                            No.    93-378
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994



HENRY J. KRAMER,
          Petitioner and Appellant,


EBI COMPANIES, AMERICAN ASPHALT, INC.,
          Defendant, Employer and
               Respondent.




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


COUNSEL OF RECORD:
          For Appellant:
               Sara R. Sexe; Marra, Wenz, Johnson        &   Hopkins,
               Great Falls, Montana
          For Respondent:
               Susan J. Rebeck, Attorney at Law, Great Falls,
               Montana




                                  Submitted on Briefs:       May 5, 1994
                                              Decided:       July 12,   1994
Filed:
chief Justice J.A. Turnage delivered the Opinion of the Court.

     Henry J. Kramer (claimant) appeals from a decision of the
Workers1 Compensation Court of the State of Montana.      The court
found that claimant was not temporarily or permanently totally
disabled as a result of an October 15, 1986 back injury he
sustained while working for American Asphalt, Inc.        The court
further found that claimant's ulcerative colitis was not caused by
his 1986 back injury and that he was not entitled to benefits to
cover his medical costs associated with the condition. We affirm.
     The issues presented on appeal are:
        1.   Did the Workers8 Compensation Court err in finding that
claimant was not temporarily totally disabled or permanently
totally disabled as a result of his October 15, 1986 industrial
accident?
        2.   Did the Workers8 Compensation Court err in finding that
claimant was not entitled to medical expenses incurred as a result
of his ulcerative colitis?
     Claimant was working for American Asphalt, Inc., in Great
Falls, Montana, when he injured his back during 1986 and filed a
claim for compensation. On October 15 of that year, he and another
employee were loading a sump pump, which weighed approximately 100
pounds, into a storage van when his pant leg caught on a pipe.
Claimant spun sideways, wrenching his back; he felt pain in his
back.
    The next day, claimant went to the office of Dr. Quick, his
family physician, about his back pain. Dr. Quick x-rayed his back
                                   2
and prescribed medication and physical therapy.             On December 26,
1986, Dr. Quick determined that claimant had reached maximum
medical improvement of his back condition. He issued a Certificate
of Condition that claimant could return to work without restric-
tions and found no permanent impairment as a result of his
industrial injury. Claimant returned to work as a heavy equipment
operator and continued work for an additional four years after the
industrial injury.
      At the time claimant was injured, American Asphalt, Inc. was
enrolled under Workersf Compensation Plan I1 with the E B I Indemnity
Company ( E B I ) .     E B I accepted liability for the accident and paid

compensation          and   medical   benefits   to   claimant   as   follows:
$1,346.78 for medical benefits and $768.84 for temporary total
disability compensation from October 16, 1986, to November 2, 1986.
       In 1991 claimant retired, citing ulcerative colitis and low
back pain. On April 10, 1992, he filed a second claim for workersf
compensation benefits, alleging that his 1986 back injury had
become a totally disabling, permanent condition and that his
colitis was caused by stress because of his back injury.
      EBI and American Asphalt responded by asserting that claimant
was not totally disabled and that his colitis was not caused by his
1986 back injury.            EBI   paid claimant, under a reservation of
rights, $5,565.82 ($214.07 per week) for temporary total disability
compensation from March 20, 1992, to September 17, 1992, and
$149.50 per week permanent partial disability compensation from
September 18, 1992, to present.
        The Workers' Compensation Court found that claimant was not
totally disabled and that he failed to prove that his colitis was
caused by his 1986 back injury.     Claimant appeals.
                           STANDARD OF REVIEW
        We   review a workers'   compensation court's decision to
determine whether it is supported by substantial credible evidence.
Plainbull v. Transamerica Ins. Co. (Mont. 1994), 870 P.2d 76, 80,
51 St-Rep. 181, 184.     Where conflicting evidence has been present-
ed, we examine whether substantial evidence supports the decision
of the workers' compensation court--not whether the evidence might
have supported contrary findings.      Smith-Carter v. Amoco Oil Co.
(1991), 248 Mont. 505, 510, 813 P.2d 405, 408.

                             MEDICAL FACTS
        On April 3, 1987, claimant was examined by Dr. Quick and was
diagnosed as having signs of colitis. At this examination claimant
did not complain of back pain.        There was no evidence in the
medical records that claimant suffered from colitis prior to April
3, 1987.      He was admitted to the hospital on April 30, 1987, for
ulcerative colitis and provided an extensive medical history.
Nothing in the history indicated that claimant was suffering from
back pain.
        In April 1991, Dr. Quick advised claimant to stop working
because of a combination of his ulcerative colitis and chronic back
pain.        Dr. Quick could not relate claimant's colitis to his
industrial injury of October 15, 1986.
     Claimant was examined by Dr. Robert J. Seim on May 13, 1992.
After conducting the examination and reviewing claimant's medical
history, Dr. Seim stated in his report to EBI:
     He said he simply went along with the back problem and
     attempted to go back to work in the spring of 1987 in
     Great Falls. He said he was able to work only occasion-
     ally because of his back problem. His pain gradually
     became increasingly more severe in the next year or so,
     and the patient states that he was unable to continue
     working with his back.  ...
     The patient states that he had no significant problems
     with his back prior to the accident and since that time
     has had significant problems.   ... [Tlhere does appear
     to be a direct causal relationship with his current low
     back problem and the industrial injury of October 15,
     1987 [sic].  ...
     By history and in talking with Mr. Kramer he claims that
     he has had virtually only a few days in heavy equipment
     in Caterpillar operation since the injury. If these be
     the true facts, then certainly his activity since the
     accident has not been causative or an aggravating factor.
     Possibly Dr. Seim misunderstood the claimant concerning his
work history.   Following his injury of October 15, 1986, claimant
returned to work in approximately two weeks and worked two or three
days in the fall of 1986. Claimant continued working primarily as
a heavy equipment operator for the years 1987, 1988, 1989, 1990 and
until sometime in April of 1991 when he retired from work entirely.
     In his deposition taken on September 2, 1992, Dr. Seim,
stated:
     Q.   ...  Is it your understanding that he only worked a
     few days after his industrial accident?
     A.   That's what I said, yep.
     Q.  If I told you that he worked the season of 1987,
     1988, 1989, 1990 and until April of 1991, would that
     change any of your opinions in your letter of May 13,
     1992?
     A.   If you give me more specifics.
     Q. That he continued to work in his time-of-injury
     employment.
     A.   That would, yes.
     Q.   And how would that change your opinions?
     A. Well, that the story that I got from him or was
     communicated to me, that that was not an accurate story,
     if that would be the case.
In Dr. Seim's deposition he unconditionally approved certain wor
that claimant could perform, including: central supply worker,
airline security, dental lab technician and custom picture framer.
In addition, there was a conditional approval of certain other
positions such as valve assembler, leather brander, strap inspector
and frame/screen assembler.
     On July 16, 1991, Dr. James R. Burton, a Missoula orthopedic
surgeon, examined claimant.   Considering the medical information
available, Dr. Burton agreed with the conclusion of Dr. Seim that
there is a direct causal relationship between claimant's current
low back problem and his industrial injury on October 15, 1986. He
assigned an impairment rating of five to ten percent based on
claimant's medical history.
     Dr. Burton did not consider claimant's ulcerative colitis in
evaluating his potential for employment.
     Dr. Burton generally agreed with Dr. Seim's assessment of what
work claimant would be capable of performing.        In his medical
report he stated:
     Now, if he is capable and trained and has the education
     and experience to do a light type of work that doesn't
     involve a lot of heavy lifting, bouncing around operating
                                 6
     equipment, frequent bending, et cetera, then I--at that
     point I would say, yeah, this man is able to do some type
     of work-related activity.
     On November 3, 1992, the parties deposed Dr. David H. Alpers,
who was a professor of medicine at Washington University School of
Medicine in St. Louis, Missouri.      From the medical records Dr.
Alpers found no evidence of colitis prior to April 3, 1987, and
found no evidence of colitis as a pre-existing condition.        He
concluded there was no relationship between claimant's industrial
injury and his ulcerative colitis.
     On June 5, 1992, Dr. William N. Miller, certified in internal
medicine and gastroenterology, examined claimant.       Dr. Miller
diagnosed moderately-active ulcerative colitis which was then
reasonably well controlled.     When asked if it were medically
probable that increased stress and claimant's ulcerative colitis
were related, Dr. Miller testified:
     I think it's possible. I don't know that I can say that
     it's probable. I think that the problem with ulcerative
     colitis is that we have utterly no idea what causes the
     disease. There are many theories, as many as there are
     researchers, because I think it lends itself to lots of
     theories.
     Dr. Miller acknowledged that claimant had other areas of
stress in his life and it was certainly possible that such stress,
rather than his industrial accident, caused his ulcerative colitis.
Dr. Miller could not testify within a reasonable degree of medical
probability as to the cause of the claimant's ulcerative colitis,
because the cause of the ulcerative colitis is unknown.
     The Workers' Compensation Court concluded, based upon the
medical evidence at trial, that none of the physicians could
                                7
testify with a reasonable degree of medical probability that
claimant's industrial injury was more likely than not to have
caused his ulcerative colitis.
     Other facts will be set forth as necessary.
                             ISSUE 1

     Did the Workersr Compensation Court err in finding that
claimant was not temporarily totally disabled or permanently
totally disabled as a result of his October 15, 1986 industrial
accident?
     The statute defining temporary total disability benefits in
effect at the time of claimant's injury states as follows:
     "Temporary total disability" means a condition resulting
     from an injury as defined in this chapter that results in
     total loss of wages and exists until the injured worker
     is as far restored as the permanent character of the
     injuries will permit. A worker shall be paid temporary
     total disability benefits during a reasonable period of
     retraining. Disability shall be supported by a prepon-
     derance of medical evidence.
Section 39-71-116(19), MCA (1985).
     To be entitled to temporary total disability benefits, the
claimant has the burden of proving that as a result of his low back
industrial injury he (1) has suffered a total loss of wages, and
(2) has not reached maximum healing during that time. Claimant has
failed to meet the second requirement.      By December 26, 1986,
claimantlstreating physician, Dr. Quick, determined that maximum
medical improvement of claimant's back condition had been reached,
and claimant could return to his work as a heavy equipment operator
with no restrictions.   Claimant continued to work in his former
position for at least four more years.
     The Workers' Compensation Court concluded that claimant was
not entitled to temporary total disability benefits under the facts
in the record of this case, and we agree.
     The statute defining permanent total disability benefits in
effect at the time of claimant's injury states as follows:
     llPermanenttotal disabilitytvmeans a condition resulting
     from injury as defined in this chapter that results in
     the loss of actual earnings or earning capability that
     exists after the injured worker is as far restored as the
     permanent character of the injuries will permit and which
     results in the worker having no reasonable prospect of
     finding regular employment of any kind in the normal
     labor market.     Disability shall be supported by a
     preponderance of medical evidence.
Section 39-71-116(13), MCA (1985) .
     To be entitled to permanent total disability benefits, a
claimant has the burden of proving that after reaching maximum
medical healing, he has a loss of earning capacity as a result of
the injury and no reasonable prospect of regular employment of any
kind in the normal labor market. Metzger v Chemtron Corp. (1984),
                                          .
212 Mont. 351, 355, 687 P.2d 1033, 1035.
     The parties agree that Dr. Quick determined that the claimant
had reached maximum medical improvement on December 26, 1986, which
meets the first requirement of permanent total disability.       The
second requirement that claimant must meet is a showing that he has
no reasonable prospect of finding regular employment of any kind in
the normal labor market.
     The testimony of expert witnesses produced by each of the
parties has raised a conflict in the evidence concerning whether or
not the claimant had any reasonable prospect of finding regular
employment of any kind in the normal labor market.       Under our
standard of review, we conclude that the decision of the Workers'
Compensation Court is supported by substantial credible evidence.
                              ISSUE 2
     Did the Workers' Compensation Court err in finding that
claimant was not entitled to medical expenses incurred as a result
of his ulcerative colitis?
     The Workers' Compensation Court concluded that there was no
medical evidence that claimant suffered from ulcerative colitis
prior to his industrial injury. Claimant's treating physician, Dr.
Quick, testified that there was no evidence that the claimant
suffered from colitis prior to April 3, 1987.
     The claimant contended that the Workers' Compensation Court
should rule that it was "medically possiblew that his colitis was
aggravated by the industrial accident. The "possibility" standard
has been applied to aggravation of a preexisting injury. However,
in this case, the disabling colitis did not preexist the industrial
injury.
     Claimant must meet the burden of proving his case based on
medical probability, which has been defined as being "more likely
than not."   Dallas v. Burlington Northern, Inc. (1984), 212 Mont.
514, 523, 689 P.2d 273, 277.      Under this standard of proof,
claimant is required to show by a preponderance of the evidence
that it is more likely than not that his ulcerative colitis
resulted from the industrial injury.    Four doctors testified in
this case on the colitis issue, and none of them would state with
a reasonable degree of medical probability that the industrial
injury caused claimant's ulcerative colitis.    The only physician
that would even state causation by a medical possibility was Dr.
Miller, who acknowledged that "we have utterly no idea what causes
the disease" and had no other evidence to support the possibility
claimant's colitis was caused by the industrial injury.        Mere
medical possibility without supporting evidence is insufficient to
establish compensability.   Currey v. 10 Minute Lube (1987), 226
Mont. 445, 449, 736 P.2d 113, 116.
     Dr. Quick felt that the industrial injury could have contrib-
uted to claimant's stress and could have contributed to his
development of ulcerative colitis. Dr. Quick had   not observed that
stress causes the disease, however.      He had not treated many
patients with ulcerative colitis and he was not a specialist in
that field.   He admitted that he could not say with a reasonable
degree of medical probability that the industrial injury caused the
ulcerative colitis.
     Dr. Miller felt that stress can exacerbate the symptoms of
ulcerative colitis, and he thought that it was possible, but not
probable, that increased stress and ulcerative colitis are related
in the claimant. He also testified that he could not say if stress
could have brought on the initial attack, or if it was something
completely unrelated to the industrial injury. Finally, he stated
that he had no opinion whether stress can cause ulcerative colitis.
     The medical evidence presented in this case supports the
conclusion that claimant's stress existed approximately five years
prior to the injury and the first colitis symptoms did not appear
until approximately five months after the injury. Other sources of
stress in claimant's life were identified which could be related to
his ulcerative colitis.
     We conclude that the Workers' Compensation Court did not err
in denying   claimant temporary   total   disability benefits   or
permanent total disability benefits and in concluding that claimant
is not entitled to medical bills or expenses incurred treating his
ulcerative colitis.
     Affirmed.



We concur:
                                          July 12, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Sara R. Sexe, Esq.
Mama, Wenz, Johnson & Hopkins, P.C.
P.O. Box 1525
Great Falls, MT 59403-1525

Susan J. Rebeck
Aftorney at Law
P.O. Box 2720
Great Falls, MT 59403


                                                    ED SMITH
                                                    CLERK OF THE SUPREME COURT


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