                                                No.       88-522

                   I N THE SUPREME COURT OF THE STATE O F MONTANA

                                                      1989




MICHAEL E .      SCHRAPPS,

                      C l a i m a n t and A p p e l l a n t ,
          -vs-
SAFEWAY S T O R E S , I N C . ,       Employer,
          and
HOME INSURANCE 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 Honorable Timothy
                      R e a r d o n , Judge p r e s i d i n g .


COUNSEL O F RECORD:

          For Appellant:

                      L e o n a r d J. H a x b y , B u t t e , M o n t a n a

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

                     A l a n L. Joscelyn; Gough,                    S h a n a h a n , J o h n s o n & Water-
                     man, H e l e n a , Montana




                                                      S u b m i t t e d on B r i e f s :   J u n e 1, 1 9 8 9



Filed:


                                                      a
                                                    'Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      This case comes on appeal from a judgment entered by
the Workers' compensation Court, the Honorable ~imothy
Reardon presiding, which concluded the claimant, ~ i c h a e l
Schrapps, was not entitled to permanent partial disability
benefits under § 39-71-703, MCA. We affirm.
      Claimant injured his lower back on December 20, 1977,
while employed by Safeway Stores, Inc., as a forklift
operator at its Butte, Montana warehouse.         The injury
occurred when Mr. Schrapps was pinned between his forklift
and an iron beam. After the accident, claimant was taken to
St. James Community ~ospitaland treated for injuries to his
stomach and back.   The employer accepted liability for the
injury and paid temporary total disability compensation and
medical benefits from the date of injury through July 4,
1978.
      In February, 1978, the claimant returned to his job
with Safeway. However, he was able to work only four hours,
and claimed lower back pain prevented him from performing his
usual job duties.    Since the accident, claimant has been
employed as a car salesman.
      After his initial hospitalization and doctor's release
to return to work, claimant complained of radiating lower
back pain and numbness in his left leg. Thereafter, claimant
sought treatment with      numerous physicians, orthopedic
surgeons, neurosurgeons and chiropractors. He also underwent
an extensive evaluation at the university of Washington
Medical Center in Seattle, Washington.
      Claimant filed a petition for hearing against Safeway
Stores, Inc. and its insurer in March, 1987, alleging a
continued physical limitation due to his 1977 injury.    On
July   25,   1988,   the   Workers'   Compensation   Court   entered
judgment, in which it concluded the medical evidence shows
claimant's reduction in earnings was not due to his 1977
industrial injury.        The court stated the medical reports
uniformly failed to reflect objective evidence to support the
claimant's contention.
       On       review,   claimant   challenges  the   Workers'
compensation Court's decision. He argues the judgment is not
supported by substantial evidence. We disagree.
       c his Court will not substitute its judgment for that of
the Workers' Compensation Court concerning the credibility of
the witnesses or the weight to be given their testimony.
Where the findings are based on conflicting evidence, our
function of review is confined to determining whether there
is substantial evidence to support such findings.       ide en our
v. ~ q u i t y Supply Co. (1983), 204 Mont. 473, 483, 665 P.2d
783, 788.        However, the instant case deals primarily with
deposition testimony, which allows this Court to examine the
evidence more closely:
           " [W]hen    the    critical     evidence,
           particularly medical evidence, is entered
           by deposition, we have held that 'this
           Court, although sitting in review, is in
           as good a position as the Worker's [sic]
           Compensation Court to judge the weight to
           be given to such record testimony, as
           distinguished from oral testimony, where
           the trial court actually observes the
           character and demeanor of the witness on
           the stand.'"
Frost v. Anaconda Co. (1985), 216 Mont. 387, 389, 701 P.2d
987, 988, quoting Shupert v. Anaconda ~luminum Company
(1985), 215 Mont. 182, 187-88, 696 p.2d 436, 439.
      Initially, claimant has the burden of proving a causal
connection by a preponderance of the evidence.     "Evidence
demonstrating only a medical possibility 'does not mandate
the conclusion that the claimant has met his burden of proof
under the Act. ' " Brown v. Ament (Mont. 19881, 752 P.2d 171,
174, 45 St.Rep. 508, 512, citing Currey v. 10 Minute Lube
(Mont. 1987), 736 P.2d 113, 116, 44 St.Rep. 790, 793. The
medical evidence does not reveal structural or neurological
abnormalities which support claimant's subjective complaints.
A brief examination of the medical reports illustrates this
point :
                  IMPRESSION: (1) No evidence of
           organic neurologic disorder.      (2) Low
           back pain and leg paresthesias described,
           etiology undetermined. The distribution
           of the lumbar pain might suggest a low
           back strain but this is not supported by
           the lack of any relationship to physical
           activity or posture and the lack of
           muscle spasm, etc. Also the duration of
           symptoms unchanged approaching six months
           suggests low back strain as unlikely.
           [Report of Dr. Johnson, June 7, 1978.1
                Mr. Schrapps has been seen by me on
          numerous occasions with a vague complaint
          of low back pain over the entire back. I
          have examined him on numerous occasions
          and find no reason for his low back pain.
          [Report of Dr. Murphy, June 19, 1978.1
                In my opinion, on his last visit
          there was no permanent impairment, and I
          could   find    no   organic   basis   to
          substantiate his subjective complaints at
          that time.       [Report of Dr. Blom,
          September 22, 1978.1
                As a result of my examination, I am
          not   able   to   find  any   significant
          orthopaedic impairment in this patient.
          He does have significant nonorganic signs
          e . , overreaction and nonanatomical
          sensory change .   ..    I feel that no
          further treatment is indicated.   [Report
          of Dr. ~riedrick, September 16, 1987.1
After an extensive examination, the University of Washington
Medical Center was also unable to locate an objective cause
for claimant's complaints.    Claimant's only support rests
with the testimony of Dr. Baggenstos, a neurosurgeon who
first examined the claimant in 1 9 8 5 . Dr. Baggenstos stated
that claimant had chronic back pain with localized back
tenderness.   However, in accord with the other physicians,
Dr. Baggenstos could not identify solid, objective evidence
to support the claimant. Dr. Baggenstos' diagnosis did not
result from diagnostic studies, such as myelograms and
x-rays, but rather from claimant's statements to him during
the various medical examinations.
      Numerous physicians examined the claimant following his
industrial injury, and without exception all were unable to
medically explain claimant's complaints.    We find that the
claimant has not proved by a preponderance of the evidence
that his lower back problems were caused by the 1 9 7 7
industrial injury.
      Affirmed.




We concur:
