NO. 96-102 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

CATHERINE E. SATTERLEE,

LUMBERMEN'S MUTUALCASUALTY COMPANY, i,//i j/,j~~~~~~$~~

BUTTREY FOODANDDRUG,

Employer.

APPEAL FROM: TheWorkers' Compensation Court,

TheHonorable Mike McCarter, Judge presiding.

COUNSELOFRECORD:

For Appellant: Bernard J. "Ben" Everett; Knight, Dahood, McLean &Everett; Anaconda, Montana For Respondent: Thomas A. Marra; Marra, Wenz, Johnson &Hopkins; Great Falls, Montana

Filed: Submitted onBriefs: September 12, 1996 Decided: December 10, 1996Justice Terry N. Trieweiler delivered the opinion of the Court.

Catherine E. Satterlee filed a petition in the Workers' Compensation Court for the State of Montana in which she alleged that she was totally disabled as aresult of injuries sustained during the course of her employment at Buttrey Food andDrug at its Anaconda store, but that Buttrey's insurer, Lumbermen's Mutual Casualty Company, had wrongfully terminated her disability benefits. Lumbermen's admitted that Satterlee had been injured while working for Buttrey, but claimed that shehadrecovered from that injury a short time thereafter, and that any present disability is aresult ofunrelated mental andphysical conditions. After consideration of evidence presented at trial and by deposition, the Workers' Compensation Court found that her disability wasnot aresult of her work-related injury, anddenied disability benefits. Satterlee appeals from that finding. We

reverse in part and affirm in part the judgment of the Workers' Compensation Court. The claimant raises the following issues onappeal: 1. Are the Workers' Compensation Court's findings supported by substantial credible evidence? 2. Did the Workers' Compensation Court err when it denied Satterlee's requests for an award of attorney fees and the imposition of a twenty percent penalty in addition to her disability benefits?

2FACTUALBACKGROUND

Catherine Satterlee wasborn onSeptember 30, 1934. Onthe date that her claim camebefore the Workers' Compensation Court for trial, she was sixty years old. She did not graduate from high school, but did receive her graduate equivalency degree. Shehas

noother formal education. For fifteen years prior to the date of her work-related injury, Satterlee worked asachecker for Buttrey Food andDrug at its store in Anaconda. The evidence was, and the trial court found, that during that time Satterlee haddeveloped degenerative arthritis in her cervical spine, but that she experienced no symptoms or disability from that condition. Until the date of her injury, sheperformed her duties, which included stocking shelves, dusting and cleaning floors, and checking out customers, without physical limitation. She missed nowork due to her underlying cervical condition. InMay1990, Satterlee's adult sonwaskilled in anautomobile accident. Asaresult ofthat loss, shesuffered severe depression and missed several months of work. However, following treatment for her condition, which was later diagnosed as post-traumatic stress disorder, she returned to work in 1991 andworked without anyfurther loss of time until the date of her injury which is the subject of this appeal. OnJuly 25, 1992, while waiting on acustomer at Buttrey, Satterlee bent over andtwisted her body in anattempt torearrange

aforty-five pound bagof dogfood sothat shecould read the price 3label. As a result of that effort, she experienced apulling

sensation in her left shoulder, followed bypain in that part of her body, aswell asin her neck anddown her left arm. Shehad experienced no similar pain at any time prior to that incident. Shetestified that since that incident shehas hadcontinuous pain in her left shoulder and neck. The Workers' Compensation Court found her to be a credible witness and did not question her testimony in that regard. Following her injury, Satterlee attempted to return towork on two consecutive days, but could not perform her duties, andhasnot worked in any capacity since July 28, 1992. Since her injury, Satterlee has been seen and treated or evaluated by numerous physicians. Her injury has been variously diagnosed as "left trapezius strain," "neck strain," and "degenerative disc disease and degenerative arthritis of the cervical spine." Satterlee was treated with medication and therapy for her cervical and shoulder pain. However, that treatment has been unsuccessful. Satterlee's pain is constant, it causes headaches, which are present most of the time, and her symptoms are worsened by activity.Dueto her pain and discomfort, she is no longer capable of performing most of her household responsibilities. The majority of her waking hours are spent sitting in arecliner.

4During 1993, while visiting her daughter in the state of

Washington, Satterlee was examined by a physician who advised Lumbermen's that whatever soft tissue injury she had sustained at work should have healed within asix week period, and that any continuing disability was a result of her preexisting spinal disease. Following receipt ofthat correspondence, onFebruary 23, 1993, Lumbermen's terminated Satterlee's total disability benefits. During 1993, Satterlee's adult daughter died at the ageof 33 from cystic fibrosis after shewasunable toobtain necessary organ transplants. During that same year, afoster daughter and her children died from afire intheir home, andSatterlee's sister was diagnosed with aterminal brain tumor. Satterlee's preexisting emotional condition worsened. After further psychiatric evaluation, she was against diagnosed with major depression and post-traumatic stress disorder. Satterlee applied for social security disability benefits, and

was found vocationally disabled by the Social Security Administration on December 14, 1993. The SSA attributed her disability to both back pain andsevere emotional trauma. It is, and has been, Lumbermen's position that any physical disability which resulted from Satterlee's work-related injury was temporary. Lumbermen's contends that shehasfully recovered from any soft tissue injury and that, even though she experienced no symptoms from her underlying degenerative condition prior to that injury, any current pain or physical impairment that shecurrently

5experiences is strictly aresult of her preexisting degenerative

condition. There wasmedical testimony to support that contention. Lumbermen's also contends that, to the extent Satterlee is disabled from gainful employment, the primary factor is not her physical impairment, but her emotional disorder which developed subsequent to her work-related injury, and that therefore, it is not responsible for any disability caused bythat disorder. Satterlee has contended, and continues to assert onappeal, that shewasfree of pain prior to her injury, has been unable to function due to pain since her injury, andthat the evidence does not support anyfinding other than that sheis totally disabled due to her work-related injury. The Workers' Compensation Court did not completely accept either party's argument. Its findings, someofwhich are designated

as "findings," someof which are included under "conclusions," and

someof which are set forth in its order that denied Satterlee's post-trial motions, are summarized asfollows: 1. Satterlee wasacredible witness. (Finding No. 7.) 2. Satterlee was able to perform all of her job duties during the fifteen years prior to her injury, and testified that she suffered no neck or left shoulder pain prior to that date. Medical exams conducted after her injury showed that she suffered from preexisting cervical disc disease. However, that condition

wasasymptomatic prior to her injury. (Finding No. 8.) 3. Although Satterlee's daughter died in the spring of 1993 (Finding No. Zl), the internal medicine specialist from whomshe 6sought treatment for depression beginning onMay 10, 1993, noted

that that loss wasonly the latest in aseries of personal losses, and that her son was killed in anautomobile accident two years prior to her industrial injury. That loss also led to treatment for depression andinsomnia. (Finding No. 22.) 4. OnDecember 14, 1993, the Social Security Administration concluded that Satterlee wastotally disabled because of back pain and severe emotional trauma. (Findings No. 29and 30.) 5. WhenSatterlee testified that she had pain in her left shoulder, neck, and arm ever since 1992, the Court found her testimony credible. (Finding No. 33.) 6. Based onthe medical testimony, the court waspersuaded that Satterlee's 1992 industrial injury aggravated apreexisting cervical disease and made her condition symptomatic, triggering pain andassociated muscle spasm. (Finding No. 44.) 7. Even though Satterlee suffers from shoulder and neck pain, her psychological condition amplifies her pain. (Finding No. 46.) 8. If motivated, Satterlee could tolerate her pain andwork

onaregular basis in either of two positions identified by the insurer's vocational consultant. (Finding No. 49.) 9. However, the court attributed Satterlee's lack of motivation to her depression and general mental condition, and found that, based on the combination of her circumstances, she would beunable to cope with her pain while working onaregular basis. (Finding No.49.) Thecourt wasunpersuaded, however, thatabsent her personal losses, Satterlee would beunable to cope with

her pain andwork. (Finding No. 50.) 10. The court agreed that at the time of trial Satterlee could not cope with her pain, and therefore return to work. However, the court wasnot persuaded that absent the psychological trauma associated with the death of her daughter and other close relatives, Satterlee's pain would preclude her from physically performing either of the twojobs which were medically approved by Dana Headapohl, M.D. The court did conclude that Satterlee had valid medical andpsychological reasons for her inability to cope with pain, however, it further concluded that those reasons were attributable to subsequent unrelated events, and not to her industrial injury. (Conclusion of LawNo. 12.) 11. Whenthe Workers' Compensation Court denied Satterlee's post-trial motions, it clarified that it did not find Satterlee's pain to be anything other than as she claimed, but believed that she truthfully reported her disabling pain. However, it stated that her underlying psychological condition is amplifying her pain, andthat the losses which have led to her underlying psychological condition have occurred since her injury. The court recognized that pain which is amplified by a preexisting psychological condition is compensable, but in this case, concluded that the principle events which caused Satterlee's post-traumatic stress disorder occurred subsequent to her work-related injury.ISSUE 1

Are the Workers' Compensation Court's findings supported by substantial credible evidence? Wewill uphold the Workers' Compensation Court's findings if they are supported by substantial credible evidence. Wunderlichv. Lumbermen’sMutualCas.Co. (1995), 270Mont. 404, 408, 892P.2d 563, 566. Following the entry of judgment for the defendant, Satterlee moved the Workers' Compensation Court to amend its findings based

on her contention that they were not supported by substantial evidence. That motion was denied, and her appeal is from the denial of that motion. Lumbermen's has not cross-appealed, and therefore, weaccept astrue those findings which were favorable to Satterlee. Those findings werethat, while Satterlee suffered from

anunderlying condition of degenerative disc disease prior to her work-related injury, she experienced no symptoms from that condition andwasable toperform all of her job duties for fifteen years. Dueto that injury, however, sheaggravated the underlying degenerative disease in her neck, and has experienced continuous pain and muscle spasm since the date of her injury. The combination of her pain and her inability to deal with that pain due to her emotional condition, render her unable to work on a regular basis. However, absent her underlying emotional disorder, there are two jobs that Satterlee could perform. TheWorkers' Compensation Court correctly concluded that an employer takes its employee as it finds her, and that if her

9disability is aggravated by an underlying physical or emotional

condition, that the employer is liable for disability which results from that aggravation. Shumacher V.EmpireMfg. (197?), I?5 Mont. 411, 413-14, 574P.2d 987, 988. However, the critical finding, andthe

oneonwhich the denial of Satterlee's benefits is based, wasthe court's finding that her emotional condition resulted from events which occurred subsequent toherwork-related injury, andthat that condition did not preexist her injury. Wemust, therefore, determine whether that finding is supported by substantial evidence. In the record, there are only three sources of information which relate to the onset of Satterlee's post-traumatic stress disorder. They include the claimant's owntestimony atthe time of trial, the medical records of Martin D. Cheatle, Ph.D., and the medical records of Kenneth C.Olson, M.D. Whenasked during trial, Satterlee stated that she believed her post-traumatic stress symptoms developed in May1990when her

sonwaskilled. Shestated that shewasout of work and involved in treatment for that condition for eight months after her son's death, but hadbeen able to return towork following that period of treatment until this injury occurred. Dr. Cheatle wasthe psychologist whoevaluated Satterlee for the St. Patrick Hospital Medical Panel to which shewas referred for evaluation. His records indicate that, although her psychological condition declined after the death of her daughter, the diagnosis of post-traumatic stress disorder was first made 10following the death of her son in 1990, andthat her treatment by

psychotherapy first began following that incident. It was Dr. Cheatle's opinion that Satterlee's persistent cervical andleft shoulder pain, andher ability to deal with that pain, were complicated by post-traumatic stress disorder and depression. However, he does not, at any point in his report, distinguish between the post-traumatic stress disorder that resulted from the death of her son and any worsening of that condition which occurred following the death of her daughter. Dr. Kenneth C.Olson is apsychiatrist to whomSatterlee was referred for evaluation in August 1993 by Dr. Michael Sadaj, her attending physician. His report to Dr. Sadaj indicates that the onset of Satterlee's emotional problems began following the death of her son in 1990, and that the emotional trauma was so severe that she lost her memory for aperiod of eight months. His report indicates that during his interview of her shecried andexpressed anger when discussing the loss of her son. Similar emotional reactions are not related to any other event. Hediagnosed major depression with unresolved pathological grief and post-traumatic stress disorder. Nowhere in his report does he relate those emotional conditions to events that occurred after Satterlee's work-related injury. Any inference that can be drawn from his report suggests that the primary factor related to those mental disorders is the death of her son, which occurred prior to her work-related injury.

11There is no other evidence which suggests a cause for

Satterlee's emotional disorder, other than the evidence set forth above. Therefore, we conclude that there was not substantial evidence to support the Workers' Compensation Court's finding that Satterlee's depression orpost-traumatic stress disorder wascaused byevents which occurred subsequent to her work-related injury. Wehave previously held that: [I]t is well established that an employer takes his employee subject to the employee's physical and, logically, emotional condition at the time of his employment. Birnie\I.U.S.GypsumCo., 134Mont. 39, 328 P.2d 133 (1958);Peilzv.IndustrialAccidentBoard, 127Mont

.316,264 P.2d 709 (1953). An employee who suffers from a pre-existing condition is entitled tocompensation if the condition wasaggravated byanindustrial injury. Rumsey v.CardinalPetroleum, 166Mont. 17, 530P.2d 433 (1975); Weakley 11. Cook, 126Mont. 332, 249P.2d 926 (1952). Shumacher,175Mont. at 413-14, 574P.2d at 988 TheWorkers' Compensation Court correctly recognized this rule of law when, during trial, it stated: Sounds like we've got the principle that you take the worker asyoufind them, soif they are suffering from an underlying psychological condition andthey've got pain that's triggered, even though that pain continues to be

-- they continue tofeel more severe pain than they would without the psychological condition, this sounds like a multi-factorial thing. You've got some of the psychological condition arising before, someafter, with thepsychological condition probably amplifying the pain. It logically follows that if Satterlee's work-related injury in 1992 aggravated an underlying condition of degenerative arthritis or disc disease, and she experiences pain from that aggravation, which is madeworse by physical activity, andwhich shecannot copewith duetoapreexisting emotional condition, such

12as depression or post-traumatic stress disorder, her employer is

liable for the disability which results from that combination of physical and emotional conditions. In this case, the Workers' Compensation Court found and concluded that Satterlee was not a candidate for regular employment due to the combination of her physical andemotional impairment. Therefore, we reverse the judgment of the Workers' Compensation Court to the extent that it denied Satterlee's claim for total disability benefits, and remand this case to that court for entry of judgment in favor of the claimant, Catherine Satterlee. ISSUE 2 Did the Workers' Compensation Court err when it denied Satterlee's requests for an award of attorney fees and the imposition of a twenty percent penalty in addition to her disability benefits? Satterlee also contends that Lumbermen's termination of her total disability benefits wasunreasonable and, therefore, that she is entitled to anaward of attorney fees pursuant to 539-71-611, MCA(1991), andthe imposition of atwenty percent penalty pursuant to 5 39-71-2907(l), MCA (1991). Based on its conclusion that Lumbermen's wascorrect whenit terminated her disability benefits, the Workers' Compensation Court held that the insurer hadnot acted unreasonably. Although wereverse that part of the Workers' Compensation Court's judgment which denied disability benefits to Satterlee, we 13conclude that there was substantial evidence upon which the court

could have found that the insurer did not act unreasonably when it terminated her benefits. Specifically, correspondence from Alvin J. Harris, M.D., dated February 1, 1993, created an issue with regard tothe cause ofher continuing physical complaints. We conclude that it was not unreasonable as amatter of law for the insurer to rely on that information as the basis for its termination of benefits. Therefore, the Workers' Compensation Court's denial of attorney fees and atwenty percent penalty is affirmed. This case is remanded to the Workers' Compensation Court for entry of judgment consistent with this opinion.

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