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                                   No.     94-532
                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         1995


DONALD ROBINSON,
                 Petitioner/Appellant,
     -v-

STATE COMPENSATION INSURANCE FUND,
insurer for ROCKY MOUNTAIN TEMPORARIES,
d/b/a LABOR CONTRACTORS,
                 Employer/Respondent.




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


COUNSEL OF RECORD:
                 For Appellant:
                      Laurie Wallace, Bothe & Lauridsen, Columbia Falls,
                      Montana
                 For Respondent:
                      Todd Hammer, Warden, Christiansen, Johnson & Berg,
                      Kalispell, Montana


                                   Submitted on Briefs:    February 16, 1995
                                                    Decided:   April 11, 1995
Filed:



                                         <11erk
Justice Fred J. Weber delivered the Opinion of the Court.


        This is an appeal from a decision of the Workers' Compensation

Court denying claimant's request for compensation.                     We affirm.

        Appellant raises two issues on appeal:

I.      Did the Workers' Compensation Court err when it found that the

claimant did not suffer an industrial injury on January 21, 1993?

II.     Did the Workers'   Compensation Court err when it denied the

claimant's requests for a penalty, attorney's fees, and costs?

        In March of 1984, Donald Robinson (claimant) suffered a work-

related injury to his upper and lower back, neck, and shoulders.

As a result of these injuries, he had back surgery in July of 1988.

While the surgery afforded some relief, his symptoms soon returned

and were as severe as prior to surgery.                 Since 1988 claimant has

had chronic pain in his neck, upper back, low back,                     left leg and

intermittently, right leg.        In November of 1991, claimant and State

Fund entered into a        full   and final        compromise        settlement with

regard to the 1984 accident.         In support of settlement, claimant

filed an affidavit stating that despite his surgery he "continued

to suffer from low back pain, leg numbness, pain and tingling" and

had "chronic pain."

        At trial, the forty year old claimant alleged that he suffered

another industrial injury on January 21, 1993, while working as a

temporary employee for Semi-Tool, insured by State Fund.                      Claimant

stated he re-injured his back while installing a roller assembly in

a     furnace.   He   testified   that       he   had   to   stand    In an    awkward

position on an eight foot ladder and that the ladder shifted two to

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                                                                  ·   {




three inches between thirty and forty times on the linoleum floor.

On four of these occasions claimant felt a "pop"       in his back.

     On September 24, 1993, claimant filed a Petition for Hearing

in the Workers'    Compensation Court as a result of State Fund's

denial of liability for the January 21,        1993 industrial injury.

The court found that the claimant did not suffer an industrial

injury on January 21, 1993, and State Fund is not liable for the

alleged injury.

     From   the   Workers'   Compensation   Court's   October   14,       1994

decision, the claimant appeals.

                                   I.

     Did the Workers' Compensation Court err when it found that the

claimant had not suffered an industrial injury on January 21, 1993?

     In its conclusions of law, the lower court pointed out that

claimant had the burden to show he sustained an injury and that he

failed to carry that burden.     A preponderance of credible evidence

persuaded the court that "no accident in fact occurred."

     Claimant argues that the court resolved the injury issue on

the basis of the claimant's credibility alone, and therefore, its

legal conclusion is erroneous as a matter of law.          He cites to

Plainbull v. Transamerica (1994),       264 Mont. 120, 870 P.2d 76,         in

support of his assertion that all evidence must be considered, not

simply the non-medical.

     Respondent argues that substantial evidence exists to support

the findings and conclusions of the Workers' Compensation Court and

that the court employed proper legal analysis and considered both

medical and non-medical evidence and looked to factors other than

claimant's lack of credibility.

                                    3
        The standard of review applicable to appeals from Workers'

Compensation Court is to determine if substantial credible evidence

exists to support the findings.                 Allen v. Treasure State Plumbing

(1990), 246 Mont. 105, 803 P.2d 644.

        In Plainbull, 264 Mont. at 120, 870 P.2d at 76, and Prillamen

v.   Community Medical Center           (1994),     264 Mont.        134,   875 P.2d 82,

this Court made it very clear that both medical and non-medical

evidence are to be considered in determining whether claimant has

met his burden of proof in demonstrating that an injury occurred at

work and caused his medical condition -- testimony of lay witnesses

is not to be ignored.

        Claimant testified he told his co-workers, Chuck Winsell and

Charles Eick, that his ladder was moving and that Eick and Winsell

helped him to look for a ladder with rubber feet that would not

slide    so   easily.        Claimant     also    testified      that       his    limp   was

noticeably     worse    by    the   end    of     the   day.         Neither       co-worker

confirmed claimant's testimony.

        Winsell stated that he could not recall anyone complaining of

a ladder slipping or sliding.              Eick testified that he worked with

claimant on January 21,          1993, but denied that claimant's ladder
ever skidded on the floor or that claimant said anything about the
ladder being unsafe.           Both Eick and claimant's supervisor,                       Dean

Moore,    testified they did not see claimant limping.                            Moore knew

nothing of any problems with the ladder.

        A physics teacher testified that he performed experiments

replicating     the     circumstances       at     issue       and    found       it   highly

improbable from a physics standpoint that the ladder could move as

claimant described.          The court made the following specific findings

                                            4
of fact:

        13. Having listened to and observed claimant at trial,
        and having considered his testimony and the testimony of
        other witnesses, I do not find claimant's testimony
        credible.   I find that the ladder did not skid as he
        asserts and that claimant did not suffer an industrial
        accident on January 21, 1993.

        14. Claimant has also failed to persuade me by a
        preponderance of the credible evidence that his condition
        after January 21, 1993, was any different than before.
        In arguing that he suffered a new injury on January 21,
        1993, claimant relies on Dr. Joern's opinion that he
        suffered an    aggravation of     his   preexisting back
        condition. That testimony, however, assumed claimant's
        accident report to be true. Moreover, it was principally
        based on Dr. Joern' s understanding that after January 21,
        1993, the claimant was experiencing new complaints
        relating to his right leg, whereas claimant's complaints
        prior to January 21, 1993, had predominantly related to
        his left leg.

        Prior to September of 1992, claimant was treated by Dr. John

V. Stephens in consultation with other physicians.                      Dr. Stephens

referred     to    notes     of   November      1989     stating      that     claimant

experienced pain radiating from his lower back to both legs,                          the

left more so than the right.

        Physical    therapy reports       admitted     into    evidence       indicated

bilateral leg and foot pain in May,               June,    July,      and October of

1989.      In November of         1989,   the physical        therapists      noted an

increase of bilateral pain.               Five months later,          the therapists

noted    that     claimant    "has   constant     pain    in   the     left    leg    and
intermittent pain in the right.            Over the last 1 1/2 months he has
noted weakness in his legs and has trouble going down stairs."

        Further medical documentation reported that, in May of 1990,

claimant's pain radiated on the                right   side    down    to     the   knee.

During a September 1990 pain clinic evaluation, a physiatrist noted

that claimant reported back pain radiation into both legs and feels


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like "sciatic pain".

     In December of the same year the physical therapist reported

that claimant continues to have chronic low back pain and tightness

into both legs.      Similar statements were reported in 1991 and 1992.

Claimant's physical therapist noted in subsequent reports that the

claimant felt as much pain in his right leg as in his left.                Again,

on January 13, 1993, claimant reported "exquisite pain in his low

back and into both of his legs."

     Dr. Randale Sechrest, an orthopedic surgeon,                  testified that

after examining the claimant and reviewing his medical records,

claimant's     "current    condition     stems   directly     to    his   original

injury. "
     As to claimant's current condition, the court concluded:

     In light of the claimant's medical history, including a
     clear report of exquisite pain in both legs just eight
     days prior to his alleged injury, and claimant's lack of
     candor concerning his prior history,       I   find Dr.
     Sechrest's testimony persuasive. I conclude, as a matter
     of fact, that claimant's preexisting condition was
     progressively deteriorating and that his condition after
     January 21, 1993, was no different than before that
     date.

     Claimant's suggestions that the lower court simply considered

credibility on his part is not true.                Claimant recites various

evidence in support of his claim but never actually deals with the
specific medical and non-medical evidentiary statements cited by

the court refuting his claim.           We do not find this persuasive.

     We     hold   that   substantial    evidence    exists    to    support   the

findings of the Workers' Compensation Court and the court did not

err when it found that the claimant had not suffered an industrial

injury on January 21, 1993.

                                        II.

                                         6
     Did the Workers'   Compensation Court err when it denied the

claimant's requests   for a penalty,   attorney's   fees,   and costs?

     Claimant based the requests solely on this Court's reversal of

the lower court's findings and conclusions.   Attorney fees are not

recoverable as costs by the prevailing party in the absence of

contractual agreement or specific statutory authority.       Whiner v.

Jonal Corp.   (1976), 169 Mont. 247, 545 P.2d 1094, and other cases

cited.   We hold that the Workers' Compensation Court did not err in

its denial of claimant's requests for a penalty, attorney's fees,

and costs.

     Pursuant to Section I, Paragraph 3(c), 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 this Court and by a report of its result to the

West Publishing Company.

     Affirmed.




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