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: MAR 2 I! 1978 

, . .- -2 Filed: MCz % zi - 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court : 

Claimant appeals the decision of the Workers' Compensation 

Court, dated April 27, 1977, denying compensation for an 

alleged injury suffered in the course of his employment on July 

11, 1975. 

On Friday, July 11, 1975, at approximately 4:00 to 4:30 

p.m., claimant was changing a tire on a truck he was operating 

for Hilde Construction Company, at a job site 7 or 8 miles north of 

Lame Deer, Montana. Claimant testified that while changing the 

tire, he felt something "slip" in his back. He received assistance from another worker, and proceeded to complete his daily 

route. Claimant then drove to his home in Absarokee, Montana. 

He testified that when he arrived, he experienced serious pain in 

his lower back, and could hardly walk. 

Claimant's wife, the sole witness to see claimant during the 

period of time immediately following the injury, returned to the 

family home in Absarokee on Sunday, July 13, after a weekend 

in Idaho Falls, Idaho. She testified claimant was in a 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 to reach him. He then 

reported the injury to the secretary of his union, so that a 

replacement worker would be located. Hilde Construction Company 

received notice of the injury by claimant's claim for compensation, dated August 22, 1975, and received by its carrier, Travelers 

Insurance Company on August 25, 1975. 
Following the injury, claimant consulted and was .treated by 

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 solid bone in portions of the spine, 

usually in the lower spine. 

The cause came on for hearing before the Workers' Compensation Court on November 4, 1976. In its findings of fact and 

conclusions of law, the Workers' Compensation Court denied 

compensation to claimant, finding: 

"Claimant failed to prove by a preponderance of the 

credible evidence that he suffered an industrial 

accident resulting in a compensable injury that satisfies the requirements of Sections 92-418 Injury or injured 

defined; and 92-614(1) '* * * an injury arising out of 

and in the course of his employment * * *I." 

The determinative issue on this appeal is whether claimant 

suffered a compensable "injury" within the course of his employment. We hold the Workers' Compensation Court was correct in 

concluding he did not. 

Section 92-418(1), R.C.M. 1947, sets forth the definition 

of "injury1' for purposes of compensation as : 

"(1) 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 * * *.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, or unusual strain. McAndrews v. Schwartz, 
(1974), 164 Mont. 402, 523 P.2d 1379. Where a claimant's disorder or disability is the result of a disease not 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 satisfy his 

burden of proving "injury" . 

The bulk of the medical evidence tends to establish that 

claimant's symptoms are the result of multiple sclerosis, a 

disease which, as presently understood, is not traceable to an 

"injury" such as that claimant purports to have suffered. Indeed, 

claimant admitted having been treated for symptoms commonly 

associated with multiple sclerosis one year prior to the accident. 

Claimant simply failed to prove, by a preponderance of the evidence, 

that his physical condition was proximately caused by an 

industrial injury . 

At the 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 if not consided a "disease", predated the accident. 

It is of course the rule, urged by claimant, that an 

employee who suffers from a preexisting condition is entitled to 

compensation if the condition was aggravated or accelerated by 
an industrial injury. Rumsey v. Cardinal Petroleum, (1975), 

166 Mont. 17, 530 P.2d 433; Gaffney v. Industrial Accident Bd., 

(1955), 129 Mont. 394, 287 P.2d 256; Weakley v. Cook, (1952), 

126 Mont. 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 to establish the occurrence of a work related injury. 

Claimant's ultimate failure of proof of a work related 

injury is evident, when considering the evidence he failed to 

introduce. Claimant clearly failed to establish that the 

injury had "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), 140 Mont. 440, 373 P.2d 517. 

Claimant failed to locate and produce the co-worker who 

allegedly assisted him in changing the tire following the claimed 

accident. In addition, the union secretary to whom 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 to do so. Therefore, despite the 

availability of proof, claimant produced no witnesses to corroborate 

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 it was 

within the power of the offering party to produce stronger and 

more satisfactory evidence, the offered evidence, i.e. claimant's 

testimony regarding the injury, is to be 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 evidence willfully suppressed would be 

adverse, if produced. 

"6. That higher evidence would 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 

of whether the injury arose out of the course of his employment. 

The decision of the workers ' Compensation Court denying 

compensat ion is aff irmed. 

We Concur: 

Chief Justice 

n fI. -.- i . . P 

C 

Hon. Bernard Thomas, District 

Judge, sitting.