NO. 90-461 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

CORA S. LABER, 

Petitioner and Appellant, 

SKAGGS ALPHA BETA, d/b/a 

BUTTREY FOOD AND DRUG, 

Employer and Insurer, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Denise Ackerman, Attorney at Law, Billings, Montana 

For Respondent: 

Chris Mangen and Patricia Karrell; Crowley Law Firm, 

Billings, Montana 

Submitted on Briefs: December 21, 1990 

Filed: 

gecided: February 6, 1991 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Workers1 Compensation Court of the 

State of Montana denying benefits. We affirm. 

The following issues are presented by appellant: 

1. Whether the Workers1 compensation Court erred in finding 

that appellantls industrial injury to her left little finger did 

not result in the aggravation of appellant's carpal tunnel 

syndrome. 

2. Whether the Workers1 compensation Court erred in finding 

that appellant is not totally disabled as a result of appellant's 

February 6, 1987 industrial injury to her left little finger. 

At the time of the accident, Mrs. Cora Laber, appellant, was 

59 years old. Prior to the accident, Mrs. Laber worked in 

Buttery's bakery as a sales clerk, hand-wrapper, icer, and cake 

decorator. On February 6, 1987, while employed at Buttrey Food and 

Drug in Billings, Montana, Mrs. Laber suffered a compensable injury 

arising out of, and in the course of, her employment. Mrs. Laber 

testified that it was about closing time and she was in a hurry and 

after turning off the bread machine, she did not wait long enough 

for the motor to stop. As a result, the little finger on her left 

hand was caught in between moving parts of the machine and the end 

of her finger was partially crushed. The injury did not involve 

any other part of her body. On February 9, 1987, the finger was 

sutured and splinted at a hospital emergency room. The injury was 

slow healing and her primary treating physician, Dr. Jeffrey 

Hansen, fused the distal joint on April 15, 1987. Mrs. Laber was 

2 
to remain off work for four to six weeks and wear a splint at all 

times. On July 27, 1987, Dr. Hansen reported that Mrs. Laber was 

experiencing tingling of the extremity; yet, x-rays confirmed a 

good fusion and he released her to return to work. Dr. Hansen 

testified that Mrs. Laber had reached maximum healing as of July 

27, 1987. 

On August 3, 1987 Mrs. Laber returned to full time employment 

in the Buttrey bakery. Mrs. Laber worked for three weeks until the 

pain from her hand prevented her from continuing. Her last working 

day was August 24, 1987. She returned to see Dr. Hansen on August 

25, 1987. During the August 25, 1987 examination, Dr. Hansen noted 

that Mrs. Laber had hand and finger numbness following repetitive 

use of the extremity and that the extremity had developed 

sensitivity to cold. Dr. Hansen also noted for the first time that 

Mrs. Laber had gradually developed carpal tunnel syndrome. Dr. 

Hansen performed surgery on Mrs. Laber's left wrist on September 

9, 1987 to release the carpal tunnel syndrome. The surgical carpal 

tunnel release improved the numbness in Mrs. Laberls hand, and it 

decreased her tendency to drop things. However, the surgery did 

not relieve her sensitivity to cold nor did it improve her grip, 

and the pain, although temporarily relieved, grew worse. To date, 

Mrs. Laber has not returned to work. 

Mrs. Laber received temporary total disability benefits from 

February 6, 1987, the date of her injury, until she resumed full 

time employment on August 3, 1987. When Mrs. Laber ceased working 

on August 24, 1987, she was returned to temporary total disability 
benefits until they were terminated on two weeks notice in January 

of 1988. The record shows that Mrs. Laber has received $8,602.03 

in biweekly benefits and the insurer has paid $5,941.90 in medical 

expenses, of which $1,450.57 were for medical expenses related to 

her carpal tunnel treatment. Following the termination of 

benefits, Mrs. Laber contended that the industrial injury to her 

little finger aggravated her carpal tunnel syndrome which rendered 

her totally disabled. Mrs. Laber contended that the temporary 

total benefits were improperly terminated and she petitioned the 

Workerst ~ompensation Court to resolve this dispute between herself 

and her employer, Buttrey Food and Drug of ~illings. ~ollowing the 

trial of this matter on May 17, 1989, the hearing examiner 

determined that Mrs. Laberls carpal tunnel syndrome was not 

aggravated by her industrial injury and that Mrs. Laber would not 

be entitled to either temporary total or permanent total disability 

benefits as a result of her injury to her little finger. On June 

7, 1989 the Workerst ~ompensation Court adopted the decision of the 

hearing examiner and entered its own Order and Judgment. Mrs. 

Laber now appeals this judgment. 

Mrs. Laberts first assignment of error is with the Workers1 

~ompensation Court's finding of fact that her industrial injury to 

her left little finger did not aggravate her carpal tunnel 

syndrome. Mrs. Laber contends that this finding is not supported 

by substantial credible evidence of the record. 

The standard of review is clear. This Court will not 

substitute its judgment for that of the Workerst ~ompensation Court 
where there is substantial credible evidence to support the court's 

findingsof fact. Lakeyv. Kerrian's (1987), 228Mont. 139, 741 

P.2d 416. As an additional safeguard, Rule 52(a), M.R.Civ.P., 

requires that findings of fact shall not be set aside unless 

clearly erroneous. 

Both sides offered expert testimony to prove the extent of the 

industrial injury. The defendant offered deposition testimony of 

three physicians; Dr. William Shaw, who specializes in occupational 

medicine; Dr. Patrick Cahill, a neurologist; and Dr. James 

Schwarten, an orthopedic surgeon who has a particular interest in 

hand problems. Dr. William Shaw testified on behalf of the 

Yellowstone Valley Medical Evaluation Panel. The panel is 

comprised of Dr. James Schwarten; Dr. Williams, a neurologist; Dr. 

William Bredehoff, a psychologist; Dan Geiger, a vocational 

rehabilitation specialist; and Dr. Shaw, himself. Each panel 

member separately evaluated Mrs. Laberls hand problems. BY 

deposition, Dr. Shaw testified as follows: 

We were aware that Dr. Hansen had stated quite 

explicitly that he felt that the carpal tunnel syndrome 

was indeed a consequence of the injury to the little 

finger, and that in his opinion this was a common 

occurrence. The panel members discussed among themselves 

whether any of us were aware of such correlation, and 

none of us were . . . . We could not say that it had 

never been reported . . . . But amongst the three doctors 

who deal with such things--namely, Dr. Schwarten, Dr. 

Williams, and myself, none of us had ever heard of such 

reports. 

Dr. Hansen testified by deposition for Mrs. Laber as follows: 

Q. Okay. So that in your opinion, the carpal tunnel 

syndrome was nothing out of the ordinary for this type 

of injury? 
A. [By Dr. Hansen] My feeling is that I would not 

necessarily expect someone who smashed their small finger 

to get carpal tunnel syndrome; that is, if I had 10 

patients with that injury, I wouldn't expect them all to 

get carpel tunnel syndrome. But that kind of injury does 

cause swelling and edema of the hand. The patient is 

unable to make a fist, which is the only way you can pump 

the fluid out of the hand. And since they can't make a 

fist and there is a consequent edema in the hand, it 

could cause carpal tunnel syndrome. And, if the patient 

developed carpel tunnel syndrome or they had an 

exacerbation of a pre-existing carpal tunnel syndrome, 

that needed medical or surgical treatment, I would 

clearly attribute it to the injury to the small finger. 

During cross, Dr. Hansen testified as follows: 

Q. When you released her to return to work on August 

3rd, 1987, had she reached maximum medical 

rehabilitation, in your opinion? 

A. [By Dr. Hansen] Yes . . . I suppose she'd probably 

reached as much healing as she would reach, yes. 

Q. Okay. At that point there wasn't really any swelling 

left in the left hand, was there? 

A. Not visibly, no. 

Q. And it was after a return to work and the repetitive 

use of her left hand that work involved that she reported 

to you carpal tunnel which was now at a level that was 

bothering her, correct? 

A. That's correct. 

Q. Well, isn't that repetitive use of the hand at least 

as likely a cause of the aggravation of the carpal tunnel 

as a now-fully-healed surgery? 

A. Yes. 

Then on redirect, Dr. Hansen said: 

So any swelling or edema down the course of the tendon 

sheath, which would absolutely have to occur with a 

crushing injury of the finger, could contribute to a 

carpal tunnel syndrome. I'm not saying it necessarily 

does or doesn't. In fact, more commonly than not, it 

wouldn't, but it can contribute to it. 
In short, Dr. Hansen testified that aggravation of Mrs. 

Laberls pre-existing carpal tunnel condition possibly resulted from 

her industrial injury to her left little finger. Dr. Hansen also 

agreed that such an injury would not be expected to result in a 

carpal tunnel syndrome. This conclusion was supported by the 

testimony of Dr. Cahill, Dr. Schwarten, and Dr. Shaw who testified 

to a reasonable degree of medical certainty that such an injury to 

one's little finger could not result in a carpal tunnel wrist 

problem. 

As we noted in Bykonen v. Montana Power Co. (1985), 217 Mont. 

169, 172, 703 P.2d 856, 858, our holding in Jones v. St. Regis 

Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140, demonstrates that 

medical possibility evidence that an industrial accident or injury 

aggravated a pre-existing condition, may together with other 

evidence, establish a compensable disability. However, medical 

possibility evidence, in and of itself, does not necessarily 

extinguish claimant's burden to prove her case by a preponderance 

of the evidence. Taken as a whole, the evidence presented in this 

case does not establish a preponderance of evidence in favor of 

Mrs. Laberls claim that her carpel tunnel syndrome was aggravated 

by her February 1987 industrial injury. The Workers1 Compensation 

Court carefully considered all the evidence and concluded that the 

evidence did not prove that Mrs. Laberls industrial injury either 

caused or aggravated her pre-existing carpal tunnel syndrome. We 

find no error. We therefore hold that there is substantial 

credible evidence to support this conclusion of the Workers1 
Compensation Court. 

Mrs. Laber next assigns error to the court's finding that she 

is not entitled to temporary total or permanent total disability 

benefits as a result of the industrial injury to her little finger. 

In determining benefits, the court only considered Mrs. Laber's 

disability which resulted from the industrial injury to her little 

finger, while essentially excluding any disability which was linked 

to her carpal tunnel syndrome. The Workers' Compensation Court 

found that Mrs. Laber was not entitled to temporary total 

disability benefits from August 3, 1987 until August 24, 1987, 

because Mrs. Laber had returned to full time employment during this 

period after her finger injury had achieved maximum healing on July 

27, 1987. The court also denied Mrs. Laber permanent total 

disability benefits. Mrs. Laber claims that the industrial injury 

to her little finger aggravated a pre-existing carpal tunnel 

syndrome which, in turn, has rendered her totally disabled. 

The court found that the Mrs. Laber's carpal tunnel symptoms 

did not result from her little finger injury on February 6, 1987. 

We have held that this finding is supported by substantial credible 

evidence contained in the record. Furthermore, Mrs. Laber has not 

alleged that her carpal tunnel syndrome was a new injury which 

arose as a result of her employment from August 3 through August 

24, 1987. Thus, in determining Mrs. Laber's disability award, the 

court properly ignored any disability that was a result of her 

carpal tunnel syndrome and only considered the disability which 

resulted from the injury to the little finger of her non-dominant 
left hand. 

Temporary total disability is defined by 5 39-71-116(19), MCA 

(1985), as "a condition resulting from an injury as defined in this 

chapter that results in total loss of wages and exists until the 

injured worker1' reaches maximum healing; furthermore, ''Disability 

shall be supported by a preponderance of medical evidence.'' Under 

this statutory scheme which was in effect at the time of Mrs. 

Laberls finger injury, temporary total disability did not exist 

past the time of maximum healing. Kimes v, Charlie's ~amily ~ining 

& Donut Shop (1988), 233 Mont. 175, 178, 759 P.2d 986, 988-89. The 

record shows that Mrs. Laber1s treating physician testified that 

Mrs. Laberls finger injury reached maximum healing as of July 27, 

1987, whereafter, on August 3, 1987, when she returned to work on 

a full time basis. This evidence alone short circuits Mrs. Laberls 

claim for temporary total disability benefits for the period 

following maximum healing. We therefore conclude that the lower 

court was correct in denying Mrs. Laber temporary total disability 

benefits. 

Next, to be entitled to permanent total disability benefits, 

claimant must meet the requirements of 5 39-71-116 (13) , MCA (1985) , 

which states as follows: 

(13) "permanent total disability1' means a condition 

resulting in the loss of actual earnings or earning 

capability that exists after the injured worker is as far 

restored as the permanent character of the injuries will 

permit and which results in the worker having no 

reasonable prospect of finding regular employment of any 

kind in the normal labor market. Disability shall be 

supported by a preponderance of medical evidence. 
In Spooner v. Action Sales, Inc., I11 Workers1 Compensation 

Court Decisions No. 85 (January 24, 1983), the Workers1 

Compensation Court elaborated on this statutory definition by 

stating: 

To establish the existence of no reasonable prospect 

of employment in the normal labor market, a claimant must 

introduce substantial credible evidence of (1) what jobs 

constitute his normal labor market, and (2) a complete 

inability to perform the employment and duties associated 

with those jobs because of his work-related injury. 

We adopted the S~ooner approach in Metzger v. Chemetron Corp. 

(1984), 212 Mont. 351, 687 P.2d 1033. 

The record reflects that the only vocational evidence in this 

case was presented by Buttrey1s rehabilitation expert, Brenda 

Williams. Miss Williams reviewed the medical evidence, did an onsite job analysis, reviewed the deposition of Mrs. Laber, 

considered her physical limitations, and testified before the 

hearing examiner that Mrs. Laber could return to her employment at 

the Buttrey store as a head sales clerk, which would be a 

promotion. Miss Williams also testified that no decrease in 

earning capacity has resulted from Mr. Laberls finger injury. This 

testimony was not contradicted, refuted or disputed. 

The medical evidence relating to Mrs. Laberls little finger 

injury was offered by Dr. Hansen as well as the physicians of the 

Yellowstone Medical Evaluation Panel. Excluding any symptoms 

attributable to her carpal tunnel syndrome, this medical evidence 

shows that Mrs. Laberls little finger injury has resulted in loss 

of flexion, which is an impediment to making both a tight fist and 

a strong grip. As a result, her grip strength of the left hand is 
diminished by at least twenty percent and she continues to have 

cold intolerance. The evidence also shows that Mrs. Laber's little 

finger injury was maximally healed on July 27, 1987. 

In order to be entitled to permanent total disability 

benefits, Mrs. Laber has the burden of proving that as a result of 

her February 6, 1987 injury she has a total loss of actual earnings 

or earning capacity, after reaching maximum healing; and she will 

have no reasonable prospect of finding regular employment of any 

kind in her normal labor market. The Workers1 Compensation Court 

found that Mrs. Laber was not totally disabled as a result of her 

little finger injury, excluding any symptoms of her carpal tunnel 

syndrome. We have reviewed the record before us and hold that this 

finding is supported by substantial credible evidence. We agree 

that Mrs. Laber has not established by a preponderance of credible 

evidence that she has no reasonable prospect of finding regular 

employment of any kind in the normal labor market. Considering all 

the evidence of the record, Mrs. Laber has failed to support her 

requested finding of permanent total disability entitlement. The 

Workers' Compensation Court is hereby affirmed. 
We concur: 

Justices Y