WHEELER v CARLSON TRANSPORT
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10 84-479 4. IN THE SUPREPIE COURT OF THE STATE OF MONTANA 1985 LLOYD WHEELER, Claimant and Appellant, CARLSON TRANSPORT, Employer, and INSUFiANCE COMPANY OF NORTH AMERICA, Defendant and Respondent. APPEAL FROM: Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Lynaugh, Fitzgerald Montana & Hingle; Thomas Lynaugh, Billings, For Respondent: Steven Harman, Billings, Montana Submitted on Briefs: May 9, 1985 Decided: August 5, 1985 Filed: 4; - 1985 Clerk Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Claimant Lloyd Wheeler appeals from an order of the Workers ' Compensation Court dismissing his petition rehearing. for a We affirm. Claimant appeals from his second hearing regarding his occupational accident and injury. February 10, 1981. The injury occurred on Claimant suffered a crush injury to his Carl son ' s left foot while employed with Carlson Transport. carrier, the respondent, Insurance Company of North America (INA) accepted liability compensation benefits. and began paying medical and On September 21, 1981, claimant filed a petition with the Workers ' Compensation Court contending, among other things, that he suffered a back injury due to his foot condition. In that petition, claimant alleged a preexisting spinal stenosis condition which was aggravated by his limp or "favoring" of the injured left foot. A hearing was held before the Workers' Compensation Judge. Evidence connection between was admitted claimant's both foot as to injury the and condition, and the level of claimant's disability. causal the back The court entered its findings and conclusions on June 10, 1982. Most significant to this case is the finding that claimant's back instability was unrelated to the suffered in his industrial accident. foot injury In this regard the court stated : I1 claimant ... " (2) Claimant contends that insurer is liable to claimant for benefits related to claimant's back instability or spinal stenosis. Claimant's theory here is that the foot injury aggravated claimant's unstable back through unnatural stress caused by claimant's gait necessitated by the foot injury. "The m e d i c a l e v i d e n c e d o e s n o t s u p p o r t the causal link between claimant's c r u s h e d f o o t i n j u r y and h i s s u b s e q u e n t Dr. Hull, claimant's back p r o b l e m s . t r e a t i n g physician, admitted r e l u c t a n t l y t h a t it was p o s s i b l e t h a t c l a i m a n t ' s back c o n d i t i o n was c a u s e d by t h e f o o t i n j u r y , b u t he was inclined against such a c o n n e c t i o n b e i n g made. " T h e r e i s ample e v i d e n c e t o s u p p o r t D r . Hull's opinion i n t h e f a c t t h a t claimant d i d n o t complain a b o u t h i s b a c k p r o b l e m s u n t i l a f t e r f o u r months had e l a p s e d from Since section the t i m e of the injury. 39-71-119(1), MCA, the injury statute, r e q u i r e s t h a t t h e r e must b e a c a u s a l connection between the injury and claimant's physical condition, claimant's contention regarding benefits f o r the s p i n a l s t e n o s i s must b e d e n i e d f o r l a c k of proof o f t h e c a u s a l connection, e i t h e r d i r e c t l y o r by a g g r a v a t i o n , r e q u i r e d by the i njury s t a t u t e . " Claimant's at five permanent p a r t i a l percent thereupon. impairment, l e v e l was s e t disability and INA commenced payments S u b s e q u e n t l y , i n J u l y o f 1 9 8 3 , c l a i m a n t underwent a n o p e r a t i o n t o remove a neuroma on t h e c r u s h e d f o o t . After that total operation benefits. Dr. reinstated INA claimant's temporary H u l l i n d i c a t e d t o I N A t h a t c l a i m a n t would b e a b l e t o r e t u r n t o work a p p r o x i m a t e l y s i x weeks from t h e d a t e of surgery. 1983 16, I N A w r o t e t o c l a i m a n t and h i s a t t o r n e y on August indicating to them that based on p r o g n o s i s t h a t b e n e f i t s would b e d i s c o n t i n u e d from t h e d a t e o f pay t h e letter. claimant temporary t o t a l after the letter. notice November 1 , 1983. Apparently, benefits Hull's fourteen days INA continued t o b e n e f i t s beyond These Dr. fourteen days w e r e paid until On November 22, 1983 I N A w r o t e t o c l a i m a n t and h i s a t t o r n e y e n c l o s i n g f i n a l payment t o November 1, and i n d i c a t i n g t h a t payments would be d i s c o n t i n u e d . O n December filed a second aggravation of 19, 1983 c l a i m a n t , petition the previous for through a new a t t o r n e y hearing. injury; that He claimed an new e v i d e n c e was a v a i l a b l e i n d i c a t i n g t h a t c l a i m a n t ' s back i n j u r y was c a u s a l l y related t o h i s foot injury; and f i n a l l y t h a t INA had f a i l e d t o g i v e t h e required fourteen days n o t i c e . D e f e n d a n t f i l e d a m o t i o n and b r i e f o p p o s i n g c l a i m a n t ' s petition foot Court to re-litigate i n j u r y and back issued specifically an the causal condition. opinion reserved its The Workers' on this ruling dismiss claimant's p e t i t i o n , connection on between the Compensation issue. The defendant's court motion to b u t set f o r t h t h e scope o f t h e second h e a r i n g : "Thus, it a p p e a r s t h a t t h e c l a i m a n t h a s alleged s u f f i c i e n t f a c t s necessary t o sustain the petition filed in the instant case. E v i d e n c e o f new m e d i c a l f i n d i n g s or subsequent events must first be reviewed by t h i s C o u r t b e f o r e a d e c i s i o n on a m o t i o n t o d i s m i s s c a n b e made. A d i s m i s s a l may b e i s s u e d , a f t e r a r e v i e w of the new evidence, under section 25-11-102, MCA o n l y i f t h e new e v i d e n c e i s u n l i k e l y t o change t h e r e s u l t upon a new t r i a l ; it may be d i s m i s s e d u n d e r s e c t i o n 39-71-2909, MCA o n l y i f t h e r e d o e s n o t a p p e a r t o be a new and more serious feature of the prior injury." Fol-lowing t h e hearing, the court made the following findings : "12. The C o u r t f i n d s no new e v i d e n c e was p r e s e n t e d which would l i k e l y c h a n g e t h e r e s u l t upon a new t r i a l . 1 3 The C o u r t f i n d s t h e r e d o e s n o t a p p e a r t o b e a n e w and more s e r i o u s feature of the p r i o r injury." Based upon petition. (1) these findings, Claimant a p p e a l s , The court erred the court dismissed raising the in failing claimant's following to award issues: claimant b e n e f i t s f o r h i s back i n j u r y . (2) The c o u r t e r r e d i n f a i l i n g t o f i n d t h a t c l a i m a n t i s e n t i t l e d t o f u r t h e r t e m p o r a r y t o t a l d i s a b i l i t y b e n e f i t s by reason of h i s f o o t i n j u r y alone. (3) Whether defendant the failed t o give t h e proper f o u r t e e n day n o t i c e o f t e r m i n a t i o n o f b e n e f i t s . A determination of o c c u p a t i o n a l i n j u r y and award made t h e r e o n by t h e Workers1 Compensation C o u r t maybe r e o p e n e d on either of two 39-71-2909, grounds. First by authority of section MCA which s t a t e s i n p a r t : "Authority to review, diminish, or increase awards--limitation. The judge may, upon t h e p e t i t i o n o f t h e c l a i m a n t o r an i n s u r e r t h a t t h e d i s a b i l i t y o f t h e c l a i m a n t h a s changed, review, d i m i n i s h , o r i n c r e a s e i n a c c o r d a n c e w i t h t h e law on b e n e f i t s a s s e t f o r t h i n c h a p t e r 71 o f this title, any benefits previously awarded by t h e j u d g e o r b e n e f i t s r e c e i v e d by a claimant through settlement agreements. " Secondly, section 25-11-102, provides MCA, that a former v e r d i c t o r d e c i s i o n may b e v a c a t e d and new t r i a l g r a n t e d upon application i f the substantial r i g h t s of t h e applicant w e r e materially affected by: " . . . newly discovered evidence m a t e r i a l f o r t h e p a r t y making t h e a p p l i c a t i o n which h e c o u l d not, w i t h r e a s o n a b l e d i l i g e n c e h a v e d i s c o v e r e d and p r o d u c e d at trial ... l1 Moen v . Peter K i e w i t A t t h e h e a r i n g on c l a i m a n t ' s was w h e t h e r ground and Sons Co. petition, the sole issue t h e evidence presented warranted, s t a t e d above, under e i t h e r a r e o p e n i n g o f t h e 1981 o r d e r . t h e f o r m e r , F i n d i n g no. (Mont. As to 13, t h a t " t h e c o u r t f i n d s t h a t t h e r e d o e s n o t a p p e a r t o b e a n e w and more s e r i o u s f e a t u r e o f t h e prior i n j u r y " mandates t h e c o u r t ' s 39-71-2909, Claimant MCA, argues did not warrant a that subsequent to conclusion that reopening of the prior section t h e order. hearing, it became a p p a r e n t t h a t h i s back i n j u r y was c a u s a l l y r e l a t e d t o t h e occupational foot injury. The c o u r t i n t h e p r i o r o r d e r s p e c i f i c a l l y f o u n d , a s s t a t e d a b o v e , t h a t t h e r e was no c a u s a l relation between the two. Larson, in this treatise, states the general rule: "At the administrative level, awards can be reopened by the compensation board for modification to meet changes in claimant's condition, such as increase, decrease or termination of disability. On a reopening for changed condition. no other issues mav be relitigated , and the claimant ' s eviience must bear directly upon the comparison between his former and present disability. A few jurisdictions afford their commission's broad power to reopen cases in the interest of justice or for Larson, Workmen's anv aood reason. " Compensation Law, Vol. 3, S81.00 (1983 ed. ) (Emphasis added. ) ... a 2 . The first question 39-71-2909 is a presented is is whether section change of condition statute or a reopening" type of statute. statute here clear in "broad We find that the language of the that it requires that the Workers' Compensation Division may only reopen an award if it finds that "the disability of the claimant has changed." Thus, claimant's reliance on O'Keeffe v. Aerojet-General Shipyards, lnc. which (1971), 404 U.S. 254, 92 S.Ct. 405, 30 L.Ed.2d the United States Supreme Court 424, in interpreted the Longshoremen's Act as being a broad reopening type of statute (characterized by Larson as the "sweeping concept or' the re-opening power under the Longshoremen ' s Workmen's Compensation Law, Vol. Act" Larson , 3, ยง8l152B, (1983 ed.) is inapposite. Under a "change of condition" statute such as 39-71-2909, MCA the reopening proceeding may not be used to retry issues originally settled. Again, Larson states: I1[T]he issue before the board is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based. If the original award held that there was no connection between the accident and claimant's permanent disability, there is nothing to reopen, and claimant cannot retry the issue of work-connection through the device of a reopening petition." Larson, supra, S81.32A. This result is supported by case law from other western states. In Deaton v. State Accident Insurance Fund (0r.App. 1978), 576 P.2d 35, the Oregon Court of Appeals held that claimant's disability could not be relitigated in a reopening petition. The Oregon court in that case noted: "At the heart of claimant's position is his belief that his initia 1 determination was erroneous and that he should have been found permanently totally disabled. However that may be, the initial determination cannot be relitigated in an aggravation claim." Supra at 35. In Judd v. The same observation applies to this proceeding. Industrial Commission Arizona Supreme (Ariz.App. 1975) , 532 P.2d Court held that, absent 196, the mistake or misrepresentation in a prior proceeding, any determination of causal relation is res judicata. Again, the Arizona Supreme Court made an observation applicable here: "The claimant in this case was represented by able counsel throughout the numerous hearings before the Commission; the issues of the relationship of claimant's back problem to his industrial injuries were fully 1 itigated before the hearing officer Ellig; Hearing Officer Ellig in a formal award held there was no causal connection between claimant's back problem and his industrial injury; the claimant has never sought review of that award; following that award the claimant sought and was granted a change of hearing officers; claimant attempted before a new hearing officer and with new medical experts to relitigate the issue of the causal connection between his back problem and his industrial injury." Since the causation issue is res judicata, the only issue presented to the Workers1 Compensation Court in this second proceeding occupational was whether foot injury had in claimant's some way original changed. The Workers' Compensation Court found that it had not, and that in fact his c o n d i t i o n had improved. h a v e examined We the r e c o r d i n t h i s r e g a r d and f i n d t h a t t h e c o u r t d i d n o t e r r i n making t h i s f i n d i n g . the test of This Court has c o n s i s t e n t l y held t h a t sufficiency of is evidence whether there is s u b s t a n t i a l evidence t o support t h e c o u r t ' s findings of f a c t ; and we w i l l not substitute our judgment for the Workers' Compensation C o u r t i n d e t e r m i n i n g t h e w e i g h t and c r e d i b i l i t y to be given Company the Lamb 1 9 8 4 ) , 684 P.2d (Mont. testimony. 498, v. Universal 4 1 St.Rep. Insurance 1414. Here t h e c l a i m a n t t e s t i f i e d t h a t h e was a b l e t o g e t a r o u n d b e t t e r on his improved foot. his Subsequent foot. medical Testimony both treatment of continually claimant's medical d o c t o r and a v o c a t i o n a l s p e c i a l i s t b o t h s u p p o r t e d d e f e n d a n t ' s contentions limited that claimant employment. substantial evidence was This and increasingly finding thus was it w i l l not able to gain supported be by overturned. The s e c o n d g r o u n d upon w h i c h a new t r i a l may b e g r a n t e d i s t h a t contained I n Moen v . in s e c t i o n 25-11-102, Peter Kiewit and Sons Co., MCA, quoted above. supra, we explained this statute: "This decade' s-old s t a n d a r d h a s been f l e s h e d o u t by c a s e law e s t a b l i s h i n g t h a t t h e d e c i s i o n t o g r a n t o r d e n y a new t r i a l i s w i t h i n t h e sound d i s c r e t i o n o f t h e trial court, and will not be o v e r t u r n e d a b s e n t a showing o f a m a n i f e s t abuse of t h a t d i s c r e t i o n To w a r r a n t t h e g r a n t i n g o f a new t r i a l on t h e g r o u n d o f n e w l y d i s c o v e r e d e v i d e n c e , it m u s t appear t o t h e court t h a t t h e r e is a reasonable probability that, upon a will retrial, the evidence proposed change t h e r e s u l t . " ( C i t a t i o n s omitted. ) s u p r a , 655 P.2d a t 487, 39 S t . R e p . a t 2215. ... ... In Finding presented trial." no. 12 t h e w h i c h would Dr. Hull, court found " n o new e v i d e n c e l i k e l y change t h e r e s u l t upon claimant's t r e a t i n g physician, ... a new testified t h a t h e c o u l d n o t s a y w i t h any d e g r e e o f medical c e r t a i n t y t h a t c l a i m a n t ' s b a c k p r o b l e m was c a u s e d b y h i s f o o t i n j u r y . He further claimant's stated low t h a t he back had pain. no o b j e c t i v e Dr. Hull's findings a s to notes of various examinations o f c l a i m a n t suggested t h a t c l a i m a n t ' s back p a i n was c y c l i c a l This indicated to the doctor t h a t in nature. t h e r e w a s n o t n e c e s s a r i l y a c a u s a l r e l a t i o n b e t w e e n t h e two injuries. Claimant himself testified that his back had g o t t e n a l i t t l e b e t t e r i n t h e l a s t few y e a r s i n t h a t he s t i l l had t h e same p a i n b u t n o t a s o f t e n . Claimant argues that t h e Workers' Compensation Court e r r e d i n s o f a r a s it s e t f o r t h " r e a s o n a b l e m e d i c a l c e r t a i n t y " as the standard Strandberg v. c l a i m a n t was Reber Co. required t o meet. ( 1 9 7 8 ) , 1 7 9 Mont. He cites 1 7 3 , 587 P.2d 18, and c o n t e n d s t h a t it s t a n d s f o r t h e r u l e t h a t a l l a c l a i m a n t i s r e q u i r e d t o show i s t h a t it was " m e d i c a l l y p o s s i b l e " occupational i n j u r y aggravated a pre-existing pertinent portion of Strandberg, supra, condition. states as an The fo1I.ows: "All that is necessary is t h a t the accident aggravated o r accelerated t h e preexisting disease o r disability. Under such circumstances the c l a i m a n t must 'produce sufficient evidence, direct, i n d i r e c t or c i r c u m s t a n t i a l t o cause i n t h e u n p r e j u d i c e d mind a c o n v i c t i o n t h a t s u c h was t h e f a c t . ' Proof t h a t it was m e d i c a l l y p o s s i b l e f o r a n i n d u s t r i a l accident to aggravate a preexisting is acceptable proof of condition disability." (Citations omitted.) Supra, 1 7 9 Mont. a t 1 7 6 , 587 P.2d a t 20. ... S e e a l s o Bykonen v. Montana Power C o . , (Cause N o . 84-506, Regis Paper Co. simply possibilities workers' provides 1 1 4 0 , 38 S t . R e p . that expert prove compensation his case 2201. testimony on i s competent evidence a d m i s s i b l e i n a proceeding. It is e v i d e n c e and d o e s n o t a f f e c t t h e c l a i m a n t ' s to P.2d decided J u l y 30, 1985); Jones v. S t . (Mont. 1 9 8 1 ) , 639 P.2d Strandberg medical (Mont. 1 9 8 5 ) , by a preponderance of a standard of u l t i m a t e burden the evidence. "Medical evidence; if be to weighed to be determination. used Medical just as any o t h e r i n d e p e n d e n t e v i d e n c e it i s supported by o t h e r , "acceptable" though, is possibility" by the court possibility in its making evidence by itself , d o e s n o t mandate a c o n c l u s i o n t h a t t h e c l a i m a n t h a s m e t h i s burden of proof under t h e A c t . Strandberg In unequivocal medically the testimony of possible Court two went on expert witnesses claimant's pre-existing aggravated by h i s occupational i n j u r y . independent Here, evidence was D r . Hull, supporting and h i s that the record supports "cautious 580.32, their medical interpreted in that the i t was condition was T h e r e was a l s o o t h e r claimant's position. equivocal. The o t h e r Each p a r t y h a s b e e n a b l e t o c u l l select t e s t i m o n y and o t h e r e v i d e n c e position. testimony'' favor of Though should, the in the evidence to support record we recognize whenever claimant, is there credible and quote The o n l y m e d i c a l e x p e r t t e s t i m o n y was e v i d e n c e g o e s b o t h ways. through the is not so clear. t h e record to see possible, Larson, sufficient the that Workers' be supra substantial Compensation C o u r t ' s d e t e r m i n a t i o n a n d t h u s it m u s t s t a n d . Claimant's similar claimant not will and contends making a s e c o n d and be discussed t h e Workers' finding t o t a l l y disabled. third In on allegations of together. In Compensation whether the third, h e was he error are the second, Court e r r e d still in temporarily argues t h a t t h e court made a s i m i l a r e r r o r i n n o t f i n d i n g t h a t c l a i m a n t ' s b e n e f i t s w e r e discontinued without t h e r e q u i r e d f o u r t e e n day n o t i c e . As to both, claimant requests this Court to either enter judgment i n h i s f a v o r o r remand t o t h e W o r k e r s ' C o m p e n s a t i o n C o u r t f o r f i n d i n g s on t h e s e i s s u e s . to As the above two issues presented in claimant's p e t i t i o n , t h e Workers' Compensation C o u r t i n t h e f i n d i n g s and conclusions stated: " F i n d i n g n o 1 4 . The C o u r t f i n d s t h a t t h e d e f e n d a n t ' s motion t o d i s m i s s should b e granted. " C o n c l u s i o n no. 3 . The e v i d e n c e d o e s n o t e s t a b l i s h t h a t claimant is e n t i t l e d t o f u r t h e r b e n e f i t s now [ s i c ] [ n o r ? ] t h a t t h e claimant's b e n e f i t s were wrongfully terminated. "Conclusion entitled claimant's Under t h e r u l e (1968), Becker no. 6. The d e f e n d a n t is to judgment dismissing petition with prejudice." s e t f o r t h i n Mondakota 1 5 1 Mont. 513, 445 P.2d Gas Company v . 745, the FTorkers' Compensation Co u rt o r d e r i s e f f e c t i v e t o d i s m i s s t h e s e c o u n t s of claimant's petition. argument similar to I n Mondakota t h i s C o u r t a d d r e s s e d a n the one raised of fact and in the case at bar: of law w e r e s p e c i f i c e n o u g h t o comply w i t h R u l e 4 1 ( b ) M.R.Civ.P. There, whether the findings conclusions under t h e p a r t i c u l a r circumstances o f t h a t c a s e , t h i s Court u p h e l d t h e s u f f i c i e n c y o f t h e d i s t r i c t c o u r t f i n d i n g t h a t "no a c t i o n e x i s t s o r h a s been proven" i n meeting t h e f i n d i n g r e q u i r e m e n t o f R u l e 4 1 ( b ) , M.R.Civ.P. Secondly, t h e cause of Mondakota C o u r t uphel-d t h e s u f f i c i e n c y o f t h e l o w e r c o u r t ' s conclusion o f and decreed dismissed and "it i s t h e r e f o r e o r d e r e d , law t h a t ; that said cause the plaintiff 1 5 1 Mont. a t 5 1 7 , 445 P.2d I n Holloway v . 1 9 8 , 582 P . 2 d be and the same adjudged is take nothing thereby." hereby Supra, a t 748. U n i v e r s i t y o f Montana ( 1 9 7 8 ) , 1 7 8 Mont. 1265, t h i s Court d i s c u s s e d what t y p e s o f f a c t s a r e s u f f i c i e n t t o m e e t t h e f i n d i n g requirement o f Rule 4 1 ( b ) : "Findings should be limited to the u l t i m a t e f a c t s and i f t h e y a s c e r t a i n u l t i m a t e f a c t s , and s u f f i c i e n t l y conform t o t h e p l e a d i n g s and t h e e v i d e n c e t o will be support the judgment, they regarded a s s u f f i c i e n t , though n o t a s f u l l and c o m p l e t e a s m i g h t b e d e s i r e d . " S u p r a , 1 7 8 Mont. a t 2 0 3 , 582 P.2d a t (Utah 1268, c i t i n g Pearson v. Pearson 1 9 7 7 ) , 5 6 1 P.2d 1 0 8 0 . we Here find that C o n c l u s i o n no. Mondakota, the Workers' Compensation Court's q u o t e d a b o v e meets t h e t e s t s e t f o r t h i n 3, s u p r a and Holloway, supra, f o r findings of fact. I t f a i r l y conforms t o and a d d r e s s e s t h e a l l e g a t i o n s c o n t a i n e d i n claimant's petition. Although denominated a ''conclusion o f law" t h e s t a t e m e n t made by t h e c o u r t i s more o f a f i n d i n g of not The mere f a c t t h a t i t i s i m p r o p e r l y d e n o m i n a t e d i s fact. dispositive. Since the requirement c o n c l u s i o n s i n R u l e 4 1 ( b ) , M.R.Civ.P., for findings and is primarily t o serve a n o t i c e f u n c t i o n f o r t h e p u r p o s e s o f res j u d i c a t a , e s t o p p e l , and a p p e a l , the t h e proper inquiry insofar a s t h e sufficiency of o r d e r i s t o determine whether w i t h i n lower c o u r t ' s the body o f t h a t o r d e r t h e r e q u i s i t e e l e m e n t s a r e m e t . A t t h e h e a r i n g b o t h p a r t i e s p r e s e n t e d e v i d e n c e a n d made arguments on addresses and require an technical Workers' these issues. settles The w h o l e o r d e r , those administrative requirements issues. tribunal the of It to rules Compensation C o u r t d i d i t s job; f a i r l y read, is not strictly of proper to conform t o practice. The it heard and f a i r l y c o n s i d e r e d t h e i s s u e s r a i s e d and e v i d e n c e p r e s e n t e d , and d i d n o t c l e a r l y avoid d e c i d i n g t h e former. The l o w e r c o u r t ' s C o n c l u s i o n no. no. 14, for requirement order the for dismissing judgment reasons stated conclusions an action on t h e m e r i t s . of above, law. "with K e l l y v. 6 a s w e l l a s Finding meet t h e Mondakota Finally, prejudice" Harris we note acts (D.C.Mont. as an a 1958), 1 5 8 F.Supp. of 243. Claimant does n o t a l l e g e an i n s u f f i c i e n c y evidence i n t h i s and t h e r e f o r e w e regard find t h a t the Workers' Compensation C o u r t ' s o r d e r i n t h i s c a s e a c t e d a s a judgment against claimant on the merits of his petition. The o r d e r o f t h e W o r k e r s ' C o m p e n s a t i o n C o u r t i s h e r e b y affirmed. W e concur: A Chi)jf J u s t i c e A
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