No. 84-180 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

JESSE R. SHUPERT, 

Claimant and Appellant, 

THE ANACONDA ALUMINUM COMPANY, 

Employer, 

and 

THE ANACONDA ALUMINUM COMPANY, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 6' 

For Appellant: 

Terry N. Trieweiler, Whitefish, Montana 

For Respondent : 

James Vidal, Kalispell, Montana 

Submitted on Briefs: Feb. 8, 1955 

Decided: March 7, 1985 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Claimant, Jesse R. Shupert, filed a petition with the 

Workers1 Compensation Court, Flathead County, seeking compensation for injuries suffered during his employment with 

defendant, Anaconda Aluminum Company, in Columbia Falls, 

Montana. Claimant appeals the denial of his petition. 

On April 11, 1978, claimant was working as a pot 

reliner. While using a jackhammer to lift metal pads off a 

pot, he injured his baclc. The following day, claimant went 

to Dr. Peter Pisk, a chiropractor. Dr. Pisk diagnosed the 

injury as a fracture of the right fifth lumbar vertebrae. 

The defendant paid temporary total disability benefits to the 

claimant at the rate of $174 per week from April 14, 1978, 

until October 29, 1978. 

On May 17, 1978, claimant went to see Dr. Jack 

Hilleboe, an orthopedic surgeon. Dr. Hill-eboe stated claimant sustained a herniated nucleus pulposis between the fourth 

and fifth lumbar vertebrae. Dr. Hilleboe referred claimant 

to Dr. Gary Cooney, a neurologist in Missoula. Dr. Cooney 

concurred in Dr. Hilleboels diagnosis. Dr. Cooney treated 

the claimant with bed rest, physical therapy, heat, ultrasound, massage and analgesic/anti-inflammatory drug therapy. 

When claimant did not improve with this course of treatment, 

Dr. Hilleboe referred him to another neurologist, Dr. Steve 

Johnson. Dr. Johnson reported the cause of claimant's back 

pain was unclear, but advised claimant "not to be in a job 

which entailed lifting." Unable to find the etiology of 

claimant's pain, Dr. Hilleboe concluded claimant's problem 

was psychologj.ca1. When his condition failed to improve, 

claimant sought further evaluation from the Missoula 
Community Hospital Pain Clinic and the Virginia Mason Center 

in Seattle. 

Claimant returned to work on a part-time basis for 

Anaconda on October 30, 1978, and continued in that capacity 

until May 1979 when he returned to work full-time, working as 

a pot reliner. 

On November 26, 1980, claimant re-injured his back 

while using a 25-pound iron "Postman's Bar" to break the 

crust out of the burners. Claimant testified "he had to work 

in a bent over position, and when he straightened he felt a 

pain in his lower back" that radiated down his left leg. 

Claimant discontinued working and received disability benefits from November 28 until December 17, 1980. Claimant 

returned to work on December 17, 1980, and drove an ore 

truck. Due to lack of seniority, he was returned to the 

labor pool and was again unable to perform the duties of a 

laborer. Claimant left the employ of Anaconda. 

Claimant was last seen by Dr. Hilleboe on November 12, 

1981. At that time Dr. Hillsboe referred the claimant to Dr. 

Robert Schimpff. Dr. Schimpff testified that the measurement 

of claimant's thigh muscles varied by three centimeters. Dr. 

Schimpff attributed the atrophy to disuse of the left thigh. 

The claimant was also unable to dorsiflex his toes. Dr. 

Schimpff ordered an electromyelogram and diagnosed the injury 

to the nerve root of the fifth lumbar vertebrae causing 

denervation of the muscles innervated by the L-5 nerve root. 

Dr. Schimpff referred claimant to a Spokane radiologist, Dr. 

William Tubbs. A CAT Scan report showed a central bulging 

disk between the fourth and fifth lumbar vertebrae. Dr. 

Schimpff testified that he and Dr. Cooney were unable to 

demonstrate if a nerve root was compressed. Dr. Schimpff 
restricted claimant's activities on January 4, 1982, which 

included "no heavy lifting, excess walking or standing.'' Dr. 

Schimpff has continued to see the claimant. 

On December 14, 1982, the claimant was examined by Dr. 

Dean Ross, a specialist in physical medicine and rehabilitation. Dr. Ross concluded claimant had a double scoliosis in 

his spine which made him more susceptible to mechanical 

injury to his back. He found a prominent right paraspinous 

muscle resembling a muscle spasm. Rased upon his examination, s. review of the medical records and test results, he 

testified that, in his opinion, there was nerve root injury 

to his L-5 nerve root and also a component of soft tissue 

injury. He further testified that he did not consider it a 

psychiatric illness or anything over which the patient had 

control. 

Kevin Murphy, a specialist in rehabilitation psychology, testified that he saw the claimant on December 14, 1982. 

Dr. Murphy interviewed the claimant and administered behavioral and assessment tests. It was Dr. Murphy's opinion that 

claimant did not have a hysterical personality, nor was he 

making up his complaints of pain. 

Claimant was unable to return to employment since 

December 8, 1981. Claimant's disability benefits were terminated on March 2, 1982. Anaconda refused to pay any further 

disability benefits. Claimant petitioned the Workers' Compensation Court to find that he was totally disabled and 

entitled to total disability benefits at the maximum rate. A 

hearing was held on May 31, 1983. Claimant, his wife, and 

two vocational rehabilitation counselors testified. Four 

medical experts testified by deposition: John Hilleboe , 

D., an othopedic surgeon; Robert Schimpff, M.D., a 
neurologist; Dean Ross, M.D., a psychiatrist and Kevin Murphy, a psychology and rehabilitation special-ist. The deposition testimony wa.s admitted into evidence by the Workers' 

Compensation Court. 

The Workers' Compensation Court found that claimant did 

injure his back on April 11, 1978, during the course of his 

employment with the defendant, Anaconda Aluminum Company. 

The Workers' Compensation Court also found that the claimant 

reinjured his lower back on November 26, 1980, with the same 

employer. The Workers' Compensation Court concluded the 

claimant recovered from those injuries by December 8, 1980, 

and any disability claimant now suffers is not the result of 

either of the two prior injuries. 

Cia-imant presents three issues on appeal: 

(1) Whether the judgment of the Workers' Compensation 

Court was supported by substantial evidence, or did the court 

err in relying upon the testimony of John W. Hilleboe, M.D., 

as substantial evidence? 

(2) Whether the Workers ' Compensation Court' s finding 

was incorrect in concluding that there was no testimony 

relating claimant's current symptoms to his original injury. 

(3) Whether the court erred in concluding that claimant's condition at the time of hearing was not a work-related 

injury. 

The Workers' Compensation Court in its findings of fact 

and conclusions of law cited to Dr. Hilleboe's testimony: 

"The most the claimant has been able to 

prove is that his symptoms (not found as 

facts because not necessary to the disposition of this case) are consistent with 

a L-5 nerve root injury. Consistency is 

not causality. The claimant's treating 

physician, - - Dr. Hilleboe, was adamant that 

there was nothing orthopedically wrong 

with the claimant; . . ." 
Claimant submits the following exerpts from Dr. 

Hilleboe's testimony are highly improbable, incredible and 

insufficient and therefore, does not constitute substantial 

evidence : 

(1) Hilleboe testified that when he examined the claimant, shortly after his April, 1978, injury, he was of the 

opinion that claimant had sustained a herniated nucleus 

pulposis between the fourth and fifth lumbar vertebrae and 

that a herniated disk can leave permanent damage to the nerve 

root. However, later Hilleboe testified he found no objective physical signs of injury. 

(2) One objective sign of injury is an abnormal curve 

in the spine or scoliosis. Hilleboe testified that he found 

none. However, Dr. Cooney, the neurologist to whom Hilleboe 

referred the claimant found scoliosis in claimant's spine and 

felt that it was the result of muscle spasm on the left side 

of claimant ' s spine. 

(3) Irritation to the fifth lumbar nerve root, would 

cause a muscle spasm in the back. Dr. Hilleboe testified 

that he found no muscle spasm. His testimony was contradicted by Dr. Cooney, Dr. Ross and the examination performed at 

the Virginia Mason Center. 

(4) Dr. Hilleboe testified that he found no atrophy of 

claimant's leg. His observation was inconsistent with the 

defendant's doctor and Dr. Schimpff who reported more than a 

one-inch reduction in the circumference of claimant's left 

thigh. 

(5) Dr. Hilleboe concluded that there was no evidence 

of injury to the claimant's fifth lumbar nerve root in spite 

of more than one electromyelographic exam which established 

that there was. Dr. Johnson indicated that his EMG 
examination indicated irritation of the muscles on the front 

of claimant's calf. Dr. Schimpff also found positive results 

from his EMG indicating that the muscles in claimant's left 

extremity which were innervated by the fifth lumbar nerve 

root were impaired. 

(6) Dr. Hilleboe refused to consider whether injury to 

claimant's spinal soft tissues could have resulted from the 

same trauma that caused the fracture in his transverse process because it was his opinion that that fracture could not 

have occurred on April 11, 1978. Dr. Pisk disagreed. After 

an examination of the claimant's x-ray film taken by Dr. Pisk 

on April 12, 1978, and that taken by Dr. Hilleboe on May 17, 

1978, Dr. Schimpff also disagreed. 

(7) Not having found what he felt was "objective 

evidence" of injury, Hilleboe concluded that claimant's 

problem was psychological. Dr. Murphy, the only witness 

qualified to express a psychological opinion, testified that 

claimant had neither a hysterical personality, nor an emotional disturbance of any other type. It was his opinion 

that claimant was not making up his complaints of pain. 

Claimant further contends Dr. Hilleboe's testimony is 

unti~nely. Claimant points out that Dr. Hilleboe had not seen 

claimant during the period of disability December 8, 1981 

until March 2, 1982. 

Anaconda responds Dr. Hilleboe's testimony is amply 

supported by substantial expert opinion. Anaconda states the 

Workers' Compensation Court did not rely exclusively on Dr. 

Hilleboe's report but also cited to reports from an array of 

experts. Claimant argues the reports are irrelevant to a 

determination of his disability because he re-injured his 

back on November 26, 1980. Other physicians have examined 
him subsequent to his second. injury and have found evidence 

of injury. 

We a.re guided by a very basic and 1-imited standard of 

review. This Court will not substitute its judgment for that 

of the Workers' Compensation Court concerning the credibility 

of the witnesses or the weight to be given their testimony. 

Dumont v. Wickens Bros. Construction (1979) , 183 Mont. 1.90, 

598 P.2d 1099; Steffes v. 93 Leasing Co., Inc. (1978), 177 

Mont. 83, 580 P.2d 450. Where the findings are based on 

conflicting evidence, our function of review is confined to 

determining whether there is substantial evidence supporting 

such findings. Harmon v. Deaconess Hospital (Mont. 1981), 

623 P.2d 1372, 38 St.Rep. 65; Jensen v. Zook Bros. Construction Co. (1978), 178 Mont. 59, 582 P.2d 1191, 

In the instant matter, the record on appeal consists 

mainly of testimony by deposition. Accord-ingly, this Court's 

function on review is different. In a recent Supreme Court 

decision, Lamb v. Missoula Imports, Inc. (Mont. 1984), 684 

P.2d 498, 41 St.Rep. 1414, we stated this Court may determine 

the proper weight of critica.1 medical testimony entered 

through depositions: 

"Ordinarily, this Court will not substitute its judgment for that of the Workers' Compensation Court in determining 

the weight and credibility to be given 

testimony. The reason for this is that 

this Court defers to the lower court's 

a.ssessment of the demeanor and credibility of witnesses. Rule 52(a), M.R.Civ.P. 

However, when the critical evidence, 

particularly medical evidence, is entered 

by deposition, we have held that 'this 

Court, although sitting in review, is in 

as good a position as the Workers1 Compensation Court to judge the weight to be 

given to such record testimony, as distinguished from oral testimony, where the 

trial court actually observes the character and demeanor of the witness on the 

stand. ' Hert v. J. J. Newberry Co. 
(1978), 178 Mont. 355, 359-360, 584 P. 2d 

656, 659. " 

A review of the medical experts' depositions reveals a 

sharp conflict in the medical evidence presented, particular- 

?-y in regard to the injury. Dr. Hilleboe testified that 

later in his course of treatment of claimant, he found no 

objective physical signs of injury and concluded that claimant's problem was psychological. Dr. Schimpff and Dr. Ross 

testified that the electromyngraphic examination indicated 

L-5 nerve root impairment. The physicians stated the EMG 

findings were an objective sign of injury to the claimant's 

back. Furthermore, Dr. Murphy testified that claimant was 

not making up his complaints of pain nor was he feigning 

disability or pain in order to gather some secondary gain. 

We see no reason to accord Dr. Hilleboe's testimony any 

greater weight than the testimony of the other three medical 

experts. We hold the testimony of Dr. Hilleboe did not 

amount to substantial evidence. 

Claimant next claims error in the Workers' Compensation 

Court's conclusion that there was no testinony relating 

claimant's current symptoms to his original injury. Claimant 

contends that Hume v. St. Regis (1980), 187 Mont. 53, 608 

P. 2d 1063, governs the outcome of this present matter. In 

Hume, the claimant was injured on October 7, 1975 when he 

stretched muscles in his shoulder and lower neck while working at a paper company. He continued to work for ten months, 

during which time he received a second injury. He stopped 

working on August 6, 1976. neurologist reported that 

appellant's chronic pain probably is more psychogenic in 

origin, than due to tissue injuries. Defendant terminated 

benefits to claimant. The Workers' Compensation Court denied 
benefits, concluding that claimant failed to prove that his 

symptoms were related to his October 7, 1975 injury. Claimant appealed. This Court reversed the Workers' Compensation 

Court's ruling and stated that the employer's termination of 

total disability benefits to the employee was improper. 

"There j.s no substantial evidence to support the lower 

court's conclusion . . . that claimant failed to prove that 

his present symptoms and complaints are related to the industrial accident." Hume, 187 Mont. at 64, 608 P.2d at 1089. 

The Workers' Compensation Court in the present case found 

that claimant did sustain injury on April 11, 1978 during the 

course of his employment with Ana.conda. The court also found 

that claimant re-injured his back on November 26, 1980 with 

the same employer. The court concluded claimant recovered 

from those injuries by December 8, 1980. As was the case in 

Hume, the Workers' Compensation Court chose to ignore the 

testimony regarding causation subsequent to claimant's termination. The testimony of the claimant and Dr. Schimpff did 

relate claimant's present disability to the original injury. 

Dr. Shimpff testified: 

"Q. [By Mr. Trieweiler] Did you form an 

impression as a result of the 

electromyogram? 

"A. I did. 

"Q. What was your impression? 

"A. I thought the findings suggested 

partial denervation of muscles innervated 

by L5 nerve root. 

"Q. And by denerva.tion, what do you 

mean? 

"A. That there has been injury to the 

nerve fibers going to those muscles and 

in this case those muscles received their 

primary innervation from the L5 nerve 

root. 
"Q. Have you seen Mr. Shupert since 

December 28, 1981? 

"A. Yes, I have. 

"Q. Could you tell me for the record on 

how many occasions you have seen him? 

Not counting the times when you just 

filled out a form for him. 

"A. I saw him on 5-6-82, on 11-2-82 and 

on 1-10-83. 

"Q. As a result of your examinations and 

treatment of Mr. Shupert, have you formed 

any opinion regarding the cause of: his 

complaints of back pain and leg pain? 

"A. I think the most consistent information is that he is suffering from an L5 

radiculopathy. I presume - that - it's 

related -- to his earl3er injury -- in 1978 and 

have been unable to demonstrate a structural abnormality but have demonstrated a 

suttle [sic] electrical abnormality and 

physical examination has been consistent 

with that diagnosis. . . " (Emphasis 

added. ) 

The claimant testified as to the manner the original injury 

presently impairs him: 

"Q. [By Mr. Trieweiler] Have you ever 

been to any form of employment since you 

left the Anaconda Company in December of 

1.981? 

"A. No, I haven't. 

"Q. Do you feel you're capable of doing 

heavy physical work i-n your present 

condition? 

"A. No. because I tried it and it hasn't 

worked out. 

"Q. How has it affected you? 

"A. It's affected me on my walking on 

hard pavement, hard concrete, and lifting, bending, too. 

"Q. How does it affect your bending a.nd 

lifting? 

"A. When I bend over, the lifting, I just 

can't do it, it aggravates it worse, and 

T don't get any better. 
"Q. Do you have any specialized training 

or job experience that qualifies you for 

jobs that don't require heavy physical 

labor? 

"A. NO, I have none." 

An examination of the record reveals that the only credible 

substantial evidence as it concerns causation and injury 

supports the claimant. We hold there is no substantial 

evidence to support the lower court's finding that claimant 

failed to prove his disability was the result of the two 

injuries. 

Finally, claimant urges that an injury once established 

must be presumed to continue until proven otherwise. The 

claimant again cites to Hume i.n support of his contention. 

"It is a rebuttable presumption 'that a thing once proved to 

exist continues as long as is usual with things of that 

nature. ' Section 26-1-602 (32) , MCA. I' 608 P.2d at 1069. 

Anaconda responds that Hume does not apply because no testimony established any substantial link between the 1978 incident and. the claimant's present complaints of pain. The 

record speaks for itself. The foregoing medical testimony of 

Dr. Schimpff clearly established that the claimant met his 

burden to prove that his present symptoms are related to the 

original in jury. 

Moreover, the Montana Legislature has mandated that the 

Workers1 Compensation Act be liberally construed in favor of 

the claimant. Section 39-71-104, MCA. This Court requires 

the same. Klein v. Indep. Wholesale Assoc. Grocers (19751, 

167 Mont. 341, 538 P.2d 1358; Stokes v. Delaney & Sons, Inc. 

(1964), 143 Mont. 516, 391 P.2d 698. We deal with many 

individuals from all walks of life; not all are sophisticated, nor all highly educated. The claimant is a working man. 
He is a person whose livelihood is at the mercy of his own 

health. The policy underlying the Workers' Compensation Act 

cannot be defeated by narrow and technical construction. 

Accordingly, we hold a termination of benefits by 

Anaconda was improper upon finding the claimant was disabled, 

and absent any intervening cause or alternative explanation 

for claimant's present, undisputed painful and disabling 

condition. 

The judgment is reversed and remanded to the Workers' 

Compensation Court with instructions to enter judgment for 

claimant in accordance with this opinion. 
Mr. Justice Frank R. Morrison, Jr., specially concurring. 

I concur in the result for the reason that Dr. Hilleboe 

did not provide substantial credible evidence for the findings of the Workers1 Compensation Court. 

At the time Dr. Hilleboe was examined for the purpose of 

refuting any permanent injury related to the subject accident, he was not asked whether he had an opinion, based upon 

a reasonable degree of medical probability, as to whether 

claimant suffered any permanent injury related to the accident. Instead, Dr. Hil-leboe was asked whether there was any 

"objective" evidence of nerve root irritation and the answer 

was that there was not. Counsel then again tried to approach 

the problem after objections by opposing counsel. The following questions and answers were given: 

"Q. Okay, in terms of a permanent condition. 

"A. What in terms of a permanent condition? 

"Q. Let me rephrase that question and ask, in 

terms of your finding a permanent condition regarding a L5 nerve root or nerve root or soft tissue 

injury in the claimant. 

"A. I didn't find anything. " 

Here, again, the doctor is giving testimony with respect to 

"objective" findings of injury. He is not expressing an 

opinion, based upon a reasonable degree of medical probability, that the claimant did not, in fact, suffer a permanent 

in jury. 

The only testimony that could support the findings of 

the Workers1 Compensation Court relate to the following 

volunteer statement on the part of Dr. Hilleboe: 

"The reason for his multiple referrals is that I 

feel that this gentleman does not have an orthopedic problem. I don't think he has a neurologic 

problem. I think he has a psychological problem 

and that he should see a psychiatrist." 
This testimony was not based upon the proper evidentiary 

standards and should have been stricken from the record. 

There is no place in this record where Dr. Hilleboe 

gives an opinion, based upon a reasonable degree of medica.1 

probability, that. the claimant suffered no permanent injury 

ca.sually related to the subject accident. I do not consider 

the non-responsive, volunteer statement of Dr. Hilleboe 

attributing claimant's problems to a psychogenic origin, to 

be substantial credible evidence for support of the Workers' 

Compensation Court findings. 

Therefore, I concur to reverse. 
Mr. Justice Fred J. Weber dissents as follows: 

I respectful-ly dissent from the majority opinion. I 

agree with the standard of review stated in the majority 

opinion, that where the findings are based on conflicting 

evidence, our review is confined to determining whether there 

is substantial evidence to support the findings. I also 

agree with the majority's statement that a review of the 

medical experts1 depositions reveals a sharp conflict in the 

medical evid.ence presented. 

The majority then refers to various medical evidence 

which supports the claimant and concludes that there is no 

substantial evidence to support the finding that claimant 

failed to prove his disability resulted from the two injuries. I disagree with that conclusion as I do find substantial evidence to support the finding. 

The majority relies on the testimony of Dr. Schimpff. I 

do not find an adequate basis for reliance on his testimony. 

It is true that Dr. Schimpff testified that he thought the 

electromyogram suggested partial denervation of muscles 

innervated by the L5 nerve root. That testimony did indicate 

the possibility of injury to the L5 nerve root. However, as 

Dr. Schimpff pointed out, that was not conclusive so he sent 

the claimant on for a CAT scan, which was completed in 

Spokane. Lt showed a central bulging disk at the L4-5 level, 

but was essentially negative. In other words, the CAT scan 

failed to show any reason for his condition. 

Following the CAT scan, a myelogram was performed in the 

hospital at Kalispell. The examining doctor concluded that 

the myelogram study was essentially normal, that there was a 

slight change in the anterior margin at the L4-5 level but 

that this change was not proof of a bulging disk or abnormal- 
ity. Dr. Schimpff agreed with the conclusion that the 

myelogram was essentially normal. 

Following is the question asked by plaintiff's counsel 

and Dr. Schimpff's complete answer: 

"Q. As a result of your examinations and 

treatment of Mr. Shupert, have you formed 

any opinion regarding the cause of his 

compla-ints of back pain and leg pain? 

"A. I think the most consistent information is that he is suffering from an L5 

radiculopathy. I presume that it's 

related to his earlier injury in 1978 and 

have been unable to demonstrate a structural abnormality but have demonstrated a 

suttle [sic] electrical abnormality and 

physical examination has been consistent 

with that diagnosis although there have 

been other facets of his examination 

which have been confusing to myself and a 

variety of other physicians who have seen 

him in consultation." 

Note that his testimony does not show a direct connection to 

the 1978 injury. It is true that he concludes the most 

consistent approach is that he is suffering from an L5 

radiculopathy, but he also points out that there are other 

facets of the examination which have been confusing to him 

and the variety of other physicians who ha-ve seen the 

claimant. 

The foregoing testimony must be considered along with 

the following testimony by Dr. Schimpff on cross examination: 

"A. . . . So, I guess my best summary is 

that I personally was suspicious that 

there was an L5 nerve root in-jury and in 

,ooking for a possible remedial abnormality such as a herniated disc, a bone spur 

that would press on the nerve root or 

other abnormality, I was not able to find 

one. 

"Subsequently Mr. Shupert's examination 

changed somewhat. It changed when he was 

seen by Dr. Cooney and then it changed 

when I saw him in November of '82 and 

then in January of '83. Some of the 

earlier findings were no longer present. 

At that point however he was still having 

discomfo;t. - The cause -- of his discomfort 

I thoucrht was ambiauous and the cause of 
-- it was uncertain. Early on I thought it 

was an L5 nerve root compression or 

injury and I still feel that that is a 

ossibility for his continued discomTort." (emphasis supplied) 

This summarizes Dr. Schimpff's view that he was not able to 

find an abnormality which explained the condition. He points 

out that the cause of the discomfort was ambiguous and uncertain. Last, Dr. Schimpff in substance states there is a 

possibility of an L5 nerve root compression or injury. That 

does not in itself constitute a diagnosis of the claimant's 

condition. This is consistent with Dr. Schimpff's case notes 

of his examination of the claimant on January 10, 1983, where 

he stated: 

"IMPRESSION: Recurrence of lumbosacral 

back pa.in, etiology [cause] uncertain." 

As of January 1.0, 1983, Dr. Schimpff was uncertain as to the 

cause of claimant's pain. 

Reference has been made to Dr. Cooney's report. With 

regard to his conclusions, Dr. Cooney stated the following 

with regard to the claimant: 

"IMPRESSION: Low back pain and left 

Lower extremity pain of uncertain 

etiology. The patient's low back complaints appear to be aggravated by various types of activities which I feel he 

should. avoid. To date, no definite 

diagnosis has been made to explain these 

symptoms. A significant root compression 

injury has been quite thoroughly excluded 

with myelography and. lumbar CT scanning. 

He has not responded well to muscle 

relaxants and analgesics in the past." 

Dr. Cooney must be placed in the camp of those who have no 

opinion as to the cause of plaintiff's condition. 

With regard to the contention that there is a significant problem at the L4-5 level, following was Dr. Hilleboe's 

testimony: 

"Q. Doctor, I just have a couple questions after this cross examination. I 

will again ask you, in your opinion, did 
you find objective evidence of an L5 

nerve root irritation or disc problem or 

soft tissue problem in Mr. Shupert? 

"A. No. 

"Q. Okay, but in essence then, you stick 

by your opinion that you could find. no 

objective signs of the L5 nerve root 

irritation, disk problem or soft tissue 

injury. 

"A. I could not find any. As far as his 

back was concerned. On one occasion he 

had a shoulder problem and a leg problem. 

"Q. Let me rephrase that question and 

ask, in terms of you finding a permanent 

condition regarding an L5 nerve root or 

nerve root or soft tissue injury in the 

c 1a.imant. 

"A. I didn't find anything." 

In substance, Dr. Hilleboe found no basis for concluding 

there was damage or injury to the L5 nerve root. Dr. 

Schimpff does not actually disagree but merely states that is 

a "possibility." 

While it is true that there is conflicting evidence, it 

seems clear to me that the foregoing evidence constitutes 

substantial evidence supporting the findings of the Workers' 

Compensation Court. 

I would affirm. 

; Jus IC 

I join in the foregoing dissent of Mr. Justice Fred 

J. Weber.