982, when 

the automobile accident occurred, and is totally disabled 
now. There is no question of credibility involved here. 

Since all the medical evidence is by deposition, we are in as 

good a position to judge thereof as is the Workers' 

Compensation Court. 

Delbert Snyder has become an industrial throw-away. 

Like hundreds, nay thousands of other workers, the Anaconda 

Company used his youth and his strength until he was worn 

out, assaulted him with a compensable injury, and now he is 

assigned to the scrap-heap. As a Court, do we dare to call 

ourselves enlightened? 

I would reverse with directions to the Workers' 

Compensation Court to award Delbert Snyder all available 

benefits based on his total disability since January 6, 1982. 

I join in the foregoing dissent of Mr. Justice John C. 

Sheehy .