                              NO.    91-540
            IN THE SUPRERE COURT OF THE STATE OF MONTANA
                                    1992



ROBERT W. ROBINSON,
            claimant and Appellant,
     -vs-
STATE OF MONTANA,
            Employer,
     and
STATE COMPENSATION MUTUAL INSURANCE FUND,
            Defendant and Respondent.



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


COUNSEL OF RECORD:
            For Appellant:
                 Lon J. Dale and Kristine L , Foot, Milodragovich,
                 Dale & Dye, Missoula, Montana
            For Respondent:
                Oliver H. Goe, Browning, Kaleczyc, Berry        &   Hoven,
                Helena, Montana


                               Submitted on Briefs:      April 2 3 , 1992
                                              Decided:   July 10, 1 3 9 2
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

     Robert W. Robinson appeals from a judgment entered by the
Workers'Coompensatior,Court which concluded that Robinson failed to
prove his alieged head injury i s the result of a September 1986
work related injury.   We affirm.
     Although several issues are submitted on appeal, we find only
one necessary for our review:
     Whether substantial credible evidence supports the Workers'
Compensation Court's determination that Robinson failed to prove by
a preponderance of the evidence that his alleged head injury is the
result of a work related fall.
     On September 16, 1986, Robinson fell outside the Sugar And
Spice Day Care Center following a routine inspection as a deputy
fire marshal.   On tie following afternoon Robinson went to t n
                                                             ie
emergency room at Kalispell Regional Hospital.           Robinson was
treated by Gregory Harrah, M.D.       Robinson reported he tripped and
fell injuring his right ankle and left shoulder. On September 17,
1986, Robinson reported the accident to his employer, the Montana
Department of Justice, Fire Marshal Bureau. He reported he fell at
the day care center, spraining his ankle and injuring his back.
Robinson was given until November I, 1986 to submit medical
certification of his ability to return to work,           for reasons
unrelated Robinson was terminated from his position.
     Robinson received disability related to his back           injury
resulting from the fall from the State Compensation Mutual
Insurance Fund (State Fund).    Be filed an action with the Workers'
                                  2
Compensation Court seeking a determination that the state Fund be
ordered to pay benefits related to the alleged head injury he
received during the fall at the day care center, including
domiciliary care s e r v i c e s   and   attorney   fees.      The Workers'
Compensation Court concluded that the State Fund was not liable far
Robinson"    alleged head injury.        This appeal followed.
      Fwllowinc; R s b i n s o n s emergency room visit with   Dr,    Harrah, PLE
has been seen by numerous doctors and psychologists, The Workers1
Compensation    Court    reviewed    the   testimony    from     the various
physicians and psychologists as well as the testimony of family
members, friends, and attorneys who worked with Robinson.
      Dr. Harrah, the emergency room physician, treated claimant far
a shoulder strain and a right ankle sprain. Dr. Harrah reported no
evidence of a head injury.          Dr. Harrah opined to a reasonable
degree of medical certainty that Robinson was not suffering from a
head injury at the time of his emergency room visit.                 On November
17, 1986, Robinson was treated by Dr. Jerome Wildgen for low back
pain, left leg pain, and tenderness over the tailbone. Dr. Wildgen
testified that he made no record of a head injury? nor did he
recollect    finding any     symptoms of      a head    injury, or         other
indications of organic brain damage. Dr. Wildgen continued to see
Robinson until September 8, 1987.
     The first indication in the records that Robinson reported a
head injury was December 15, 1987 when he saw Dr. Gary Cooney.
Robinson complained of headaches and reported he hit his head when
he fell in September of    1986,    Dr Cooney made no diagnosis of brain
i n j u r y t o Robinson.         Robinson m a i n t a i n s t h a t h e i n i t i a l l y r e p o r t e d

a head i n j u r y t o h i s employer.                     I n f a c t , a n a t t a c h m e n t to t h e
written       r e p o r t Robinson         s u b m i t t e d t o t h e Workers7 Compenation

~ i v i s i o ni n October of           1966     states t h a t h i s        ead, b a c k ,    and L e
hurt a f t e r t h e f a l l .

        Robinson"            t r e a t i n g physicians,        w i t h t h e e x c e p t i o n of D r .
Susan B e r t r a n d , a p & y s i a t r i s t .     d i d n o t make a d i a g n o s i s of a head

injury .         Dr.     Bertrand        did        not    begin    treating      Robinson u n t i l
F e b r u a r y 2 1 , 1989, two y e a r s and f i v e months a f t e r Robinson f e l l .

Dr.   Donald Nockleby,             a c l i n i c a l p s y c h o l o g i s t , r e f e r r e d Robinson t o
Dr.    Bertrand f o r treatment of depression.                           Dr.    Nockleby h a s n o t

t e s t i f i e d i n t h i s case.        Dr.      Nockleby n o t e d i n h i s r e f e r r a l t h a t

Robinson s u f f e r e d a head i n j u r y .              The Workers' Compensation Court
found t h a t D r .       B e r t r a n d assumed from t h e b e g i n n i n g t h a t Robinson
s u f f e r e d from a head i n j u r y .

        Dr.    B e r t r a n d t r e a t e d Robinson f o r back p a i n and d e p r e s s i o n .

S h e diagnosed Robinson w i t h d i f f u s e a x o n a l damage t o t h e b r a i n .

s h e t e s t i f i e d t h i s t y p e o f damage c o u l d o c c u r a s a r e s u l t of a

minor f a l l .        Dr.    Bestrand based h e r d i a g n o s i s upon r e p o r t s from

p s y c h o l o g i s t s H e i d e r , T r o n t e l , Nockleby, Webber, and Robinson and

h i s wife.         These r e p o r t s i n d i c a t e t h a t Robinson h a s c o g n i t i v e
problems.

        Dr.     Bertrand        testified           that    symptoms r e s u l t i n g     from head

i n j u r i e s a r i s e f a i r l y quickly; within t h i r t y - s i x hours.              However,

s h e a l s o s t a t e d t h a t i f you a r e n o t l o o k i n g f o r a head i n j u r y , it

would be e a s y t o m i s s t h e d i a g n o s i s .         She s t a t e d t h a t tine problems
with Robinson's tangential thinking would have been apparent back
in November of 1986.          Dr. Bertrand did not review the records of
either Dr, Harrah or Dr. Wildgen.             She noted that Dr. Cooney did
not perfom. a mental status examination,              Althcu h she did not
perform one either, she states that Robinson had similar tests done
prior to seeing her.
       Cliff Edwards, a Billings attorney; worked w i t h Robinson in
1985   and   1986   in a lawsuit arising out of a school fire.          Edwards
testified that after the accident he first saw Robinson in January
or February     1987.    Robinson appeared to be a different man.           He
couldn't keep a         train of    thought and      appeared nervous and
depressed.      Dana Christensen, a Kalispell attorney, also worked
with Robinson prior to his fall. Christensen did not see Robinson
after his fall until early            1989.      At that time Christensen
described Robinson as being much smaller, very nervous, agitated,
very forgetful and repetitive.          Robinson seemed like an entirely
different person than the robust, intelligent fire marshal he
previously worlced with.        However, Dan Hileman, a Kalispellattorney
who represented one ofthe defendants in Robinson8s lawsuit against
the day care center, testified that in November of              1987   Robinson
appeared competent, and answered questions appropriately.
       Our   standard    of    reviewing   a    decision   of   the Workers'
Compensation Court is to determine if there is substantial evidence
to support the findings and conclusions of that court.             When there
is substantial evidence to support the Workers8 Compensation Court,
this Court cannot overturn the decision.              Wood v. Consolidated
Freightways (1991), 248 Mont. 26, 28, 808 P.2d 502, 504; Garcia v.
State Fund (1391),         Monte -,          P,2d - 49 St.Rep. 440.
When the findings are based on conflicting evidence, our function
is to determine whether there is substantial evidence to sup
such findings. Sshrapps v. Safeway Stores, I n c . : 1 9 8 9 ) ,   238   Kont.




not liable for the head injury claimant alleges to have suffered
during the course and scope of his employment on September 16,
1986.   Robinson must prove by a preponderance of the probative
credible evidence that his head injury is the result of his
September 1986 fall at the Sugar and Spice Day Care Center. Dumont
v. Aetna Fire Underwriters (1979f, 183 Mont. 190, 598 P.2d 1099;
Martin v. Phillips Petroleum Co. (1987), 229 Mont. 529, 747 P.2d
1363. Further, "evidence demonstrating only a medical possibility
does not mandate a conclusion that the claimant has met the
burden."   Schraa~sat 357, 777 P.2d at 888.         Substantial evidence
exists to support the Workers' Compensation Court's finding.                As
stated above, the physicians who examined Robinson after his fall
did not diagnose a head injury.       Dr. Susan Bertrand did diagnose a
diffuse axonal damage to Robinson's brain. However, Dr. Bertrand's
singular testimony that a fall of this type could result in injury
to the brain does not "mandate a conclusion that the claimant has
met his burden."
     Robinson relies on Harmon v. Harmon (1991), 249 Mont. 387, 816
P.2d 1032, to support his case. In Harmon we reversed the Workersc
Compensation Court's finding that the claimant had not proved by a
preponderance of the evidence that he was permanently totally
disabled. Dr. Lovitt, Harmon's treating physician, testified that
Harmon"    soandition was caused by a 1 9 7 3 a c c i
a diagnosis after performing a special x - r a y examination. However,
the Workersi Compensation Court relied on the testimony of Dr.
Johnson,     Dr, Johnson testified t h a t he agreed w i t k D r .   Lob-itt s
diagnosis, but stated he did not look into the cause of the
condition.     Harmon at 391, 816 P.2d at 1034.         We stated that Dr.
Johnson's testimony stating he did not relate the condition to a
specific accident did not rise to substantial evidence to support
the Workers' Compensation Court's conclusion that Harmon did not
meet his burden of proof.       Harmon at 392, 816 P.2d at 1035.
     In the case before us, Robinson's first three post-accident
physicians did not diagnose Robinson with a head injury.              Further
medical tests performed on Robinson were negative for a head
injury.    Over two years post-accident, Dr. Bertrand, Robinson's
physician, made        a diagnosis of diffuse axonal injury.              The
Workers' Compensation Court relied on the testimony of Drs. Harrah,
Wildgen, and Cooney, none of whom diagnosed Robinson with a head
injury.
     We conclude that substantial credible evidence exists to
support the Workers'        Compensation Court's        determination that
Robinson failed to prove by a preponderance of the evidence that
his alleged head injury is a result of a September 1986 work
related fall.
     A£ firmed.

     Pursuant to Section 1, Farayraph 3 ( c ) , Montana Suprene Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by i t s filing as a public document
with the Clerk of chis C o u r t and by a report c f its result to the
West Publishing Company.




We Concur:
                                  CERTIFICATE OF SERVICE

I iiereby certify that the fo!iowing order w s sent by United States mail. prepaid, to the following
nzmx!:


Kristine L. Foot
Milodragovich, Dale & Dye
P.O. Box 4947
Missoula, MT 59806-4947

Oliver H. Goe
Browning, Kaleczyc, Berry 8 Hoven
                           :
P.O. Box 1697
Helena, MT 59624




                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
