No. 86-470 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

WELDON R. CURREY, 

Claimant and Appellant, 

-vs10 MINUTE LUBE, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court of the State of 

Montana, The Honorable Timothy Reardon, Presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelleher Law Office; Robert L. Kelleher, Jr., 

Billings, Montana 

For Respondent: 

Crowley Law Firm; William J. Mattix, ~illings, 

Montana 

Submitted on Briefs: Feb. 13, 1987 

Decided: April 21, 1987 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Appellant, Currey, appeals from an order of the Workers' 

Compensation Court awarding benefits, reasonable costs and 

attorney fees for a compensable injury, but ruling that the 

claimant was not entitled to temporary total disability 

benefits and denying his motion to submit additional 

evidence. We affirm. 

The issues raised on appeal are: 

1. Is the decision of the Workerst Compensation Court 

regarding appellant's entitlement to disability benefits 

under the Montana Workers' Compensation Act supported by 

substantial evidence? 

2. Did the Workerst Compensation Court abuse its 

discretion in denying appellant's motion for a rehearing in 

order to submit additional evidence? 

The defendant, Weldon Currey, is an auto mechanic. He 

was injured on January 13, 1984, when his truck, while 

stopped at a stop sign, was hit from the rear by another 

vehicle. At the time of the accident Currey was on his way 

to pick up cases of oil for his employer, 10 Minute Lube. 

Following the collision, Currey experienced pain and 

discomfort in his lower back and neck. He sought treatment 

from a chiropractor whom he had been going to previously. 

Since childhood, Currey has had congenital scoliosis 

which causes the spine to grow unevenly. He also has. a 

related disorder, syringomyelia, which affects the spinal 

cord, creating cysts in the cord which destroy surrounding 

nerve tissue. Due to this condition, repetitive moving or 

lifting heavy objects has been difficult for Currey 

throughout his life. 
Typically, symptoms of syringomyelia can include atrophy 

and weakness in the upper extremities as well as loss of 

sensation to temperature and pain in the affected areas. 

Although a naturally progressive neurological disorder, the 

condition can remain undiagnosed and asymptomatic throughout 

a person's life. Usually the symptoms will begin to become 

noticeable in afflicted males between the ages of 20 through 

40 years. Currey was 35 at the time of the accident. Since 

the accident, he has become aware of some symptoms associated 

with this disorder. 

At the time of his industrial injury, Currey was 

employed as the manager of 10 Minute Lube, a Billings 

automotive shop which specializes in oil changes. As 

manager, Currey was responsible for taking inventory each 

night, balancing the daily books, and making a daily report 

to the owner, Francis Fanning. Currey informed Fanning of 

his injury the evening of the accident. 

In April, 1984, Fanning sold 10 Minute Lube to Bill 

Simmons who changed the business' name to Master-Lube. At 

that time, Currey lost his position as manager and was 

required to work faster than was previously expected of the 

employees under Fanning's employ. In July, 1984, Currey left 

Master-Lube and became a serviceman for Hotsy Wy-Mont, a 

business which sells and services commercial cleaning 

equipment. He worked there for approximately six months, 

then quit with the intention of moving to California. 

Instead of moving, Currey remained in Billings employed for 

Mont-Dak Chemical as a delivery man for one month before 

returning to work at Hotsy Wy-Mont. As a part of all these 

jobs, Currey was required to lift equipment and supplies 

weighing from 50 to 100 pounds. 

Currey filed a claim for wage benefits under Montana's 

Workers' Compensation Act on November 14, 1984, ten months 
after the accident. He quit working for Hotsy Wy-Mont in 

July, 1985, after Dr. Nelson, a Billings neurologist, advised 

him to no longer perform activities which involved heavy 

lifting. 

The question as to whether there was substantial 

evidence to support the decision of the Workers' Compensation 

Court must be reviewed in light of the presumption of 

correctness which accompanies the Workers' Compensation 

Court's findings. 

where the find-ings are based on conflicting 

evidence, this Court's function on review is 

confined to determining whether there is 

substantial credible evidence to support the 

findings, and not to determine whether there is 

substantial evidence to support contrary findings. 

Davis v. Mountain West Farm Bureau Mutual Ins. Co. (~ont. 

1985), 701 P.2d 351, 353, 42 St.Rep. 840, 843. The findings 

and conclusions will not be set aside unless they are clearly 

erroneous. Carlson v. Cain (Mont. 1985), 700 P.2d 607, 616, 

42 St.Rep. 695, 705. 

The depositions of two neurologists, Doctors Peterson 

and Nelson, were entered at claimant's hearing as medical 

evidence of the nature and extent of Currey's injury. This 

Court will not substitute its judgment for that of the 

Workers' Compensation Court concerning the credibility of 

witnesses nor the weight to be given their testimony except 

where critical medical evidence is entered by deposition. In 

cases where depositions are the evidence, "this court, 

although sitting in review, is in as good a position as the 

Workers' Compensation Court to judge the weight to be given 

such record testimony, as distinguished from oral testimony, 

where the trial court actually observes the character and 

demeanor of the witness on the stand." Shupert v. Anaconda 
Aluminum Company (Mont. 1985), 696 P.2d 436, 439, 42 St.Rep. 

277, 281-282 citing Hert v. J. J. Newberry Co. (1978), 178 

Mont. 355, 360, 584 P.2d 656, 659. 

An examination of the doctor's testimony as recorded by 

their depositions shows contradictory opinions with regard to 

the relationship between Currey's symptoms and the January 

13, 1984 accident. Section 39-71-104, MCA, requires that 

liberal construction be given to the Workers' Compensation 

Act whenever interpreted by a court. This Court has 

repeatedly held that such liberal construction must be in 

favor of the claimant. 696 P.2d at 441. However, 

This rule of liberal construction does not relieve 

the Court of it's duty to carefully consider all of 

the evidence before determining whether the weight 

of the evidence presented supports the workers' 

claim. 

Soelter v. Aetna. Life & Casualty Co. (Mont. 19841, 683 P.2d 

480, 483, 41 St.Rep. 1205, 1208. 

Appellant argues that because the record shows that it 

was medically possible that the accident aggravated his 

pre-existing condition he is entitled to an award for 

permanent partial disability benefits. He cites ~iets v. 

Sweet Grass Co. (1978), 178 Mont. 337, 583 P.2d 1070, in 

support of his argument. In Viets, we stated that "evidence 

of what is possible is more reliable in proving aggravation 

of an injury or disease than cause and effect . . . proof 

that it was medically possible for an industrial accident to 

aggravate a pre-existing condition is acceptable proof of 

disability." 583 P.2d at 1072. However, this evidence 

cannot be considered as if in a vacuum. The medical 

possibility that an industrial accident or injury aggravated 

a pre-existing condition "may together with other evidence, 

establish a compensable disability." (Emphasis added. ) 

Rykonen v. Montana Power Co. (Mont. 1985), 703 P.2d 856, 858, 
42 St.Rep. 1112, 1115. Liberal construction of the Act does 

not allow the Court to disregard some portions of the 

evidence before it. Soelter, 683 P.2d at 483. Claimant, 

Currey, still has the burden of proving his case by a 

preponderance of the evidence. Dumont v. Wickens (1979) 183 

Mont. 190, 201, 598 P.2d 1099, 1105. 

In Wheeler v. Carlson Transport (Mont. 1985) , 704 P. 2d 

49, 53-54, 42 St.Rep. 1177, 1183, this Court stated that: 

expert testimony on medical possibilities is 

competent evidence admissible in a worker's 

compensation proceeding. It is the standard of 

evidence and does not affect claimant's ultimate 

burden to prove his case by a preponderance of the 

evidence. "Medical possibility" is to be weighed 

just as any other evidence; if supported by other, 

independent evidence it is "acceptable" to be used 

by the court in making its determination. Medical 

possibility evidence by itself, though, does not 

mandate the conclusion that the claimant has met 

his burden of proof under the Act. 

The record shows and the Workers' Compensation Court 

found that with respect to this injury Currey was examined by 

a mectical doctor, Dr. Peterson, in December, 1985, eleven 

months after the accident. Dr. Peterson diagnosed Currey's 

neurological disorder called syringomyelia. Dr. Peterson had 

Currey's lifetime medical records and testified that within a 

reasonable degree of medical certainty the January 13, 1984 

accident did not worsen or affect Currey's condition. He 

felt that a more traumatic, crushing-type injury would be 

necessary to cause any sudden onset of syringomyelia or 

related symptoms. 

Dr. Nelson, also a neurologist, examined Currey in July, 

1985. He agreed with Dr. Peterson's diagnosis of 

syringomyelia. Dr. Nelson testified that due to Currey's 

spine's abnormal curvature and posture, it was more likely 

that he would sustain an injury. He believed that any degree 
of trauma could aggravate Currey's disorder. Dr. Nelson 

agreed that it was impossible to determine the extent, if 

any, that the accident caused Currey's symptoms without 

pre-accident and post-accident studies. He admitted that he 

could not testify that the accident aggravated Currey's 

syringomyelia, that the condition naturally progresses and 

that at some point it would be expected that Currey begin to 

notice some symptoms. 

Currey testified that he has always had difficulty 

lifting heavy objects but that he has had an increasing 

problem since the January 13, 1985 accident. The record 

shows that he did not notice any loss of heat and pain 

sensation in his right shoulder until October or November, 

1985 when his right shoulder became less sensitive to heat. 

Currey worked at several jobs after the accident. The record 

reflects that he left none of these positions due to his 

physical problems until July, 1985, when Dr. Nelson advised 

him to stop lifting heavy objects. Dr. Peterson, on the 

other hand, testified that Currey's condition will not 

prevent him from working and that he doubts that it will 

result in any permanent disability. 

Taken as a whole, the evidence presented in this case 

does not establish a preponderance of the evidence in favor 

of Currey's claim for temporary total disability benefits. 

The Workers' Compensation Court carefully considered - all the 

evidence and concluded that the evidence did not prove that 

Currey's industrial injury either caused or aggravated his 

pre-existing syringomyelia and that defendant is therefore 

not liable to Currey for wage benefits due to this condition 

and related symptoms. We find that there is substantial 

credible evidence to support the Workers1 Compensation 

Court's decision. 
The second issue raised by appellant is whether the 

Workers' Compensation Court abused its discretion in denying 

appellant's motion for a rehearing for the purpose of 

admitting additional evidence. 

Following the September 12, 1985 Workers' Compensation 

Court hearing, appellant was examined by a third neurologist, 

Dr. Cahill. This examination was done pursuant to a request 

made by defense counsel to a collateral civil action 

concerning the same accident as is the subject of Currey's 

present compensation claim. Currey argues that Dr. Cahill's 

medical report should be admitted as additional evidence in a 

rehearing. 

The Workers' Compensation Court hearing examiner 

determined that the evidence presented at hearing was 

insufficient to prove Currey's claim for temporary total 

disability benefits. That decision will not be overturned as 

an abuse of discretion. No opinion is expressed on 

claimant's right to submit additional medical reports to the 

Division of Workers' Compensation requesting a determination 

of his medical condition based on the entire record, 

including the new evidence. 

The decision of the Workers' Compensation Court is 

affirmed. /" - 

We Concur: ,// 

4 

Chief Justice /"