Robins v. Anaconda Aluminum Co., 13783

• Decision Date: 14 February 1978
• Docket Number: No. 13783,13783
• Citation: 575 P.2d 67,175 Mont. 514,35 St.Rep. 213
• Parties: Sewell A. ROBINS, Claimant and Respondent, v. ANACONDA ALUMINUM COMPANY, Employer, Defendant and Appellant.
• Court: Montana Supreme Court

Page 67

575 P.2d 67

175 Mont. 514

Sewell A. ROBINS, Claimant and Respondent, v. ANACONDA ALUMINUM COMPANY, Employer, Defendant and Appellant.

No. 13783.

Supreme Court of Montana.

Submitted Jan. 24, 1978.

Decided Feb. 14, 1978.

Warden, Walterskirchen & Christiansen, Merritt N. Warden (argued), Kalispell, for defendant and appellant.

H. James Oleson (argued), Kalispell, for claimant and respondent.

HASWELL, Justice.

This is an appeal by an employer from a judgment in favor of its employee by the Workers' Compensation Court. That court held that the claimant is totally and permanently disabled and is unable to engage in any gainful occupation; that he is entitled to compensation for his total disability (or for compensation for partial disability for total loss of wages), and that the employer is entitled to deduct a credit for Social Security of one-half of the federal periodic benefits paid per week from September 9, 1973, the date of commencement of these benefits, to January 3, 1974, the date the healing period ended. Following a rehearing, requested by both parties, the employer appeals.

Claimant sustained an injury in an industrial accident in 1964 while employed by appellant, Anaconda Aluminum Company at Columbia Falls, Montana. The accident consisted of a fall of approximately 16 or 18 feet. Claimant fractured his skull and some other bones; and he sustained a concussion and was unconscious for some time. As a result of this accident, he had difficulty with his speech, memory, and physical coordination. However, the employer re-employed claimant, full time, at a lower wage and a lighter job. The employer paid him $1,825.51 as a settlement for his being employed at a lower wage.

While engaged in this employment, claimant sustained a second industrial accident on January 26, 1973. He stepped up onto a piece of equipment and fell off, sustaining an injury to his back.

He was first seen by Dr. Kauffman of Whitefish, Montana, his family physician, who diagnosed his condition as an "acute back strain". Claimant was later seen by Dr. Laidlaw, an orthopedist, in Kalispell, Montana. He diagnosed claimant's condition as a "nerve root compression at the S-1 vertebra level". On April 3, 1973, Dr. Laidlaw performed a partial laminectomy at the L5-S1 level. Compensation and medical expenses were paid by the employer.

Dr. Laidlaw released claimant for work on July 10, 1973. He worked for three days. On August 20, 1973, Dr. Laidlaw again released claimant for work and he worked until February 11, 1974. For the third time, Dr. Laidlaw released claimant for work on May 6, 1974. He worked until December 3, 1974, and has not returned to his former employment since then.

During the periods he was not working, the employer paid compensation to claimant. From September 9, 1973 through July 15, 1975, claimant was receiving Social Security disability benefits.

At the request of the employer, Dr. Laidlaw, on July 11, 1975, made an evaluation of claimant. Dr. Laidlaw determined that claimant was worthy of an award of 20 percent permanent partial disability of the body as a whole as a result of the January 26, 1973 accident.

In October, 1975, claimant filed a petition for a hearing with the Workmen's Compensation Division. A hearing was held before the Workers' Compensation Court on April 6, 1976. The court entered findings of fact and conclusions of law in favor of claimant on June 3, 1976. Both parties petitioned for a rehearing which was held on September 9, 1976. Findings of fact and conclusions of law were entered in favor of claimant on March 9, 1977. The employer appeals.

The sole issue on appeal is the sufficiency of the evidence to support the findings of fact and conclusions of law of the Workers' Compensation Court. Specifically, appellant questions the findings and conclusions in two areas:

1. Sufficiency of the evidence to support the finding and conclusion that the claimant is entitled to compensation for permanent total disability; and

2. Sufficiency of the evidence to support the finding and conclusion that the healing period for the claimant ended on January 3, 1974.

The appropriate test to be applied in reviewing decisions of the Workers' Compensation Court was recently discussed in Bond v. St. Regis Paper Co., (1977), Mont., 571 P.2d 372, 34 St.Rep. 1227, 1238, where we stated:

"The function of this Court is to determine whether there is substantial evidence to support the findings and conclusions of the Workers' Compensation Court. Flansburg v. Pack River Co., Mont., 561 P.2d 1329, 34 St.Rep. 183 (1977); Kimball v. Continental Oil Co., Mont., 550 P.2d 912, 33 St.Rep. 517 (1976). This Court will not substitute its judgment for that of the trial court as to the weight of the evidence on questions of fact. Brurud v. Judge Moving & Storage Co., Mont., 563 P.2d 558, 34 St.Rep. 260 (1977). Where there is substantial evidence to support the findings of the Workers' Compensation Court, this Court will not overturn the decision. Skrukrud v. Gallatin Laundry Co., Inc., Mont., 557 P.2d 278, 33 St.Rep. 1191 (1976)."

Appellant raises three questions in its first issue: (1) whether claimant has met the burden of proving that his disability resulted from the 1973 injury and not from a disease; (2) whether the "settlement" of the 1964 injury precludes a consideration of that injury in determining claimant's amount of disability; and (3) whether the medical evidence supports an award of permanent total disability.

The Workers' Compensation Court found that the claimant is permanently disabled (Finding of Fact No. 10):

"That the medical evidence shows that the claimant's prior industrial injury while employed by the same employer and the subsequent industrial injury rendered the claimant totally disabled and that he is at the present time entitled to compensation for injury producing disability permanent in character. That he is entitled to compensation for permanent total disability by virtue of Section 92-702, R.C.M. 1947 (1971)."

Appellant contends that there is insufficient evidence to support this finding. We disagree.

Appellant argues that claimant's problems with his back were caused by a pre-existing condition and are, therefore, noncompensable, citing LaForest v. Safeway Stores, Inc. (1966), 147 Mont. 431, 414 P.2d 200. The appellant is relying on the testimony of Dr. Laidlaw that the claimant had a congenital abnormality of the lumbosacral junction as the pre-existing condition barring compensation.

The well established rule in Montana is that an employer takes his employee subject to the employee's physical condition at the time of employment. Schumacher v. Empire Steel Manufacturing Co. and Employers Mutual Liability Insurance Co. (1977), Mont., 574 P.2d 987, 34 St.Rep. 1112. Close v. St. Regis Paper Co. (1977), Mont., 573 P.2d 163. The fact that an employee is suffering from or afflicted with pre-existing disease or disability does not preclude compensation if the disease or disability is aggravated or accelerated by an industrial accident. Birnie v. U. S. Gypsum Co. (1958),134 Mont. 39, 328 P.2d 133; Rumsey v. Cardinal Petroleum (1975), 166 Mont. 17, 530 P.2d 433.

The record reflects that claimant was not bothered by his congenital back condition prior to the accidents. He was able to perform his job with no orthopedic problems.

The testimony indicates that his last injury may have aggravated this pre-existing condition. Dr. Laidlaw testified that claimant had an unfavorable result from the surgery and a fusion may be necessary. He testified that the laminectomy was performed in the area of the lumbosacral junction. Further, Dr. Laidlaw testified that it was in the X-rays he took in July, 1975, after the surgery, when he noticed the abnormality of this junction. On cross- examination, Dr. Laidlaw stated that people who have this abnormality have more problems with their backs than those who do not. Prior to his injuries, even with this condition, the testimony indicates that claimant could perform his job without back problems.

We find that claimant carried his burden of proof to show that his disability was not the result of disease. The evidence shows that prior to his accidents, claimant did not have any problems with his back. Claimant's abnormality in his lumbosacral junction does not preclude him from compensation for his disability. The evidence shows that his disability was from his accidents and not his congenital back condition.

Next appellant argues that in determining claimant's disability, only the effects of the 1973 injury can be considered. Appellant's contention is that any disability claimant has from the 1964 injury cannot be a factor in determining claimant's current disability. The basis behind this argument is that appellant and claimant agreed to a settlement of that injury. Furthermore, appellant argues that the evidence fails to show an aggravation of the earlier injury by the latter injury.

As was stated earlier, the rule is that an employer takes his employee subject to the employee's physical condition at the time of employment. Schumacher v. Empire Steel Manufacturing Co. and Employers Mutual Liability Insurance Co., supra. An employee afflicted with a disability is not precluded from compensation if the disability is accelerated or aggravated by an industrial accident. Birnie v. U. S. Gypsum Co., supra.

The evidence shows that, as a result of the 1964 injury, claimant had difficulty with his speech, memory and physical...