                            NO.    94-031
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994


HAROLD DALE FERGUSON,
          Petitioner and Respondent,




APPEAL FROM:   Workers ' Compensation Court State of Montana
               The Honorable Michael McCarter, Judge
               Robert J. Campbell, Hearing Examiner, presiding


COUNSEL OF RECORD:
          For Appellant:
               Sara R. Sexe, Marra, Wenz, Johnson & Hopkins, Great
               Falls, Montana
          For Respondent:
               Robert C. Melcher, Billings, Montana


                                   Submitted on Briefs:   May 5, 1994
                                               Decided:   July 6, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

      This is an appeal from a Workers 1 Compensation Court decision

entitling         claimant   to   thoracic    outlet   syndrome   surgery      and

reinstating his total disability benefits.               We affirm.

      We consider the following issues on appeal:

         I.      Did the Workers' Compensation Court err in determining

that claimant's current condition was caused by a 1986 injury to

his back?
         II.     Did the Workers' Compensation Court err in determining

that claimant's request for thoracic outlet syndrome surgery was
reasonable and necessary?

         III.    Did the Workers' Compensation Court err in reinstating

claimant's temporary total disability benefits?
         Harold    Dale   Ferguson   (Ferguson), began    his   employment    with

Buttrey Foods Super Market, Havre, Montana, in March of 1986. He

started by carrying groceries and later moved to stock clerk. On

August        9, 1986, Ferguson was injured when a box of paper towels and

toilet paper fell and hit him in the head, neck, and back.                   Whi1.e

Ferguson returned to work, he testified that his symptoms did not

go   away.       He further testified that they grew worse over time and

that he had problems lifting heavier items and working overhead.

         Ferguson injured his back again in September of 1989 while he

was restacking flour and sugar.                Ferguson testified that the

problems he had after the 1989 injury were the same as those he had

after the 1986 injury.

         Ferguson continued to work until December 12, 1991, when his


                                          2
treating      physicians    recommended    that     he    stop   working.     Ferguson

filed a petition for hearing in September of 1992 when he and
Buttrey Foods could not reach an agreement.                      During this time he

had been receiving temporary total workers' compensation benefits
which were subsequently terminated on January 4, 1993.                      On January

28,   1993,    Buttrey Foods fired Ferguson because he had taken too

much leave of absence.
      A hearing was held on April 26, 1993.                 Ferguson sought to have

his disability benefits reinstated as well as payment for thoracic

outlet syndrome surgery recommended by Ferguson's main treating

physician but denied by the insurer.               Conflicting      medical   evidence

was presented to the Workers' Compensation Court.                    Included in the

opinions of medical personnel was an evaluation by a seven-person

Yellowstone Valley Medical Evaluation Panel. After its examination
of Ferguson, the panel determined that Ferguson did not need the

suggested surgery.

      The Workers' Compensation Court issued its findings of fact

and conclusions of law on December 15, 1993, granting Ferguson

reinstatement of his benefits and payment for the surgery.                     Buttrey

Foods appeals the ruling.
                               Standard of Review

      We review the Workers'              Compensation Court's decision to

determine whether it is supported by substantial credible evidence.

Plainbull v. Transamerica Insurance (1994),                  51 St.Rep. 181.      Wher

conflicting evidence is presented, our scope of review will be to

establish whether          substantial         evidence     supports the Workers'

Compensation      Court's    decision--not        whether    evidence   may    support

                                           3
contrary    findings.          Smith-Carter       v.   Amoco Oil (1991), 248 Mont.
505, 813 P.2d 405.         Nor will we substitute our judgment for that of

the     Workers'    Compensation Court as to weight of evidence on

questions of fact.             Mennis v.    Anderson Steel Supply (1992), 255

Mont. 180, 841 P.2d 528.

                                              I


        Did the Workers' Compensation Court err in determining that

claimant's current condition was caused by a 1986 injury to his

back?
        The Workers' Compensation Court found that a preponderance of

evidence existed to show that Ferguson suffered from thoracic

outlet syndrome as a result of the 1986 injury and needed the

requested    surgery.          Because of Ferguson's need for surgery, the
court determined that he had not been "as far restored as the

permanent character of his injuries will permit" and was entitled

to    reinstatement       of    temporary   total       disability       benefits.         As a

result of these determinations, the court concluded that it could

not assess Ferguson's entitlement to rehabilitation or permanent

partial disability benefits at this time.

         Buttrey Foods argues on appeal that the Workers' Compensation

Court erred when it determined that the 1986 incident caused
Ferguson's     current         condition.     According to Buttrey Foods, the

court    ignored    the    preponderance          of   the    medical    and   occupational

evidence    which    showed       that   Ferguson's          current    condition    did    not

stem from the earlier accident.

        Ferguson argues that substantial evidence supports the court's

decision and, therefore, this Court cannot substitute its judgment

                                              4
for that of the Workers' Compensation Court.
       Following Ferguson's 1986 injury he was treated by two

chiropractors, first Dr. Pardis, and then Dr. Nolan.                Both doctors

released Ferguson to return to work without reaching a decision as

to maximum healing.     Ferguson testified that he did not complain of

pain to his superiors at work because they encouraged him not to be

like a former injured employee who                 complained   all    the     time.

Depositions from co-workers at Buttrey Foods indicate that Ferguson

did tell co-workers that he was experiencing pain.
       In addition to the depositions of Ferguson and his wife,
several doctors, including Dr. Snider, Dr. Cook, Dr. Kostelecky and

Dr.   Kobold,   who is a thoracic specialist and Ferguson's treating

physician    since   1991, believed or indicated an opinion based on
reasonable probability that Ferguson's current condition stems from

the 1986 accident.      Buttrey Foods agrees that Dr. Snider and Dr.

Kobold are      Ferguson's treating physicians.               Dr.    Snider,     ar.

orthopedic surgeon, referred Ferguson to Dr. Kobold who engaged in

specific testing to determine whether Ferguson in truth suffered

from the thoracic outlet syndrome.             The record contains substantial

evidence for the court's determination that Ferguson's present

condition    stems   from   the   1986    incident.     We hold the Workers'

Compensation Court did not err in determining claimant's current

condition was caused by the 1986 injury to Ferguson's back.


                                         II.

       Did the Workers' Compensation Court err in determining that

claimant's      request for thoracic outlet syndrome surgery was

                                          5
reasonable and necessary?
     Dr.     Kobold is a thoracic specialist.                The tests that he

performed on Ferguson were done specifically to determine the need

for thoracic surgery.       Dr. Kobold testified in his deposition that

he felt the surgery was necessary to the improvement of Ferguson's

condition.

     Although the report of the Yellowstone Medical Panel itself

did not recommend thoracic surgery,             it indicated that Ferguson's

symptoms could possibly be due to thoracic outlet syndrome.                    It is
important     to   note   that    the   panel    of    seven   doctors    on    the

Yellowstone    Medical    Panel   consisted     of    an   occupational   medicine

coordinator,    a neurologist, a general surgeon, an orthopedist, a

psychiatrist,      a   psychologist,    and a vocational rehabilitation

specialist--none a thoracic specialist.

     The Workers'      Compensation Court attached more weight to the
evaluation of Dr. Kobold, the thoracic specialist and Ferguson's

treating     physician, than it did the medical panel.               It is clear

that a number of the doctors who saw Ferguson indicated that it was

medically probable that he suffered from thoracic outlet syndrome.

Dr. Snider referred Ferguson to Dr. Kobold with the specific intent

that Dr.     Kobold determine whether surgery was necessary. Dr.
Koboldtestified such surgery was needed and therefore, substantial

evidence exists that the Workers' Compensation Court was correct.

     We hold that the record clearly indicates that the Workers'

Compensation Court did not err in finding the surgery to be

reasonable and necessary.



                                        6
                                      III.
     Did the Workers'        Compensation Court err in reinstating
claimant's temporary total disability benefits?
     The Workers' Compensation Court determined that while earlier
opinions and evidence may have               indicated that petitioner had
reached maximum healing, Dr. Kobold believed that Ferguson needed
surgery in order to obtain relief.           Because Ferguson would benefit
from surgery, the court determined that he had not been "as far
restored as the permanent character of the injuries will permit."
Section 39-71-116(19), MCA (1985).               The court reinstated the
temporary total benefits Ferguson had received during the last
portion of December of 1991. On January 4, 1993, the benefits were
discontinued.   They were subsequently reinstated for a brief period
and then stopped again.
     Buttrey Foods argues that Ferguson has not proved that a
causal connection exists between his current condition and the twc
incidents that occurred at Buttrey Foods in 1986 and 1989.
Further, Buttrey Foods contends that because Ferguson returned to
work after both incidents, he has not experienced a loss of wages
as required by 3 39-71-116(19), MCA (1985) and 5 39-71-116(20), MCA

(1989),   and he is,     therefore,     not entitled to temporary total
disability   benefits.
     Ferguson argues that it has never been determined that he has
reached   maximum   healing.          He     contends    that   without   that
determination he is entitled to benefits.               At the very least, he
argues that he is due a review to determine his entitlement to
rehabilitation or permanent benefits.

                                        7
        Because this question involves an interpretation of a statute
we review this issue as to whether the Workers' Compensation Court
was correct in its interpretation of the law.        Francetich   v.   State.
Compensation Mut. Ins. Fund (1992), 252 Mont. 215, 827 P.2d 1279.
The law in effect at the time of injury is the proper law to apply
to the case.     Crittendon v. Terri's Restaurant & Lounge (1991), 247
Mont.     293,   806 P.2d 534.        Because we have determined that
substantial evidence exists to show that the 1986 injury is the
cause of Ferguson's current problems, we use the 1985 statutes.
        Buttrey Foods is correct that in describing temporary total
benefits 5 39-71-116(19), MCA (1985), means "total loss of wages"
precludes receipt of any wages by claimant:
        llTemporary 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 iniured 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
        preponderance of medical evidence.    (Emphasis added.)
Section 39-71-116(19),      MCA (1985);    Chagnon v. Tilleman Motor Co.

(1993),    259 Mont. 21,    855 P.2d 1002.    However, Ferguson did not
begin to receive benefits until he stopped working in 1991.            He is
not now working and has not worked since the end of December 1991.
        We have stated that temporary total disability ceases when the
workman's physical condition is as far restored as the permanent
character of the injuries permit.          Sharkey v. Atlantic    Richfield
Co. (1989), 238 Mont. 159, 777 P.2d 870. Dr. Kobold, Ferguson's
treating     thoracic   specialist,   stated in his deposition that he
believed that the thoracic surgery would improve Ferguson's


                                       8
condition.      We conclude that the Workers' Compensation           Court   was

correct in concluding that because the surgery was needed and would

most likely benefit Ferguson, he was not at the time of the hearing
"as far restored as the permanent                character of the injuries

permit."     Therefore,   Ferguson   is    due   temporary   total   disability

benefits (up to the statutory maximum of 500 weeks total) until the

surgery restores his condition as far as the permanent character of

his injuries will permit.
     A determination of "maximum healing" must then be made by

Ferguson's      treating physician and will trigger a reevaluation of
the claimant's disability status as either permanently totally

disabled   or    permanently   partially   disabled.    Jaenish v. Super 8

Motel (1991), 248 Mont. 383, 812 P.2d 1241.
     We hold that the Workers' Compensation Court was correct in

reinstating claimant's temporary total disability benefits.
     Affirmed.



We Concur:




                                       9
                                           July 6, 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.
Marra, Wenz, Johnson & Hopkins, P.C.
P.O. Box 1525
Great Falls, MT 59403-1525

Robert C. Melcher
Attorney at Law
P.O. Box 2315
Billings, MT 59103


                                                                                   ED SMITH
                                                                                   CLERKOFTHE
                                                     SUPREME COURT
                                                                                     STATE OF
                                                     MONTANA
