96-055

No. 96-055

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

JACQUI WALLS,

Petitioner and Appellant,

vs.

TRAVELERS INDEMNITY COMPANY,

Respondent/Insurer for

BMC WEST/POULSEN'S, INC.,

a Montana corporation,

Employer.

APPEAL FROM: Workers' Compensation Court

State of Montana

The Honorable Michael McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jeff R. Lynch, Lynch & Chisholm, Great Falls,

Montana

For Respondent:

Kirk D. Evenson, Marra, Wenz, Johnson & Hopkins,

Great Falls, Montana

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Submitted on Briefs: July 18, 1996

Decided: January 23, 1997

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

 This is an appeal from the findings of fact, conclusions of

law and judgment of the Workers' Compensation Court entered on

January 17, 1996, denying Petitioner Jacqui Walls (Walls)

compensation and medical benefits for an alleged work-related

injury. We affirm.

 The sole issue on appeal is whether the Workers' Compensation

Court's denial of Walls' claim for benefits is supported by

substantial credible evidence. 

 FACTUAL AND PROCEDURAL BACKGROUND

 On October 4, 1993, Jacqui Walls (Walls) began working as a

cashier at BMC West/Poulsen's, Inc. (Poulsen's), a hardware, lumber

and homeware retailer located in Great Falls, Montana. Walls

submitted a workers' compensation claim to her employer, Poulsen's,

alleging that on June 2, 1994, she injured her back while lifting

a heavy lawn ornament. Poulsen's was enrolled under Compensation

Plan II of the Workers' Compensation Act and its insurer was

Travelers Indemnity Company (Travelers). Travelers refused to

accept liability on Walls' claim for workers' compensation

benefits, contending that her damages were not the result of a

work-related injury. After both parties complied with the

mediation procedure set forth in the Workers' Compensation Act, a

mediation report and recommendation was submitted on September 22,

1994. Travelers rejected this recommendation on October 19, 1994.

 Subsequently, Walls filed a petition for hearing in the

Workers' Compensation Court on September 1, 1995. In her petition,

Walls alleged that on June 2, 1994, she suffered an industrial

injury arising out of and in the course of her employment with

Poulsen's. Specifically, she contended that she injured her lower

back when she assisted Linda Wilson (Wilson), a customer, by

lifting and carrying a heavy lawn ornament from its display to the

cash register area. Travelers responded and denied that Walls had

suffered a compensable work-related injury. Rather, Travelers

argued that Walls injured her back while moving her personal

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belongings from her boyfriend's residence, not while working at

Poulsen's assisting a customer.

 Trial was held on January 10, 1996, before the Workers'

Compensation Court. Walls testified in person and presented three

other witnesses on her behalf: her former roommate, Carol

LaRocque; her former boyfriend, Zane Carter; and her son, Chase

Walls. Travelers presented six additional witnesses to defend

against Walls' claim: the customer Walls assisted, Linda Wilson;

Walls' supervisor, Van Crowe; and four other Poulsen's employees,

including Vince Miranti and Dennis Olson. On January 17, 1996, the

Workers' Compensation Court entered its findings of fact,

conclusions of law and judgment denying Walls' claim. From this

judgment, Walls appeals.

 DISCUSSION

 Was the Workers' Compensation Court's denial of Walls' claim

for benefits supported by substantial credible evidence?

 In its January 17, 1996 judgment, the Workers' Compensation

Court entered detailed findings of fact and found that Walls did

not injure her back while working at Poulsen's on June 2, 1994. 

Based on these findings and relying on Ricks v. Teslow Consolidated

(1973), 162 Mont. 469, 484, 512 P.2d 1304, 1313, the court

determined that Walls had not proven by a preponderance of the

evidence that she was entitled to compensation. Therefore, the

court concluded that Walls was entitled to neither compensation,

medical benefits nor attorney fees or costs.

 Walls argues that the Worker's Compensation Court's decision

to deny Walls' claim is unconscionable because the court relied

only on the impeached testimony of Wilson, the customer that Walls

assisted on June 2, 1994, and ignored all other evidence concerning

Walls' claim. Walls asserts that Wilson's testimony was impeached

by two other witnesses whose testimony contradicted her

recollection of part of the events of June 2, 1994. Walls explains

that after Wilson testified that Walls gave no indication that she

hurt her back while lifting and carrying a heavy lawn ornament from

its display to the cash register area, Wilson subsequently gave

incorrect testimony that Walls had also moved the lawn ornament

from the cash register area to Wilson's car.

 Walls insists that this part of Wilson's testimony "was

designed to further indicate that Ms. Walls could not possibly have

injured her back if she was then able to transport the [lawn

ornament] from her checkout stand to Ms. Wilson's car." 

Furthermore, Walls points out that the store manager, Van Crowe,

testified that cashiers do not assist customers by taking purchased

items to their cars and that another store employee, Dennis Olson,

testified that he, not Walls, had assisted Wilson by taking the

lawn ornament from the cash register area to her car. Walls

contends that the Workers' Compensation Court should not have given

Wilson's testimony any weight, not only because Wilson offered

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testimony that was later proven untrue, but because her testimony

was "designed specifically to prevent Ms. Walls from obtaining

benefits for a work-related injury."

 Additionally, Walls asserts that all other evidence supports

Walls' claim that she injured her back at work. Specifically,

Walls contends that she reported her injury to her employer and

informed at least three friends on the date the injury occurred and

also reported her injury to her physician. Walls argues that the

trial court ignored this evidence. Furthermore, Walls accuses the

trial court of framing its findings of fact in terms of witness

credibility to prevent meaningful review of its decision by this

Court and "[t]o hamper [Walls'] likelihood of reversal." Walls

urges this Court to reframe our standard of review by adopting a

more reasonable and equitable standard to ensure meaningful

appellate review of issues of witness credibility.

 Travelers responds that Walls' arguments lack merit and the

Workers' Compensation Court's decision should not be disturbed. 

Travelers asserts that upon careful review of the trial court's

findings, it is clear that the court did not rely solely on

Wilson's testimony and ignore all other testimony presented. 

Rather, Travelers points out that the court carefully considered

all testimony and drafted detailed findings to explain its

decision. Specifically, Travelers refers to Finding of Fact No.

22, wherein the trial court summarized the conflicting testimony

and explained what testimony it considered credible. Travelers

argues that this finding, alone, shows that substantial credible

evidence supports the trial court's finding that Walls did not

injure her back on the job. 

 Additionally, Travelers argues that Wilson's inability to

perfectly recall who assisted her by taking the lawn ornament from

the cash register area to her car is insignificant and does not

impeach her testimony. To support this argument, Travelers points

out that in Finding of Fact No. 7, the trial court stated that

resolving the conflict in testimony concerning who took the lawn

ornament to Wilson's car "is not central to my decision." 

Moreover, Travelers argues that Walls' assertion that Wilson had a

motive to testify falsely is "absurd" because Wilson had absolutely

no stake in the outcome of this case.

 Finally, Travelers argues that Walls' assertion that the trial

court purposely framed its findings in terms of witness credibility

to avoid meaningful appellate review is unfounded. Travelers

points out that the trial court recognized the conflicting nature

of the testimony, and, therefore, based its decision upon witness

credibility. Consequently, Travelers contends that because the

Workers' Compensation Court was in the best position to observe the

character and demeanor of the witness, we should not substitute our

judgment for that of the trial court. We agree.

 We review the Workers' Compensation Court's findings of fact

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to determine if they are supported by substantial evidence. 

Wunderlich v. Lumbermens Mut. Casualty Co. (1995), 270 Mont. 404,

408, 892 P.2d 563, 566. We have defined "substantial evidence" as

consisting of "more than a mere scintilla of evidence but may be

somewhat less than a preponderance." Wunderlich, 892 P.2d at 566. 

Furthermore, "[w]here the findings are based on conflicting

evidence, the Court's function is to determine whether there is

substantial evidence to support the findings and not to determine

whether there is sufficient evidence to support contrary findings." 

Nelson v. Semitool, Inc. (1992), 252 Mont. 286, 289, 829 P.2d 1, 3. 

We will not substitute our judgment for that of the trial court

when the issue concerns the weight given to certain evidence or the

credibility of the witnesses. Wunderlich, 892 P.2d at 566. 

 Walls requests that we reframe our standard of review

concerning witness credibility by adopting a more reasonable and

equitable standard. However, Walls, in essense, is requesting that

we review the record to determine whether substantial credible

evidence supports findings contrary to those of the Workers'

Compensation Court. Clearly, this is not the appropriate standard. 

See Nelson, 829 P.2d at 3. As is evident from the record, the

Workers' Compensation Court was presented with conflicting

evidence, from witnesses testifying in person. Therefore, we will

defer to the trial court's judgment concerning witness credibility

and review the record only to determine whether the trial court's

findings are supported by substantial credible evidence. See

Wunderlich, 892 P.2d at 566. 

 Additionally, Walls alleges that Wilson had a motive to

testify falsely and that Wilson's testimony was impeached by two

other witnesses whose testimony conflicted with a portion of her

own. Therefore, Walls argues that the trial court erred by giving

Wilson's testimony any weight. We give due regard to the trial

court not only to judge the credibility of the witnesses, but to

resolve inconsistencies in witness' testimony. Rafanelli v. Dale

(1996), 924 P.2d 242, 249, 53 St.Rep. 746, 751. Furthermore, "even

if a portion of a witness' testimony is shown to be false or

unreliable, the trier of fact need not discount the entirety of

that witness' testimony." Rafanelli, 924 P.2d at 249 (citing Kis

v. Pifer (1978), 179 Mont. 344, 350, 588 P.2d 514, 517-18). 

 In this case, the Worker's Compensation Court was the trier of

fact. The trial court noted, in Finding of Fact No. 7, that

Wilson's testimony concerning who took the lawn ornament to

Wilson's car conflicted with other witness testimony. However, the

trial court stated that resolving this conflict "is not central to

my decision." It is clear from the trial court's findings that the

trial court carefully considered Wilson's testimony and accepted

her testimony concerning the circumstances surrounding Walls'

alleged back injury. Furthermore, despite her allegation, Walls

has presented absolutely no proof that Wilson was motivated to

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testify falsely to prevent Walls from obtaining benefits for her

alleged work-related injury. Therefore, we conclude that the trial

court did not err in relying on Wilson's testimony.

 Furthermore, despite Walls' argument, the trial court did not

rely solely on the testimony of Wilson. Rather, the Workers'

Compensation Court made detailed findings concerning specific

testimony of numerous witnesses. Moreover, in Finding of Fact No.

22, the trial court summarized this conflicting testimony and

recorded its decision concerning the credibility of the witnesses

as follows:

 After considering all of the testimony, especially the

 testimony recited in these findings of fact, and

 considering the demeanor of the witnesses, I find the

 testimony of Wilson, Crowe, Miranti and Dennis Olson

 credible and do not believe that claimant hurt her back

 at work. According to claimant, her alleged injury was

 witnessed by Wilson. Wilson, however, testified credibly

 that she saw no sign of any injury and that claimant did

 not report any injury to her. Claimant asserted that she

 told numerous people of her injury prior to her 4:30 p.m.

 meeting with Crowe but did not call a single witness who

 could verify her assertion. Olson, who has a close

 relationship with claimant, recalled claimant telling him

 of the incident the next day. Claimant's assertion that

 she called Dr. Dietrich's office at 3:00 p.m. on the day

 of her alleged injury did not ring true in light of the

 doctor's notes indicating that she did not call him until

 June 8th and that at the time he contemplated seeing her

 only if the medication he prescribed by telephone did not

 alleviate her symptoms. I find Crowe's testimony

 concerning his 4:30 p.m. meeting with claimant and his

 awareness that claimant was moving to be credible and

 convincing. Miranti's testimony that claimant told him

 that she hurt her back while "moving" was also credible

 and convincing. While "moving" could refer to "moving

 the [lawn] ornament," I find such explanation of her

 statement to be implausible, especially in light of

 claimant's assertion that she hurt her back when

 "lifting" the ornament. Finally, the testimony of

 claimant's witnesses did not persuade me that claimant

 injured herself at work. Claimant told those witnesses

 of the alleged accident after she had been placed on

 probation and after she had already staked out a claim

 for a work-related injury. While their testimony about

 the move occurring after June 2nd was credible, claimant

 moved her furniture and effects over several days and I

 am persuaded that she in fact commenced moving things out

 of Carter's residence at the end of May when she

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 admittedly made her decision to move. [Emphasis in the

 original.]

 After reviewing the record and the trial court's detailed

findings, as referred to above, we conclude that the trial court

did not ignore any witness testimony. Rather, the trial court

considered all witness testimony, observed the demeanor of the

witnesses, judged their credibility and concluded that the

testimony of Travelers witnesses was more credible than the

testimony of Walls' witnesses. Based upon this determination, the

trial court concluded that Walls did not injure her back at work,

and, therefore, denied her compensation and medical benefits. The

trial court's decision was grounded in the record, in its judgment

of the credibility and demeanor of all the witnesses and in the

law. Accordingly, we hold that substantial credible evidence in

the record supports the Workers' Compensation Court's findings of

fact and decision.

 Affirmed.

 /S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

/S/ KARLA M. GRAY

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