95-449




                                                                                 No. 95-449

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                  1997



                                                                        BRETT BRINEY,

                                                                      Petitioner and Appellant,

                                                                                        v.

                                                PACIFIC EMPLOYERS INSURANCE COMPANY,

                                                                         Respondent and Insurer

                                                                                       for

                                                          STAUFFER CHEMICAL COMPANY,

                                                                                      Employer.




                       APPEAL FROM:                   Workers' Compensation Court, State of Montana
                                                      The Honorable Mike McCarter, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                 For Appellant:

                                                        Andrew D. Huppert; Lewis, Huppert & Slovak;
                                                                   Great Falls, Montana

                                                                                For Respondent:

                                                          Brendon J. Rohan; Poore, Roth & Robinson;
                                                                       Butte, Montana



                                                                            Submitted on Briefs: January 16, 1997

                                                                                 Decided:                June 24, 1997
                                                                               Filed:




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                                                          __________________________________________

                                                                                 Clerk

                     Justice Terry N. Trieweiler delivered the opinion of the Court.

     The claimant, Brett Briney, filed an amended petition in the Workers'
Compensation Court for the State of Montana in which he sought partial disability
benefits as a result of injuries he sustained during the course of his employment
with
Stauffer Chemical Company on May 24, 1981. In response, Stauffer's insurer, Pacific
Employers Insurance Company, denied that Briney's disability was a result of his May
24, 1981, injury, and affirmatively alleged that Briney's disability resulted from a
series
of events, some of which occurred during the course of his employment and some of
which occurred outside the course and scope of his employment. Following trial, the
Workers' Compensation Court found that Briney had not proven a causal relationship
between his work-related injury and his current disability, and therefore, entered
judgment for the insurer. Briney appeals. We reverse the judgment of the Workers'
Compensation Court.
     The following two issues are raised on appeal:
     1.   Was there substantial evidence to support the Workers' Compensation
Court's finding that Briney's current disability is not causally related to the
injury that he
sustained during the course of his employment on May 24, 1981?
     2.   Is Briney entitled to attorney fees, costs, and the imposition of a twenty
percent penalty pursuant to    39-71-611 and -2907, MCA?
                       FACTUAL BACKGROUND
     On May 24, 1981, Brett Briney was employed in the furnace department as a
precipitator operator by Stauffer Chemical Company in Butte, Montana. His job was to
keep the precipitator running at maximum efficiency by removing and dumping the dust
and waste product twice during each shift, and by removing slag which accumulated on
the unit. On that date, slag had formed around the rim of the filter on the number
one
precipitator, so he began to "rod out" the precipitator with a steel bar when he
heard a
pop and felt pain in his low back and legs. He had to be assisted from the area,
and was
taken to the hospital where he was treated by the emergency room physician with
muscle
relaxants and bed rest, and told to see an orthopedic surgeon.
     In response to that advice, Briney saw Charles R. Canty, M.D., on May 29, 1981.
After examining Briney, Dr. Canty diagnosed a probable herniated nucleus pulposus or
disc extrusion in the lumbosacral portion of Briney's lower back. Dr. Canty treated
him
conservatively and after noting no neurological deficit, allowed him to return to
work on
June 22, 1981.
     Briney testified that although he has had good days and bad days since his
return
to work in 1981, he has never been completely pain free. The proof established that
complaints of pain in his lower back and legs were particularly noted following

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numerous
work-related and nonwork-related incidents which caused stress to Briney's lower
back.
He was treated by several physicians during the years following his return to work,
and
missed work on occasion due to treatment for back complaints, but was able to
continue
with his employment at Stauffer Chemical until October 1993.
      In 1993, Briney underwent surgical treatment of a pilonidal cyst. Following
that
treatment, he was physically inactive for a period of time. Due to the inactivity,
he was
unable to continue the exercise regime he had followed for his back. His condition
deteriorated, and he has been unable to return to his job at Stauffer Chemical since
that
time.
      On October 21, 1994, Briney filed his original petition for emergency trial in
which he alleged that he was totally disabled and entitled to reinstatement of
temporary
total disability benefits due to his 1981 injury. Although the insurer originally
denied that
Briney was totally disabled, on November 29, 1994, it agreed to classify his
condition
as an occupational disease and pay him total disability benefits. Following that
agreement, Briney amended his petition and claimed an entitlement to 500 weeks of
permanent partial disability benefits based on the loss of earning capacity he
alleged was
due to his back injury in 1981.
      At the trial that was conducted in response to Briney's petition, the court
heard
testimony from Briney, two vocational rehabilitation consultants, and the defendant's
claims adjuster. The only medical testimony was presented by deposition from Drs.
Charles R. Canty, Patrick Robbins, Gary D. Cooney, and Michael Lahey. Based on
these depositions, the Workers' Compensation Court found that Briney had not proven
by a preponderance of the evidence that his 1981 injury was the primary cause of his
current disability. It found that between 1981 and 1992 Briney suffered a number of
injuries or incidents which caused acute episodes of low back pain, and that his
current
disability is a result of the cumulative effect of the multiple injuries or
aggravations he
has suffered over the years. On that basis, the court concluded that Briney was not
entitled to an award of partial disability benefits pursuant to    39-71-703, MCA
(1979).
                              ISSUE 1
      Was there substantial evidence to support the Workers' Compensation Court's
finding that Briney's current disability is not causally related to the injury that
he
sustained during the course of his employment on May 24, 1981?
      In reviewing a Workers' Compensation Court decision, this Court
examines whether the court's findings of fact are supported by substantial
credible evidence. Buckentin v. State Compensation Ins. Fund (1994), 265
Mont. 518, [520,] 878 P.2d 262, 263. If there is conflicting evidence, we

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examine whether substantial evidence supports the Workers' Compensation
Court, not whether the evidence might support contrary findings.
Buckentin, 878 P.2d at 263. We review the Workers' Compensation
Court's conclusions of law to decide whether the court's determination of
the law is correct. Stordalen v. Ricci's Food Farm (1993), 261 Mont. 256,
258, 862 P.2d 393, 394. Where medical testimony is offered by
deposition, this Court sits in as good a position as the Workers'
Compensation Court to determine the weight of the medical testimony.
McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont. 63, 67, 813 P.2d
451, 454. Nonetheless, the medical testimony must be considered in the
context of other testimony that the trial court did in fact have an opportunity
to observe if it is relevant to medical issues. McIntyre, 813 P.2d at 454.

Caekaert v. State Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498.
     In addition to the standard of review which we must apply, it is important to
note
the parties' respective burdens of proof in the Workers' Compensation Court. The
Workers' Compensation Court correctly concluded that the claimant has the burden of
proving that he is entitled to workers' compensation benefits by a preponderance of
the
probative, credible evidence (citing Ricks v. Teslow Consol. (1973), 162 Mont. 469,
483,
512 P.2d 1304, 1312; DuMont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 201,
598 P.2d 1099, 1105) . However, once the claimant has proven a work-related injury
and
produced evidence that that injury is a cause of a present disability, an insurer who
alleges that subsequent events are the actual cause of the claimant's current
disability has
the burden of proving that allegation, which is in the nature of an affirmative
defense, by
a preponderance of the evidence. Walker v. United Parcel Serv. (1993), 262 Mont.
450,
456, 865 P.2d 1113, 1117.
     In Walker, claimant suffered a back injury during the course of his employment
in 1985. After a period of recovery, he returned to work until he quit his
employment
in 1992. The evidence was that from 1985 to 1992 he had periodic flare-ups or
episodes
of back pain.
     The insurer in that case, as in this case, offered to pay him benefits based on
an
occupational disease, but refused to pay partial disability benefits based on his
1985
injury. The insurerþs position in that case, like the insurerþs position in this
case, was
that his disability was due to subsequent injuries following his 1985 injury.
     The Workersþ Compensation Court in the Walker case, as in this case, found that,
because claimant had reached maximum healing prior to subsequent flare-ups, the
disability for which he sought benefits did not result from his 1985 injury.
     The doctors who testified in the Walker case all agreed that the 1985 injury
weakened the claimantþs back and made him more susceptible to injury. However, no
doctor in that case would testify that the claimantþs disability for which he sought

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benefits
would have existed had he not returned to work at UPS. The Workersþ Compensation
Court, therefore, concluded that Walker had failed to carry his burden of proving
that his
disability was related to his 1985 injury.
     In our decision to reverse the findings of the Workersþ Compensation Court, we
first pointed out that equivocal testimony, i.e., testimony which was unable to
relate
claimantþs disability to any particular event, was not substantial evidence. We then
pointed out that, contrary to the Workersþ Compensation Courtþs findings, there was
more than one medical opinion expressed that Walkerþs condition was related to the
1985
injury and, finally, that it was not clear whether subsequent episodes of pain were
due
to separate accidents or were simply aggravations of the 1985 injury. Under those
circumstances, we held that:
     Because we determine that the claimant has met his burden of proof
that his injuries sprang from a 1985 accident, the burden of proof
concerning any post-1985 accidents which permanently damaged claimantþs
back must fall upon the carrier. Lee v. Group W Cable TCI of Montana
(1990), 245 Mont. 292, 800 P.2d 702;   39-71-703 et seq., MCA. . . .

     . . . While alleging that six additional "accidents" occurred to
Walkerþs back, the carrier has not presented evidence that the incidents it
alludes to have met the legislatureþs definition of accident. Further the
carrier has not shown that a causal connection exists between a post-1985
injury and Walkerþs current condition. Thus, the carrier has not met its
burden concerning any subsequent accidents and the court did not have
substantial evidence from which to determine that Walkerþs injuries were
caused by a post-1985 accident.

Walker, 262 Mont. at 456, 865 P.2d at 1117.
     It is with those rules in mind that we review the medical evidence in this case.
     Dr. Canty concluded that Briney had reached maximum medical improvement on
June 22, 1981, and released him to return to work without restrictions. However,
when
his deposition was taken, he explained that he had placed no restrictions on Briney
because "then they wouldn't accept him back . . . he would have lost his job." Based
on Briney's history of repeated problems since his return to work, it was clearly Dr.
Canty's opinion, in retrospect, that the 1981 injury had diminished Briney's ability
to
perform heavy labor. He testified that the magnetic resonance imaging studies done
on
February 19, 1992, which disclosed herniated intervertebral discs at two levels of
Briney's lower back, were consistent with his findings ten years earlier and stated
that
he had no disagreement with Dr. Cooney's opinion that the herniations resulted from
the
1981 injury, or Dr. Robbins' opinion that Briney's current physical impairment was a
result of his 1981 injury. He explained that alleviation of symptoms from a
herniated
disc to the extent that the affected person can return to work, does not mean that

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the disc
injury is cured.
     Dr. Canty testified that the symptoms Briney complained of following incidents
subsequent to 1981 were identical to those caused by his 1981 injury, and he
expressed
the opinion that the subsequent events were probably aggravations of the earlier
injury.
Although he did state that Briney probably would have been able to continue working
if
his back had not been aggravated, he gave the following significant testimony
regarding
causation:
Q.   And considering all of the information that you personally knew and
what you've now been supplied with today regarding all these different
work- and nonwork-related accidents that Mr. Briney suffered over the last
12 or 13 years, can you attribute Mr. Briney's current physical condition
to any one particular injury during that 12- or 13-year period?

A.   Probably the most significant would be his initial injury.                                                      [Referring
to the injury that occurred on May 24, 1981.]

     Dr. Canty explained that Briney's 1981 injury made him more susceptible to
aggravation of his lower back and gave the following testimony regarding the impact
of
that injury on his ability to perform physical labor:
Q.   Given that situation, given the fact that you have stated that his
current conditions are probably related to that 1981 injury, would you agree
that that 1981 injury affected his ability to perform heavy-duty labor?

A.        I would say "yes".

Q.        And in fact, it diminished his ability to perform heavy-duty labor?

A.        Yes.

MR. HUPPERT:               That's all I have.

BY MR. ROHAN:

Q.   In and of itself without the other aggravations, did it diminish his
ability to do heavy-duty work?

A.   I think in and of itself, it did encompass his ability to safely perform
the heavy labor type things that would be required of him, that would
ultimately be required of him.

     The Workers' Compensation Court's findings completely ignore this direct opinion
testimony from Dr. Canty and, instead, place emphasis on Dr. Canty's finding that
Briney had reached maximum medical healing in June 1981 and that, in Dr. Canty's
opinion, Briney's intervertebral disc had returned to its normal anatomical
configuration
at that point in time. However, there is nothing about either of those facts which

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precluded Briney's later deterioration based on his original injury, and it is
apparent from
Dr. Canty's unequivocal testimony that he attributes Briney's current disability to
his
original injury.
     Dr. Patrick Robbins is an orthopedic surgeon who practices in Missoula and first
saw Briney on March 2, 1992. Based on the MRI exam which was done in February of
that year, and his own examination of Briney, he diagnosed degenerative disc disease
between the fourth lumbar vertebra and first sacral vertebra.
     On October 3, 1994, in response to an inquiry from Stauffer's insurer, he wrote
that after reviewing Briney's medical records which had been provided by the insurer,
and considering the patient's history, it was his opinion that Briney's current
problems
were a result of his 1981 work-related injury. In 1995, he concluded that Briney had
sustained a ten percent physical impairment as a result of his back injury and that
he
should not return to manual labor.
     During his deposition, after considering a complete list of the incidents
following
the 1981 injury in which Briney complained of aggravated back pain, Robbins
testified,
based on a reasonable degree of medical certainty, that Briney's current symptoms and
disability are attributable to his 1981 injury. He also expressed the opinion that
the ten
percent impairment is directly attributable to the 1981 injury.
     During cross-examination, when asked if Briney could have continued working
following the 1981 injury absent aggravation of his back, he stated that it was
"possible";
however, he repeated his opinion, this time based on a reasonable degree of medical
probability, that it was the 1981 injury which caused Briney's current disability.
He
explained that in all probability the 1981 injury weakened Briney's back to the point
where it was aggravated by various events subsequent to that time. During re-direct
examination he repeated his opinion, based on a reasonable degree of medical
certainty,
that Briney's 1981 injury ultimately decreased his ability to perform heavy labor.
The
Workers' Compensation Court's disregard for Dr. Robbins' direct testimony, which was
based on a reasonable degree of medical certainty, in favor of a temporary concession
regarding a "possibility," simply ignores the totality of Dr. Robbins' testimony and
is not
based on substantial evidence.
     Dr. Gary D. Cooney is a Missoula physician specializing in neurology. He first
examined Briney on January 13, 1994, to evaluate him for pain in the lower back at
the
request of his family physician from Butte. Following his physical examination, and
his
review of Briney's MRI studies, he also diagnosed intervertebral disc herniations at
L4-5
and L5-S1. He also responded in writing to an inquiry by Stauffer's insurer
regarding
the cause of Briney's current complaints, and expressed the opinion that they were

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predominately related to his initial injury in May 1981. It was his opinion, during
his
deposition, that the 1981 injury made Briney "significantly" more susceptible to
additional
injuries and diminished his ability to perform heavy labor on a long-term basis. He
also
agreed that Briney had sustained permanent physical impairment as a result of his
1981
injury.
     Significantly, for purposes of a Walker analysis, when Dr. Cooney was asked
during cross-examination whether subsequent injuries contributed to Briney's current
disability, he testified that he had no opinion. He did state that the mere fact
that Briney
had reached maximum medical improvement following his 1981 injury did not preclude
the fact that he now had permanent physical impairment from that injury, even though
he had no physical impairment at the time he was released to return to work.
Finally,
contrary to the Workers' Compensation Court's finding that Dr. Cooney could not
relate
Briney's current condition to his 1981 injury, he gave the following specific
testimony:
[T]he most significant insult was the initial insult of this May of 1981, but
I donþt know that the effects of the subsequent injuries is necessarily
cumulative or that any of those subsequent injuries can clearly be shown to
have contributed to the appearance of the disc on the 1992 MRI.

          If anything, Dr. Cooney's testimony clearly established that, in his opinion,
the
1981 injury contributed to Briney's current condition, but that he could not say what
effect subsequent events might have had on that condition.
     Finally, Briney was examined on March 4, 1994, by Michael Lahey, M.D.,
another orthopedic surgeon in Missoula. Dr. Lahey's diagnosis was the same as those
previously discussed. In his original report to the insurer, he stated that
Briney's current
condition may be attributable to the 1981 injury with progressive deterioration
since that
time accounting for his current disability. However, during his deposition, when a
complete history of Briney's complaints and the incidents in which he was involved
was
related to him, Dr. Lahey was unable to relate Briney's current disability to any
specific
event. When he was asked whether each aggravation or injury subsequent to May 24,
1981, contributed to Briney's current physical condition, he said that he had no
basis for
an opinion.
     In summary, Drs. Canty, Robbins, and Cooney all expressed the opinion that
Briney's 1981 low back injury was the principal cause of the long-term physical
impairment which is the basis of his current disability claim. The burden then
shifted to
the insurer to prove by a preponderance of the evidence that some intervening act
actually
caused the claimant's current disability. After reviewing the entire record of

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medical
testimony, we find no such evidence. At most, there is some discussion during cross-
examination of witnesses of "possibilities." However, when balanced against the
reasonable "medical certainty" or "medical probability" with which those same
witnesses
testified during their direct examination, those "possibilities" do not amount to
substantial
evidence sufficient to satisfy the insurer's burden of proof.
     For these reasons, we conclude that when the Workers' Compensation Court found
that a preponderance of the evidence established that a series of injuries or
aggravations
over a ten-year period caused Briney's current disability, the Workers' Compensation
Court erred. We conclude that the undisputed, substantial evidence establishes that
Briney's current physical impairment and disability is primarily attributable to the
injury
that he sustained during the course of his employment with Stauffer Chemical Company
on May 24, 1981.
                             ISSUE 2
     Is Briney entitled to attorney fees, costs, and the imposition of a twenty
percent
penalty pursuant to    39-71-611 and -2907, MCA?
     Section 39-71-611, MCA (1979), provides as follows:
In the event an insurer denies liability for a claim for compensation . . .
and the claim is later adjudged compensable by the workers' compensation
judge or on appeal, the insurer shall pay reasonable costs and attorneys'
fees as established by the workers' compensation judge.

     Briney contends that since the insurer has denied that his current disability is
related to his 1981 injury, he is entitled to attorney fees and costs if this Court
determines
otherwise on appeal. We agree that under the facts and circumstances as set forth
in the
prior portion of this opinion, Briney is entitled to attorney fees and costs
pursuant to this
statute. The amount of those costs and fees should be determined by the Workers'
Compensation Court after remand of this matter to that court.
     Briney also contends that pursuant to   39-71-2907, MCA (1979), and our decision
in Holton v. F.H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 637 P.2d 10, he
is entitled to a statutory penalty equal to twenty percent of his ultimate award for
partial
disability.
     Section 39-71-2907, MCA (1979), provides in relevant part that:
When payment of compensation has been unreasonably delayed or refused
by an insurer, either prior or subsequent to the issuance of an order by the
workers' compensation judge granting a claimant compensation benefits, the
full amount of the compensation benefits due a claimant, between the time
compensation benefits were delayed or refused and the date of the order
granting a claimant compensation benefits, may be increased by the
workers' compensation judge by 20%. The question of unreasonable delay
or refusal shall be determined by the workers' compensation judge . . . .

          The insurer has not responded on appeal to Briney's contention that he is

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entitled
to costs, attorney fees, or the statutory penalty.
      In Holton, there was no issue regarding claimant's injury or that it was
related to
his job. After he reached maximum medical healing, his own physician rated the
degree
of his permanent physical impairment at five percent. The insurer's physician rated
his
impairment at ten percent. It does not appear from the reported case that there was
any
disagreement about whether either of those ratings were a result of his job-related
injury.
However, the insurer refused to pay benefits based on either impairment rating
without
an agreement by claimant to settle his total claim for disability benefits. We held
that
where there was no legitimate basis for disagreeing that claimant had become
physically
impaired due to his work-related injury, and where the only question was the amount
of
disability benefits to which he was entitled, the insurer acted unreasonably as a
matter of
law when it withheld undisputed benefits pending a hearing on disputed benefits.
      Although we hold that, after presentation of all the evidence, the defendant in
this
case has not satisfied its burden of proving by a preponderance of evidence that
Briney's
injury was caused by some event other than the accident he was involved in on May 24,
1981, the facts in this case were not beyond dispute prior to presentation of
evidence by
both parties. Whether, based on the facts in this case, Briney is entitled to a
statutory
penalty is a question to be decided, in the first instance, by the Workers'
Compensation
Court pursuant to the plain language of    39-71-2907, MCA (1979). We are aware, as
a practical matter, that the same Workers' Compensation Court, which previously
decided
in favor of the insurer on the merits of this case, is unlikely to find, following
our
remand, that the insurer acted unreasonably, in spite of our conclusion that no
substantial
evidence supported the insurer's theory. However, we cannot conclude as a matter of
law, based on the posture of this case at the time the trial commenced, that there
was no
dispute regarding Briney's entitlement to benefits and that his right to statutory
penalty
is, therefore, controlled by Holton.
      For these reasons, we conclude that pursuant to   39-71-611, MCA (1979), Briney
is entitled to an award of attorney fees and costs in amounts to be determined by the
Workers' Compensation Court. Furthermore, following remand, the Workers'
Compensation Court is to determine, based on the entire record, whether the insurer
acted

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unreasonably when it denied Briney's claim for partial disability benefits and
whether he
is, therefore, entitled to a statutory penalty pursuant to   39-71-2907, MCA
(1979).
     This case is reversed and remanded to the Workers' Compensation Court for
further proceedings consistent with this opinion.

                                                                       /S/       TERRY N. TRIEWEILER


We Concur:

/S/       J. A. TURNAGE
/S/       WILLIAM E. HUNT, SR.
/S/       JAMES C. NELSON
/S/       W. WILLIAM LEAPHART
/S/       KARLA M. GRAY




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