BURNS v PLUM CREEK TIMBER CO
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No. 94-145 IN THE SUPREME COURT O F THE STATE O F MONTANA 1994 -vsPLUM CREEK TIMBER COMPANY, F Respondent, Insurer anq Respondent. APPEAL FROM: Workers1 compensation Court, State of ~ o n t d p a , The,Honorable Mike McCarter, Judge presiding. COUNSEL OF RECORD: For Appellant: Dean K. Knapton, Attorney at Law, Kalispell, Montana For Respondent: Kelly M. Wills; Garlington, Lohn Missoula, Montana & Robinson Submitted on Briefs: August 1 Decided: November Justice Karla M. Gray delj,vered the Opinion of the Court. LaVern F. Burns (Burns) appeals from the Findings of Fact, Conclusions of Law Compensation Court. and Judgment entered by the Workers' We conclude that substantial evidence supports the court's decision: therefore, we affirm. Burns filed a petition for Compensation Court on April 1, 1993. hearing in the Workers' He alleged that he suffered an industrial injury to his arm on March 16, 1992, arising out of the course of his employment as a spreaderman with Plum Creek Manufacturing. Plum Creek Timber Company (Plum Creek) responded and clarified that it had been Burns' employer at the time of the alleged industrial injury. The action proceeded and a Pre-Trial Order was entered. The parties agreed that Burns had suffered an injury in 1985, prior to his employment by Plum Creek in 1987, which was diagnosed as a right subclavian vein thrombosis. The parties also agreed that, on March 17, 1992, Burns was diagnosed with a right subclavian vein thrombosis (hereafter "rethrombosis"). The parties disagreed over whether the 1992 rethrombosis resulted from an injury as defined by the Montana Workers' Compensation Act (the Act), with Burns contending that his "condition arose during a single work shift as a result of an unexpected traumatic incident or unusual strain to his arm/shoulder during his 3/16/92 shift." Trial was held before the Workers' October 13, 1993. Compensation Court on Burns testified in person and presented three other witnesses on his behalf. Testimony from doctors Gregory Luna 2 (Luna), Joseph Knapp (Knapp), and Charles Swannack (Swannack) was presented by deposition. Burns' medical records and a videotape of the spreader machines involved in Burns' job were admitted as exhibits. The Workers' Compensation Court entered conclusions and judgment on March 18, 1994. its findings, The court made detailed findings and, on the basis of those findings, determined that Burns had not established entitlement to benefits by a preponderance of the credible evidence. Burns appeals. Does substantial credible evidence support the Workers' Compensation Court's findings? Burns does not argue that there is insufficient evidence to support findings made by the Workers' Compensation Court. He asserts that the court improperly uncontroverted and that of his wife, testimony testimony not credible. rejected portions of his finding that He also contends that the court failed to give sufficient weight to evidence from treating physicians. In essence, Burns argues that sufficient evidence exists to support findings different from those made by the court. That is not, however, the applicable standard. We review the findings and decision of the Workers' Compensation Court to determine whether they are supported by substantial credible evidence. Smith v. United (1992) I 254 Mont. 71, 75, 835 P.2d 717, 720. Parcel Where Service conflicting evidence is presented and the credibility of witnesses or the weight to be given their testimony is at issue, we will not substitute our judgment for that of the trial court. 3 Smith, 835 P.2d at 720. It is undisputed that 5 39-71-119, MCA (1987), provides the controlling definitions with regard to the injury itself and the requisite causal connection. As we paraphrased in Welch v. American Mine Services, Inc. (1992), 253 Mont. 76, 81, 831 P.2d 580, 584, "there must be an 'injury' and an 'accident,' and the injury must be presented 'caused by' conflicting the evidence accident." regarding Here, the parties whether Burns' rethrombosis was an injury caused by an accident which occurred during Burns' employment with Plum Creek on March 16, 1992. The evidence relating to Burns' March 16, 1992, work shift was presented primarily through the testimony of Burns and his wife Pam. Burns testified about the nature of his job as a spreaderman for Plum Creek. Burns had worked for Plum Creek since 1987, but only began working on the spreaders in June 1991, as part of a four-person team which assembled plywood sheets in layers as they came through a roller. activities around that He testified that he quit weight-lifting time because the work was pretty hard and took up all his energy. Burns worked an unremarkable day shift on Friday, March 13, 1992, and had the weekend off. He and Pam both testified that the weekend was a quiet one and that Burns did nothing strenuous over that period of time. He then worked the swing shift on March lG, 1992, during which he alleged the injury occurred which caused the rethrombosis. He was working as a "core layer" at the time, catching large pieces of 4 plywood ("27s") in his right hand as they came off the roller one at a time, and using his other hand to help place each 27 onto a larger piece of plywood veneer. Burns testified that he experienced a tingling sensation in his right hand toward the end of the shift, and stopped work for a short time. supervisor that his arm He told his was bothering him, but did not report an injury or accident at that time. He returned to work and finished the shift. Other portions of Burns' testimony were not as clear. He testified at various points that he was hit by 27s in the chest or face a few times during the shift and, conversely, that he was not bumped or struck. hand and arm He testified that he noticed the tingling in his when he had his arms and hands outstretched to catch a 27; alternatively, he testified that he felt the tingling in his hand when 27s hit him in the hand. He testified that nothing unusual or unexpected occurred during the work shift at issue and that the "hits" and "bumps" he described were normal and regular happenings in performing the job of a core layer. Finally, and in response to questioning from the court, he acknowledged that he could not identify a specific bump or "catch" as the cause of the rethrombosis. Burns testified that, shift, on returning home after the March 16 he merely told Pam that his arm ached and hurt. testimony corresponded with her testimony to the direct examination. same This effect on Pam testified on cross-examination, however, that Burns told her that night that two 27s hit him in the hand. 5 The Burns court made his wife, and statements. The quit detailed noting weights lifting in June, 1991, had continued findings The heavy their We to specific the was testimony 1991, on to Dr. of their he had spreaders Knapp that time the of Compensation record of Burns are he the Court's supported Burns' by hand which the that of evidence at erroneous. He Mont. 176, 171, uncontroverted is events uncontroverted; is issue. argues presented the on 566 by credible evidence during March both American that not up Burns similar establish substitute Court credibility of not First, 16, inherently 6 determinations Honda for 1126, may here. was the credibility v. 1124, inapplicable it will observe given rejected to its a our when the 835 P.2d at 720. McGuire the and testimony and on had Compensation and court's P.2d We wife he attempted Workers' Smith, that relies the that 27s, injury. for is two trial caused his wife's at which and testimony the based findings, Burns his event witnesses of rejected in conflicting about the Workers' credibility rejected hit from Burns work until the in that statement testimony made the It in he judgment principle that testimony testimony starting his the inconsistencies Burns' after conclude hear weight-lifting testimony the weight-lifting also demeanor. her of found with concerning evidence. court opportunity also shortly regarding substantial some inconsistent rethrombosis. told court findings be the (1977), principle disregarded. Burns' 1992, Co. trial work contradictory shift and, were 173 that That testimony was in not part, controverted by his deposition testimony. specifically found Burns' Second, the court testimony to be not credible. Thus, McGuire is inapposite. Burns also contends that this case is a "mirror image" of Prillaman v. Community Medical Center (1994), P.2d 82. His reliance on Prillaman, credibility determinations, is totally 264 Mont. 134, 870 which did not involve misplaced. Nothing in Prillaman even remotely suggests that a finder of fact is required to accept nonmedical evidence without judging its credibility. In addition to the nonmedical testimony before the court, the record contained substantial and conflicting medical evidence. In Dr. Knapp's view, Burns suffered a recurrence of subclavian vein thrombosis without identifiable or documented recurrence trauma. He found no evidence linking the rethrombosis to Burns' employment and, in his opinion, there was only a 10% to 15% chance that Burns' work activities caused the rethrombosis. Dr. Swannack also was unable, to a reasonable degree of medical certainty, to relate the rethrombosis to Burns' work activities on a single day or during a single shift. He opined that the condition could have resulted from a variety of things other than injury and also could simply have been a natural consequence of the earlier thrombosis, without precipitating injury or trauma. Drs. Knapp and Swannack agreed that a thrombosis typically does not become symptomatic for three to five days after an underlying trauma. Dr. Michael Oreskovich's the rethrombosis opinion, on the other hand, was that "occurred as a consequence of an accident at 7 work." Dr. Oreskovich did not identify a specific trauma, strain or occurrence suffered by Burns during the work shift at issue which would have caused the thrombosis. Dr. Luna examined rethrombosis, on Burns more referral from Dr. than a year Oreskovich. after the His initial testimony via deposition was that he concurred in Dr. Oreskovich's opinion about what "most probably" happened regarding Burns' rethrombosis; his concurrence, however, was with a number of "qualifiers." On examination by counsel for Plum Creek, Dr. Luna was unable to opine to a reasonable degree of medical certainty that the occlusion which caused Burns' recurrent subclavian vein thrombosis arose as a result of his activities on a single work shift. The Workers' Compensation Court's findings set forth the substance of the medical evidence in some detail. We conclude that those findings, including the finding that Dr. Oreskovich's opinion was the only firm medical opinion relating the rethrombosis to a single work shift, are supported by substantial credible evidence. Importantly, opinion was deposition the court also found that Dr. contained in or trial Oreskovich's a letter rather than presented via testimony subject to cross-examination, and that Dr. Luna's initial support for that opinion was significantly qualified. On those bases, the court made a specific finding that it did not accept Dr. Oreskovich's opinion. our judgment for that of the Workers' conflicting evidence We will not substitute Compensation Court where is presented and the weight to be given 8 testimony We and that is at hold supported concur: the Workers' by AFFIRMED. We that determining the issue. the &c court Smith, did credibility Compensation substantial of 835 P.2d at 720. not the Court's credible err in weighing witnesses. findings evidence. We and the evidence further hold decision are n
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