No. 84-180 IN THE SUPREME COURT OF THE STATEOF MONTANA 1985

JESSE R. SHUPERT, Claimant andAppellant,

THEANACONDA ALUMINUM COMPANY, Employer, and THEANACONDA ALUMINUM COMPANY, Defendantand Respondent.

APPEAL FROM: Workers' CompensationCourt, The HonorableTimothy Reardon, Judgepresiding.

COUNSELOF RECORD: 6' For Appellant: TerryN. Trieweiler,Whitefish,Montana For Respondent: JamesVidal, Kalispell,Montana

Submitted on Briefs: Feb. 8, 1955 Decided: March 7, 1985

ClerkMr. Justice JohnConwayHarrison delivered the Opinion of the Court.Claimant, Jesse R. Shupert, filed a petition with the Workers1CompensationCourt,Flathead County, seeking compensation for injuries suffered during his employment with defendant, Anaconda Aluminum Company, in Columbia Falls, Montana. Claimant appeals the denial ofhispetition. On April 11, 1978, claimant was working as a pot reliner. While using a jackhammer to liftmetal 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 defendantpaid 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-eboestated claimant sustainedaherniated 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. Hilleboelsdiagnosis. 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 MissoulaCommunity 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 untilMay 1979when 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 theburners. Claimant testified "hehad towork 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 ofAnaconda. Claimant was last seen by Dr. Hilleboe onNovember 12, 1981. At that time Dr. Hillsboe referred the claimant toDr. Robert Schimpff. Dr. Schimpff testified that the measurement of claimant's thighmuscles 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. Schimpffordered an electromyelogramand 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. Schimpffrestricted claimant's activities on January 4, 1982, which included "noheavy lifting,excesswalking or standing.'' Dr. Schimpffhas continued to see the claimant. On December 14, 1982, the claimantwas examined by Dr. Dean Ross, a specialist in physical medicine and rehabilitation. Dr. Ross concluded claimanthad 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. Itwas Dr. Murphy's opinion that claimant did not have a hysterical personality, nor was he making up his complaintsofpain. Claimant was unable to return to employment since December 8, 1981. Claimant'sdisability 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., aneurologist; Dean Ross, M.D., a psychiatrist and Kevin Murphy, apsychology and rehabilitation special-ist. The deposition testimony wa.s admitted into evidence by the Workers' CompensationCourt. 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 twoprior injuries. Cia-imantpresents three issues on appeal:

(1) Whether the judgment of the Workers' Compensation Court was supportedby substantialevidence,ordid the court

err in relying upon the testimony of JohnW. 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 conditionat the time ofhearingwas not awork-related injury. TheWorkers' 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 factsbecause not necessary to thedisposition 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;

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# ."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 thatwhen 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 leavepermanent damage to the nerve root. However, later Hilleboe testified he found no objective physical signsof 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 spineand felt that itwas the result ofmuscle 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 thathe found nomuscle spasm. His testimonywas contradicted by Dr. Cooney, Dr. Ross and the examination performed at theVirginia Mason Center. (4) Dr. Hilleboe testified thathe foundno 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 therewas 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 EMGexamination indicated irritation of themuscles 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 rootwere 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 itwas his opinion that that fracture could not have occurred onApril 11, 1978. Dr. Pisk disagreed. After

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

on April 12, 1978,and that takenby Dr. Hilleboe on May 17, 1978,Dr. Schimpff alsodisagreed. (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 claimantwas notmaking up his complaints ofpain. Claimant further contends Dr. Hilleboe's testimony is unti~nely. Claimantpoints out thatDr. Hilleboehad not seen claimant during the period of disability December 8, 1981 untilMarch 2, 1982. Anaconda responds Dr. Hilleboe's testimony is amply supportedby 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 examinedhim subsequent to his second.injury and have found evidence of injury. We a.reguided by a very basic and 1-imitedstandard of review. This Court will not substitute its judgment for that of theWorkers' 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;Jensenv. Zook Bros. ConstructionCo. (1978),178Mont. 59, 582 P.2d 1191, In the instant matter, the record on appeal consists mainly of testimonyby 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 Courtmay determine the proper weight of critica.1 medical testimony entered throughdepositions: "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.ssessmentof the demeanor and credibility ofwitnesses. Rule 52(a), M.R.Civ.P. However, when the critical evidence, particularlymedical 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 theweight to be given to such record testimony, as distinguished fromoral 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- ?-yin 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 substantialevidence. 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 towork 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' CompensationCourtdeniedbenefits, concluding that claimant failed to prove that his symptomswere 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 symptomsand 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 claimantdid sustain injury onApril 11, 1978during the

course ofhis 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 injuriesby December 8, 1980. As was the case in Hume, the Workers' Compensation Court chose to ignore the testimony regarding causation subsequentto claimant's termination. The testimony of the claimant and Dr. Schimpffdid relate claimant'spresent disability to the original injury. Dr. Shimpff testified: "Q. [ByMr. Trieweiler] Did you form an impression as a result of the electromyogram? "A. Idid. "Q. Whatwasyour impression? "A. I thought the findings suggested partial denervationofmuscles 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, Ihave. "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 forhim. "A. I sawhim on 5-6-82, on 11-2-82 and on 1-10-83. "Q. As a result ofyour examinationsand treatmentofMr. Shupert,have you formed any opinion regarding the cause of: his complaints of back pain and leg pain? "A. Ithink themost consistent information is that he is suffering from an L5 radiculopathy. I presume 

### - that 

### - it's related

## -- tohis earl3er injury 

### -- in 1978 and have been unable to demonstrate a structural abnormalitybut 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 impairshim: "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, Ihaven'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. Howhas it affectedyou? "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 Ibend 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, Ihave 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 'thata 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 foregoingmedical testimonyof Dr. Schimpff clearly established that the claimant met his burden to prove that his present symptoms are related to the original injury. Moreover,theMontana Legislaturehasmandated that the Workers1CompensationAct 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; Stokesv. 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 allhighly educated. The claimant is aworking man.He is a person whose livelihood is at the mercy of his own health. The policy underlying the Workers' CompensationAct cannot be defeated by narrow and technical construction. Accordingly, we hold a termination of benefits by Anaconda was improperupon finding the claimantwas 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 theWorkers1CompensationCourt. At the timeDr. Hilleboewas 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-leboewas asked whether therewas any "objective" evidence of nerve root irritationand the answer

was that therewas not. Counsel then again tried to approach the problem after objections by opposing counsel. The followingquestions and answers were given: "Q. Okay, in terms of apermanent condition. "A. What in terms of apermanent condition? "Q. Let me rephrase that question and ask, in terms ofyour finding a permanent condition regarding a L5 nerve root or nerve root or soft tissue injury in the claimant. "A. Ididn'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 ofmedical 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 statementon thepart ofDr. 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 apsychiatrist."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.suallyrelated to the subject accident. Ido 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 theWorkers' CompensationCourt findings. Therefore, Iconcur to reverse.Mr. JusticeFred J. Weber dissentsas follows: I respectful-lydissent 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 todetermining whether there is substantial evidence to support the findings. I also agree with the majority's statement that a review of the medical experts1depositions reveals a sharp conflict in the medical evid.encepresented. 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. Idisagree with that conclusion as Ido find substantial evidence to support the finding. Themajority relies on the testimony ofDr. Schimpff. I do not find an adequatebasis for reliance on his testimony. It is true that Dr. Schimpff testified that he thought the electromyogram suggested partial denervation of muscles innervatedby the L5 nerve root. That testimony did indicate the possibility of injury to the L5 nerve root. However, as Dr. Schimpffpointed out, thatwas 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 otherwords, the CAT scan failed to showany reason forhis condition. Following the CAT scan, amyelogramwasperformed in the hospital at Kalispell. The examining doctor concluded that the myelogram study was essentially normal, that therewas a slight change in the anterior margin at the L4-5 level but that this changewas notproof 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 completeanswer: "Q. As a result ofyour examinationsand treatmentofMr. Shupert, have you formed any opinion regarding the cause of his compla-intsof back pain and leg pain? "A. Ithink themost 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 abnormalitybut have demonstrateda 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 confusingtomyself and a variety of otherphysicianswho 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 testimonyby 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 fora possible remedial abnormality such as a herniated disc, abone spur that would press on the nerve root or other abnormality, Iwas not able to find one. "Subsequently Mr. Shupert's examination changed somewhat. It changedwhen hewas 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 howeverhe was stillhaving discomfo;t. 

## - The cause 

### -- of his discomfort I thoucrht was ambiauous and the cause ofit 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 abnormalitywhich explained the condition. Hepoints out that the cause of the discomfortwas 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 ofhis examination of the claimanton January 10, 1983, where he stated:"IMPRESSION: Recurrence of lumbosacral back pa.in,etiology [cause] uncertain." As of January 1.0,1983,Dr. Schimpffwas uncertain as to the

cause of claimant'spain. 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 significantroot compression injuryhasbeen quite thoroughlyexcluded 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 ofplaintiff's condition. With regard to the contention that there is a significant problem at the L4-5 level, followingwas Dr. Hilleboe's testimony:"Q. Doctor, I just have a couple questions after this cross examination. I will again ask you, in your opinion,didyou find objective evidence of an L5 nerve root irritation or disc problem or soft tissue problem inMr. 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. Icould not find any. As far as his back was concerned. On one occasion he had a shoulderproblem and a legproblem.

"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 c1a.imant. "A. Ididn'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 actuallydisagreebut 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' CompensationCourt. Iwould affirm.

Jus IC 

# ;

I join in the foregoing dissent of Mr. Justice Fred J. Weber.