No. 13845 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

GEORGE CLARK, Claimant and Appellant,
-vsHILDE CONSTRUCTION COMPANY, Emloyer, and TRAVELERS INSURANCE COMPANY, Defendant and Respondent.
Appeal from: Workers' compensation Court, Hon. William 

### E Hunt, Judge presiding. Counsel of Record: For Appellant: Charles E. Snyder, Billings, Montana For Respondent: Crowley, Haughey, Hanson, Toole and Dietrich, Billings,

Montana H. Elwood English, Billings, Montana Cause Submitted on briefs; March 3, 1978, 1978

Decided: 

## MAR2I! 1978

,..--2 Filed:

### MCz% zi-Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court:
Claimant appeals the decision of theWorkers' Compensation Court, datedApril 27, 1977, denying compensation for an alleged injury suffered in the course of his employment on July 11, 1975. On Friday, July 11, 1975, atapproximately 4:00 to4:30 p.m., claimant was changing a tire on a truck he was operating forHilde Construction Company, ata job site 

### 7 or 

### 8 miles north of Lame Deer, Montana. Claimant testified that while changing the tire, he felt something "slip" inhisback. He received assistance from another worker, and proceeded tocomplete his daily route. Claimant then drove tohishome inAbsarokee, Montana. He testified that when he arrived, he experienced serious pain in his lower back, and could hardly walk. Claimant's wife, the solewitness to see claimant during the period of time immediately following the injury, returned to the family home inAbsarokee on Sunday, July 13, after a weekend inIdaho Falls, Idaho. She testified claimant was ina great deal of pain and could not stand erect. 

### On Monday, July 14, claimant attempted to contact his foreman concerning the injury, but was unable toreach him. He then reported the injury tothe secretary of hisunion, so that a replacement worker would be located. Hilde Construction Company received notice of the injuryby claimant's claim for compensation, dated August 

### 22, 1975, and received by itscarrier, Travelers Insurance Company on August 25, 1975.Following the injury, claimant consulted and was .treatedby
numerous physicians, neurosurgeons, orthopedic specialists and chiropractors. The diagnoses of the respective physicians are not clear regarding the nature of claimant's disorder. While
some physicians conclude claimant manifests symptoms of multiple sclerosis, others diagnosed the condition as spondylolisthesis--
a defect in or lack of solidbone inportions of the spine, usually inthe lower spine. The cause came on forhearing before theWorkers' Compensation Court on November 4, 1976. In its findings of fact and conclusions of law, theWorkers' Compensation Court denied compensation to claimant, finding: "Claimant failed toprove by a preponderance of the credible evidence that he suffered an industrial accident resulting ina compensable injury that satisfies the requirements of Sections 92-418 Injury or injured defined; and 92-614(1) 

# '*

# *

# * an injury arising out of and inthe course of his employment

# ** *I." The determinative issue on this appeal 

### iswhether claimant suffered a compensable "injury" within the course of his employment. We hold theWorkers' Compensation Court was correct in concluding he didnot. Section 92-418(1), R.C.M. 1947, sets forth the definition of "injury1' forpurposes of compensation as: "(1) a tangiblehappening of a traumatic nature from an unexpected cause, orunusual strain, resulting in either external or internalphysical harm, and suchphysical condition 

### as a result therefrom and excluding disease not traceable to injury

# ** *.I' To establish a compensable injury, a claimant must prove, by a preponderance of the evidence, that the condition was proximately caused by a tangible happening of a traumatic nature from
an unexpected cause, orunusual strain. McAndrews v. Schwartz,(1974), 164Mont. 402, 523 P.2d 1379. Where a claimant's disorder or disability 

### is the result of a diseasenot traceable to a work related injury, it is, as a general rule, not compensable under the language of section 92-418(1). McAndrews v. Schwartz, supra; LaForest v. Safeway Stores, Inc., (1966), 147 Mont. 431, 414 P.2d 200. We find claimant failed to satisfyhis burden of proving "injury"

# . The bulk of the medical evidence tends to establish that claimant's symptoms are the result of multiple sclerosis, a diseasewhich, as presently understood, isnot traceable toan "injury" such as that claimant purports tohave suffered. Indeed, claimant admitted having been treated for symptoms commonly associated with multiple sclerosis one year prior tothe accident. Claimant simply failed toprove, by a preponderance of the evidence, that hisphysical condition was proximately caused by an industrial injury

# . Atthe hearing of November 4, 1976, Dr. Howard E. Hultgren,
a Billings chiropractor who had treated claimant, testified he
was of the opinion that claimant was suffering from spondylolisthesis. Dr. Hagen, a Billings orthopedist, also testified by way of deposition, that claimant was suffering from spondylolisthesis, but the condition had existed prior to the accident as revealed by a comparison of X-rays taken both before and after the accident. Thus, the workers' Compensation Court could well have concluded the complained of physical condition,
even ifnot consideda "disease", predated the accident. It 

### is of course the rule, urged by claimant, that an employee who suffers from 

### a preexisting condition isentitled to compensation if the condition was aggravated or accelerated byan industrial injury. Rumsey v. Cardinal Petroleum, (1975), 166Mont. 17, 530 P.2d 433; Gaffney v. Industrial Accident Bd., (1955), 129Mont. 394, 287 P.2d 256; Weakley 

### v. Cook, (1952), 126Mont. 332, 249 P.2d 926. However, the critical shortcoming of claimant's case, even assuming, arguendo, the preexisting condition and the existence of the symptoms complained of, 

### is his failure toestablish the occurrence of a work related injury. Claimant's ultimate failureof proof of a work related injury is evident, when considering the evidence he failed to introduce. Claimant clearly failed toestablishthat the injuryhad "arisen out of and in the course of his employment"
as required by section 92-614(1), R.C.M. 1947. Williams v. Glacier Park Co., (1962), 140Mont. 440, 373 P.2d 517. Claimant failed to locate and produce the co-worker who allegedly assisted him inchanging the tire following the claimed accident. In addition, the union secretary towhom the accident
was reported on Monday, July 14, 1975, was not located, produced at trial, nor deposed, although claimant was afforded a 30 day period following the hearing todo so. Therefore, despite the availability of proof, claimant produced no witnesses tocorroborate his obviously self-serving testimony concerning the occurrence of the injury during the course of his employment. Where weaker evidence 

### is offered, and it appears itwas within the power of the offeringparty toproduce stronger and
more satisfactory evidence, the offered evidence, i.e. claimant's testimony regarding the injury, is tobe viewed with distrust. Section 93-2001-1, R.C.M. 1947. Further, section 93-1301-7, R.C.M. 1947, establishes the following presumptions:

### "5. That evidencewillfully suppressed would be adverse, if produced. "6. Thathigher evidencewould be 

### adverse from in£erior

## ,being produced .'I 

### Given the rules of evidence noted above,we conclude the Workers' Compensation Court could properly infer the testimony not produced would be adverse to claimant's position on the issue ofwhether the injury arose out of the course ofhis employment. The decision of theworkers

## ' Compensation Court denying compensation is affirmed.

We Concur:

Chief Justice n fI. 

# -.- i 

# . . P C 

### Hon. Bernard Thomas,District Judge, sitting.