NO. 92-293 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

CAROL HASH, 

Petitioner/Appellant, -. 

-vMONTANA SILVERSMITH, 

Employer, 

and 

'R? 

STATE COMPENSATION MUTUAL INSURANCE FUND, 

APPEAL FROM: The Workers1 Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lloyd E. Hartford, Billings, Montana 

For Respondent: 

Richard E. Bach, State Compensation Insurance Fund, 

Helena, Montana 

Filed: 

Submitted on Briefs: November 24, 1992 

~ecided: February 2, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal by the claimant, Carol Hash, from an order 

of the Workers9 Compensation Court ruling that she had not suffered 

permanent disability as a result of her industrial injury, that she 

was not entitled to additional benefits beyond those already paid, 

and that she was not entitled to attorney's fees or costs. We 

affirm. 

The claimant presents the following issues for our review: 

1. Whether Mrs. Hash is permanently totally disabled as a 

result of her industrial injury. 

2. Whether Mrs. Hash is entitled to retroactive payment of 

temporary total disability benefits and retroactive payment of all 

benefits withheld by respondent as an offset due to her receipt of 

Social Security Disability benefits. 

3. Whether Mrs. Hash is entitled to an award of a reasonable 

attorney's fee and costs. 

This Court previously affirmed the Workers' Compensation 

Court's conclusion that Mrs. Hash suffered a compensable injury to 

her hands. For a more complete discussion of the facts of this 

case, see Hash v. Montana Silversmith (1991), 248 Mont. 155, 810 

P.2d 1174. Because the amount of permanent benefits, if any, was 

not settled in that proceeding, Mrs. Hash subsequently petitioned 

for a second hearing on the issue of entitlement to permanent total 

benefits retroactive to the date that she ceased working, with 

credit to respondent State Compensation Mutual Insurance Fund 

(State Fund) for Occupational Disease benefits paid under the 

Occupational Disease Act, 55 39-72-101-714, MCA (1985). 
Mrs. Hash suffers from osteoarthritis, a disease of unknown 

origin, which was aggravated by her job with Montana silversmith. 

The State Fund paid Occupational Disease benefits under a full 

reservation of rights pending an Occupational Disease evaluation to 

determine the contribution of her employment, if any, to the 

osteoarthritis in her hands. The State Fund paid $9,686.51 in 

Occupational Disease benefits covering the time period from April 

25, 1987 to September 25, 1989. 

Thereafter, the State Fund discontinued Occupational Disease 

benefits based on a June 19, 1989 evaluation by Dr. William Shaw, 

a specialist in Occupational Medicine. Dr. Shaw determined that 

Mrs. Hash did not suffer from an occupational disease and that her 

osteoarthritis was neither caused by nor progressed more rapidly 

from her work activities at Montana Silversmith. 

In the previous proceeding, the Workers' Compensation Court 

determined and this Court affirmed that Mrs. Hash suffered a 

compensable Workers1 Compensation injury, microtrauma to her hands, 

on July 31, 1986. Hash, 810 P.2d at 1177. In the present 

proceeding, the Workers1 Compensation Court evaluated testimony 

from three physicians before determining that Mrs. Hash did not 

qualify for further Workers1 Compensation benefits because she did 

not meet the statutory requirements for flpermanent total 

disability." Medical testimony included depositions from Dr, Shaw, 

Dr. Susan English and Dr. Phillip Griffin. Dr. Griffin was Mrs. 

Hash's treating physician in 1986. Dr. English initially examined 

Mrs. Hash at the request of the State Fund and later became Mrs. 

Hash's treating physician after her initial evaluation for the 
State Fund. Dr. riffi in and Dr. ~nglish are certified internal 

medicine specialists with sub-specialties in rheumatology. 

A11 three physicians testified that Mrs. Hash's condition, for 

which she seeks permanent total disability benefits, is naturally 

occurring and progressive osteoarthritis and that her job with 

Montana Silversmith at most only temporarily aggravated the 

symptoms of her condition without either contributing to or causing 

its onset or progression. Dr. English opined that the microtrauma 

suffered by Mrs. Hash aggravated her osteoarthritis for a period of 

several months, and that after several months, Mrs. Hash achieved 

maximum healing of her temporary aggravation of her cornpensable 

Workers' Compensation injury. 

Although her osteoarthritis continued to degenerate and Mrs. 

Hash could not return to work, the medical experts testified that 

she would have the same osteoarthritis problems regardless of her 

employment. The Workers' Compensation Court concluded that the 

injury did not produce permanent disability and the employmentrelated aggravation of her naturally progressing osteoarthritis was 

temporary. 

The Workers1 Compensation Court determined that the benefits 

paid to Mrs. Hash, when calculated correctly without deducting an 

offset for Social Security Disability payments received by Mrs. 

Hash, were sufficient to pay benefits for 59.74 weeks at her 

temporary total disability rate, a period in excess of the '#several 

monthst1 Dr. English testified it took to reach maximum healing. 

However, the Workersg Compensation Court did not require Mrs. Hash 

to repay any overpaid benefits, noting that the State Fund did not 
seek reimbursement for any overpayment to her. 

The Workers' Compensation Court also refused to allow Mrs. 

Hash's attorney to incorporate time expended by him in litigating 

her prior petition before the Workers' Compensation Court and this 

Court with time and costs expended on this action because no 

benefits were awarded in excess of those already paid by the State 

Fund. 

Whether Mrs. Hash is permanently totally disabled as a result 

of her industrial injury. 

The previous appeal in this matter affirmed the Workers' 

Compensation Court's finding that Mrs. Hash suffered a compensable 

injury. Hash, 810 P.2d at 1177. However, the issue of permanent 

benefits was not litigated in that proceeding. The Workers' 

Compensation Court subsequently resolved that question by denying 

permanent disability benefits. 

The Workers' Compensation Court stated that the issue was not 

whether Mrs. Hash was disabled, but whether her work was the cause 

of the disability. The court then found that Mrs. Hash failed to 

prove that her work was the cause of her disability, as required by 

§ 39-71-116(13), MCA (1985). Section 39-71-116(13), MCA (1985), 

provides : 

(13) "Permanent total disability" means a condition 

resultina from iniury as defined in this chapter that results 

in the loss of actual earnings or earning capability that 

exists after the injured worker is as far restored as the 

permanent character of the injuries will permit and which 

results in the worker having no reasonable prospect of finding 

regular employment of any kind in the normal labor market. 

Disability shall be supported by a preponderance of medical 

evidence. (Emphasis supplied) 
The Workers' Compensation Court stated, "[hlere, no permanent 

disability was proved to be caused by claimant's employment, and 

she has already been compensated for the temporary total loss which 

resulted from her employment's aggravation upon her naturally 

progressing osteoarthritis." 

Mrs. Hash contends that this is error for two reasons: (1) she 

previously established the existence of a causal relationship 

between the job and her injury, and (2) S39-71-116(13) does not 

require proof that the injury produced permanent disability before 

an analysis need be made of loss of actual earnings or earning 

capability. By proving that the microtrauma to her hands 

aggravated her pre-existing osteoarthritis, Mrs. Hash established 

a causal relationship entitling her to temporary total disability 

benefits. Her pre-existing condition, however, requires her to 

further establish that the microtrauma to her hands proximately 

caused permanent total disability if she is to qualify for 

permanent total disability benefits under the Workers' Compensation 

Act. 

Causation is an essential element to benefit entitlement. The 

claimant has the burden to prove a causal connection by a 

preponderance of the evidence. Grenz v. Fire and Casualty of Conn. 

(1991), 250 Mont. 373, 380, 820 P.2d 742, 746. In Grenz, the 

claimant similarly argued that microtrauma caused him to develop 

his degenerative joint disease. w, 820 P.2d at 745-46. Mrs. 

Hash notes that she does not challenge the Workers' Compensation 

Court's conclusion that she achieved maximum medical healing by the 

fall of 1987. However, she does contend that such a finding 
triggers a reevaluation of her disability status, requiring a 

classification as either permanently totally disabled or 

permanently partially disabled. She claims that the court avoided 

doing this by holding that she had failed to establish a causal 

connection between her injury and disability. 

Our standard for reviewing the findings and conclusions of the 

Workers' Compensation Court is to determine whether there exists 

substantial credible evidence to support them. White v. Ford, 

Bacon & Davis Texas, Inc. (Mont. 1992), - P.2d -, 49 St.Rep. 

1117, 1118. Conclusions of law, whether made by an agency, 

Workers' Compensation Court, or other trial court will be upheld if 

the interpretation of the law is correct, regardless of the reasons 

given for the conclusion. Steer Inc. v. Department of Revenue 

(1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. 

All three medical experts here testified that Mrs. Hash's hand 

condition is naturally occurring and progressing osteoarthritis and 

that her occupation temporarily aggravated the symptoms of her 

condition without either contributing to or causing its onset or 

progression. Dr. English testified that within several months 

after Mrs. Hash quit her job in April 1987, any aggravation in her 

underlying symptoms caused by her employment should have been "back 

to what would have been there without the job;" and that the 

condition would be the same as the doctor had observed on July 2, 

1987, regardless of claimant's employment. Dr. English further 

testified that although it was possible that Mrs. Hash's work could 

have aggravated her symptoms of osteoarthritis, the underlying 

condition would have progressed in the same manner regardless of 
her activities. 

Dr. Griffin testified that people with such a condition get 

arthritis regardless of their occupations and that he knew of no 

occupation that would make a change in the time of onset of the 

disease or make it worse. Dr. Shaw testified to his opinion that 

Mrs. Hash was not suffering an occupational disease. Both Dr. 

Griffin and Dr. Shaw concurred with Dr. English's opinion that the 

microtrauma to Mrs. Hashfs hands could have aggravated her 

condition, but that such aggravation would be temporary in 

character and would not cause permanent damage over that caused by 

the basic progression of the disease. 

After a thorough review of the medical evidence presented in 

this case, we conclude that there is substantial credible evidence 

to support the Workers1 Compensation Court's finding that Mrs. Hash 

failed to establish a causal connection between her current 

condition and the 1986 injury. Mrs. Hash has failed to demonstrate 

by a preponderance of the evidence that her current condition is 

attributable to her employment with Montana silversmith. 

Mrs. Bash further contends that if a claimant asserts an 

entitlement to permanentbenefits, the law requires a determination 

of whether the claimant has suffered the loss of actual earnings or 

earning capability. While Mrs. Hash may well be able to establish 

an actual loss of earnings or earning capacity, to do so would be 

irrelevant here. Mrs. Hash has not proved that her injury caused 

her present condition. Without that causal connection, she does 

not meet the criteria of 9 39-71-116(13), MCA (1985), which would 

qualify her to receive permanent disability benefits, We conclude 
that the Workers' Compensation Court correctly refused to address 

whether Mrs. Hash lost actual earnings or earning capacity. 

We affirm the District Court's finding that Mrs. Hash is not 

permanently totally disabled as a result of her industrial injury. 

11. 

Whether Mrs. Hash is entitled to retroactive payment of 

temporary total disability benefits and retroactive payment of all 

benefits withheld by respondent as an offset due to her receipt of 

Social Security Disability benefits. 

Mrs. Hash argues that she is entitled to additional benefits 

for the period previously found compensable by the Workers' 

Compensation Court because the State Fund was not entitled to 

offset those benefits because of her receipt of Social Security 

Disability benefits. The total amount Mrs. Hash received is in 

excess of what she would have received at the full rate with no 

offsets for the time for which compensation was allowed for 

temporary disability. As argued by the State Fund, the net effect 

is that Mrs. Hash is not entitled to additional benefits over those 

previously paid. She has received substantially more than the 

Workers1 Compensation Court found she was entitled to receive. We 

conclude that Mrs. Hash is not entitled to a lump sum in the amount 

of the total withheld Social Security Disability offset. 

We affirm the Workers' Compensation Court's holding that Mrs. 

Hash is not entitled to retroactive payment of temporary total 

disability benefits and retroactive payment of all benefits 

withheld by respondent as an offset due to her receipt of Social 

Security Disability benefits. 
111. 

Whether Mrs. Hash is entitled to an award of a reasonable 

attorney's fee and costs. 

Mrs. Hash did not succeed in her attempt to obtain permanent 

total disability benefits here. Therefore, the Workers' 

Compensation Court correctly denied further payment for attorney 

fees. We conclude that she is not eligible for attorney fees under 

§ 39-71-611 or 612, MCA (1985). We further conclude that Mrs. 

Hash may not incorporate time expended by her attorney litigating 

her prior petition with those of this action because she is not 

entitled to any further benefits in excess of those already paid by 

the State Fund. 

We affirm the Workers' Compensation Court's holding that Mrs. 

Hash is not entitled to an award of a reasonable attorney's fee and 

costs for expenses incurred relating to her unsuccessful claim for 

permanent total disability benefits. 

Affirmed. 

We Concur: h 

Justices - \ 
February 2, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

LLOYD E. HARTFORD 

Attorney for Claimant 

P.O. Box 1517 

Billings, MT 59103-1517 

Richard E. Bach, Legal Counsel 

State Compensation Mutual Insurance Fund 

P.O. Box 4759 

Helena, MT 59604-4759 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE QF MONTANA