                                  No. 87-313
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1988



DELBERT D. SNYDER,
                 Claimant and Appellant,
         -vs-
THE ANACONDA COMPANY,

                 Employer/Defendant and Respondent,




APPEAL FROM:     The Workers1 Compensation Court, The Honorable Timothy
                 Reardon, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                 Burgess, Joyce   &   Whelan; Thomas J. Joyce, Butte,
                 Montana
         For Respondent:
                 Michael J. McKeon, Anaconda, Montana



                                       Submitted on Briefs:    Jan. 7, 1988
                                         Decided:   March 2 2 , 1988

Filed:   &MAR2 2 B88


                                       Clerk
Mr. Justice R.   C. McDonough delivered the Opinion of the
Court.

     This is an appeal from a Workers' Compensation Court
judgment entered on July 16, 1987, denying claimant Delbert
Snyder's petition for permanent disability benefits.       We
affirm.
     Mr. Snyder presents the following issues for review:
      (1) Did the Workers' Compensation Court err by failing
to find that Mr. Snyder had reached maximum healing and that
the work injury had totally and permanently disabled Mr.
Snyder, and what effect, if any, should Mr. Snyder's car
accident following the work injury have on his entitlement to
benefits?
     (2) Did the lower court err in requiring Mr. Snyder to
prove that his disability was caused by his work injury
rather than his preexisting condition and the car accident?

     Mr. Snyder injured his back operating a mechanical
shovel for the Anaconda Company on January 6, 1982.
Following the injury Mr. Snyder petitioned for benefits. The
Anaconda Company (Anaconda) denied liability contending that
the injury was not work related. Mr. Snyder petitioned for a
hearing before the Workers1 Compensation Court, and on
October 11, 1985, the court held that Mr. Snyder's injury
entitled him to medical and temporary total disability
benefits from the date of the injury to December 28, 1982.
The lower court refused to "speculate whether any additional
temporary total disability benefits may be due beyond that
date" because Mr. Snyder reinjured his back in a car wreck on
December 28, 1982.    The lower court reasoned that I [tlhe
                                                       '
claimant still has the burden of proving his case and it
simply has not been proven that his problems after the auto
accident are in any way related to his employment."
     Following this judgment Mr. Snyder petitioned for
permanent   disability   benefits.     Again   the  Workers1
Compensation Court held that Mr. Snyder had failed to prove
his case. According to the lower court,

          Claimant is, in a sense, a victim because we
     do believe he is suffering, but given the lengthy
     pre-injury medical care and subsequent car accident
     in December, 1982, he has not been able to
     establish    any    entitlement    to    additional
     compensation benefits beyond December, 1982.

     As noted by the lower court, the crux of the issue here
is whether Mr. Snyder's disability resulted from the work
injury, or from the 1982 car accident and his preexisting
back problems.    The medical evidence used to resolve this
issue consisted of two depositions from James B. Mossman, Mr.
Snyder's chiropractor, and a deposition from Charles E.
Buehler, an orthopedic surgeon who examined Mr. Snyder at the
request of Anaconda's claim's adjustment firm.      The lower
court also heard Mr. Snyder's testimony at the hearing held
pursuant to his petition.
     Dr. Mossman testified that prior to the work injury he
treated Mr. Snyder for "myositis" and associated muscle
inflammation from the neck to the lower back. After the work
injury Dr. Mossman stated that Mr. Snyder complained of new
pain in the lower back.      The new pain, according to Dr.
Mossman, was probably caused by an awkward sitting position
Mr. Snyder was forced to assume while pushing foot pedals on
the shovel he operated for Anaconda.    The position and the
machine's vibration would "tend to cause micro-traumatic
strain and sprain problems."
     Dr. Mossman also treated Mr. Snyder after he reinjured
the back in the December 28, 1982 car accident. Just prior
to the car accident, according to Dr. Mossman, Mr. Snyder's
condition was improved but continuing and chronic.        Dr.
Mossman stated that the car accident aggravated the work
injury and caused problems in Mr. Snyder's neck. However, by
March of 1984, according to Dr. Mossman, Mr. Snyder's back
had returned to its pre-accident condition.
     Dr. Mossman characterized the condition of Mr. Snyder's
back in March of 1984 as stable and referred to it as a
disabling "underlying chronic lumbar problem."    Dr. Mossman
also deposed that jarring and jostling of the spine at work
probably caused the lumbar condition. However, Mr. Snyder's
preexisting osteoarthritis of the spine also contributed to
his disability, according to Dr. Mossman. Dr. Mossman also
deposed that Mr. Snyder's osteoarthritis could have been
aggravated and accelerated by Mr. Snyder's job duties.
     Dr. Buehler testified that when he examined Mr. Snyder
in May of 1982, Mr. Snyder was suffering from.osteoarthritis
of the lumbar spine.    The osteoarthritis, according to Dr.
Buehler, would predispose Mr. Snyder to repeated injuries if
Mr. Snyder continued to perform the sort of duties he
performed for Anaconda.      However, on the date of his
examination, according to Dr. Buehler, there was no evidence
that work related trauma to the back was causing Mr. Snyder's
problems.    The problem at that time, according to Dr.
Buehler, was the result of osteoarthritis which was severe
for a man Mr. Snyder's age, and which predated the injury.
The relationship between the arthritis and the work injury
was explained in Dr. Buehler's deposition as follows:

          Q.   Okay.  When you examined him in May of
     1982 and made your diagnosis of diffuse arthritis,
     did you in any way conclude that the condition
     which you diagnosed in May of 1982 was caused by
     the incident he referred to while pushing on the
     pedals of the machine?

          A.   No. I do not think that the arthritis in
     his back was caused while pushing on the pedals on
     the machine in January of 1982.    I do think that
     maneuvers such as he described, pushing on the
     pedals, could have exacerbated a preexisting back
     condition.
          Q.   Okay.    Now, when you say 'could have
     exacerbated,'   are you referring to a temporary
     type of exacerbation?

            A.   Probably a temporary type of exacerbation,
     yes.
            Q.   Explain that if you would.
          A. I think this man has marked changes in his
     back, radiographically, with osteoarthritis that's
     going to predispose him to injuries to his back.
     His back is wearing out.     There are going to be
     things that will irritate it. Usually the history
     of this problem is that these things will irritate
     it.
          He may develop some muscle spasm, some pain in
     his back for a period of time. Usually that will
     get better with proper care in taking care of it.
     But, again, he's going to have, then, repeated
     incidents. I think that's going to be the history
     of this man's back.
     Dr. Buehler did not testify as to whether or not work
duties which demanded jarring and jostling of the spine could
have aggravated and accelerated the osteoarthritis. Both of
the medical experts deposed in this case agree that Mr.
Snyder's condition prevents him from returning to the job he
performed at the time of the work injury.
    Mr. Snyder testified that for three months after the
work injury, extreme pain prevented him from being able to
stand for any appreciable amount of time.   Mr. Snyder also
testified that four or five months after the work injury it.
"leveled off" and improved. According to Mr. Snyder, as long
as he was "more or less inactive", the injury was not a
constant bother.
     Mr. Snyder also stated that following the 1982 car
accident the aggravated back problem once again restricted
him.    However, Mr. Snyder testified that the aggravation
caused by the car accident was less severe than the back
problem he suffered from immediately after the work injury.
Mr. Snyder also testified that around three months after the
car accident his back improved and stabilized once again.
Mr. Snyder equated his back problems at that time to the
condition he suffered from just prior to the 1982 car
accident.

                           ISSUE 1
     Did the Workers' Compensation Court err by failing to
find that Mr. Snyder had reached maximum healing and that the
work injury had totally and permanently disabled Mr. Snyder,
and what effect, if any, should Mr. Snyder's car accident
following the work injury have on his entitlement to
benefits?
     Mr. Snyder contends that the lower court improperly
failed to find that his employment caused his disability. We
disagree and affirm the lower court's decision to deny a
permanent disability because substantial evidence supports
the lower court's decision.
     The claimant bears the burden of showing an entitlement
to benefits under the Workers' Compensation Act. Metzger v.
Chemetron Corp. (Mont. 1984), 687 P.2d 1033, 1035, 41 St.Rep.
1788, 1790. And in reviewing the lower court's findings, we
will not overturn a Workers' Compensation Court decision
supported by substantial evidence.     Metzger, 687 P.2d at
1035.
      To receive an entitlement to permanent disability
benefits, Mr. Snyder must show by a preponderance of the
probative credible evidence that an injury caused his
disability.   Ferdinand v. Lodge # 456, B.P.O.E., Lewistown
 (Mont. 1986), 719 P.2d 775, 777, 43 St.Rep. 955, 956-57.
Findings based on substantial though conflicting evidence
will not be disturbed on appeal. Ferdinand, 719 P.2d at 777.
      In this case, the medical evidence is conflicting as to
whether or not a work related injury caused or contributed to
Mr. Snyder's disability. In this regard, Dr. Mossman deposed
that a series of micro-traumas occurring to Mr. Snyder's back
culminated in the injury which caused his current disability.
However, Dr. Buehler deposed that no sign of the injury was
present   at   the  time   of his    examination, and    that
osteoarthritis caused Mr. Snyder's disability. Dr. Buehler's
deposition provides substantial though conflicting evidence
that the work injury was not a factor in causing Mr. Snyder's
disability. Thus, the lower court's findings are adequately
supported in the record, and we affirm on this issue.

                           ISSUE 2
     Did the lower court err in requiring Mr. Snyder to prove
that his disability was caused by the work injury rather than
the auto accident and his preexisting condition?
     As stated previously, permanent disabilities under the
1981 Workers' Compensation Act are compensable where they
result from what the Act defines as an "injury".        See $§
39-71-116 (12), 39-71-116 (13), MCA (1981), and see Schieno v.
City of Billings (Mont. 1984), 683 P.2d 953, 955, 41 St.Rep.
1157, 1159. In this case, part of Mr. Snyder's burden was a
showing that the work injury rather than other causes
resulted in his disability. Schieno, 683 P.2d at 955.
     Mr. Snyder contends that the evidence irrefutablv shows
that the work injury at least contributed to his disability.
However, Dr. Buehler's deposition provides substantial
evidence that the injury was completely healed prior to the
car accident.   The lower court found on the basis of this
evidence that the work injury did not contribute to the
disability. Thus, we affirm.




        Justices
Mr. Justice John C. Sheehy, dissenting:



     I dissent in this case where the Workers' Compensation
Court completely missed the point it should have decided, and
now this Court has missed it too.
     The point to be decided is this: Ts Delbert Snyder now
totally disabled from a compensable industrial accident which
occurred on or about January 6 , 1982?    Unequivocally, the
answer should be yes.
     To begin with,     the employer in Montana takes the
physical condition of   his employee, as he finds it. If the
physical condition of   the employee is fragile, from whatever
cause, susceptible to   injury and aggravation, the risk is on
the employer.   It is the compensable injury, regardless of
the physical condition of the worker at the time, and the
direct results of the compensable injury that determine the
worker's right to compensation benefits.          Gaffney v.
Industrial Accident Board (1955), 129 Mont. 394, 287 P.2d
256.
     In January, 1982, Delbert Snyder was in fragile physical
condition.   He got that way from more than 35 years of hard
labor working for the Anaconda Company. When he was 20 years
old, he went to work for the Anaconda Company as a contract
miner for about two years, when he went into the armed
services.   Upon his return from the service, in 1946, he
returned to the Anaconda Company except for a short stint at
Hanson Packing Company.
     His first industrial accident at the Anaconda Company
occurred in 1943.   As he was coming up the Belmont Mine
shaft, at the 3,800 foot level, something he could        not
identify hit him and he was rendered unconscious.          He
suffered a neck injury, was in the hospital, and his neck was
"put in restriction" for a couple of weeks.
     In 1958, working as a contract miner in the Leonard
Mine, he was involved in an underground cave-in. His left
leg was broken between the knee and the ankle; he lost two
toes, his middle toe is a hammer toe, his toe next to the big
toe is stiff, and his big toe is the only useable toe on his
left foot.    He was off work with these injuries for 16
months. Ever since he has walked with a slight limp. At the
site of the leg fracture he has developed osteomyelitis for
which he must wear a metal shield to avoid bumping.
     In 1960, as he was employed as a shovel oiler by the
Anaconda Company, he and a fellow worker were attempting to
move the shovel which required the operation of a lever.
Because the machinery was partly worn, the lever did not work
properly and they extended the length of the lever by
covering it with a 4-foot length of 2-inch pipe.      As they
shoved and pulled this lever, the machine kicked the lever
out, and Delbert was struck on the chest, and suffered two
broken ribs.
     The last occasion prior to his final injury was when he
was riding a bus supplied by the Anaconda Company to
transport employees into the pit area.    It was raining and
the road had been changed. The bus driver got confused, took
a wrong turn and drove the bus into a 10-foot deep ditch.
Delbert Snyder was rendered unconscious, and when he came to
found himself sitting on the back of the seat immediately in
front of him with his left leg twisted under him.      He had
slit open his left leg over the old break.
     Delbert Snyder eventually became a shovel operator.
This is a job for a strong back.           The shovel itself
constantly vibrates and rattles.    The teeth of the shovel
must frequently be changed, and the teeth are heavy. Many
parts of the machine have to be repaired or replaced and
require heavy lifting. In the fall of 1981, Delbert Snyder
found it necessary to seek treatment from Dr. James B.
Mossman, for the condition of his back.         Dr. Mossman
testified that Delbert Snyder's back had deteriorated from
the constant assaults upon his body of micro-traumas.      A
doctor, employed by the Anaconda Company in May, 1982, to
examine Delbert's back, Dr. Charles Buehler, found that
Delbert had sustained marked degenerative changes in the
lumbar spine due to osteoarthritis, and that the condition
had existed for at least a year and perhaps more.    He also
found osteomyelitis of the left leg. Dr. Buehler testified
that the same person, a year earlier in May, 1981, if Dr.
Buehler had examined him then, would have been restricted in
any attempt to perform certain functions because of his
diffuse arthritis throughout his spine. With respect to his
osteomyelitis, he would also have had restrictions because of
the danger of the left leg being refractured.
     Thus, Delbert Snyder, in January, 1982, was unknowingly
awaiting the inevitable, literally, the straw that would
break the camel's back. It occurred when he was put to work
on a new shovel for which the Anaconda Company had changed
the seat cushion. The result of the change was that to work
the levers which turn the shovel left or right, Delbert had
to stretch his legs and twist his body in order to operate
the levers. Delbert knew he was being hurt, but he finished
his shift and brought the matter to the attention to the
foreman.   On the next day when he reported to work, the
cushion had not been changed as promised, and he refused to
go back on the shovel. His low back bothered him so that he
was examined again by Dr. Mossman whose report of the
incident, dated January 6, was found in Dr. Mossman's records
and noted by the Workers' Compensation Court in finding no.
13 in its first decision of October 11, 1985:
     How accident occurred: had been having minor
     problem with low back--used new seat and shovel and
     low back went out causing extreme pain.
     Delbert Snyder had worked his last shift for the
Anaconda Company.   He saw Dr. Mossman on several occasions
through the summer and early fall of 1982 when his condition
appeared to stabilize, but he was never again in condition to
return to work.
     On December 28, 1982, Delbert Snyder was involved in an
automobile accident, where his neck and back sustained
injuries.     When his case came before the Workers'
Compensation Court, the argument was then made by the
Anaconda Company that his condition was a result of the car
accident, and not of a compensable injury.      The Workers'
Compensation Court rejected this contention, holding on
October 11, 1985 in paragraph 2 of its conclusions of law:
     ...   here the evidence clearly establishes that
     claimant was being treated for back problems prior
     to January, 1982.       Nonetheless, Dr. Mossman
     specifically noted in his deposition that claimant
     had new symptoms resulting from his having to work
     on   a   new   shovel   with   different   physical
     requirements.    This evidence coupled with the
     claimant's testimony establishes by a preponderance
     that the claimant's condition was aggravated by the
     shift he worked on the Buyrus Erie shovel.
     The Workers' Compensation Court ordered the Anaconda
Company to pay temporary total disability benefits and
medical benefits to Delbert from January 6, 1982 to December
28, 1982.    The court said it was not in a position to
speculate as to whether there was any additional temporary
total disability due because of lack of evidence in the
cause.
     The matter returned to the Workers' Compensation Court
on claimant's petition that he was totally disabled, and
entitled to total disability benefits until he reached age
65, and thereafter to permanent partial disability benefits.
The Anaconda Company produced - - medical evidence - -
                               no new                  of its
own.
-      The only practitioner to testify was a chiropractor,
Dr. Mossman, against whom counsel for the Anaconda Company
continually contended that since he was not a medical doctor
he could not give an opinion as to the status of the injuries
and condition of Delbert Snyder, and thus succeeded in
downgrading Dr. Mossman's testimony before the Workers'
Compensation Court.   Entering its findings and conclusions
against Delbert Snyder on July 16, 1987, the Workers'
Compensation Court used selected portions of Dr. Buehler's
testimony from his examination in May, 1982, and from Dr.
Mossman's  cross-examination of December     10, 1986, to
determine:
     ..  . we do not find sufficient evidence to support
     the claim.    It is difficult to believe that a
     non-traumatic incident such as awkward posture
     could result in the extensive disability being
     claimed. In our prior order, we awarded just under
     a year's worth of total disability benefits.     At
     that time claimant was in an auto accident, which
     by its very nature is more traumatic.        Though
     claimant tries to emphasize the physical complaints
     of the auto accident as being primarily to the
     upper back, there is no question that the low back
     was also affected acutely.   Dr. Mossman is simply
     unable to sort out the post-injury, pre-auto
     accident condition to the post-auto accident
     complaints to persuade the court that additional
     benefits are owed. Additionally, claimant has been
     in yet another accident after the trial. Claimant
     appears - - - some permanent disability as a
              to have
     result - - January 1982 injury. On the record
            of his
     before us, however, it is not possible to determine
     the extent of that disability under these facts.
     Claimant is clearly not totally disabled because of
     the January, 1982 injury. . . (Emphasis supplied.)
     As we said, the point of Delbert Snyder's claim is that
his compensable injury of January 6, 1982, resulted in his
total disability and that since January 6, 1982, he has been
and   is now totally disabled.     The fact that he had two
automobile accidents in the intervening time, out of which he
sustained significant injuries, does not change the fact that
he still is in the same condition now that he was in
September-December, 1983, before the first accident. He was
and is totally disabled.      The automobile accidents are
irrelevant.
     Dr. Mossman testified:
      Q: With respect to time, Doctor, we are talking
      about the time period covered in the reports that
      you just described from, say, September to December
      of 1983 generally.   A: During that time in this
      stabilized period, Mr. Snyder was still primarily
      incapable of active employment as such.         (An
      objection was made at this point, on which the
      Workers' compensation Court did not rule.)


      A. Mr. Snyder's condition at that point precluded
      him from lifting anything excessive probably 25
      lbs., especially from the floor, bending and
      lifting; especially twisting and lifting would not
      be advisable.   We suggested to him to stay away
      from any type of consistent vibration, which seems
      to have brought on the chronic problem earlier of
      the micro-traumatic exposure.
      Beyond that, any type of consistent reaching
      overhead would have been somewhat difficult for him
      also.   Such as, if you would like an expansion on
      that, such as maybe electric work overhead which he
      might do in a remodeling situation or something
      where he would be reaching with his head up or his
      arms up.   That would have been difficult for him
      because of the neck problem also.
     As to Dr. Mossman's "release" of Delbert following the
automobile accident, Dr. Mossman testified:
     A. There are many forms of "release" in our
     practice. We use release asymptomatic, which means
     release without symptoms; released pre-clinical,
     which means generally speaking, released in the
     condition [sic] of the patient was prior to the
     previous injury or to that injury.     We may also
     release with residual, which means they have an
     underlying problem still but that it may have
     reached maximum healing and we don't expect it to
     make any major change one way or the other.
     In Dells case, I believe, I released him in a
     pre-clinical condition, which relates - -to the
                                           back -
     condition - - - prior - - -
                he was in        to the auto accident.
     (Emphasis supplied. )
     The clear import of Dr. Mossman1s testimony is that the
automobile accident made no change in the condition of
Delbert Snyder. He was unable to work before the accident;
he is unable to work after the accident. The responsibility
for his total disability necessarily falls on the Anaconda
Company.
     The second automobile accident occurred on December 31.,
1986, after the second hearing but before the decision of the
Workers1 Compensation Court. It also occurred while Delbert
was and remains totally incapacitated.       Nothing in the
evidence indicates any change in that condition.
     The Anaconda Company offered no "medical" evidence to
controvert the testimony of Dr. Mossman.
     There you have it. The same Workers1 Compensation Court
that found a cornpensable injury on January 6, 1982, and
awarded Delbert Snyder nearly a year of total disability
resulting therefrom, now      refers to    the   incident as
"non-traumatic," and inconsistent with total disability. In
so doing, the Workers1 Compensation Court ignores substantial
evidence in the record from Dr. Mossman establishing that
Delbert Snyder was totally disabled in December, 1982, when
the automobile accident occurred, and is totally disabled
now.   There is no question of credibility involved here.
Since all the medical evidence is by deposition, we are in as
good a position to judge thereof as is the Workers'
Compensation Court.
     Delbert Snyder has become an industrial throw-away.
Like hundreds, nay thousands of other workers, the Anaconda
Company used his youth and his strength until he was worn
out, assaulted him with a compensable injury, and now he is
assigned to the scrap-heap. As a Court, do we dare to call
ourselves enlightened?
     I would reverse with directions to the Workers'
Compensation Court to award Delbert Snyder all available
benefits based on his total disability since January 6, 1982.




     I join in the foregoing dissent of Mr. Justice John C.
Sheehy .
