Burns v. Plum Creek Timber Co., 94-145

• Decision Date: 22 November 1994
• Docket Number: No. 94-145,94-145
• Citation: 885 P.2d 508,268 Mont. 82,51 St.Rep. 1175
• Parties: LaVern F. BURNS, Petitioner and Appellant, v. PLUM CREEK TIMBER COMPANY, Respondent, Insurer and Respondent.
• Court: Montana Supreme Court

Page 508

885 P.2d 508

268 Mont. 82

LaVern F. BURNS, Petitioner and Appellant, v. PLUM CREEK TIMBER COMPANY, Respondent, Insurer and Respondent.

No. 94-145.

Supreme Court of Montana.

Submitted on Briefs Aug. 11, 1994.

Decided Nov. 22, 1994.

Dean K. Knapton, Kalispell, for appellant.

Kelly M. Wills; Garlington, Lohn & Robinson, Missoula, for respondent.

GRAY, Justice.

LaVern F. Burns (Burns) appeals from the Findings of Fact, Conclusions of Law and Judgment entered by the Workers' Compensation Court. We conclude that substantial evidence supports the court's decision; therefore, we affirm.

Burns filed a petition for hearing in the Workers' Compensation Court on April 1, 1993. 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' Compensation Court on October 13, 1993. Burns testified in person and presented three other witnesses on his behalf. Testimony from doctors Gregory Luna (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 its findings, conclusions and judgment on March 18, 1994. 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 rejected portions of his uncontroverted testimony and that of his wife, finding that testimony not credible. 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 Parcel Service (1992), 254 Mont. 71, 75, 835 P.2d 717, 720. Where 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. Smith, 835 P.2d at 720.

It is undisputed that § 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 'caused by' the accident." Here, the parties presented conflicting evidence regarding 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. He testified that he quit weight-lifting activities around that 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 16, 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 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. He told his supervisor that his arm 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. He testified that he noticed the tingling in his hand and arm 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, on returning home after the March 16 shift, he merely told Pam that his arm ached and hurt. This testimony corresponded...