*1
ASARCO,
NELSON,
ROBERT
Claimant-Appellant,
v.
D.
Respondent.
Inc., Employer,
Defendant
&
No. 86-370.
March
Submitted on Briefs
Decided June
Smith Law Robert J. for claimant- appellant. Kellner, Alke, Kellner, Helena,
Hughes, Sullivan & Stuart L. *2 employer, respondent. & defendant Opinion
MR. CHIEF JUSTICE TURNAGE delivered the Court. 14, 1986, appeals July
Robert Nelson decision of the Workers’ Court which denied Nelson’s claim for benefits. We affirm. presents
Nelson two issues for our review: support Compen- Did substantial credible evidence sation Court’s conclusion that Nelson failed an to establish arising employment? out of and the course of his Compen- Did substantial credible evidence sixty-day sation Court’s conclusion that Nelson failed to meet the notice of Section MCA? 10, 1979, February
On age fifty-two, began at Robert Nelson work- ing 25, April 1982, for ASARCO at its East Helena smelter. On Nel- working day son was alleges shift at the smelter. Nelson operating while moving front-end loader and ore bodies around yard, stepped forty-to-fifty pound body he down to remove a ore from the momentarily equilib- bucket. Nelson claims that he lost his rium, general felt a sense of in his weakness and lost sensation foreman, hands and Hagen, arms. He testified that his Reuben grabbed prevent falling Nelson him from and asked if Nelson was right. all working Nelson recovered and finished his shift. Nelson did April 27, 1982, reported not work on 26 and due to a sickness as a cold. 27, 1982,
On complained Nelson to Dr. Jerome Kremer of pain any pain his left knee. Nelson in his shoul- did not mention der, 28, 1982, arm or hand. He and returned to work 24, regular May May worked shifts until 1982. On Nelson shoulder, saw Dr. again, complaining Kremer this time arm and hand discomfort. May 19, 1982,
On both Dr. Kremer and Dr. David Bossier reexam- syn- diagnosed having ined Nelson and Nelson as thoracic outlet Dr. Dr. Kremer or Bossier that drome. At no time did Nelson advise smelter. in an at the ASARCO On he had himself accident Bossier, Kremer, surgically by Dr. re- May Dr. assisted syn- rib outlet right sected Nelson’s first to relieve thoracic Kremer, 1982, Bossier, 17, surgi- Dr. Dr. drome. On assisted June cally resected first rib. Nelson’s left resections, claimed
During the rib Nelson time between plan. given a blank benefits under health Nelson was ASARCO’s complete One how to it. line statement claim form advised if was in- accident requested the claim form detailed information sign failed to volved. Nelson this line blank. Nelson also left form, secretary signed the so it could be claim office form but the 1983, 24, February processed. May under Between $6,475 weekly benefits plan, ASARCO’s Nelson received health $18,353 in medical benefits. Dr. to see until Novem- Kremer and Dr. Bossier continued Nelson Schemm, George he was ber at which time referred complaints in neurologist, regarding persistent Nel- for consultation upper surgi- Dr. Schemm son’s extremities. On December cally performed láminectomy relieve cervical a cervical spondylosis. incident, July
On fifteen months after the *3 4, 1983, compensation August filed a claim for benefits. On workers’ 10, 1985, was On the case heard ASARCO denied the claim. October examiner, not entitled to before an who determined that was Nelson 14, 1986, July compensation the Workers’ workers’ benefits. On proposed Compensation adopted hearing find- Court examiner’s ings appeals Nelson that decision. conclusions.
Issue 1 Compensa-
Did substantial credible evidence Workers’ injury an aris- tion Court’s conclusion that failed to establish Nelson employment? ing out of and in the course of his hearing not carried the The examiner concluded that “has 1982, April 25, injury was an proving burden of that his of required arising employment his as injury out of and the course of 39-71-119(1) 39-71-407, by MCA.” Sections MCA, tangible hap- 39-71-119(1), injury an as “a Section defines unexpected cause or unusual pening of a nature an traumatic from resulting physical harm ...” strain or internal either external MCA, “Every liable for the insurer states:
275 payment employer it in- employee of ... of an to injury arising sures who receives an out and in the course of his of employment . .” . drawn,
Nelson contends that the to most reasonable conclusion be trial, from all presented the facts and he circumstances at is that compensable injury suffered job April on while at ASARCO on 25, 1982. Nelson asserts that moving the strain caused the ore body medically out causing of the bucket is consistent with the on- symptoms, set of his and that there is no medical evidence contrary. anyone
ASARCO contends that neither Nelson nor on his behalf gave April sixty ASARCO notice days on or within thereaf- ter, place occurred, of the time and where an accident had any injury resulting nature of from such accident. Nel- son any did not inform of his three doctors that he incurred a work- Nelson, related on argues 1982. ASARCO that be- yond presented his testimony, own objective indicating no evidence he type injury April suffered of 1982. Given Nelson’s evidence, ASARCO Compensation concludes that correctly Court determined that Nelson failed to meet his burden of proof in establishing injury. a work-related reviewing Court,
When a decision of we will not judgment substitute our for the trier fact of unless the clearly decision exist, Although may erroneous. factual conflicts we will not disturb the court’s it supported decision when is sub- Royal stantial Company credible v. evidence. Tenderholt Insurance (Mont. 1985), America 523,] Mont. 709 P.2d [218 St.Rep. 1792, 1795. prove, by The burden was on preponderance Nelson to credi- evidence, ble that a contributing work-related incident was a cause (1979), injury. his work-related Dumont v. Wickens Mont. incident, attempting 598 P.2d prove 1105. In foreman, Hagen, helped Nelson testified that his Reuben regain right. Hagen balance and that if was all asked Nelson testimony directly testimony
Nelson’s conflicts with the Reuben Hagen, City who stated he and his wife were New York p.m. and did not until return East Helena 10:00 *4 day. Hagen’s testimony supported by pay slips, that was Hagen which showed on vacation addition,
In following alleged Nelson’s conduct incident did not indicate that an Nelson missed work on occurred. cold, injury. He continued to work due to a not an May any indication of an regular through shifts without May injury. Although surgery 27 and June Nelson underwent alleged injury. physician about his he did not advise either doctors, testimony effectively his who be- Nelson’s rebutted they treating was unrelated to lieved that the condition were occupation. about tho- trauma from Dr. Kremer testified Nelson’s syndrome following exchange: racic outlet in the problems, “Q. your past experience kinds of Based on with these they you opinion typically manifest them- do have an as to how that, onset, they develop By mean, I over selves? is it a sudden or do progressively? time suddenly very doesn’t gradual
“A. It’s a onset because the muscle something hypertrophy. overnight. It’s something It isn’t that occurs slowly up that . . .” builds
Dr. Kremer incident could not also testified that Nelson’s syndrome: cause thoracic outlet
“Q. Doctor, your syn- opinion, was Mr. Nelson’s scalenus anticus syndrome attempting lift a drome or outlet caused his thoracic 40-pound piece ground within a month or of ore off the at ASARCO prior your first examination? way single that to
“A. No. There’s no that a situation can cause happen.” syndrome is Dr. thoracic outlet Bossier testified that twenty-six congenital problem. Dr. Bossier also testified
years tho- practice, he has never seen a case of traumatic medical syndrome racic had no evidence of trauma: outlet that Nelson “Q. in- During surgery, you anything that would be find recently prior surgery? dicative of trauma that occurred “A. No.” gradu- arose Schemm testified that Nelson’s cervical condition
ally from a combination of factors: problem usually
“I combination think that his kind of due to a words, starting problems. perhaps things, or abnormal In other life, having, in addi- out with a narrow canal from earlier and then tion, joints spinal changes these in the canal and the wear and tear However, spinal accelerate that canal. individual trauma can process, kind of or add to it.”
Dr. Schemm condition was consistent also testified that Nelson’s syndrome, that the condi- diagnosis with the of thoracic outlet period prior April tion existed for a of time considerable
277 conclusion, Compensa- In we will the accord deference to Workers’ credibility judgment weight conflicting tion Court’s toas the and of Company Frost v. (Mont. 1985), Anaconda evidence. Mont. [216 387,] case, 42 St.Rep. 701 P.2d In the instant the exhibits, court all pleadings, depositions reviewed the testi- and Leasing Co., mony. (1978), v. 93 Inc. As we held 177 Steffes 83, 86-87, judg- Mont. 580 P.2d 453: “We cannot substitute out ment for weight that of the trial court to the as the of evidence on questions of support fact. Where there is the substantial evidence findings Court, of Compensation this Court cannot overturn that decision.” have repeatedly
We held that the claimant of es- bears the burden Billings tablishing right Gierke v. Gazette compensation. (Mont. 1986), 446,] St.Rep. Mont. 730 P.2d [224 prove 2329. Nelson injury has failed that he suffered an 25,1982. preponderance We hold that the of ev- substantial credible fully supports idence Compensation the decision of the Workers’ Court. We affirm on this issue.
Issue 2
Did substantial credible evidence the Com Workers’ pensation sixty- Court’s conclusion that Nelson failed to meet the day requirements notice of Section MCA? 39-71-603, MCA, states:
“No claim Compensation to recover benefits under Act, injuries death, may for resulting compen- not be considered days within 60 the occurrence of the accident unless, sable after which is notice injury, claimed to have the of caused the time and place injury where the accident occurred and the of the is nature given employer to the employer’s or the insurer the em- ployee or employee’s someone knowledge on the behalf. Actual of the injury part employer accident ... on the of equivalent [Emphasis to notice. added.]”
The adopted Workers Court the conclusion examiner, hearing who stated: present claimant did not
“The preponderance of the credible proof employer given evidence that sufficient notice was to the satisfy requirements supported of The the statute. evidence employer conclusion had no notice of the days 60-day for almost 400 after the incident. This far exceeds the [Emphasis statutory requires the denial the claim. maximum and added.]” period begin to run until not
Nelson contends the claim problem. recognize Nelson had reason to the serious nature did not until November recognition Nelson asserts that this occur plainly However, un- record shows that Nelson review of the our injury. procedure reporting He derstood the preceding properly reported injuries to within had ASARCO years. on the differences three instructed plan health at his between workers’ employee made no men- orientation 1979. Yet Nelson conference *6 year approximately one alleged injury tion of his ASARCO alleged after the incident. syndrome, but surgeries underwent for thoracic outlet two alleged incident. Dr.
never Dr. Bossier Kremer about the told or Dr. them, you questions first ask Kremer testified: “This is one job happen?’ it on the ‘How it Never was there mention of injury.” knowledge first of the incident kind of Dr. Schemm’s just prior deposition in when Nel- occurred to his December attorney may have him- son’s told Schemm that self on notify physi- ample and his opportunity
Nelson had Nelson, through alleged injury. fail to see how cians of We visits, multiple possibly surgeries could misunderstand medical of his His the seriousness condition. We
appears product inspiration, recognition. hold to be not Section 39-71- that Nelson failed to the notice meet 603, MCA. issues. both
We affirm the Workers’ Court on concur. MR. JUSTICE HARRISON and GULBRANDSON SHEEHY, specially concurring: MR. JUSTICE I concur in the result. HUNT, specially concurring:
MR. JUSTICE required by days as give notice in 60 Because claimant failed to 39-71-603, MCA, I in the concur result.