No. 90-539 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

JIM RICHARDSON, Claimant and Appellant,

COLUMBIA FALLS ALUMINUM CO., Employer, and STATE COMPENSATIONMUTUAL INSURANCE FUND, Defendant and Respondent.

APPEAL FROM: Workers1Compensation Court The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: John H. Bothe; Laurie Wallace; Bothe & Lauridsen; Columbia Falls, Montana For Respondent: Mark L. Stermitz; Warden, Christiansen, Johnson & Borg; Kalispell, Montana 

# lLF s*md .wr Submitted on Briefs: February 21, 1991 

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## 1991 Decided: March 28, 1991 Filed: i i 

### ,3 CLERKOFSUPREl'ilCCOUR? STATEOF UOld'i"AI4A ClerkJustice Fred J. Weber delivered the opinion of the Court. Claimant, Jim Richardson, appeals from an order of the Workers1 Compensation Court denying his claim for a neck or cervical spine injury. We affirm. The issue is: Was there substantial evidence to support the Workers1 Compensation Court's conclusion that Mr. Richardson had failed to establish that he suffered an industrial injury to his neck orcervical spine (hereinafter referredtoas cervical injury) on November 4, 1987? On June 25, 1984,Mr. Richardsonwas working as a pipe fitter at the aluminum plant in Columbia Falls, Montana, when he hit his head on a piece of angle iron as he was ascending a ladder to an overhead walkway. The force of the impact "jammedvhis neck and resulted in a lump on his head. Mr. Richardson filed an accident report with his employer, but did not seek immediate medical treatment and did not lose any work time. On November 4, 1987,Mr. Richardson was changing an air valve

on a cylinder at the aluminum plant. Mr. ~ichardson was pulling

on a 24 inch pipe wrench when the wrench gave way and he fell backward, striking his right elbow on a steel cylinder. The next day Mr. Richardson went to Dr. Spencer, family practitioner, for pain inhis elbow. The followingdayhe sawDr. Spencer'spartner, Dr. Winkel. Hewas diagnosed ashaving tendonitis of the elbowand

was treated with anti-inflammatory medication, a tennis elbow splint, and was restricted from lifting more than 20 pounds with his right arm. Hewas told it would take three to four months for 2the elbow toheal. Approximately fourmonths laterMr. Richardson returned toDr. Winkel complainingof severe headaches,pain across both shoulders, into the neck and down to the left elbow, and numbness in the first two fingers and thumbs of both hands. Neither party disputes that Mr. Richardson suffered an industrial accident in 1984 that resulted in a cervical injury. The dispute arises over the nature and extent of the cervical injury suffered by Mr. Richardson in 1984 and the effect, if any, the 1987 industrial accident had on that injury. In 1989, Mr. Richardson filed a workers' compensation claim for his cervical injury resulting from the 1984 accident. The parties settled for $10,000. Mr. Richardson now brings this claim for aggravation of the cervical injury in the 1987 accident. TheWorkers'Compensation Court determinedthatMr. Richardson had failed to establish thathe suffereda cervical injury in 1987. Mr. Richardson claims that the Workers' Compensation Court relied exclusively on the written report of Dr. Joern to support its conclusion and that a careful evaluation of the other examining and testifying physicians in the case would show that in fact a preponderance of themedical evidence weighed in Mr. Richardson's favor

# . Where findingsarebased onconflictingevidence,thisCourt's function is confined to determining whether there is substantial evidence to support theWorkers' Compensation Court's findingsand conclusions. It is not this Court's functionto determinewhether there is sufficientevidence to support contrary findings. Morrisv. Montana Forward (Mont. 1990), 799 P.2d 1063, 1065, 47 St.Rep.

Mr. Richardson testified that when he fell back and hit his elbow in 1987, his head snapped back, aggravating his cervical injury. As evidence he states that it was only after the 1987 accident that he experienced any symptoms. In March, 1988, he developed severe headaches, pain across both shoulders, into the neck and down to the left elbow, and numbness in the first two fingersand thumbs of both hands. TheWorkers1CompensationCourt found Mr. Richardsonlstestimony not crediblebecause he had made

no mention of his head "snappingbackgg in the 1987 accident until two and a half yearshad passed and he had settled the 1984 claim. TheWorkersgCompensation Courthad before it thedepositions of five physicians and the medical reports of seven other physicians. A review of all the medical evidence supports the WorkerstCompensation Court's conclusion. The reports of the first examinations following the 1987 accident cover only the elbow injury. Mr. Richardson made no mention of the glsnappinggg of his neck when he described his accident to Dr. Spencer and Dr. Winkel. Dr. Winkel testified that when the cervical symptomsbegan fourmonths later,he did not give it much thought in terms of whether the 1987 accident was related

ornot. Hebelieveshe recallsMr. Richardson subsequentlytelling him about the "snappinggg of his neck but he does not know exactly when and does not have it recorded in any of his written records. Dr. Stephens,aphysical medicineand rehabilitationphysicianfromKalispell,did diagnostic tests onMr. Richardson inMarch and April, 1988, shortly after Mr. Richardson began to develop the headaches and pains in his arms and shoulders. Dr. Stephens1 written reports record the wjammingv' of the neck in 1984 and the striking of the elbow in 1987. No mention is made of a "snappingM of the neck in 1987. Dr. Stephens testified that in his opinion the symptoms experienced by Mr. Richardson beginning in March, 1988, were the natural progression of degeneration resulting from the 1984cervical injury. WhenMr. Richardson's attorney askedhim ifhis answerwould be different ifMr. Richardsonwas asymptomatic prior to the 1987 accident,Dr. Stephensreplied thatmight change his answer but thathe considered it apurelyhypothetical question which he was reluctant to answer. InAugust, 1988, Dr. Friedrick, a Helena orthopedic surgeon, examined Mr. Richardson. He testified that there is nomention of the 1984 accident in his records, no mention of the neck being involved in the 1987 accident, and he had no recollection of ever having that information. He assumed that he was being deposed regarding the elbow injury. In December, 1988,Mr. Richardson was examined by a Missoula medical panel to determine when the cervical injury occurred. The panel wasmade up of Dr. Norman, a neurologist,and two orthopedic surgeons, Dr. Sterling and Dr. Jacobson. The panel evaluation report was drafted by Dr. Norman and concluded: Question now arose as to relationship of elbow injury

(11-4-87) and impairment of the cervical spine. Quite frankly, there is no clear relationship. There is no clearhistory of cervical spine injury or aggravation ofpreexisting condition in history obtained relating to injury of November 4, 1987. Discussionnowturned toprevious injury in July of 1984. Finally it was concluded on the basis of history and medical data available that it could not be determined when injury of the cervical spine occurred. Dr. Norman's written records do not mention the "snappingI1of the neck when he described the 1987 accident. Dr. Peterson's written records also do not mention the "snappingwof the neck in 1987. In testimony however he testified that "I don't have any record that he actually struck his head or his neck with thatparticular accident [in 19871. What he did was he stressed the head and the neck area, as anyone would. That suggests that there may well have been someproblem present, kind of like a time bomb you're sitting on, waiting for something to happen to aggravate it." ThereforeDr. Petersonbelieved the 1987 accident precipitated Mr. Richardson's symptoms. Dr. Sterling's written record also does not mention the "snapping1'of the neck in 1987. Dr. Sterling expressed disbelief of Mr. Richardson's testimony that he had "snappednhis neck back, and testified that it was his opinion that the cervical condition

was not caused by snapping of the neck. 'I..

# .[Tlhewhole tenor [of my report and of the panel's final report] would have been different had the initial injury report said that he banged his elbow and snapped his neck initially rather than several months later.'I Dr. Joern, a Kalispell physican, examined Mr. Richardson in August, 1989, and evaluated his condition based on his interviewand examination of Mr. Richardsonand copies of all the records of the physicans who had examined or treated Mr. Richardson. Dr. Joern summarized the various medical records and gave detailed results of his own examination. Dr. Joern came to the conclusion that the symptoms were a natural progression of a cervical degenerative condition resulting from the 1984 accident, and that the confusion arises because in the 1987 injury "there was an overlapping of symptomatology due to the similarity of the distribution of the effected nerves from the neck through the elbow.I' In light of the foregoing medical reports and testimony,we hold there is substantial evidence to support the Workers1 Compensation Court's determination that Mr. Richardson failed to establish that he suffered an industrial injury to his neck or cervical spine on November 4, 1987. Affirmed.