                                   No. 86-257
               IN THE ST!PREMB COURT OF THE STATF OF MONTANA
                                      1.986




DENNIS R. HENGEL,
                    Claimant and Fespondent,


PACIFIC HIDE    &    FUR DEPOT,
                    Employer,
       and
INTERMOUNTAIN INSURANCE COMPANY,
                    Defendant anf! Appellant.




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

COUWSEL OF RECORD:

       For Appellant:
                    E. Craig Daue; Garlington, Lohn   &   Robinson, Missoula,
                    Montana


       For Respondent :
                    Allen M. McGarvey; Landoe, Brown, Planalp, Kommers    &
                    Johnstone, Bozeman, Montana




                                      Submitted. on Briefs: Dec. 11, 1986
                                        Decided:   December 31, 1986
Mr. Justice William E . Hunt, Sr. delivered the Opinion of the
Court.

     This     is an    appeal   from a judgment of the Workers'
Compensation Court awarding Hengel medical expenses, together
with reasonable costs and attorney fees.             The Court found
Hengel was not entitled to the 20% penalty for delay and
denial of the claim.        Both parties appeal.       Intermountain
Insurance Company appeals the finding that the medical bills
were compensable and Hengel cross-appeals the portion of the
judgment denying the penalty.       We affirm.
     Intermountain raises three issues on appeal:
     1.     When medical science has been unable to determine
the cause of a disease, but has been able to eliminate the
factor alleged by a claimant as a cause of the disease, can
the Moffett/Conway rationale be used to make such claimant's
disease     compensable under     the    Workers'   Compensation Act
merely because the true cause of the disease remains unknown?
     2.     Can a Workers' Compensation claimant prove, by mere
medical possibility, that his industrial injury aggravated a
subsequent, independent disease?
     3.     If   the   Court    denies     Intermountain   Insurance
Company's    appeal, is there      substantial credible evidence
supporting the Workers' Compensation Court's refusal to enter
a penalty in this case?
     Hengel      raises   one    issue    on   cross-appeal.     Did
Intermountain Insurance Company unreasonably delay and deny
payment of medical expenses to Hengel?
     Dennis Hengel was injured on June 11, 1982 in the course
of his employment with Pacific Hide and Fur Depot.              Some
metal channels slipped off a forklift toward Hengel, and when
he grabbed them, he injured his back.                    Intermountain accepted
liability for the injury and paid benefits on the claim.
      Following his back               injury, Hengel has suffered from
continual      pain.           The    pain     increases with      his    physical
activity, radiating from his back into his legs.                         Prior to
the injury, Hengel was physically active.                       He jogged, hiked
and skiied.       After the injury he has been unable to do these
things.      He blames his inability to participate in these
activities        for    several        failed      relationships.        Hengel 's
roommate testified that after the injury Hengel's personality
changed and he became short-tempered, irritable, angry a n 6
depressed.        Hengel was subject to additional stress because
his economic situation worsened.                       His disability benefits
were approximately one-half his pre-injury earnings.                            His
frustrations mounted when his doctors could not "cure" his
back injury.            Hengel was optimistic that he would recover
until January, 1983, then he became frustrated and tense due
to his lack of recovery.
      At    the    time        of    the     injury,    Hengel    did    not   have
ulcerative colitis.                 Hengel's    first symptom of ulcerative
colitis occurred in March, 1983.                    Tests at that time showed
no active colitis.
      In    December,          1983,       Hengel    returned     home   for    the
holidays.       While there, he had his first severe colitis
attack.      By February, 1984, Fengel's colitis was serious
enough to require surgery.                   In two separate operations, Dr.
Dozois at the Mayc Clinic performed a colectomy and removed
the   mucosa      of     the    lower      rectum.       Hengel   incurred     over
$51,900.00 in medical bills.                   Hengel advised Intermountain
that it was liable for the hills because Hengel's ulcerative
colitis was "caused by stress from the strain of worrying
about his problems."
     Intermountain      denied   liability        for   the    ulcerative
colitis since the medical evidence did not demonstrate "any
specific cause/effect relationship between ulcerative colitis
and major stress."
     The Workers' Compensation Court held Hengel's ulcerative
colitis is the result of stress occasioned by his industrial
accident.     The Court stated that although medical science
does not know the cause of ulcerative colitis, all the
medical     experts   who   testified    agreed    that   stress      could
exacerbate ulcerative colitis.         The Court stated the claimant
could not be expected to prove a medically undemonstrahle
causal connection between        stress and ulcerative colitis.
However, the Court held Hengel met his burden of proof by
showing     his   increased   stress    level     coincided    with    the
development of ulcerative colitis, and that medical evidence
recognized    a   relationship   between     stress     and    ulcerative
co1it.i~. The Court relied on Conway v. Blackfeet Indian
Devel-opers, Inc. (Mont. 1983), 669 P.2d 225, 40 St.Rep. 1437
and Moffett v. Rozeman Canning Co. (1933), 95 Mont. 347, 36
P.2d 973.
     In Noffett, the claimant was injured while stacking
cases of canned peas.       Within three weeks he had a tremor in
his left foot which spread to both legs, his tongue and head.
He was diagnosed as having Parkinson's disease.               The doctors
who testified stated that they did not know what caused the
disease but conjectured that it could theoretically be caused
by trauma, infection, or emotion.          The Court noted that the
claimant must prove the injury was the proximate cause of his
present condition.      However, the record was devoid of direct
evidence of proximate cause, not because the claimant had
failed to prove his case but because the exact cause of the
disease was unknown to medical science.            The Court held "the
rule that the claimant must show that the injury was the
proximate      cause     of    the   affliction    does    not     require
demonstration of an undemonstrable proposition, but merely
that he produce sufficient evidence              ...   to cause in the
unprejudiced mind        a conviction that such was the             fact."
Moffett, 95 Mont. at 360, 26 P.2d at 978.
       In Conway, the claimant caught his arm on the door of
the backhoe and huna suspended from his arm for a few minutes
before dropping about 9 feet to the ground.                The sorenees
from the accident changed to numbness ir! his fingers, toes,
and arms.      Gradually, he began to experience weakness in one
side    and    eventually      was   diagnosed    as   having    multiple
sclerosis.     The issue before the Court was whether the injury
caused the MS.         Two doctors testified there was no causal-
effect between MS and the injury and one doctor testified
that the injury precipitated the outward symptoms of the
underlying MS.         We held the Moffett rationale is valid in
cases where medical science is powerless to be of direct aid
and in those cases the Workers' Compensation Court should
look to indirect evidence to establish causation.
       The    first    issue   Intermountain raises       on    appeal   is
whether the Moffett and Conway rationale should be applied in
this case.      Intermountain contends that medical science has
ruled out stress as a cause of ulcerative colitis, and that
claimant should not be able to recover merely because the
true cause of t.he disease remains unknown.               The cause of
ulcerative colitis is currently unknown to medical science.
All of the doctors who testified in the case agreed that
stress can exacerbate symptoms of the disease.                   One doctor
stated that he was             "unaware of any specific cause/effect
relationship between ulcerative colitis and major stress."
One doctor stated that he personally did not believe that
stress caused ulcerative colitis.               Another stated that there
seemed to be a possible cause and effect relationship.                   Stil-1
another stated ulcerative colitis could be aggravated or
possibly initiated by stress.               Intermountain contends thzt
the statement of one doctor, Dr. Dozois, should be taken over
the statenents of other doctors because Dr. Dozois has more
experience with ulcerative colitis than the other doctors.
Dr. Dozois testified that he believes stress does not cause
ulcerative      colitis.        While   Dr.     Dozois   is    exceptionally
well-qualified, he is also a surgeon, not an epidemiologist.
And on review of the record it is clear to this Court as it
was in Lamb v. Missoula Imports, Inc. (1984), 684 P.2d 498,
41 St.Rep.      1414, that medical scj-ence remains sufficiently
undeveloped in the area of stress and ulcerative colitis to
rely    on    any    one witness' statement as dispositive.                 We
therefore hold the Ploffettlconway rationale is applicable to
this case, and the Workers1 Compensation Court did not err in
holding the claimant satisfactorily met his burden of proof
by   showing        indirect   evidence   that     stress     occasioned   by
claimant's      industrial       accident       caused   him    to     develop
ulcerative colitis.        This conclusion is supported by the fact
that    claimant       developed    ulcerative      colitis     only    after
suffering major stress as a result of his back injury.
       Next, Intermountain raises the issue of the burden of
proof    as    to     aggravation    of     a   condition      follo~~ingan
industrial injury.         Hengel contends the stress occasioned by
the accident not only caused but aggravated his ulcerative
colitis as well.        The evidence clearly shows that Hengel did
not have ulcerative colitis until after the accident.                 This
Court has not decided the issue of whether aggravation of a
condition arising after the accident is compensable under
Montana's Workers' Compensation Act.             We do not reach this
issue because we have already ruled that Hengel was entitled
to cornpensat-ion for the medical bil1.s incurred as a result of
his colitis.
        The final issue raised by Intermountain and only issue
raised by Hengel is whether he should have been awarded a 20%
penalty pursuant to       §   39-71-2907, MCA.    That section states:
     39-71-2907.   Increase & award for unreasonable
     delay or refusal         pay.     wK~   payment of
     compensation has been unreasonably delayed or
     refused by an insurer, either prior or subsequent
     to the issuance of an order by the workers'
     compensation judge granting a claimant compensation
     benefits, the full amount of the compensation
     benefits due    a   claimant, between the time
     compensation benefits were delayed or refused and
     the date of the order granting a claimant
     compensation benefits, may be increased by the
     workers' compensation judge by 20%.    The question
     of unreasonable delay or refusal shall be
     determined by the workers' compensation judge, and
     such a finding constitutes good cause to rescind,
     alter, or amend any order, decision, or award
     previously made in the cause for the purpose of
     making the increase provided herein.
        Intermountain    contends     its    denial   of   benefits   was
reasonable.     Hengel contends the denial was unreasonable and
motivated by economic concerns and a desire to "wear out" the
claimant.      We   begin     with   the    standard of review.       The
reasonableness of an insurer's denial is a question of fact
for the lower court and it will not be disturbed on appeal if
supported by substantial credible evidence.            Wight v. Hughes
Livestock Co., Inc. (Mont. 1981), 634 P.2d 1189, 38 St.Rep.
1632.    In this case there is substantial credible evidence of
a 1.egitimate dispute as to the causal connection between the
injury     and   cla.imantls present       disability.   The   Workers'

Compensation Court      dj.d   not   err   in refusing to assess the
penalty.
     Affirmed.




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