Plainbull v. Transamerica Ins. Company/Draney Information Service

• Decision Date: 10 March 1994
• Docket Number: No. 93-432,93-432
• Citation: 264 Mont. 120,870 P.2d 76
• Parties: Larry C. PLAINBULL, Petitioner and Appellant, v. TRANSAMERICA INSURANCE COMPANY/DRANEY INFORMATION SERVICE, Defendant/Employer and Respondent.
• Court: Montana Supreme Court

Page 76

870 P.2d 76

264 Mont. 120

Larry C. PLAINBULL, Petitioner and Appellant, v. TRANSAMERICA INSURANCE COMPANY/DRANEY INFORMATION SERVICE Defendant/Employer and Respondent.

No. 93-432.

Supreme Court of Montana.

Submitted on Briefs Jan. 13, 1994.

Decided March 10, 1994.

Don Edgar Burris, Billings, for petitioner and appellant.

James G. Edmiston, III, Billings, for defendant/employer and respondent.

NELSON, Justice.

The claimant, Larry C. Plainbull (Plainbull), appeals from Findings of Fact, Conclusions of Law, and a Judgment entered by the Workers' Compensation Court in favor of the respondent. We reverse and remand.

The issue on appeal is whether the Workers' Compensation Court correctly interpreted § 39-71-407, MCA (1989).

The facts of this case are straightforward and essentially undisputed. On May 10, 1991, Plainbull was employed as a laborer for Draney Information Service (Draney) on the movie set for "The Irish Story" (later renamed "Far and Away"). Plainbull was cleaning the walls of a train tunnel when a rock or other material hit him in the left eye. Plainbull was initially treated by Draney's on-location registered nurse, Sandie Sharkey-Knox (Sharkey-Knox), who washed out the eye and placed an ointment in it. At that time, Sharkey-Knox saw no abrasions or foreign bodies.

Plainbull's claim for workers' compensation benefits was initially accepted as a medical-only claim and he was paid medical benefits. Respondent Transamerica Insurance Company Draney's insurer, contended that the choroidal rupture in the left eye predated the May 10, 1991 incident, and was thus not a compensable injury.

A hearing on the matter was held on September 22, 1992, and depositions were taken and submitted to the Workers' Compensation Court. The following testimony was before the Workers' Compensation Court and is the basis for its findings and conclusions.

On May 13, 1991, Plainbull saw Stephen R. Shaub, D.O. (Dr. Shaub), who noted that the injury occurred on May 10, 1991, and that Plainbull had experienced pain in the eye since that time. Dr. Shaub diagnosed a corneal abrasion. On May 15, 1991, Plainbull again saw Dr. Shaub, complaining of persistent discomfort in the left eye. Dr. Shaub diagnosed a corneal abrasion with a possible foreign body.

On May 16, 1991, Plainbull saw Muzaffar H. Kirmani, M.D. (Dr. Kirmani), an ophthalmologist, who diagnosed a choroidal rupture with a macular hole. Dr. Kirmani was unable to ascertain the age of the lesion. On June 14, 1991, Dr. Kirmani reported that Plainbull's left eye vision was "compromised secondary to trauma and choroidal rupture with a macular hole and a complete posterior vitreous detachment of the left eye."

On July 2, 1991, Plainbull saw another ophthalmologist, J. Thomas Priddy, M.D. (Dr. Priddy), who also diagnosed a choroidal rupture in the left eye. On August 12, 1991, Dr. Priddy indicated that he was not able to say that the choroidal rupture predated the May 10 injury. In a letter dated January 14, 1992, Dr. Priddy stated that he saw nothing about the injury that suggested it was old. On April 21, 1992, Dr. Priddy indicated that he believed it was possible that Plainbull's injury was caused by the May 10 accident.

On August 6, 1991, Plainbull visited an optometrist, John T. Gingrich, O.D. (Dr. Gingrich), and told Dr. Gingrich that the eye injury occurred on May 10, 1991. Dr. Gingrich noted a choroidal rupture with macular involvements. However, Dr. Gingrich did not make this diagnosis. He testified that such a diagnosis was outside his field expertise and that the diagnosis was the opinion of Dr. Fishburn, a retinal specialist who practiced in the same office.

At deposition, Dr. Gingrich opined that the May 10 incident did not cause the left eye condition. However, when questioned further on the basis of that opinion, including questioning as to what could cause a choroidal rupture with macular involvements, Dr. Gingrich repeatedly testified that certain questions were "out of the scope of [his] expertise" and "out of [his] range of expertise." Dr. Gingrich also testified that he was "suspicious" as to why Plainbull "waited three months to come in to see me," apparently unaware that Plainbull had been to a number of other doctors. In addition, Dr. Gingrich admitted that all of his comments and opinions regarding the choroidal rupture were based on Dr. Fishburn's opinions and were not his own, as he was clearly outside his area of expertise. He stated he based his opinions regarding the cause of the injury "on the opinion of the expert," Dr. Fishburn.

Various other medical records were submitted to the Workers' Compensation Court. These included a note dated January 18, 1992, by Gary D. Mundy, M.D., indicating that Plainbull had visited the emergency room with complaints of a headache and pain behind the left eye. He noted that Plainbull suffered an eye injury the previous year when he was hit in the left eye with a rock and that Plainbull had suffered from intermittent pain off-and-on since that time. Another note, dated January 21, 1992, by Deniz Tek, M.D., indicated Plainbull had been suffering from recurrent headaches centered about the left eye over the past one and one-half years.

On February 4, 1992, Plainbull went to the emergency room with left eye pain. A July 20, 1992 record from St. Vincent Hospital indicated that Plainbull complained of a headache from an old injury, which occurred when he was hit in the left eye with a rock on May 10, 1991. Plainbull returned to the emergency room on August 5, 1992, again complaining of left eye pain. Plainbull was eventually referred to the Billings Clinic for a neurological examination. This examination took place on October 5, 1992.

The report from this examination indicated that Plainbull had suffered severe head injuries in the mid-1970s and that he underwent a right parietal craniectomy to remove a subdural hematoma in 1974. Roger S. Williams, M.D. (Dr. Williams), summarized that Plainbull had neuralgia and possibly vascular pain in the left orbit in the territory branches of the left external carotid artery. Dr. Williams further stated that the injury could have been caused by the May 10 incident if Plainbull's description of the incident was correct and if his pain did not predate the injury.

On October 18, 1992, records indicate that Plainbull went to the emergency room complaining of pain in the eyes caused when Plainbull was hit in the left eye with a rock.

Plainbull presented evidence regarding his vision prior to the May 10 incident. In a firefighter's physical dated June 9, 1988, Plainbull's uncorrected left eye visual acuity was 20/40. On May 13, 1991, Dr. Shaub recorded Plainbull's corrected left eye visual acuity at 20/50. On May 16, 1991, Dr. Kirmani recorded the corrected vision to be 20/70. By June 14, 1991, Dr. Kirmani indicated Plainbull's corrected vision was 20/200. On July 2, 1991, Dr. Priddy recorded the corrected vision in the left eye at 20/400. On August 6, 1991, Dr. Gingrich also recorded the corrected left eye vision at 20/400.

Plainbull testified that he did not have any problems or suffer from any injuries to his left eye during the period of time from his last eye examination on January 14, 1989, until the May 10, 1991, incident.

Based on this testimony, the Workers' Compensation Court entered Findings of Fact, Conclusions of Law, and Judgment on July 26, 1993, concluding that § 39-71-407, MCA (1989), required Plainbull to prove that it was medically more probable than not that the injury of May 10, 1991, caused his medical condition and that Plainbull had failed to establish his burden of proof. From those findings, conclusions, and judgment, Plainbull appeals.

Our standard of review relating to conclusions of law is whether the workers' compensation judge's interpretation of the law is correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The Workers' Compensation Court determined that Plainbull had failed to carry his burden of proof pursuant to § 39-71-407, MCA (1989), which provides, in pertinent part:

(1) 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....

(2)(a) An insurer is liable for an injury as defined in 39-71-119 if the claimant establishes it is more probable than not that:

(i) a claimed injury has occurred; or

(ii) a claimed injury aggravated a preexisting condition.

(b) Proof that it was medically possible that a claimed injury occurred or that such claimed injury aggravated a preexisting condition is not sufficient to establish liability.

The claimant must also prove that the work-related injury caused the condition at issue. See Norman v. City of Whitefish (1991), 248 Mont. 490, 812 P.2d 1259; see also Welch v. Am. Mine Services, Inc. (1992), 253 Mont. 76, 831 P.2d 580.

The Workers' Compensation Court found that Plainbull was injured on May 10, 1991, while employed by Draney, and that the injury occurred when Plainbull was cleaning the walls of a train tunnel with a shovel and a marble-sized rock struck him in the eye. The court concluded that "the deteriorating condition of claimant's eye sight seems to indicate an inciting event occurring sometime around the date of injury." The court further concluded, however, that the medical testimony and opinions of the doctors did not support Plainbull's claim for compensation, because Plainbull had not established that it was "medically more probable than not that the accident described by the claimant caused his eye injury."

We hold that the Workers' Compensation Court erred in so concluding and find that Plainbull established his burden of proof with respect to both the occurrence and compensability of the May 10, 1991 injury.

Section 39-71-407, MCA (1989), cited above, requires that Plainbull establish that it is ...