                               No.     94-435
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1995



JAMES VOSSLER,
          Petitioner and Appellant,

     v.
LUMBERMENS MUTUAL CASUALTY,
          Respondent/Insurer     for
INTERSTATE BRANDS CORPORATION,
          Employer and Respondent.



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


COUNSEL OF RECORD:
          For Appellant:
                 Thomas J. Lynaugh, Lynaugh, Fitzgerald,
                 Eiselein & Eakin, Billings, Montana
          For Respondent:
                 Thomas A. Marra, Marra, Wenz, Johnson
                 & Hopkins, Great Falls, Montana


                                 Submitted on Briefs:      March 30, 1995
                                                Decided:   June 19, 1995
Filed:



                                     Cl/erk
Justice Terry N. Trieweiler delivered the opinion of the Court.

      The petitioner, James Vossler, filed a petition for hearing in

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

he sought disability benefits and reimbursement for medical

expenses as a result of his psychological condition which he

alleged was disabling and work related.                   After trial, the Workers'

Compensation Court found that Vossler was not a credible witness
and that he was not disabled as a result of any psychological

condition which was caused by a work-related accident.                         Therefore,

the court denied       Vossler's       claim for disability benefits and

medical    expenses   incurred    to    treat       his    psychological       condition.

Claimant appeals from the Workers' Compensation                      Court's    findings,

conclusions,     and judgment.         We       affirm    the   Workers'    Compensation

Court.

      We conclude that the following issue is dispositive on appeal:

      Was the Workers' Compensation Court's decision to deny Vossler

additional   temporary    total    disability            benefits    and   reimbursement

for   expenses    incurred to          treat his psychological                  condition
supported by substantial evidence?

                            FACTUAL         BACKGROUND

      James Vossler was injured during the course of his employment

as a relief driver for Sweetheart Bakery on September 4, 1990, when

he slipped and fell while exiting his truck.                        At the time of his

accident, Sweetheart was enrolled under Compensation Plan II of the

Workers'   Compensation    Act,    and was insured by Lumbermens Mutual


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Casualty.      Lumbermens    accepted   Vossler's   claim   for    compensation
benefits      and paid temporary total          disability benefits        from
September 5, 1990, to October 7, 1990, and from December 5, 1990,
until November 5, 1992. His benefits were terminated when Dr. John
Cahill,     a neurologist,    expressed the opinion that there was no
physical impairment which would preclude him from returning to his
previous job.
     This action was commenced on October 12, 1993, when Vossler
filed a petition in the Workers'            Compensation Court in which he
sought      temporary    total   disability     benefits     retroactive to
November 5, 1992, as well as payment for psychotherapy.              It was his
contention that he suffers from disabling psychological problems as
a result of his work-related injury.
     A trial of the issues           raised by Vossler's petition and
Lumbermens' response was held in the Workers' Compensation Court on
February 1, 1994.        James   Vossler    presented   deposition    testimony
from Richard Agosto, Ph.D., a clinical psychologist who had treated
him since December 1992,          and had seen him on more than 25
occasions.       Dr.    Agosto testified that Vossler suffered from
depression,     mild organic brain impairment,             and a     somatoform
disorder,    which is the unconscious exaggeration of pain.              It was
his opinion that        "some elements" of the organic brain disorder
preexisted Vossler's work-related accident, but that his depression
and somatoform pain disorder were caused by the accident.




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       In response to Dr. Agosto's testimony, Lumbermens offered live

testimony from Donna Veraldi, Ph.D.,          a clinical psychologist who

had examined Vossler and investigated his condition at Lumbermens'
request.

       While a number of other witnesses were called, either in

person or by deposition, by both parties, the conflicting testimony

of these two witnesses frames the issue raised by Vossler on

appeal,      and    our discussion is,      therefore,   limited to their

opinions.

       Dr.   Veraldi expressed the opinion that Vossler was either

malingering or suffered from a factitious disorder.          She testified

that   both terms are used to describe the purposeful production of

symptoms.          The Diagnostic   and Statistical Manual of Mental

Disorders     III-R, which was relied on by Dr. Veraldi, states, on

page 315, that "[flactitious        disorders are therefore characterized

by physical        or   psychological   symptoms that are    intentionally

produced     or    feigned."   It differs from malingering in the sense

that malingering has a specific purpose, while the motivation for

factitious disorder may be more vague.              It was Dr. Veraldi's

opinion that this psychological condition was not related to

Vossler's    industrial accident, and that while he might suffer some

mild depression, he had no psychological damage as a result of his

work-related accident which precluded him from returning to work.




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        The Workers' Compensation Court found Dr. Veraldi's testimony

more persuasive that Dr. Agosto's in light of other evidence, and

denied Vossler's          pet,ition for benefits.
                                          DISCUSSION

        Was the Workers' Compensation Court's decision to deny Vossler

additional        temporary      total    disability      benefits      and   reimbursement

for     expenses        incurred to         treat his psychological                condition

supported by substantial evidence?

        On appeal, Vossler contends that because the testimony of his

treating therapist, Dr. Agosto, was entitled to greater weight, and

because the consultant retained by Lumbermens was unable to say

whether Vossler's complaints were related to factitious disorder or

malingering,          there was        insufficient        evidence      to support        the

Workers'       Compensation Court's judgment.

        We have held that a Workers' Compensation Court decision will
be upheld if it is supported by substantial credible evidence.

Whitev.Ford,Bacon&DavisTexas,Inc.        (1992), 256 Mont. 9, 13, 843 P.2d 787,

789. We have also held that substantial evidence can be defined as

        that evidence that a reasonable mind might accept                            as
        adequate to support a conclusion.   Although it may                          be
        based upon weak and conflicting evidence, in order                           to
        rise to the level of substantial evidence it must                            be
        greater than trifling or frivolous.

EBI/Orion   Group Y. State Compensation Mut. Ins. Fund ( 19 9 1) ,   24 9 Mont . 4 4 9, 4 5 3 ,

816 P.2d 1070, 1073 (citing Christensenv.Britton (1989), 240 Mont. 393,

401, 784 P.2d 908, 913). Furthermore, the testimony of one witness



                                                5
is sufficient to prove any fact at issue in this case.                                    Section

26-l-301, MCA.
     Where there is evidence to support the contentions of both

parties,    and the trial court enters findings after weighing the

conflicting evidence, we have held that "[tlhis Court will not

substitute its judgment for that of the Workers' Compensation Court

concerning the credibility of witnesses or the weight given their

testimony."      Hart$eldv. City of Billings (1990), 246 Mont. 259, 264, 805

P.2d 1293,    12 9 6   ( citing   Houtchens       v. State Employment Security Division   ( 19 8 8 1 ,

232 Mont. 99, 102, 754 P.2d 824, 826).

     The issue, then, is whether giving the appropriate deference

to the      testimony of      Vossler's           treating         psychotherapist,             and

considering Dr. Veraldi's testimony in its entirety, there was

sufficient evidence to support the findings and judgment of the

Workers' Compensation Court. Based on the following summary of Dr.

Veraldi's     testimony, we         conclude           that     there      was      sufficient

evidence.

     Dr.    Veraldi testified that she has a Ph.D. in clinical

psychology,   is licensed to practice that profession in the State of

Montana,    and has been engaged in the private practice of clinical

psychology in Billings since 1988. She is a fellow in the American

College of Forensic Psychology.

     At the request of Lumbermens, Dr. Veraldi reviewed Vossler's

social security file, a number of his medical files, several




                                              6
doctors' reports, and the deposition testimony taken from several

witnesses in this case.

        On October 30 and 31, 1991,            Dr. Veraldi performed a neuro-

psychological evaluation of Vossler, which included an oral history

and the administration of numerous tests.

        Following      this   evaluation,    she interviewed people from his

place of work,         reviewed     additional     medical   records,     visited    the

accident site, and spoke with at least one of his doctors.

        Based upon Dr. Veraldi's education, training, experience, and
the nature of her evaluation,               there was no objection by Vossler

that she was unqualified to express an opinion regarding his

psychological         condition.

        It was Veraldi's opinion that Vossler was either malingering
or suffered from a factitious disorder, both of which indicate the

purposeful production of symptoms.               She disagreed with Dr. Agosto's

opinion      that   Vossler's      psychological     condition,   other    than     some

mild    depression,      was related to his industrial accident.                     She

expressed       the     opinion      that    while     Vossler     did    need      some

psychological       treatment, the problem for which he needed treatment

was not caused by a work-related accident.                       She   expressed     the

opinion      that     whatever     psychological damage did result from his

work-related accident would not preclude him from returning to

work.

        On   cross-examination, Dr. Veraldi acknowledged that since it
was unclear to her what Vossler's motives were                         for making up
symptoms, she could not technically distinguish between malingering

and factitious disorder.          However,   for purposes of supporting the

Workers' Compensation Court's finding that            Vossler's   psychological

condition is unrelated to his industrial accident, we conclude that

such a distinction is unnecessary.

       Although we    have held that where all relevant medical

testimony is offered by deposition, we are in as good a position as

the trial court to weigh that testimony, that standard of review is

not applicable in this case.         Dr. Veraldi and Vossler testified in

person.     The Workers' Compensation Court was in a better position

to evaluate their credibility than this Court, and our scope of

review is simply to determine whether the trial court's findings

are supported by substantial evidence.

       Based upon the previous rules and discussion, we conclude that

there was substantial evidence in the form of testimony from Donna

Veraldi,    Ph.D.,   to support the Workers'           Compensation    Court's

finding that the claimant, James Vossler, did not suffer from a

disabling psychological condition which resulted from an injury as

defined in § 39-71-119, MCA,         and its conclusion that Vossler was

not temporarily totally disabled, as defined in § 39-71-116(28),

MCA,   and was not entitled to the benefits that he sought in his

petition.

       The judgment of the Workers' Compensation Court is affirmed.

       Pursuant to Section   I,    Paragraph 3 (c),    Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as


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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.




We concur:
