                                                          NO.    86-151

                            I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                                1987




ARLENE GULBRAA,
              C l a i m a n t and A p p e l l a n t ,
               -vs-

ALCO ENERGY PRODUCTS, E m p l o y e r ,

               and

THE HARTFORD 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 , T h e 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 OF RECORD:

               For A p p e l l a n t :

                                Nye & Meyer;           J e r r o l d L. N y e argued, B i l l i n g s ,
                                Montana

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

                                Alexander & Baucus;                J. D a v i d S l o v a k argued, G r e a t
                                F a l l s , Montana




                                                                Submitted:         December 2 , 1 9 8 6
                                                                   Decided:        February 3, 1987

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Mr. Justice L.   C. Gulbrandson delivered the Opinion of the
Court.

      Arlene Gulbraa appeals a Workers' Compensation Court
decision that she had not suffered a compensable injury under
the Montana Workers' Compensation Act. The issue on appeal
is whether there is substantial credible evidence to support
the lower court's decision. We affirm.
      Gulbraa was employed by Alco Energy Products in
Billings, Montana from April 1983 to May 1985, as a telephone
solicitor.    Her job was to contact potential customers,
deliver a sales "pitch" and hopefully arrange for a personal
appointment by a company sales representative. When such an
appointment was arranged, it was designated a "lead."      In
April 1985, after being passed over for a promotion, Gulbraa
suspected that the leads she had collected were not being
acted upon by the company. After meeting with her supervisor
on May 13, 1985, Gulbraa was terminated from her position at
Alco. Since approximately 1971, Gulbraa has been treated by
Dr. Rich, a Billings psychiatrist, for depression and related
problems.       Gulbraa's   depression    required   frequent
hospitalization between 1972 and 1975 before finally
stabilizing. While working for Alco, Gulbraa saw Dr. Rich a
total of three times--once for anxiety associated with
scheduled foot surgery and two other times for routine
check-ups. Nine days after her termination, Gulbraa saw Dr.
Rich and expressed concern about losing her job rather than
the working conditions of the job.
      Gulbraa was hired by Sears as a telephone solicitor
four days after being fired by Alco but quit approximately
one month later because of problems with her depression. She
then worked two weeks for Meadowlark Agency in a similar
capacity before she and the owner agreed that the employment
would have to end because of her depression.     Gulbraa was
hospitalized the last week of June 1985, and again for
several days in July 1985, because of her depressed
condition.    As of October 1985, Dr. Rich found Gulbraa
incapable of working for at least three months, and at the
time of trial Gulbraa was still unable to return to work.
      The Workers1 Compensation Judge concluded that Gulbraa
had not suffered a compensable injury under the Montana
Workers1 Compensation Act      and   was  not entitled    to
compensation or medical benefits.
      The standard of review of workers1 compensation cases
is whether substantial, credible evidence supports the
Workers1 Compensation Court decision.      Courser v. Darby
School Dist. No. 1 (Mont. 1984), 692 P.2d 417, 419, 41
St.Rep. 2283, 2285.      Section 39-71-119, MCA, reads in
relevant part:
           "Injury" or "injured" means:
           (1) a tangible happening of a traumatic
           nature from an unexpected cause or
           unusual   strain   resulting in  either
           external or internal physical harm and
           such physical condition as a result
           therefrom and excluding disease not
           traceable to injury ...
The Workers1 Compensation Act is to be liberally construed in
favor of the claimant.     See 5 39-71-104, MCA.    But this
liberal construction does not allow us to disregard clear
statutory provisions or to use it to the point of repealing
or abrogating a statute. Wassberg v. Anaconda Copper Co.,
(Mont. 1985), 697 P.2d 909, 913, 42 St.Rep. 388, 392.
      Section 39-71-119, MCA, clearly requires proof of
physical harm, either external or internal, stemming from an
incident at the workplace.    The burden of proof is on the
claimant. Aho v. Burkland Studs (1969), 153 Mont. 1, 452,
P.2d 415.
       In the recent case of Tocco v. City of Great Falls
 (Mont. 1986), 714 P.2d 160, 43 St.Rep. 310, job-related
physical and emotional stress which aggravated a preexisting
physical ailment qualified the claimant for workers'
compensation.     Claimant in Tocco was suffering from
arteriosclerosis and hypertension when he began part-time
work for the City of Great Falls. Claimant was assigned a
difficult sanitation route one day and knew the City was
going to add several full-time positions in the near future.
Claimant suffered a fatal heart attack attempting to lift a
box into the garbage truck. The treating physician testified
that claimant's job-related emotional and physical stress may
have played a very direct role in his sudden death by
aggravating his preexisting ailments of arteriosclerosis and
hypertension. This Court affirmed the Workers' Compensation
Court's decision to award benefits, stating that the medical
testimony "provided the final link between [claimant's]
preexisting conditions, his physical and emotional injuries,
and his sudden death." Tocco, 714 P.2d at 165.
       Therefore when it is medically proven that a
work-related incident may have aggravated a preexisting
physical ailment of the claimant, a compensable injury has
been established.
       In this case, Gulbraa suffered serious bouts of
depression from 1971-75 requiring frequent hospitalization.
During her employment with Alco, as previously stated,
Gulbraa saw Dr. Rich for reasons unrelated to the working
conditions at Alco.   In his deposition Dr. Rich stated that
Gulbraa's depression problems were partly biological in
origin but that a particular percentage could not be
estimated with any degree of medical certainty.
          THE DEPONENT: To put it into my words, I
          believe that there is a component of her
          depression that is definitely physically
          based, meaning a biochemical sort of
          thing,   needing  medications.      What
          percentage of that as opposed to what
          percentage is psychological, I don't
          know.
Regardless of whether Gulbraa's depression qualified as a
preexisting physical ailment, it is important to note that
the aggravation or reemergence of Gulbraa's depression did
not occur, according to Dr. Rich, until May 22, 1985, nine
days after Gulbraa had been fired.
           Q Is it fair to say that her most recent
           acute exacerbation would have occurred
           shortly before or during the visit of May
           22nd of 1985?
          A Strictly speaking, I guess that would
          be the beginning of the exacerbation.
          Q  Prior to the May 22, 1985, occurrence,
          there was a relatively stable period of
          time, correct?
          A   Yes.


          Q When she did express any concern about
          her employment with Alco, it was on May
          22nd of    1985 after she had been
          terminated for some period of time; is
          that correct?
          A Let's see.  That's the first time I
          made a note regarding the employment.
      Dr. Rich further mentioned that Gulbraa appeared to be
happy in her job at Alco.
           Q And reviewing your note, it would
           appear that her concerns focused on the
           actual termination from employment as
           opposed to the employment itself?
             A   That's correct.
                Now, regarding my answer to the
             previous question, in February of '85, I
             did indicate here that she was working
             for Alco Energy Products.    Next line I
             said she's maintaining very well. And I
             didn't make notes about the work, but I
             think my earlier answer still holds.    I
             have a ;ecollection that she seemed to be
             happy in that job.     (Emphasis added.)
       We believe Gulbraa has failed to meet the test of
5 39-71-119,  MCA, because she did not prove a physical harm
stemming from an incident at the workplace.     Even assuming
that Dr. Rich's opinion as to the physical origins of
Gulbraa's depression is correct, it was not proven that the
Alco job aggravated the depression.       In fact, just the
opposite was shown, that the aggravation of Gulbraa's
depression occurred after she was fired by Alco.
      We conclude that there is substantial, credible
evidence to support the decision of the Workers' Compensation
Court.
       Affirmed.




                                    /
                                    Justice

We concur:       4
Justices
