NO. 83-327 

IN THE SUPREME COURT OF THE STATE OF YONTAPJA 

1984 

PAUL SCHIENO, 

Claimant and Appellant, 

-vsCITY OF BILLINGS, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Xeardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Victor R. Halverson; Halverson & Sheehy, Billings, 

Montana 

For Respondent : 

Allen B. Chronister, Assistant Attorney General, 

Helena, Montana 

Filed: 

Submitted on ~riefs: March 30, 1984 

Decided: June 19, 1984 

-.--- Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Claimant, Paul Schieno, appeals a judgment of the 

Worker's Compensation Court, denying him permanent total 

benefits under section 39-71-119(2), MCA, for coronary heart 

disease. Schieno claimed that his 26 years as a Billings 

firefighter contributed to the development of the disease, or 

at least aggravated it, and therefore he was entitled to full 

benefits. The trial court, however, determined from the 

evidence, including expert medical testimony, that the 

claimant's condition had been neither caused nor aggravated 

by his employment, and that Schieno's personal risk factors 

such as heavy smoking, strong family history of heart 

disease, and high blood pressure were the probable causes of 

the condition. The trial court also denied claimant his 

attorney fees under section 39-71-611, MCA, and the statutory 

20% penalty under section 39-71-2907, MCA. We affirm. 

The essential issue is whether substantial credible 

evidence exists to support the findings and conclusions of 

the trial court that claimant's employment as a firefighter 

did not cause or aggravate his coronary heart disease. 

Claimant is a 48-year-old retired Billings firefighter 

who suffers from coronary arteriosclerosis, or narrowing of 

the arteries leading to the heart. The blockage is caused by 

cholesterol plaque buildup on the interior lining of the 

arteries. Schieno began his career as a fireman in 1955 when 

he was hired as a combat firefighter. Durinq the next 26 

years, he was promoted several times and had recently become 

fire marshal when in 1981 he underwent double-bypass heart 

surgery and was forced to retire. 
Schieno seeks permanent total benefits under section 

39-71-1 19 (2) , MCA, the "fireman's statute. " That section 

extends the definition of compensable "in jury" as defined in 

section 39-71-119(1) to include "cardiovascular or pulmonary 

or respiratory" diseases contracted by a fireman while he or 

she is still employed. However, the "fireman's statute," 

section 39-71-119 (2) , specifically requires a causal 

relationship between the employment and the disease. The 

statute provides that the above named diseases are 

compensahl-e if they are ". . . caused by overexertion in 

times of stress or danger in the course of his employment by 

proximate exposure or cumulative exposure over a period of 4 

years or more to heat, smoke, chemical fumes, or other toxic 

gases . . ." 

The uncontradicted evidence shows that during his 26 

years as a firefighter, Schieno was exposed to substantial 

amounts of smoke and fumes, and also was subject to 

considerable stress. It is shows that claimant smokes two to 

three packages of cigarettes per day, has three brothers who 

have either had heart attacks or have had bypass surgery 

because of coronary artery disease, has high blood pressure, 

and sporadically abuses alcohol. 

Both medical doctors who testified agreed that there is 

no known medical cause of coronary artery disease; rather, 

there are only known high risk factors. The recognized high 

risk factors are smoking, high blood pressure, and a family 

history of heart disease. Other factors include male sex, 

diabetes, and, to a lesser extent., stress. As mentioned, 

claimant is a very heavy smoker, has high blood pressure, and 

has a strong family history of heart disease. 
Relying on the opinions of these two experts, Doctors 1,. 

W. Etchardt and R. M. Zirpoli, the trial court found that 

when compared with the high risk factors present in the 

claimant, the stress and exposure to smoke while a fireman 

did not cause claimant's heart disease. Dr. Etchardt further 

stated in his deposition that Paul Schieno ". . . could have 

had a non-stressing job as a clerk in a shoe store and he 

would probably be at the same place and state of health at 

this time in his life." When asked whether, in his opinion, 

he thought claimant's occupation for 26 years "caused" 

claimant's condition, Dr. Zirpoli replied, ". . . my opinion 

on that would be no." 

Claimant further contends that he is entitled to full 

benefits because he proved it was "medically possible" that 

his occupation could have aggravated his preexisting 

condition. It is true that as a general rule an employer 

takes his employees "as he finds them," e.g., with or without 

preexisting conditions. Gaffney v. Industrial Accident Board 

of Montana (1955), 129 Mont. 394, 287 P.2d 256. It is also a 

general rule in Montana that if a worker proves that it is 

"medically possible" that an industrial injury aggravated a 

preexisting weak condition, the worker is entitled to 

compensation for the total disability. Strandberg v. Reber 

Co. (1978), 179 Mont. 173, 587 P.2d 18. However, the 

"medically possibl-e" rule has been established under section 

39-71-1 19 (1) , MCA, the "tangible happening" def initj on of 

industrial injury. Although section 39-71-119 (2), MCA, does 

not require a "tangible happening of a traumatic nature," it 

does require that the disease contracted by the fireman be 

"caused" by the occupation. The rule in most jurisdictions, 

including Montana, is that a worker must show that it is 
"medically probable" that the occupation caused the disabling 

injury or disease. Medical proof of causation of an injury 

in a worker's compensation proceeding must be greater than 

proof of that which is "possible." Victs v. Sweet Grass 

County (1978), 178 Mont. 337, 583 P.2d 1070. 

The expert medical testimony in this case falls short of 

establishing a "medical possibility," let alone proof of 

"medical probability" of causation, which is the required 

showing under section 39-71-119 (2) , MCA. Because the three 

highest risk factors for coronary artery disease--smoking, 

high blood pressure, and family history of heart disease - 

were all present in the claimant, both medical experts 

testified that claimant's occupation did not cause his heart 

disease. Furthermore, Dr. Zirpoli stated that only because 

he could not rule it out medically, it was "medically 

possible, but unlikely" that Schieno's occupation accelerated 

or aggravated his preexisting condition. Dr. Etchardt, 

however, did state that repetitive smoke inhalation and 

extended exposure to toxic gases and fumes could aggravate an 

artery disease such as claimant's. But, the question is one 

of causation, not aggravation, and substantial evidence 

supports the trial court's finding that the stress of 

claimant's occupation, and the extended exposure to smoke and 

fumes, did not cause Schieno's disabling heart condition. 

Because we have affirmed the trial court's jud.gment 

denying claimant benefits under section 39-71-119(2), MCA, 

the judgment denying him attorney fees and the statutory 

penalty must also he affirmed. 

We hold that substantial credible evidence supports the 

judgment of the Workers' Compensation Court denying claimant 
benefits under section 39-71-119(2), and therefore the 

judgment is affirmed. 

We Concur: 

Chief Justice \ 

Justices 

Mr. Justice John C. Sheehy, deeming himself disqualified, did 

not participate. 
Mr. Justice Frank B. Morrison, Jr. specially concurs as 

follows: 

I concur in the result. However, I would affirm because 

there is substantial credible evidence to support the 

Workers' Compensation Court. 

Specifically, I take exception to the language about 

causation proof. The majority opinion states: 

"Medical proof of causation of an injury in a 

workers' compensation proceeding must be greater 

than proof of that which is 'possible.'" 

This statement may be misleading. We do permit medical 

testimony in support of causation proof, to be based upon a 

"possibility" rather than a "probability". However, the 

finder of fact must find that there is a probability that 

causation exists based upon the medical testimony and all 

other facts in the record. 

Medical testimony based upon a possibility may form the 

basis for a finding that injury is in fact related to a 

certain trauma. However, in this case there is substantial 

credible evidence supporting the Workers' Compensation Court 

finding that causation did not exist. Therefore, I concur in 

the affirmance.