No. 87-313



### INTHE SUPREME COURTOF THE STATEOF MONTANA
1988

DELBERTD. SNYDER, Claimantand Appellant,-vsTHEANACONDA COMPANY, Employer/Defendant and Respondent,

APPEAL FROM: TheWorkers1Compensation Court,The HonorableTimothy Reardon, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Burgess, Joyce & Whelan; ThomasJ. Joyce, Butte, Montana

For Respondent: Michael J. McKeon,Anaconda,Montana

Submitted onBriefs: Jan. 7,1988 Decided: March 22, 1988
Filed:

## &MAR22

### B88

ClerkMr. 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 thatMr. Snyderhad reachedmaximum 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 requiringMr. 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 injuryMr. Snyder petitioned for benefits. The Anaconda Company (Anaconda) denied liability contending that the injurywas notwork related. Mr. Snyderpetitioned 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 "speculatewhether any additional temporary total disability benefits may be due beyond that date" becauseMr. Snyderreinjured hisback in a carwreck on December 28, 1982. The lower court reasoned that I'[tlhe claimant still has the burden of proving his case and itsimply has not been proven that his problems after the auto accident are in anyway related tohis 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-injurymedical care and subsequentcar accident in December, 1982, he has not been able to establish any entitlement to additional compensation benefitsbeyond December, 1982.

As noted by the lower court, the crux of the issuehere 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 twodepositions fromJamesB. Mossman,Mr. Snyder's chiropractor, and a deposition from Charles E. Buehler,an orthopedic surgeon who examinedMr. 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 tohis petition. Dr. Mossman testified that prior to the work injury he treated Mr. Snyder for "myositis" and associated muscle inflammation from theneck to the lowerback. 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. Snyderwas forced to assumewhile pushing foot pedals on the shovel he operated for Anaconda. The position and the machine's vibration would "tend to cause micro-traumatic strainand sprainproblems."

### 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 injuryand caused problems inMr. Snyder'sneck. However,by March of 1984, according to Dr. Mossman, Mr. Snyder's back had returned to itspre-accident condition. Dr. Mossman characterized the condition ofMr. 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 atwork 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 acceleratedby Mr. Snyder's job duties. Dr. Buehler testified that when he examined Mr. Snyder in May of 1982,Mr. Snyderwas 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 thatwork related trauma to the backwas causingMr. 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 inDr. 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 conditionwhich 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 causedwhile pushing on thepedals 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 ifyouwould.

A. Ithink this man hasmarked changes inhis 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 thatwill irritate it. Usually the history of this problem is that these thingswill irritate it. Hemay develop somemuscle spasm, somepain 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 thisman'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 thework 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 toMr. Snyder, as long as he was "more or less inactive", the injury was not a constantbother. 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 thatMr. Snyderhad reachedmaximumhealing 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 thathis employmentcaused his disability. We disagree and affirm the lower court's decision to deny a permanent disability because substantial evidence supports the lower court'sdecision. The claimant bears the burden of showing an entitlement to benefits under the Workers' CompensationAct. Metzger v. Chemetron Corp. (Mont. 1984), 687P.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'sdisability. In this regard,Dr. Mossman deposed that a seriesofmicro-traumas occurring toMr. Snyder'sback culminated in the injurywhich caused his currentdisability. However, Dr. Buehler deposed that no sign of the injurywas present at the time of his examination, and that osteoarthritiscausedMr. Snyder's disability. Dr. Buehler's deposition provides substantial though conflicting evidence that the work injurywas not 

### a factor in causingMr. Snyder's disability. Thus, the lower court's findings are adequately supported in the record,andwe affirm on this issue.

ISSUE 2 Did the lower court err in requiringMr. Snyder toprove thathis disabilitywas caused by thework 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 Schienov. City of Billings (Mont. 1984), 683 P.2d 953, 955, 41 St.Rep. 1157, 1159. In this case,part ofMr. Snyder's burdenwas a showing that the work injury rather than other causes resulted inhis disability. Schieno, 683P.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.

JusticesMr. Justice John

### C. Sheehy,dissenting:

I dissent in this case where the Workers' Compensation Court completely missed thepoint it should have decided, and now this Court hasmissed it too. The point to be decided is this: Ts Delbert Snyder now totallydisabled from a compensable industrial accident which occurred on or about January 6, 1982? Unequivocally, the

answer shouldbe 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, fromwhatever 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. InJanuary, 1982, Delbert Snyderwas in fragile physical condition. He got that way from more than 35 years of hard laborworking for the AnacondaCompany. When hewas 20years 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 PackingCompany. 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. Hesuffered aneck injury,was in the hospital, and his neckwas "put in restriction" for a coupleofweeks. 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,hismiddle toe is ahammer toe,his toe next to thebig toe is stiff,and his big toe is the only useable toe onhis left foot. He was off work with these injuries for 16 months. Ever sincehe haswalkedwith a slight limp. At the site of the leg fracture he has developed osteomyelitis for which hemustwear ametal 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 themachinerywaspartly worn, the lever did notwork 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 occasionprior to his final injurywaswhen he

was riding a bus supplied by the Anaconda Company to transport employees into the pit area. Itwas raining and the road had been changed. Thebus driver got confused,took

a wrong turn and drove the bus into a 10-foot deep ditch. Delbert Snyderwas 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 slitopen 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. Manyparts 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 alsohave had restrictions because of the danger of the left legbeing refractured. Thus, Delbert Snyder, in January, 1982,was unknowingly awaiting the inevitable, literally, the straw that would break the camel'sback. It occurred when hewas put towork

on a new shovel for which the Anaconda Company had changed the seat cushion. The result of the changewas that towork 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 thathe

was examined again by Dr. Mossman whose report of the incident,dated January 6,was found in Dr. Mossman's recordsand noted by the Workers' Compensation Court in finding no. 13 in its firstdecision of October 11, 1985: How accident occurred: had been having minor problem with lowback--used new seat and shoveland lowback went out causing extremepain.
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 towork. On December 28, 1982, Delbert Snyderwas involved in an automobile accident, where his neck and back sustained injuries. 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 claimantwas 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 towork on a new shovel with different physical requirements. This evidence coupled with the claimant'stestimony establishesby apreponderance that the claimant's conditionwas aggravated by the shiftheworked on theBuyrus 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 amedical 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 donot 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. Inourprior order,we awarded justunder 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 thephysical complaints of the auto accident as being primarily to the upper back, there is no question that the lowback 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 

### -- beforeus,however, it is not possible todetermine the extent of that disability under these facts. Claimant is clearly not totally disabled because of the January, 1982 injury.

# . . (Emphasissupplied.)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 automobileaccidents in the intervening time,out ofwhich 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' compensationCourt 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 themicro-traumatic exposure. Beyond that, any type of consistent reaching overhead would have been somewhat difficult forhim also. Such as, if you would like an expansion on that, such asmaybe electricwork overheadwhich he might do in a remodeling situation or something where he would be reachingwith 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, whichmeans 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. (Emphasissupplied.)
The clear import of Dr. Mossman1s 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 secondhearing but before the decision of the Workers1Compensation Court. Italso occurredwhile Delbert

was and remains totally incapacitated. Nothing in the evidence indicatesany change in that condition. The Anaconda Company offered no "medical" evidence to controvert the testimony of Dr. Mossman. Thereyouhave it. The sameWorkers1Compensation 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, theWorkers1Compensation 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 disablednow. There is no question of credibility involved here. Since all the medical evidence isby deposition,we are in as good a position to judge thereof as is the Workers' CompensationCourt. 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 onhis totaldisability sinceJanuary 6,1982.

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

# .