No. 90-564 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

LESTER NORMAN, Claimant/Appellant,

v. CITY OF WHITEFISH, Employer, and CITY OF WHITEFISH, Defendant/Respondent.

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

COUNSEL OF RECORD: For Appellant: John H. Bothe, Bothe & Lauridsen, Columbia Falls, Montana For Respondent: Oiver 

### H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena, Montana

Filed: Submitted on Briefs: February 28, 1991 Decided: June 4, 1991Justice William E. Hunt, Sr., delivered the opinion of the Court. Claimant Lester Norman appeals from an order of the Workers1 CompensationCourtdenyinghim temporarytotal disabilitybenefits. We affirm. Two issues are raised on appeal: 1. Whether substantial credible evidence supports the Workerst Compensation Court's finding that claimant's current condition is not causally related to his injury of February 12, 1987; and 2. Whether the court's order on rehearing is inconsistent with its prior findings and conclusions regarding the causal relationship between claimant's current conditionand the February 12, 1987, injury. Claimant Lester Norman was employed as a police officer for the City of Whitefish from 1969 until 1975, and again from 1979 until 1988, when he voluntarily left the force. Norman suffered compensable auto accident injuries on November 16, 1980, and February 12, 1987. He timely reported both injuries and filed appropriate claim forms. He suffered no immediatewage loss from either accident. Following the February 1987 accident, Norman continued to work until March 1988, when he quit due to what he characterized as a "nervousbreakdown." He subsequentlypursued disability retirement benefits, claiming his disability was from stress. No mention was made of any disability related to the February 12, 1987, auto accident.On or about December 5, 1989, Norman filed a petition for hearing with the Workers' Compensation Court, alleging that the City of Whitefishwas liable for his accident of February 12, 1987. When thematterwasheard inMarch 1990,the issues presentedwere:

(1)whether Norman's current cervical condition is related to the February 12, 1987, accident; (2) if it is related,whether Norman is entitled to temporary total disability benefits and medical benefits; and (3) whether he is entitled to a 20 percent delay increase. The court found, inAugust 1990,thatNorman had failed toprove that his current inability towork was proximately caused by his February 12,1987,auto accident,and that therefore, hewas not entitled to temporary total disability benefits, or fees, costs, or penalty. Norman then filed a motion for clarification, requesting the court to order the City of Whitefish to accept liability for his current cervical condition and pay medical benefits accordingly. The court classifiedNorman's motion for clarificationas amotion for rehearing and denied it on thebasis of its former finding that Norman lacked the requisite credibility to support a finding that the February 12, 1987, injurywasmedically related tohis current cervical complaints. Norman appeals from that denial. Does substantial credible evidence support the Workers' Compensation Court's finding that the claimant's current condition is not causally related to his injury of February 12, 1987?The general rule is that the findings of the Workersv Compensation Court will not be overturned on appeal if substantial evidence supports them. Nelson v. ASARCO, Inc., 227 Mont. 272, 277, 739 P.2d 943, 946 (1987)

# . Norman claims that he presented substantialevidence to showthat theFebruary 1987accident,which occurredwhilehewasworking for theCity ofWhitefish,aggravated

a pre-existing shoulder and back condition. He states that it is that condition which now prevents him from working, and that therefore,the City of Whitefish should be held liable. He argues that because his evidence was substantial and credible, the Workersvcompensation Court's decision not to grant benefits must have been erroneous. Liability in workerst compensation cases is defined in 5 39-71-407,MCA (1985): Every insurer is liable for thepayment of compensation, in themanner and to the extent hereinafter provided, to an employee of an employer it insures who receives an injury arising out of and in the course ofhis employment or, in the case of his death from such injury, to his beneficiaries, if any. An "injuryIvis defined as: [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 

# . . . . Section 39-71-119(1)

## , MCA (1985)

# . Norman reads these statutes together and reasons that because he had an injury and now claims

a resultant physical condition the City is liable under 5 39-71-407,MCA (1985).A review of the evidence does not yield the result Norman now urges the Court to reach. The following excerpts of findings and conclusions by the Workers' Compensation Court support its conclusion that the claimant is not entitled to benefits because he has failed to show a nexus between his 1987 injury and his present complaint: 1. The claimantwas referred to a psychiatrist in February 1987 and was diagnosed with "generalized anxiety disorder and psychological factors influencing physical condition." 2. Claimant expressed symptoms of worsening stress and anxiety in 1988,which eventually led him to quit thepolice force. 3. By October 1988, Norman's psychiatrist indicated that Norman could return to work. By November 1988, the psychiatrist revisedhis opinionbased on a reportby another doctor thatNorman had suffered another anxiety episode leading to an emergency room visit. 4. In the summer of 1989, a neurosurgeon diagnosed a herniated disc inNorman's neck,whichhe statedwas related to the auto accidents he had suffered in 1980 and 1987. On crossexamination in his deposition, the neurosurgeon stated that his opinion relating Norman's cervical problems to his auto accidents

was entirely dependent on the history related by Norman some two years after the fact. He further stated that the condition he diagnosed could be caused by trauma or by aging.5. Normanwas treated extensivelyby anotherdoctor forhis cervical complaints. His visits increased following the February 1987 accident,but at no time did the doctor advise Norman to quit work due to his physical problems. 6. During calendaryear 1988,Norman's claim for disability retirement benefits named stress as his disability. 7. The evidence is overwhelming that claimant's anxiety disorder is his predominant disabling condition. The City of Whitefish does not dispute that it must pay all medical and wage loss benefits to which Norman is entitled as a result ofhis February 1987 injury. However,therecord showsthat his present disability is stress or anxiety related. Because Normanhas failed to showthat the 1987 injury caused the condition which now results in his total loss of wages, and because the findings and conclusions of the Workers' Compensation Court are supported by substantial credible evidence, the City of Whitefish is not liable for Norman's present disability. Isthe court's order on rehearing inconsistent with itsprior findingsand conclusions regarding the causal relationshipbetween Norman's current condition and the February 12, 1987, injury? The court's original order of August 23, 1990, stated as part of Conclusion of Law No. 3: Dr. Mahnke did diagnose two disk level problems which would require surgery. The Court does feel that given Dr. Mahnke's report, plus Dr. Wensel's office notes reflecting an increase in the number of visits claimant made for chiropractic manipulation following theFebruary 12, 1987 auto accident, that claimant may well have a disability related to that event. Norman maintains that the courtlsdecision on the motion for rehearing on October 4, 1990, was inconsistent with the above conclusion,and therefore, thisCourt shoulddirect the lowercourt to conform its judgment to the findingsand conclusions, orvacate the judgment and remand to the lower court for more specific findings and consistent conclusions. When read in their entirety, theAugust 1990 and October 1990 decisions of the Workers1 Compensation Court are specific and consistent. The above conclusion in theAugust order additionally states that: However, in order to be entitled to total disability benefits, the accident must cause the condition which results in claimant's total loss of wages. Claimant has not met that burden. The October order states that: The prior ruling, in the Conclusions of Law, notes that claimantmaywell have someentitlement under theACT for that February 12, 1987 event but that his lack of credibility fails to support a determination medically that claimantls current cervical complaints can be related to the February 12, 1987 accident. In short, he failed to meet the requisite burden of proof in that regard. The orders are consistent in their rationale that although Norman may have suffered a compensable injury in 1987, and that injury may be related tohis current cervicalproblems, he has not shown in any respect that his total inability to work now is a result of the 1987 injury. His failure to prove the causalconnection between injury and inability towork relieves the City of Whitefish of liability for his present total disability. Affirmed.

We Concur: