                               NO.    94-473
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1995


DALE WOOD,
             Petitioner and Appellant,


STATE COMPENSATION    MUTUAL
INSURANCE FUND,
             Respondent and Insurer
     for
PIERCE'S DODGE CITY,
             Employer and Respondent.



APPEAL FROM:      Workers' Compensation Court! The Honorable
                  Mike McCarter, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                  Randall 0. Skorheim, Skorheim Law Office,
                  Great Falls, Montana
             For Respondent:
                  William 0. Bronson, James, Gray & McCafferty,
                  Great Falls, Montana


                                     Submitted on Briefs:   May 11, 1995
                                                 Decided:   August 25, 1995
Filed:
Justice Terry N. Trieweiler     delivered the opinion of the Court.
     Dale Wood filed a petition for emergency hearing in the

Workers'     Compensation Court for the State of Montana in which he

named the State Compensation Mutual Insurance Fund as a defendant

and sought reinstatement of temporary disability benefits.       After

trial,    the Judge of the Workers' Compensation Court found that Wood

had sustained no disability for which he was currently entitled to
benefits, and denied his petition.      Wood appeals from the judgment

entered pursuant to that finding.       We affirm the judgment of the

Workers' Compensation Court.
     The only issue on appeal is whether there was substantial

evidence to support the findings of the Workers'          Compensation

court.
         In the pretrial order signed by the attorneys for the parties

and the Judge of the Workers' Compensation Court,       it was agreed

that Wood injured his back during the course of and arising out of

his employment with Pierce's Dodge City on July 29, 1992, and that

at that time his employer was insured by the State Fund.           The

parties also agreed that Wood had suffered a previous injury to his
back while working for the same employer on June 15, 1990; that he

was released to return to work with a limitation on the amount that

he could lift following that injury; and that his claim for
benefits related to that injury was settled.

     Wood contended in the pretrial order that his second injury on

July 29, 1992, was either a new and different injury or a permanent


                                    2
aggravation of his previous         condition which disabled him from
returning to his       normal labor market and required extensive
retraining.       He claimed that during           this necessary period of
rehabilitation he was       entitled to temporary total disability
benefits retroactive to May 28, 1993.                (Benefits had been paid
temporarily by the State Fund from November 8, 1992, until sometime

in May 1993.)

     The State Fund contended that its decision to terminate
payment of disability benefits to Wood in May 1993 was based on

information it had received indicating that he had reached the

point of maximum medical improvement, and that at that point his

physical condition and the extent of his impairment was the same as

it had been following recovery from his earlier injury.             The State
Fund contended that based on the best information it was able to

gather,     Wood's 1992 injury was           in the nature of a temporary

aggravation of a pre-existing injury from which there was no

permanent    effect.   Therefore,    it was the State Fund's contention

that claimant was not entitled to further disability benefits as a

result of his second injury.        In       particular, the State Fund relied

on 5 39-71-703(5), MCA (1991), which provides that:
           If a worker suffers a subsequent compensable injury
     or injuries to the same part of the body, the award
     payable for the subsequent injury may not duplicate any
     amounts paid for the previous injury or injuries.

     At     trial, Wood testified in person.         Deposition testimony was

offered from Wood's treating physicians, Dr. Michael Luckett and
Dr. Patrick E. Galvas.

                                         3
     Wood testified that following his first injury he experienced
pain in his back and left leg, but that his pain was limited to the

left side.     He stated that after settling his claim in 1991 he

returned to work and described the activities he was                     able to
perform.

     According to Wood's testimony, on July 29, 1992, while trying

to push an engine onto a pallet, he experienced pain on the right

side of his low back and in his right leg.               He was first treated
for that injury by Dr. Luckett, an orthopedic surgeon, who then

referred him to Dr. Galvas,         a specialist in physical medicine and

rehabilitation.        He testified that following recovery from his

second injury,    his    physical    activities   were    more   restricted   than

they had been following recovery from his first injury.                 However,

he acknowledged that after being released to return to work

following his first injury, he was advised that his condition could
get worse and that he had been limited to light duty work as a

result of that injury.

     The    Workers'    Compensation Court found that Dr. Luckett's

diagnosis of the anatomical explanation for Wood's complaints was

the same following both the first and second injury, and that, in

spite of Dr. Galvas's       contrary opinion, both doctors' diagnoses

related to nonspecific sources of pain in the low back.                The court

was not persuaded that Dr. Galvas's testimony established that the

second injury caused a new and different condition (myofascial pain

syndrome)    as opposed to the condition which was diagnosed by


                                        4
Dr. Luckett (discogenic pathology).           It found that his symptoms
following the second injury were essentially the same as those
following the first injury,     and that his work restrictions were
also essentially unchanged.
     In balancing     the   testimony of Dr.         Luckett       against      the
conflicting    testimony of    Dr.       Galvas,   the    court     noted      that
Dr. Luckett had the advantage of having treated Wood following both
injuries, but that Dr. Galvas saw him in only the late stages of
recovery from his second injury.         Furthermore, the court found that
the fact that claimant had been given a 7 percent impairment rating
by Dr. Luckett and a 17 percent impairment rating by Dr. Galvas was
not determinative because Dr. Luckett used a different edition of
the text used for evaluation and did not consider range of motion,
which would have increased the percentage of physical impairment.
The court found that although a functional capacity evaluation done
in 1993 showed greater restrictions in several                    areas,     those
differences were not significant and that the test results were a
subjective measurement since they were dependent on the                    claimant’s

reports of pain and the amount of effort that he produced.
     Based on these findings, the Workers' Compensation Court found
that Wood's    1992   injury was a temporary             aggravation       of his
pre-existing   condition,   and that a preponderance of the evidence
did not establish that the extent of his disability was materially
different following that injury than it had been before.               For these




                                     5
reasons,    the court         concluded that Wood        was     not      entitled to
permanent disability benefits as a result of his 1992                          injury.

      On   appeal, Wood contends that there was insufficient evidence

to support the trial court's finding that his second injury was to

the same part of his body as the first, and that the result of his

second injury was a mere temporary aggravation.                  He concludes that

because Dr. Galvas was his treating physician at the time of trial,

and pursuant to our decision in Snyder v. San Francisco FeedandGrain (1987) ,

230 Mont. 16, 27, 748 P.2d 924, 931, his testimony was entitled to

greater weight.         He also contends that Dr. Luckett's testimony was

suspect because it was based on a weaker foundation, it was more

equivocal, and Dr.           Luckett demonstrated his bias in a letter he

wrote to the Great Falls Tribune which was critical of the workers'

compensation      system.        Finally,       he contends that the Workers'

Compensation      Court       erred by considering Dr.              Luckett's            1991

impairment rating because it was not based on the most recent Guide

to    Evaluation        of     Permanent        Impairment,    as        required         by

§ 39-71-711(b), MCA.

      We do not understand the relevance of Wood's                              argument

regarding Dr. Luckett's 1991 impairment rating.                His position seems

to be that if Dr. Luckett had used the proper Edition of the Guides

to   Evaluation    of    Permanent   Impairment      published      by   the    American

Medical Association, and had considered limited range of motion, as

required by the Guide, that Dr. Luckett would have found a greater
degree of impairment in 1991          than the 7 percent which was found.


                                            6
However, the basis of Wood's claim in this case is that the degree
of his impairment in 1993 is greater than it had been in 1991.

Therefore,      it is hard to fathom how a higher impairment rating in

1991 would have benefitted Wood's claim.

        We    will        limit   OUT     consideration to            whether     there   was
substantial evidence to support the Workers' Compensation Court's

decision.

        We review findings of the Workers' Compensation Court to
determine whether there is substantial evidence to support them.

Roadarmelv.AcmeConcreteCo. (1989), 237 Mont. 163, 168, 772 P.2d 1259,

1262.        We have held that where medical testimony is offered by

deposition,          we    are    in    as    good     a   position    as   the    Workers'

Compensation Court to evaluate that testimony; Roadarmel,                           772 P.2d

at 1262, however, where the opinions expressed by medical witnesses

are based on medical histories,                       and the persons who give those

histories testify at trial, we have held that the Workers'

Compensation          Court's          superior       opportunity to        evaluate      the

credibility of those witnesses must be considered when reviewing

its decision.         McIntyre v. State Compensation Insurance Fund ( 19 9 1) , 2 4 9 Mont .

63, 68, 813 P.2d 451, 454.                   Therefore,    "this Court's review of the

medical depositions must be overlayed onto an encompassing review

of the Workers' Compensation Court's decision under the substantial

credible evidence standard."                   McIntyre,   813 P.2d at 454.

        Although we have held in Snyder, 748 P.2d at 931, that the

testimony of claimant's treating physician is entitled to deference

                                                  7
when contradicted by testimony of other medical witnesses, both Dr.

Luckett and Dr. Galvas were Wood's treating physicians.          Therefore,

the Snyder preference is inapplicable in this case.

        Dr.   Luckett    testified that he is an orthopedic surgeon

practicing in Great Falls who first saw Wood for treatment of a

work-related back injury on June 25, 1990.          He ultimately diagnosed

degenerative disc disease in the           lumbo-sacral area of Wood's back

with back and lower extremity pain.
        On April 23, 1991, he evaluated the degree of Wood's permanent

physical      impairment due to his first injury and arrived at a

7 percent impairment rating.         He testified that he considered the

guide of the American Medical Association, but that he did not

strictly follow it, and in particular, did not consider limitations

in Wood's range of motion which would have significantly increased

the impairment rating.
        On November 1, 1991, Dr. Luckett released Wood to return to

work,    but recommended that he lift no more than 25 to 30 pounds,

and restricted him to light duty.

        Dr. Luckett saw Wood following his second injury on August 4,

1992. After additional diagnostic tests, he saw no dramatic change

anatomically,      and arrived at the same diagnosis he had made

previously.        He testified that his findings have never been

consistent and that he thought Wood had referred pain from several

possible      sources,   including   degenerative    discs,   facet   joints,

muscles,      tendons,   and ligaments.      He concluded that there were


                                       8
insufficient objective findings to state that Wood had sustained

two different injuries on the two occasions in question.

     Dr. Luckett testified that Wood's restrictions on his work

activities were the same following recovery from his second injury

as they had been following recovery from his first injury. He

stated that while there were some differences indicated by the

physical capacity exam performed on December 20, 1993, from the one

done on April 9, 1991, he did not place much weight in the results
because they simply reflect the subjective complaints of the

patient.

      Finally, Dr.    Luckett testified that in his opinion, Wood's

functional level was about the same following recovery from his
second injury as it had been following recovery from his first

injury.

     While Dr. Luckett's hostility toward the workers' compensation

system,    and various aspects of American culture in general, is

apparent from his testimony and his editorial work, this bias was

simply one     more factor for the trial court to consider in

combination   with   Dr.   Luckett's   prolonged   opportunity   to   observe

Wood's physical condition after both injuries and its ability to

consider the credibility of Wood himself.

     We conclude, based on our review of the entire record, that

there was substantial evidence to support the critical findings of

the Workers' Compensation Court; there is nothing from our review

of the medical depositions that leads us to believe that the trial


                                       9
judge's resolution of the factual issues was incorrect; and, based

upon the Workers' Compensation Court's findings and our decision in

Allen v. TreasureState Plumbing (1990), 246 Mont. 105, 803 P.2d 644, the

conclusions of the Workers' Compensation Court were correct.

     For these reasons,     we affirm the judgment of the Workers'

Compensation   Court.

     Pursuant to Section I, Paragraph 3 cc),     Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.



                                            J st ce
                                     /

We concur:
                                         August 25, 1995

                                  CERTIFICATE OF SERVICE
I hereby certify that the following certified order wti sent by United States mail. prepaid, to the
following named:


Randall 0. Skorheim
- - - Law Office
Skorheim .^_
Y.U.I5OX4lJl
Great Falls, M, JI-,u.,

William 0. Bronson
Attorney at La.w
P.O. Box 2885
Great Falls, MT 59403

                                                    ED SMITH
                                                    CLERK OF THE SUPREME COURT
