                                     No. 83-345
                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          1984



FAYE SOELTER,
                   Claimant and Respondent,
    -vs-
ST. VINCENT 13OSPITAL, Employer,
    and
AETNA LIFE     &   CASUALTY CO.,
                   Defendant and Appellant.




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

COUNSEL OF RECORD:

      For Appellant:
                   Anderson, Brown, Gerbase, Cebull        &   Jones;   Richard F.
                   Cebull, Billings, 1-lontana

      For Respondent :
                   William T. Kelly, Billings, Montana
                   Patrick L. Prindle, Billings,Montana
                   Halverson & Sheehy, Billings, Montana


                                     Submitted on Griefs:        May 17, 1984
                                                    Decided:      June 27, 1984


Filed:
         3llhk 2 ; igH4



                                                           -
                                     Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
      St. Vincent Hospital (Hospital) and its insurer appeal
the   judgment of the Workers '        Compen.sa
                                               tion Court granting
permanent    total disability benefits        to Faye Soelter. The
Workers'     Compensation      Court     concluded       that   liberal
interpretation of the Act allowed it to resolve a conflict in
medical testimony by       finding as facts only those medical
opinions which      substantiated the claim.         We    reverse the
judgment of the Court.
      The uncontested facts are that claimant was injured in
an industrial accident in December 1977 in the course of her
employment by      the Hospital.       The claim was accepted and
compensation benefits were paid from November 16, 1978 to
November 20, 1980.       At the time of trial, claimant was a 48
year old divorced woman with an eighth grade education. Her
work experience consisted of working as a nurses' aide for
the preceding twelve years.          While lifting a patient into a
wheelchair    on   December    26,   1977,    claimant    suffered    the
injury.
      The findings of fact of the court regarding medical
evidence can be summarized as showing that Dr. Nelson made

extensive    examinations;      that    Dr.     Snider    performed    a
laminectomv; that claimant had complained of severe lower
back pain; that the laminectomy was aimed at relieving that
pain; that claimant continued to complain of lower back pain;
that by October 7, 1980 claimant had recovered as much as the
permanent    character    of   her   injuries    would    permit;    that
subsequent to October 7, 1980, claimant has continued to
complain of lower back pain to the four different doctors who
examined her; that claimant has not been malingering; that
based on Dr. Nelson's deposition, claimant's condition may he
summarized as a chronic hack disorder; that claimant is
obese; and that her obesity is not the cause of her chronic
back disorder.
     Regarding    psychological     evidence,   the    court   further
found that claimant had a hypochondriacal personality, which
her doctor defined as one who tends to be preoccupied with
physical illness or symptoms which she may have and which she
interprets as being a physical illness of some kind; that the
chronic    pain   from the   industrial accident and        surgeries
aggravated claimant's pre-existing psychological condition;
that psychological counseling or psychotherapy would not cure
claimant's    hypochondria,    but    could     relieve    her   from
depression, agitation and anxiety; that claimant has not been
receptive to receiving psychological counseling; and that
claimant does not believe she has a psychological problem.
     The court further found that claimant has chronic lower
back pain and that pain prevents her from doing some of the
housework    she previously   had    done; that       claimant cannot
return to work as a nurses' aide; that claimant cannot work
at a job requiring repetitious bending, lifting or stooping;
and that claimant is physically capable of doing sedentary or
other undemanding work.
     After making     these and other findings, the Workers'
Compensation Court conclud.ed that claimant's physical healing
is complete and that, as a result of her industrial accident,
claimant has been permanently totally disabled since October
7, 1980.    The issues presented by the Hospital are:
     (1) Does the Workers' Compensation Act require
     liberal construction     of  the   expert medical
     testimony so tha-tonly testimony which supports the
     claim is taken as fact and adverse testimony is
     disregarded?
        (2) Did the Workers' Compensation Court err in
        finding claimant to be permanently totally disabled
        because she could not return to her occupation as a
        nurses' aide?


        The first issue arises from the following conclusions of
the Workers' Compensation Court:
    "The medical testimony cannot in this case be
    harmonized. Because this testimony was before this
    Court in the form of depositions, it was not in a
    position to observe the demeanor of the physicians
    or judge their credibility. But even if they had
    personally appeared before this Court, how on the
    basis of the credibility of the witnesses is this
    Court to resolve Dr. Smith's conclusion that the
    Claimant can return to work as a nurse's aide              ...
    and Dr. Snider's conclusion that she cannot? .              ..
    Dr. Smith is a n-eurological surgeon and Dr. Snider
    is an orthopedic surgeon;            . . .
                                        There are many
    other instances in the record where conclusions of
    the medical experts fall short of unanimity
    regarding her physical and mental conditions,
    their cause and their influence on her ability to
    work.     ...
        ". . . In resolving
                          conflicts of this nature, the
    approach that is most        consistent with    the
    legislative directive that this Court interpret the
    provisions of the Act liberally and with the
    Supreme Court's recognition that this directive is
    intended to carry out the humane purposes of the
    Act is to resolve - conflict - - deposition
                        the           in- the
    testimonFof medical experts 9 finding as facts
    those    exKrt
                 L
                      medical    o~inions thaf- will
                                         L

    substantiate a claimant's claim for compensation
        ...Why should this Court penalize a claimant
    because the experts in an inexact science disagree?


    "Applying the above method of conflict resolution
    to the deposition testimony of the medical experts,
    this Court has found that the claimant injured her
    lower back in her industrial accident           and   . . .
    that she cannot return to work as a nurse's aide."
    (emphasis supplied)
    We     can   understand   the   difficulty       of    analyzing   the
medical    testimony of   four different           attending physicians
whose    conclusions   differ.      We       can   also   understand   the
frustration in seeking to evaluate depositions without the
opportunity to hear the medical testimony.                Notwithstanding
these difficulties, the claimant must prove her case by a
preponderance of the probative           credible evidence and the
court must weigh all the evidence presented to it.
     In Dumont v. Wickens Bros. Const. Co. (1979)I 183 Monte

190, 201, 598 P.2d 1099, 1105, this Court stated:
     "Not only must claimant prove her case by a
     preponderance of the evidence, she must do so by a
     preponderance of the probative credible evidence."
Section 39-71-104, MCA provides: "Whenever this chapter or
any part or section thereof is interpreted by a court, it
shall be liberally construed by such court."             In applying
this rule of liberal construction, the Court has stated:
    "Any doubt after all the evidence has been
    considered should be construed for the compensation
    claimant when the weight of evidence is in favor of
    the worker." Hert v. J.J. Newberry Co. (1978), 178
    Mont. 355, 365, 584 P.2d 656, 662.
    This rule of liberal construction does not relieve the

court of its duty to carefully consider all of the evidence
before    determining   whether   the     weight   of   the   evidence
presented supports the worker's claim.           As we noted in Ness
v. Diamond Asphalt Co.     (1964), 143 Mont. 560, 565, 393 ~ . 2 d


    "Whenever physical ailments are involved, there is
    almost always some doubt present.     We feel the
    doubt remaining after - - evidence - -
                           all the            had been
    considered should be construed for the workman or
    his family when the weight of the evidence is in
    favor of the workman." (emphasis supplied)
    The conclusion of law of the Workers' Compensation Court
suggests that the court disregarded the medical evidence
unfavorable to the claimant and based its conclusion only
upon the medical evidence favorable to claimant.              That the
court is not allowed to do.              The   court is required to
consider all of the evidence submitted by the parties without
bias or favor toward or against any party.          Though it may be
simpler   to   disregard   a   portion    of   the medical    evidence
because it contradicts other medical evidence, the court is
not permitted to do so.
      Our function in reviewing a decision of the Workers'
Compensation      Court   is     to     determine      whether    there   is
substantial evidence to support the findings of fact and
conclusions of that court.            Small v. Transportation Insurance
Co.   (Mont. 19841,            P.2d          ,   41 St.Rep. 776, 781.     We
are unable to discharge that responsibility where the lower
court has used an improper standard in weighing the medical
evidence submitted to it.              While it might be possible in
other cases for us to review the medical evidence which is
submitted in deposition form, in this case there is oral
testimony on the part of the claimant and others, which must
also be balanced by the lower court.
      We conclude that the Workers' Compensation Court may not
arbitrarily    reject medical          evidence because         it does not
substantiate a claim for compensation.               Liberal construction
of the Act does not allow the court to disregard some portion
of the medical evidence before it.
                                      I1

      Did   the   Court   err    in        finding   claimant    permanently
totally disabled because she could not return to her former
occupation as a nurses' aide?
      Because of the position taken by the court regarding the
medical evidence, we are not able to review the conclusion of
the court.     It appears that the Workers' Compensation Court
may have erroneously excluded evidence from its con.sideration
in reaching the conclusion that claimant could not return to
her   former occupation as a nurses' aide.                  We therefore
require a redetermination of this question.
      The   judgment of the Workers' Compensation Court                   is
reversed and the cause is remanded to the court for its
redetermination of facts, conclusions of law and judgment in
a manner consistent with this opinion.




We concur:
   n




   -
Hod. Henry Loble XYtting for
                 t
Justice John C. Sh ehy
Mr. Justice Frank B. Morrison, Jr. respectfully dissents as
follows:
     The majority places undue emphasis upon the thought
processes of the Workers' Compensation Judge as reflected in
the conclusions quoted in the majority opinion.          Specifically
the majority        reverses because of the following language:
     11 I   . . .
              In resolving conflicts of this nature, the
     approach that is most        consistent with    the
     legislative directive that this Court interpret the
     provisions of the Act liberally and with the
     Supreme Court's recognition that this directive is
     intended to carry out the humane purposes of the
     Act is to resolve the conflict in the deposition
     testimony of medical experts by finding as facts
     those   expert    medical   opinions    that   will
     substantiate a claimant's claim for compensation
     ...   Why should this Court penalize a claimant
     because the experts in an inexact science
     disagree?'"
     The majority reads that language to mean the Workers'
Compensation Court would always resolve conflicts in the
medical evidence in favor of the claimant.           I do not think
that is a proper construction of the above-quoted language. I
believe the Workers' Compensation Court is simply saying
that, if after reading all of the medical depositions, the
Workers'      Compensation   Court   is   unable    to   resolve   the
conflicts, then liberal construction               the Act tips the
balance in favor of the claimant.         I find it unnecessary to
determine whether this is a proper approach.
     The testimony to which the Workers' Compensation Court
referred was deposition testimony from medical experts.            The
only evidence offered to support position of appellant was
d.eposition testimony from physicians.         Under our scope of
review this Court is entitled to evaluate the credibility of
deposition testimony for the reason that the trial court did
not observe the demeanor of the witnesses.          This Court is in
as good a position to evaluate credibility of deposition
testimony as is the trial court.
      In this case the medical testimony clearly preponderates
in favor of the claimant.        Therefore, the findings of the
Workers' Compensation Court find ample support in the record.
Any confusion on the part of the lower court about resolving
conflicts in the evidence is harmless error.
      Since this is a dissent, I will volunteer that the
Workers' Compensation Court may well have applied a proper
standard.    At times it seems very difficult for a lay person
to resolve conflicting testimony between two equally well
qualified physicians.       At this point, if the trier of fact
resolved the conflict by invoking the liberal construction
spirit of the Act, I can see no harm.           This does not mean
that the defendant's medical testimony is always disregarded
in favor of that offered by claimant.         It simply means that
where the trier of fact reaches a point where resolution of
conflict is not otherwise possible, the spirit of the Act is
invoked.    It is apparent from the detailed findings of the
Workers' Compensation Court that all evidence was thoroughly
analyzed and weighed.      Under these circumstances it seems to
me   the   trial   court   fostered   the   spirit of   the Act   in
resolving the conflict in the way it did.         A remand seems a
futile exercise and worse, it further delays justice for this
injured worker.
Mr. Justice Frank I. Haswell, dissenting.

       It seems to me that the majority have become hyper-
technical    in   reversing     the     judgment    of     the   Workers'
Compensation Court.         In so doing they have           invaded      the
province of the fact finder under the guise of interpreting
legal standards concerning weighing evidence.
       Here two highly qualified medical specialists reached
cpposite and contradictory conclusions on whether claimant
was able to return to work.       The Workers' Compensation Judge
resolved this factual issue in favor of claimant because of
"the Legislative directive that this Court interpret the
provisions of the Act liberally and with the Supreme Court's
recognition that this directive is intended to carry out the
humane purposes of the Act."          The majority have reversed the
Judge's factual determination that claimant is not able to
return to work because they say his reasoning is wrong.               What
rule of 1a.w empowers this Court to probe the mental processes
of a judge or jury in resolving a factual controversy?
       The Supreme Court on appeal is bound by the Workers'
Compensation Court's        decision on    the     facts if      there    is
substantial credible evidence in the record to support that
decision.    Catteyson v. Falls Mobile Home Center, Inc., et
al.   (1979), 183 Mont. 284, 599 P.2d 341; McGee v. Bechtel
Corporation (1979), 182 Mont. 149, 595 P.2d 1156; Smith v.
Pierce Packing Co.     (1978), 177 Mont.           267, 581 P.2d      834;
Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 575
P.2d 67; Bond v. St. Regis Paper Co. (1977), 174 Mont. 417,
571 P.2d 372.
       Here the testimony of Dr. Snvder furnishes substantial
credible    evidence   to    support     the   factual     finding    that
claimant is not able to return to work.                  I would affirm.




                                          Chief Justice
                                                           w*,
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