                               No.    91-436
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1992
PAUL EASTMAN,
          Petitioner and Appellant,


TRANSPORT INSURANCE COMPANY
AND GARRETT FREIGHTLINES, INC.,
          Insurer, Defendant
          Employer and Respondents.


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


COUNSEL OF RECORD:
          For Appellant:
                   Richard J. Martin, Alexander, Baucus       &   Linnell,
                   Great Falls, Montana
          For Respondents:
                   Sara R. Sexe, Marra Wenz, Johnson   &   Hopkins, Great
                   Falls, Montana
               -   *   .
Justice Karla M. Gray delivered the Opinion of the Court.

     Paul Eastman appeals from the Workers1 Compensation Courtls
determination that he did not prove by a preponderance of the
evidence that an August, 1981, injury caused his disability and
from the order denying a new trial.   We affirm.
     We state the issues on appeal as follows:
     1.   Did the Workers8 Compensation Court err in concluding
that the August, 1981, injury did not cause claimant's disability?
     2.   Did the Workers1 Compensation Court err in denying the
petition for new trial?
     Paul Eastman (Eastman) was employed as a pick up and delivery
driver for Garrett Freightlines (later ANR Freight Systems) from
1964 until March 31, 1990, when the Great Falls terminal closed.

His job required the loading and delivery of heavy freight.
     During the course of his employment, Eastman sustained four
injuries to his neck. Eastman8s first injury occurred on July 19,
1979, when falling freight struck his neck.        On May 21, 1980,
Eastman injured his neck while stacking tires. On March 19, 1981,
Eastman fell down the steps of the loading dock.     Truck Insurance
Exchange was the insurer on risk at the time of these injuries.
After each injury, Eastman received medical treatment from Dr.
Pardis, a Great Falls chiropractor.
     On August 31, 1981, Eastman injured his neck a fourth time
while stacking pallets.   Respondent Transport Insurance Company
(Transport) was the insurer on risk. Eastman did not miss any work
as a result of the injury. However, Eastman filed a claim for, and
                                2
Transport paid, compensation for medical expenses.           Eastman
received chiropractic treatment from Dr. Pardis until Transport
required him to have an independent medical examination.     Eastman
was examined by Dr. Gaston Syrenne, a neurosurgeon, in April, 1982.
Dr. Syrenne's diagnosis was mild neck sprain superimposed upon a
degenerative disc disease and neurological deficit at   C5-6.

     Between 1983 and 1987, Eastman filed six additional workers'
compensation claims. These claims concerned injuries to Eastman's
middle back, legs and elbow. During this time, Eastman received no
treatment on his neck.     Eastman continued to perform the heavy
duties of a pick up and delivery driver until the terminal closed
in March of 1990. During this time, Eastman did not miss work due
to his neck condition.
     In 1988, Dr. Hachigan, a physician treating injuries to
Eastman's knee and foot, referred Eastman to Dr. James Hinde for
treatment of continuing problems in Eastman's neck and right
shoulder. Dr. Hinde, a physiatrist, specializes in rehabilitating
persons whose physical functions have been impaired by trauma,
stroke or spinal chord injury. He diagnosed degenerative arthritis
of the discs and joints in the neck (cervical spondylosis).        Dr.
Hinde stated that since 1982, Eastman's mild cervical spondylosis
had become severe due to biomechanical forces operating over a
decade on an injured spine, causing further disc narrowing and
further malalignment.    Dr. Hinde confirmed a deficit at   C5-6   and
referred Eastman to Dr. Paul Gorsuch, a neurosurgeon. Dr. Gorsuch
performed anterior disc removal and fusion surgery on June 29,
1990.
     On June 19, 1990, Eastman petitioned the Workers' Compensation
Court for medical expenses, temporary total disability benefits,
and permanent partial or permanent total disability benefits,
claiming that his disability arose out of the August, 1981, injury.
The hearing examiner concluded that Eastman did not prove by a
preponderance of the credible evidence that the August, 1981,
injury caused his disability.         The Workers1 Compensation Court
adopted the examiner's Findings of Fact and Conclusions of Law and
Proposed Judgment.    Subsequently, the Workers' Compensation Court
denied Eastman's petition for new trial, finding that the August,
1981, injury was only a temporary aggravation of Eastman's pre-
existing degenerative disc disease.            Eastman now appeals the
judgment and order denying a new trial.

Did the Workers' Compensation Court err in concluding that the
August, 1981, injury did not cause claimant's disability?
     The Workers' Compensation Court determined that Eastman did
not prove by a preponderance of the evidence that his current neck
condition was caused by the August, 1981, injury. According to the
court, Eastman's      neck   condition   resulted    from    the   gradual
degeneration of his spondylosis and occasional aggravations to his
neck.
     The   Workers'    Compensation    Court    considered   reports   or
deposition testimony from three physicians.         Dr. Gaston Syrenne
first saw Eastman on April 8, 1982, and noted that Eastman probably
had developed a mild degenerative joint disease by that time. Dr.
Syrenne opined that degenerative arthritis was the main cause of
Eastman's continuing neck pain.    Dr. Syrenne noted that Eastman
attributed the neck pain to an August, 1981, injury; however,
Eastman described the precipitating injury to Dr. Syrenne as a fall
down five steps at the dock, an injury that occurred on March 19,
1981.
     Dr. James Hinde treated Eastman in 1988 and 1989.   Dr. Hinde
testified that since 1982, Eastman's mild cervical spondylosis had
become severe.   Dr. Hinde attributed Eastman's neck condition to
many incidents, including everyday trauma and work activities,
repetitive trauma and individual traumatic events. Dr. Hinde could
not attribute Eastman's cervical spondylosis to a specific injury.
Like Dr. Syrenne, Dr. Hinde testified that Eastman had attributed
his neck and shoulder condition to a fall down five steps at the
dock.
     Dr. Paul Gorsuch concurred with Dr. Hinde that Eastman's
degenerative condition was difficult to attribute to a specific
event.   Rather, Dr. Gorsuch attributed Eastman's condition to
degenerative disc disease, cervical spondylosis, heavy        work
conditions and various trauma to his neck.     Based on Eastman's
representation that his pain intensified with the August, 1981,
injury, Dr. Gorsuch initially concluded that that injury was
primarily responsible for Eastman's condition.       However, Dr.
Gorsuch testified that if Eastman had the same symptoms prior to
the injury, the injury was not a primary factor in Eastman's pain.
Once Dr. Gorsuch learned of prior neck injuries, he testified that
the August, 1981, injury was relatively mild and less likely to
exacerbate Eastman's symptoms.
     Based on this medical evidence, the Workers' Compensation
Court determined that the August, 1981, injury did not cause
Eastman's current condition. Our standard for reviewing a decision
of the Workers' Compensation Court is to determine if substantial
evidence supports its findings and conclusions.           When there is
substantial evidence to support the Workers' Compensation Court,
this Court cannot overturn the decision.      Wood v. Consolidated
Freightways, Inc. (1991), 248 Mont. 26, 28, 808 P.2d 502, 504.
     In this case, Eastman must prove by the preponderance of the
credible evidence that 1.) he suffered an injury arising out of and
in the course of his employment; and 2.)        the injury was the
proximate cause of his disabling condition.         Frost v. Anaconda
Company (1985), 216 Mont. 387, 390, 701 P.2d 987, 988.       Taken as a
whole, the medical evidence supports the Workers' Compensation
Court's determination that the August, 1981, injury did not cause
Eastman's current condition. Eastman's neck condition predated the
August,   1981,     injury.    Eastman   received    65    chiropractic
manipulations on his neck prior to that date.       As a result of the
August, 1981, injury, Eastman resumed chiropractic treatment with
Dr. Pardis.       At Transport's request, Eastman received medical
treatment from Dr. Syrenne in April and May of 1982.         The record
reflects that this treatment was successful.        Eastman testified
that after Dr. Syrenne's treatment, his symptoms, as a whole,
subsided. He sought no medical attention or treatment for his neck
from 1983 through 1987.    Eastman continued to perform the heavy
manual labor of a pick up and delivery driver until March of 1990,
when the Great Falls terminal closed.   During this time, Eastman
did not miss any work as a result of his neck condition.   Eastman
testified that he would have continued working in that position if
the terminal had remained open.
     In July of 1989, Dr. Hinde reported that Eastman's condition
related to the August, 1981, injury. Similarly, Dr. Gorsuch wrote
Eastman's counsel in August of 1990 and attributed Eastman's pain
symptomatology to the August, 1981, injury, although he determined
that that injury did not cause Eastman's        degenerative neck
condition.   Dr. Hinde's report and Dr. Gorsuch's correspondence
subsequently were discredited by the doctors themselves.      Drs.
Hinde and Gorsuch testified to the importance of an accurate and
detailed medical history in treating and determining the cause of
a medical condition.   However, Eastman failed to inform Dr. Hinde
and Dr. Gorsuch of essential facts before each physician concluded
that the August, 1981, injury caused his current condition.
Eastman did not inform Drs. Hinde and Gorsuch of the July, 1979 or
May, 1980, injuries, or injuries subsequent to August, 1981; that
the fall down the dock steps occurred in March, 1981; that the
August,   1981, injury involved reaching for freight; or the
substantial number of chiropractic manipulations of his neck before
and after the August, 1981, injury.        Once these facts were
disclosed, Dr. Hinde could not attribute Eastman's mild spondylosis
in 1982, or its progression to severe spondylosis, to a specific
injury.     Dr. Gorsuch testified that the August, 1981, injury was
relatively mild     compared to previous neck    injuries and was
therefore mechanically less likely to cause the exacerbation of his
symptoms.
     Eastman relies on deposition testimony from Dr. Hinde and Dr.
Gorsuch to establish that it was medically possible for the August,
1981, injury to cause his current disability by aggravating his
pre-existing condition.     Eastman contends that where a claimant
proves that it is medically possible for an injury to aggravate a
pre-existing condition, the claimant has met his burden of proving
causation under the Workers1 Compensation Act.
     Eastman1s contention     is an   oversimplification of well-
established principles concerning medical possibility evidence. It
is true that when a claim is based on an aggravation of a pre-
existing injury, as Eastman bases this claim, proof of medical
possibility, in conjunction with other evidence, can support a
grant of workers1 compensation benefits.         Hash v.   Montana
Silversmith (1991), 248 Mont. 155, 160, 810 P.2d 1174, 1177.
However, we do not consider medical possibility      evidence in a
vacuum.
     "'Medical possibility' is to be weighed just as any other
     evidence; if supported by other, independent evidence it
     is 'acceptable' to be used by the court in making its
     determination. Medical possibility evidence by itself,
     though, does not mandate the conclusion that the claimant
     has met his burden of proof under the Act."
Currey v. 10 Minute Lube (1987), 226 Mont. 445, 449, 736 P.2d 113,
116 (citing Wheeler v. Carlson Transport (1985), 217 Mont. 254,
261, 704 P.2d 49, 53-54); Laber v. Skaggs Alpha Beta (lggl), 247
                                  8
Mont. 172, 177, 805 P.2d 1375, 1378.
     Eastman contends that his medical possibility evidence is
supported by the records of Drs. Pardis and Syrenne and his own
testimony. The record reflects that Eastman has not been examined
by either physician for his neck condition since 1983.       Their
records are not probative concerning the issue of whether Eastmants
August, 1981, injury caused his current disability. Eastman's own
statements attribute his current disabilityto the injury involving
a fall down loading dock steps or, alternatively, to the August,
1981, injury.     Such inconsistent statements do not provide
significant corroboration of the medical possibility evidence.
Accordingly, applying Currev to the record before us does not
mandate a conclusion that Eastman has met his burden of proving the
causal link between the August, 1981, injury and his current
condition.
     We conclude that substantial credible evidence supports the
Workers' Compensation Court's determination that Eastman did not
prove by a preponderance of the credible evidence that his
disability was caused by the August, 1981, injury.    The Workers'
Compensation Court did not err.

Did the Workerst Compensation Court err in denying the petition for
new trial?
     Eastman filed a petition for new trial alleging that the
Workerst Compensation Court omitted certain findings of fact,
considered erroneous findings of fact, and failed to address his
theory of aggravation of a pre-existing condition.    The Workers'
Compensation Court denied the petition.
     The Workers' Compensation Court's authority to grant a new
trial is found in A.R.M. 24.5.344 and guided by the general rules
of civil procedure.      A new trial may be granted in cases tried by
the court when an irregularity in the proceedings, accident or
surprise,   or   newly     discovered   evidence   materially   affects
substantial rights of a party.       Sections 25-11-102 (1) (3), (4);
                                                           ,
25-11-103, M.R.Civ.P.      (1991).   Here, the Workersv Compensation
Court determined that the findings were supported by substantial,
credible evidence and that there were no grounds for a new trial.
     Eastman contends that the Workers' Compensation Court erred in
determining in its order denying the petition for new trial that
the August, 1981, injury was merely a temporary aggravation of
Eastman's pre-existing condition. Eastman asserts that the finding
of temporary aggravation negates the Workers' Compensation Court's
original findings and is not supported by the record. We disagree.
     The finding of temporary aggravation is consistent with the
Workers' Compensation Court's judgment denying benefits.        Both the
finding and the judgment are based on the same salient fact:
namely, that the August, 1981, injury did not cause Eastman's
current condition.       The finding of a temporary aggravation is
supported by the record. Eastman experienced headaches, sore neck
and shoulder, and numbness in arms and hands prior to August, 1981,
indicating that his neck condition predated the injury.         Eastman
testified that his symptoms, as a whole, subsided after Dr.
Syrenne's treatment.        Between 1982 and 1988, Eastman's mild
cervical spondylosis became severe.      Dr. Hinde and Dr. Gorsuch
attributed the deteriorization to natural degeneration, as well as
other factors.
     Allen v. Treasure State Plumbing (1990), 246 Mont. 105, 803
P.2d 644, is on point.   In   u, claimant suffered successive
                               the
injuries to his back, once in 1974, and again in 1977.             The
claimant filed a claim for permanent partial disability with the
Workers8 Compensation Court in 1987.         The Workers' Compensation
Court found, and we affirmed, that the 1977 injury was only a
temporary aggravation of the claimant's pre-existing condition and
was not the cause of claimant's disability in 1987.          Thus, the
insurer on risk in 1977 was liable only for benefits reasonably
related to the temporary aggravation of claimant's condition.
Here, Transport has paid the benefits reasonably related to the
August, 1981, injury.
     We conclude that substantial credible evidence exists to
support the Workers' Compensation Court's finding that the August,
1981,   injury   temporarily    aggravated     Eastman's   pre-existing
condition.   The finding of a temporary aggravation is consistent
with the Workers8 Compensation Court's determination that the
August, 1981, injury did not cause his current disability. We hold
that the Workers' Compensation Court did not err in denying
Eastman's petition for new trial.
     Affirmed.
 W e concur:             ,.


qf d . y H A-
           G
        Chief J u s t i c e
                                       November 12, 1992

                                 CERTIFICATE OF SERVICE

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


Richard J. Martin
Alexander, Baucus & Limell
P.O. Box 2629
Great Falls, MT 59403

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



                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
