No. 84-313 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

ODEAN L. FROST, 

Claimant and Respondent, 

-vsTHE ANACONDA COMPANY, 

Employer-Defendant and Appellant. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Utick, Grosfield & Uda; Andrew J. Utick, Helena, 

Montana 

For Respondent : 

Neil J. Lynch & R. Lewis Brown, Butte, Montana 

Submitted on Briefs: March 21, 1985 

Decided: June 25, 1985 

JU& . i14ys 

Filed : 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by Anaconda Aluminum Company, from a 

judgment in favor of claimant, Odean L. Frost, by the 

Workers' Compensation Court. 

On October 21, 1974, claimant was injured while 

climbing down an ore shovel operating in Anaconda Company's 

mine in Butte, Montana. Claimant slipped from a ladder on 

the ore shovel, landing on the track of the shovel with his 

lower back. Immediately after the accident, he experienced a 

burning sensation in his lower back. Claimant worked the 

remaining six hours of his shift. Claimant reported the 

accident to his supervisor but did not immediately seek 

medical attention. Claimant continued working for seventeen 

months until he first sought treatment because of continued 

back pain and diminished control over his left leg and foot. 

On March 9, 1976, Dr. Buehler examined the claimant. Dr. 

Buehler diagnosed claimant's condition as an L5-S1 herniated 

disc. In August of 1976, Dr. Buehler performed a left L5-S1 

disectomy. Claimant testified that the back and leg 

discomfort continued after the surgery. In March of 1976, 

the persistent pain forced claimant to cease working for 

Anaconda Company. 

Claimant received benefits from Anaconda Company's 

"METRO" program, in lieu of Workers' Compensation from April 

of 1976 until April of 1983, on which date all benefits were 

terminated. Claimant had not filed a claim for Workers' 

Compensation within one year following the date of his 

injury. The Workers' Compensation Court forbade Anaconda 

Company from asserting the one year statute of limitations as 

a bar to claimant's recovery of benefits. This Court 
affirmed the Workers' Compensation Court's decision in Frost 

v. Anaconda Company (1982), 198 Mont. 216, 645 P. 2d 419, and 

held that the employer's payment of "benefits substantially 

comparable to or greater than the benefits available to the 

. . . employee under the Workers' Compensation Act" tolled 

the statute of limitations for filing his claim. 

On June 13, 1983, a second hearing was held before the 

Workers' Compensation Court. The claimant was awarded 

permanent total disability benefits. Anaconda Company 

appeals from the judgment of the Workers' Compensation Court. 

The issue on appeal is whether substantial evidence 

supports the Workers' Compensation Court's determination that 

the claimant is entitled to compensation for permanent total 

disability. 

The basic premise of Anaconda Company's appeal is that 

the claimant failed to meet his burden of establishing a 

causal relationship between the industrial accident and 

claimant's low back and leg condition. The Workers' 

Compensation Court determined that the claimant established 

causality: 

"The cause of the herniated disc and the 

surgery it necessitated was the 

claimant's October 21, 1974 industrial 

accident . . . the cause of the 

claimant's continuing back and leg pain 

is the herniated disc he suffered in his 

October 21, 1974, industrial accident or 

from the scarring in the area of the 

L5-S1 disc protrusion." 

Anaconda Company argues that there is a total absence of 

medica 1 proof to support a finding of causal relationship. 

Anaconda Company argues that the Workers' Compensation Court 

improperly relied on claimant's testimony. Anaconda Company 

further maintains that because the claimant was in error when 
he testified as to the first date he saw a doctor that this 

was intentional and made his testimony inherently incredible. 

The testimony of two witnesses, Charles E. Buehler, 

M.D. and the claimant, is critical to the determination of 

the existence of causal relationship. Anaconda Company 

submits, because Dr. Buehler's testimony was by deposition, 

the standard of review should be governed by Sbupert v. 

Anaconda Aluminum Company (Mont. 1985), 696 P.2d 436, 42 

If I . . . when the critical evidence, 

particularly medical evidence, is entered 

by deposition, we have held that "this 

Court, although sitting in review, is in 

as good a position as the Workers1 

Compensation Court to judge the weight to 

be given to such record testimony, as 

distinguished from oral testimony, where 

the trial court actually observes the 

character and demeanor of the witness on 

the stand."'" (Citations omitted.) 696 

P.2d at 439. 

We will adhere to this standard in reviewing Dr. Buehler's 

deposition testimony. However, in reviewing the testimony of 

the claimant, deference will be accorded to the Workers1 

Compensation Court's findings as to weight and credibility. 

Section 39-71-119 (I), MCA in pertinent part defines an 

injury as: 

"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 and excluding disease not 

traceable to injury . . . " 

The claimant must prove by a preponderance of the evidence: 

(1) that he suffered an injury arising out of and in 

the course of employment; and 

(2) that such injury was the proximate cause of his 

disabling condition. Viets v. Sweet Grass County (1978), 178 
Mont. 337, 583 P.2d 1070. See also, McQuiston v. Hubbard 

(1975), 167 Mont. 423, 539 P.2d 380; Vetch v. Helena Transfer 

and Storage Co. (1969), 154 Mont. 106, 460 P.2d 757. 

The standard of review for medical proof of causation 

cases has been set forth in earlier cases. In Viets 

"Medical proof of causation of an injury 

must be greater than 'possible' in 

Workers' Compensation cases. Clark v. 

Hilde Construction Co. (1978), Mont., 576 

P.2d 1112, 35 St.Rep. 353; Erhart v. 

Great Western Sugar Company (1976), 169 

Mont. 375, 546 P.2d 1055; McAndrews v. 

Schwartz v. Glacier General Assurance Co. 

(1974), 164 Mont. 402, 523 P.2d 1379; 

Stordahl v. Rush Implement Co. (1966), 

148 Mont. 13, 417 P.2d 95; LaForest v. 

Safeway Stores (1966) , 147 Mont. 431, 414 

P.2d 200." 

Dr. Buehler ' s testimony set forth medical 

symptomatology from which the Workers' Compensation Court 

could fairly conclude that claimant did suffer an injury: 

(i) Upon referral by Dr. Buehler, claimant reported 

to consulting physicians, Dr. Alexander Johnson and Dr. 

Cooney, that he took a fall at work. Since the injury he has 

increasingly suffered back pain radiating to his left lower 

extremity. 

(ii) Dr. Buehler performed a myelogram and diagnosed 

the claimant's condition as an L5-S1 herniated disc. 

(iii) Dr. Buehler performed a left L5-S1 disectomy. 

(iv) Dr. Buehler noted that claimant continued to 

experience back and leg pain. The pain would increase with 

physical activity. Dr. Buehler concluded that the pain was 

secondary to the prolonged duration of his herniated disc or 

to scarring in the area of this disc protrusion. 

(v) Dr. Buehler testified that clai-mant's back and 

associated leg condition is permanent. 
The Anaconda Company has failed to produce any 

evidence, medical or otherwise, as to the specific cause of 

claimant's injury. Anaconda Company called no medical 

witness to disprove causation. The record shows that the 

claimant had no previous back problems or a history of injury 

that might even remotely affect his back. Prior to the 

accident, he was able to perform his job with no orthopedic 

problems. Dr. Buehler informed Anaconda Company that 

claimant could not return to heavy labor. The claimant 

testified that the increased pain associated with physical 

activity made it difficult for him to walk, to bend or even 

to climb stairs. The claimant further testified that he 

presently takes muscle relaxants and analgesics for pain. 

Anaconda Company maintains that the Workers ' 

Compensation Court erred in considering claimant's testimony 

of his continued pain following the accident. We have long 

recognized the Workers' Compensation Court's right to rely on 

the testimony of the claimant. McCormack v. Sears-Roebuck & 

Co. (Mont. 1984), 682 P.2d 1357, 41 St.Rep. 979; Robins v. 

Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67. 

The Workers' Compensation Court's own finding that the 

claimant was a credible witness and not a malingerer further 

discounts Anaconda Company's allegation. The record shows a 

conscientious working man, who although injured on the job, 

chose to complete his work day and endure pain for six 

additional hours. The fact that he did not seek medical 

attention for seventeen months following the accident does 

not lessen the injury nor minimize the pain he experienced. 

The medical evidence, including Dr. Buehler's testimony and 

the herniated disc trauma itself, establishes a firm basis 

for claimant's complaints of pain. 
We hold the record supports the Workers' Compensation 

Court's findings and conclusions that a causal relationship 

between the accident and the resulting physical disability 

was sufficiently established. 

Accordingly, the judgment of the Workers ' Compensation 

Court is affirmed. 

Justic s 7'