Nelson v. ASARCO, Inc., 86-370

• Citation: 227 Mont. 272,44 St.Rep. 1074,739 P.2d 943
• Decision Date: 25 June 1987
• Docket Number: No. 86-370,86-370
• Court: United States State Supreme Court of Montana
• Parties: Robert D. NELSON, Claimant-Appellant, v. ASARCO, INC., Employer, Defendant & Respondent.

Page 943

739 P.2d 943

227 Mont. 272

Robert D. NELSON, Claimant-Appellant, v. ASARCO, INC., Employer, Defendant & Respondent.

No. 86-370.

Supreme Court of Montana.

Submitted on Briefs March 5, 1987.

Decided June 25, 1987.

Smith Law Firm, Robert J. Sewell, Jr., Helena, for claimant-appellant.

Hughes, Kellner, Sullivan & Alke, Stuart L. Kellner, Helena, for employer, defendant & respondent.

TURNAGE, Chief Justice.

Robert Nelson appeals a July 14, 1986, decision of the Workers' Compensation Court which denied Nelson's claim for compensation benefits. We affirm.

Nelson presents two issues for our review:

1. Did substantial credible evidence support the Workers' Compensation Court's conclusion that Nelson failed to establish an injury arising out of and in the course of his employment?

2. Did substantial credible evidence support the Workers' Compensation Court's conclusion that Nelson failed to meet the sixty-day notice requirements of Sec. 39-71-603, MCA?

On February 10, 1979, at age fifty-two, Robert Nelson began working for ASARCO at its East Helena smelter. On April 25, 1982, Nelson was working the day shift at the smelter. Nelson alleges that while operating a front-end loader and moving ore bodies around the yard, he stepped down to remove a forty-to-fifty pound ore body from the bucket. Nelson claims that he momentarily lost his equilibrium, felt a sense of general weakness and lost sensation in his hands and arms. He testified that his foreman, Reuben Hagen, grabbed Nelson to prevent him from falling and asked if Nelson was all right. Nelson recovered and finished working his shift. Nelson did not work on April 26 and 27, 1982, due to a sickness reported as a cold.

On April 27, 1982, Nelson complained to Dr. Jerome Kremer of pain in his left knee. Nelson did not mention any pain in his shoulder, arm or hand. He returned to work on April 28, 1982, and worked regular shifts until May 24, 1982. On May 6, 1982, Nelson saw Dr. Kremer again, this time complaining of shoulder, arm and hand discomfort.

On May 19, 1982, both Dr. Kremer and Dr. David Bossler reexamined Nelson and diagnosed Nelson as having thoracic outlet syndrome. At no time did Nelson advise Dr. Kremer or Dr. Bossler that he had injured himself in an accident at the ASARCO smelter. On May 27, 1982, Dr. Bossler, assisted by Dr. Kremer, surgically resected Nelson's first right rib to relieve the thoracic outlet syndrome. On June 17, 1982, Dr. Bossler, assisted by Dr. Kremer, surgically resected Nelson's left first rib.

During the time between the two rib resections, Nelson claimed benefits under ASARCO's health plan. Nelson was given a blank statement of claim form and advised how to complete it. One line of the claim form requested detailed information if an accident was involved. Nelson left this line blank. Nelson also failed to sign the claim form, but the office secretary signed the form so it could be processed. Between May 28, 1982, and February 24, 1983, under ASARCO's health plan, Nelson received $6,475 in weekly benefits and $18,353 in medical benefits.

Dr. Kremer and Dr. Bossler continued to see Nelson until November 1982, at which time he was referred to Dr. George Schemm, a neurologist, for consultation regarding persistent complaints in Nelson's upper extremities. On December 15, 1982, Dr. Schem surgically performed a cervical laminectomy on Nelson to relieve cervical spondylosis.

On July 14, 1983, fifteen months after the alleged incident, Nelson filed a claim for workers' compensation benefits. On August 4, 1983, ASARCO denied the claim. On October 10, 1985, the case was heard before an examiner, who determined that Nelson was not entitled to workers' compensation benefits. On July 14, 1986, the Workers' Compensation Court adopted the hearing examiner's proposed findings and conclusions. Nelson appeals that decision.

Issue 1

Did substantial credible evidence support the Workers' Compensation Court's conclusion that Nelson failed to establish an injury arising out of and in the course of his employment?

The hearing examiner concluded that Nelson "has not carried the burden of proving that his alleged injury of April 25, 1982, was an injury arising out of and in the course of his employment as required by Secs. 39-71-119(1) and 39-71-407, MCA."

Section 39-71-119(1), MCA, defines an injury as "a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm ..."

Section 39-71-407, MCA, states: "Every insurer is liable for the payment of compensation ... to an employee of an employer it insures who receives an injury arising out of and in the course of his employment ..."

Nelson contends that the most reasonable conclusion to be drawn, from all the facts and circumstances presented at trial, is that he suffered a compensable injury while on the job at ASARCO on April 25, 1982. Nelson asserts that the strain caused by moving the ore body out of the bucket is medically consistent with causing the onset of his symptoms, and that there is no medical evidence to the contrary.

ASARCO contends that neither Nelson nor anyone on his behalf gave ASARCO notice on April 25, 1982, or within sixty days thereafter, of the time and place where an accident had occurred, or the nature of any injury resulting from such accident. Furthermore, Nelson did not inform any of his three doctors that he incurred a work-related injury on April 25, 1982. ASARCO argues that Nelson, beyond his own testimony, presented no objective evidence indicating that he suffered any type of injury on April 25, 1982. Given Nelson's evidence, ASARCO concludes that the Workers' Compensation Court correctly determined that Nelson failed to meet his burden of proof in establishing a work-related injury.

When reviewing a decision of the Workers' Compensation Court, we will not substitute our judgment for the trier of fact unless the decision was clearly erroneous. Although factual conflicts may exist, we will not disturb the court's decision when it is supported by substantial credible evidence. Tenderholt v. Royal Insurance Company of America (Mont.1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1795.

The burden was on Nelson to prove, by a preponderance of credible evidence, that a work-related incident was a contributing cause to his work-related injury. Dumont v. Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105. In attempting to prove the incident, Nelson testified that his foreman, Reuben Hagen, helped Nelson regain his balance and that Hagen asked if Nelson was all right.

Nelson's testimony conflicts directly with the testimony of Reuben Hagen, who stated that he and his wife were in New York City on April 25, 1982, and did not return to East Helena until 10:00 p.m. that day. Hagen's testimony was supported by ASARCO pay slips, which showed Hagen on vacation on April 25, 1982.

In addition, Nelson's conduct following the alleged incident did not indicate that an injury occurred. Nelson missed work on April 26 [227 Mont. 276] and 27, 1982, due to a cold, not an injury. He continued to work regular shifts through May 24, 1982, without any indication of an injury. Although Nelson underwent surgery on May 27 and June 17, 1982, he did not advise either physician about his alleged injury.

Nelson's testimony was effectively rebutted by his doctors, who believed that the condition they were treating was unrelated to any trauma from Nelson's occupation. Dr. Kremer testified about thoracic outlet syndrome in the following exchange:

Q. Based on your past experience with these kinds of problems, do you have an opinion as to how they typically manifest themselves? By that, I mean, is it a sudden onset, or do they develop over time progressively?

A. It's a very gradual onset because the muscle doesn't suddenly hypertrophy. It isn't something that occurs overnight. It's something that slowly builds up...