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 Workers1Compensation Court The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Lloyd E. Hartford, Billings,Montana For Respondent: Richard E. Bach, StateCompensation Insurance Fund, Helena,Montana

Filed: Submitted on Briefs: November 24, 1992 ~ecided: February 2, 1993Justice Fred J. Weber delivered the Opinion of the Court.

This 

### is an appeal by 

### the claimant, Carol Hash, 

### from an order of theWorkers9Compensation Court ruling that shehad not suffered permanent disability asa 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 claimantpresents 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 disabilitybenefits and retroactive payment of all benefits withheld by respondentas 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 thatMrs. 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 subsequentlypetitioned for a second hearing on the issue of entitlementtopermanent 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 reservationof rightspending anOccupational Disease evaluationto 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 compensableWorkers1Compensation injury, microtrauma toherhands,

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 furtherWorkers1Compensation benefits because she did not meet the statutory requirements for flpermanenttotal disability." Medical testimony includeddepositions fromDr,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 theState Fund. Dr. 

### riffi in and Dr. ~nglish are certified internal medicine specialistswith sub-specialties in rheumatology. A11 threephysicians testified thatMrs. 

### 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 symptomsofher conditionwithout either contributingto or causing its onset orprogression. Dr. English opined that themicrotrauma sufferedbyMrs. Hash aggravatedher osteoarthritis for aperiod 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 employmentrelatedaggravationofhernaturallyprogressing osteoarthritis was temporary. The Workers1Compensation 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 temporarytotal disability rate, aperiod in excess of the '#several monthst1

### Dr. English testified 

### it took to reach maximum healing. However, theWorkersgCompensation Court did not requireMrs. Hash 

### to repay any overpaid benefits, noting that the State Fund did notseek 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 alreadypaid 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' CompensationCourt'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 issuewas 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 thather work was the cause of her disability,as requiredby § 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 theworkerhaving 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 shehas 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 requireproof 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 disabilitybenefits under the Workers' Compensation Act. Causation is an essential element tobenefit entitlement. The claimant has the burden to prove a causal connection by a preponderance of the evidence. Grenzv. 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 conclusionthat she achieved maximum medical healingby 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 forreviewingthe findingsand conclusionsof 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' CompensationCourt,or other trial courtwill be upheld if the interpretationof 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 threemedical experts here testified thatMrs. Hash's hand condition is naturally occurringandprogressing osteoarthritisand 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 inApril 1987, 

### any aggravation inher underlying symptomscausedby her employment shouldhavebeen "back to what would have been there without the job;" and that the conditionwould be the same as the doctor had observed on July 2, 1987, 

### regardless of claimant's employment. Dr. English further testified that although itwaspossible thatMrs. Hash'swork could have aggravated her symptoms of osteoarthritis, the underlying condition would have progressed in the same manner regardless ofher 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 causepermanent 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 supportthe Workers1CompensationCourt's finding thatMrs. Hash failed to establish a causal connection between her current conditionand the 1986 injury. Mrs. Hashhas failed to demonstrate by a preponderance of the evidence that 

### her current condition is attributable to her employmentwith Montana silversmith. Mrs. 

### Bash further contends that if a claimant asserts an entitlementtopermanentbenefits,the lawrequiresadetermination 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 sowould 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 qualifyher to receive permanentdisability benefits, We concludethat 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 retroactivepayment 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 thatMrs. Hash is not entitled to additional benefits over those previously paid. She has received substantially more than the Workers1Compensation Court found shewas entitled to receive. We conclude thatMrs. 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 feesunder § 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 alreadypaid by the State Fund. We affirm the Workers' Compensation Court's holding that Mrs. Hash isnot entitled to an award of a reasonableattorney'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 CERTIFICATEOFSERVICE I hereby certifythatthefollowingorderwassentby United Statesmail, prepaid,tothe following named:

LLOYD E. HARTFORD AttorneyforClaimant P.O. Box 1517 Billings,MT59103-1517 RichardE.Bach,Legal Counsel State Compensation Mutual InsuranceFund P.O. Box4759 Helena, MT 59604-4759

EDSMITH CLERKOFTHE SUPREMECOURT STATEQFMONTANA