                                             No.    83-508

                  I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                    1984




JOHN M.    MORLEY,

                   C l a i m a n t and A p p e l l a n t ,

    -vs-

THE ANACONDA COMPANY,             Employer,

    and

THE ANACONDA COMPANY,

                   D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:       T h e Workers' C o m p e n s a t i o n C o u r t , The H o n o r a b l e
                   T i m o t h y R e a r d o n , Judge p r e s i d i n g .



COUNSEL O F RECORD:

      For A p p e l l a n t :

                    R.   L e w i s B r o w n , Jr., B u t t e , M o n t a n a


      For R e s p o n d e n t :

                   A n d r e w J. U t i c k , H e l e n a ,      Montana




                                             S u b m i t t e d on B r i e f s :   July 1 0 , 1984
                                                                   ~ e c i d ~ dA: u g u s t 3 0 , 1 9 8 4




     --
                                             Clerk
     Mr. Justice Frank B. Morrison, Jr. delivered the Opinion
of the Court.
     John M.     Morley's   claim    for benefits related to       an
industrial injury sustained while employed by The Anaconda
Company was heard before the Workers' Compensation Court on
January 21, 1982.     The Workers' Compensation Court judgment
of October 17, 1983 denied claimant's claim and dismissed his
petition.    Claimant appeals.      We affirm.
     The following chronology of accidents, industrial and
non-industrial-, are operative in our discussion of claimant's
appeal.     Claimant testified that he sustained an upper back
injury on March 20, 1979 while working within the scope of
his employment for respondent.         He was mixing slurry with a
long-handled paddle when the handle dislodged and hit him
between the shoulder blades.           Claimant claims his second
industrial accident and the one here involved, occurred on
June 17, 1979 when a        six-inch, high-pressure water hose
surged with pressure and knocked him backward onto a piece of
angle iron protruding from the cement floor.           He injured his
middle back just below the rib cage.             He promptly reported
this accident to his supervisor and the safety office but
returned to work on his next shift.         The claimant missed no
work as a result of these two industrial accidents.
     On August 17, 1979, due to a faulty respirator, claimant
was exposed to arsenic and sulphur dioxide gases.            Claimant
claims that his acute sinusitis condition was aggravated by
exposure to these toxic fumes.
     Early in October 1979, the claimant injured his lower
back while logging with his brother.             According to a claim
form to a private insurance carrier dated June 2, 1980, the
claimant sustained another back injury on June 1, 1980 during
a wrestling match.          The records of claimant's physical
therapist document his third non-industrial injury on August
25, 1981 when he hit his head on the cab of a pickup.
       During this course of events, the claimant was under
the regular care of          several doctors.              Dr.    Elbert had
administered chiropractic treatments to the claimant since
March 1979.     Drs. Perez and Natividad, general practitioners,
routinely treated claimant for his chronic sinus problem.
Daryl Dodd was his physical therapist.                  In this action,
claimant was examined for respondent by Dr. Davidson, an
orthopedic surgeon.
       The    claimant was    also undergoing treatment for his
mental health.        Dr. Timothy J. Casey, a staff counseling
psychologist     at   Warm    Springs     State     Hospital,      evaluated
claimant's mental condition to establish whether claimant's
"traumatic neurosis" was casually related to any accidents.
Dr. Stanley Moisey,      a psychiatrist, examined the claimant in
connection with       claimant's    application       to    the    Veteran's
Administration for benefits under the delayed post-traumatic
stress      syndrome disorder associated with              his    service in
Vietnam.
       In    July,    1981    claimant     petitioned       the     Workers'
Compensation Court seeking workers' compensation benefits for
back injuries which he alleges were caused by the June 17,
1979    industrial    accident.          Claimant    attempted to       show
through depositions of medical experts that his psychological
instability was also exacerbated, if not caused by, the
industrial accident.         Claimant appeals from the judgment of
the Workers '     Compensation Court denying him benefits and
dismissing his petition.
       He presents the following issues:
       1.    Whether the Workers' Compensation Court erred in
dismissing claimant's petition.
       2.    Whether the Workers1 Compensation Court erred in
concluding       that   claimant did        not   sustain his burden           of
establishing that the accident of June 1 7 ,                      1979   was the
proximate cause of his resulting physical condition.
       3.    Whether there is substantial evidence to support the
decision of the Workers1 Compensation Court.
       4.    Whether the Workers' Compensation Court erred in
finding that claimant's present physical condition is due to
a   non-industrial accident rather than                    to his     industrial
injury of June 1 7 , 1 9 7 9 .
       5.     Whether the Workers1 Compensation Court erred in
failing to find that claimant's present physical condition is
due to "traumatic neurosis" resulting from the accident of
June 1 7 , 1 9 7 9 .
       We agree with respondent that there is one dispositive
issue in this appeal:              Whether there is substantial credible
evidence to support the decision of the Workers1 Compensation
Court denying workers' compensation benefits to the claimant.
       The    standard of          review   in cases appealed            from the
Workers1 Compensation Court is:
       "Our function in reviewing a decision of the
       Workers1 Compensation Court is to determine whether
       there is substantial evidence to support the
       findinas and conclusions of that court. We cannot
       substitute our judgment - - - - the trial court
                                       for that of
       as - - weight of the evidence - questions -
       -    to the         -   -   -               .
                                                     on-      .
                                                                  of
                                                                  -

       fact.     Where there is substantial evidence to
       support the findings of the Workers' Compensation
       Court, this Court cannot overturn the decision."
       Steffes v. 9 3 Leasing Co., Inc. (U.S.F.&G.)           (1978)
       1 7 7 Mont. 8 3 , 8 6 - 7 , 5 8 0 P.2d 4 5 0 , 452. (emphasis
       added)
       This case involves lengthy medical history and disputed
facts.       Respondent contends that the Workers1 Compensation
hearing examiner went to great lengths to review the entire
record      and adopted detailed findings of fact and conclusions
of law supported by extensive citations to the record for
each critical fact.       We agree.
       The facts established by the lower court are that the
claimant had his industrial injury of June 17, 1979 but that
such back injuries were not serious, and healed.              Thereafter
the claimant left work due to his chronic sinus problem, so
that his loss of income is attributable to his sinusitis and
not the industrial injury.         Thereafter, claimant suffered a
back    injury     from   the   non-industrial   accident     in   early
October.     The claimant never mentioned the serious back pain
upon which he bases his petition for workers' compensation
benefits until immediately after this non-industrial accident
in October 1979.
       Dr. Perez' deposition confirms that the claimant was in
his office on July 10, July 20, July 24 and August 7, 1979,
complaining of sinus and throat problems.         The doctor's notes
during this period make no mention of back pain.              The first
time the claimant indicated he was suffering from back pain
to either Dr. Perez or Dr. Natividad was on October 12, 1979.
       The   physical     therapist, Daryl   Dodd,    noted    that   on
October 16, 1979 the claimant was helping lift a beam and
felt his back "pop" all the way up.
       Dr. Elbert stated he "had treated claimant for his March
1979 back problems and concluded that they were resolved."
In December 1979 Dr. Elbert diagnosed a bilateral lumbar
strain.       After five treatments Dr. Elbert discharged the
patient noting that the back problem "was resolved and the
patient      is   apparently    symptom   free   at   termination     of
treatment."       From December of 1979 until June of 1980 (date
of his second non-industrial accident) the claimant received
no treatment for his back.
       On. June 2, 1980, the claimant returned to Dr. Elbert
with back complaints and received a total of 66 chiropractic
treatments to his lower back continuing up to September of
1-981.      The claimant submitted a claim on June 2, 1980 for
disability benefits to a private insurance carrier which does
not cover industrial injuries, stating that he had injured
his back while wrestling with his brother.
       Dr. Davidson testified that he examined the claimant on
January 12, 1982 and diagnosed a mild paravertebral spasm in
the upper back and a "bizarre" loss of sensation in both
upper arms which he attributed to the patient's "functional
overlay".      He concluded that the claimant could do most of
his regular work except for the "functional overlay".
       Pursuant to a detailed analysis of all the medical and
trial testimony, the hearing examiner stated in finding No.


       ".  . . While claimant's brief argues that the
       depositions of Drs. Perez and Elbert and of Daryl
       Dodd 'show conclusively' that claimant has been in
       continual pain since August of 1979, a thorough
       study of these depositions shows nothing of the
       sort. There is a crucial gap, from June to October
       of that year, which none of these witnesses can
       fill."
       The trial court concluded that the incident with the
hose     on   June   17,   1979 was     a    "tangible happening      of   a
traumatic nature from an unexpected cause" and thus satisfied
the first element of the statutory definition of an injury,
section 39-71-119(1), MCA.        The statute further requires that
the "tangible happening" results in "physical harm".                   Any
injury related to the "tangible h.appeningl'in this case was
found to produce no harm for no time was lost from work, no
medical expense incurred, and no disability or impairment of
any    kind   was    found   causally       related   to   the   industrial
accident.     There is record support for the lower court's
conclusion.
     The claimant contends that in addition to the back
injury he sustained a psychic injury or "traumatic neurosis"
as a result of his industrial accidents.                   Dr. Casey, the
psychologist defined the claimant's "personality disorder" as
"a maladaptive manner of coping with the problems that one
encounters in day-to-day life."
     Both Dr. Casey, the psychologist, and Dr. Moisey, the
psychiatrist,         state      that      the      claimant's      emotional
disturbances did not originate from any specific industrial
or non-industrial accident.             Dr. Casey explained:
     "The personality, the traits of a character
     disorder are clear or evident by adolescence. They
     are not something that come on. The responses to
     the personality disorder can crop up and become
     more severe as time goes on but the basic
     personality structure - - the bricks are laid by
     the time adolescence comes on."
     Claimant also suffers from "functional overlay".                       Dr.
Casey explained that the claimant expresses his personal
mental disturbances physically rather than emotiona.lly.
     "Functional overlay" was simply defined by Dr. Davidson
as follows:     "   . . . that the patient is suffering in his mind
much more than he is suffering objectively."                     Dr. Davidson
characterized        the      claimant's     "functional     overlay"        as
"marked".
     The    evidence       was    in     conflict    regarding      cause    of
claimant's psychological condition.              The lower court decision
denying compensability is supported by the record.
     Affirmed.
We concur:
