Hengel v. Pacific Hide & Fur Depot , 224 Mont. 525 ( 1986 )

No. 86-257
IN THE ST!PREMB COURT OF THE STATF OF MONTANA
1.986
DENNIS R. HENGEL,
Claimant and Fespondent,
PACIFIC HIDE & FUR DEPOT,
Employer,
and
INTERMOUNTAIN INSURANCE COMPANY,
Defendant anf! Appellant.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy, Reardon, Judge presiding.
COUWSEL OF RECORD:
For Appellant:
E. Craig Daue; Garlington, Lohn & Robinson, Missoula,
Montana
For Respondent :
Allen M. McGarvey; Landoe, Brown, Planalp, Kommers &
Johnstone, Bozeman, Montana
Submitted. on Briefs: Dec. 11, 1986
Decided: December 31, 1986
Mr. Justice William E . Hunt, Sr. delivered the Opinion of the
Court.
This is an appeal from a judgment of the Workers'
Compensation Court awarding Hengel medical expenses, together
with reasonable costs and attorney fees. The Court found
Hengel was not entitled to the 20% penalty for delay and
denial of the claim. Both parties appeal. Intermountain
Insurance Company appeals the finding that the medical bills
were compensable and Hengel cross-appeals the portion of the
judgment denying the penalty. We affirm.
Intermountain raises three issues on appeal:
1. When medical science has been unable to determine
the cause of a disease, but has been able to eliminate the
factor alleged by a claimant as a cause of the disease, can
the Moffett/Conway rationale be used to make such claimant's
disease compensable under the Workers' Compensation Act
merely because the true cause of the disease remains unknown?
2. Can a Workers' Compensation claimant prove, by mere
medical possibility, that his industrial injury aggravated a
subsequent, independent disease?
3. If the Court denies Intermountain Insurance
Company's appeal, is there substantial credible evidence
supporting the Workers' Compensation Court's refusal to enter
a penalty in this case?
Hengel raises one issue on cross-appeal. Did
Intermountain Insurance Company unreasonably delay and deny
payment of medical expenses to Hengel?
Dennis Hengel was injured on June 11, 1982 in the course
of his employment with Pacific Hide and Fur Depot. Some
metal channels slipped off a forklift toward Hengel, and when
he grabbed them, he injured his back. Intermountain accepted
liability for the injury and paid benefits on the claim.
Following his back injury, Hengel has suffered from
continual pain. The pain increases with his physical
activity, radiating from his back into his legs. Prior to
the injury, Hengel was physically active. He jogged, hiked
and skiied. After the injury he has been unable to do these
things. He blames his inability to participate in these
activities for several failed relationships. Hengel 's
roommate testified that after the injury Hengel's personality
changed and he became short-tempered, irritable, angry a n 6
depressed. Hengel was subject to additional stress because
his economic situation worsened. His disability benefits
were approximately one-half his pre-injury earnings. His
frustrations mounted when his doctors could not "cure" his
back injury. Hengel was optimistic that he would recover
until January, 1983, then he became frustrated and tense due
to his lack of recovery.
At the time of the injury, Hengel did not have
ulcerative colitis. Hengel's first symptom of ulcerative
colitis occurred in March, 1983. Tests at that time showed
no active colitis.
In December, 1983, Hengel returned home for the
holidays. While there, he had his first severe colitis
attack. By February, 1984, Fengel's colitis was serious
enough to require surgery. In two separate operations, Dr.
Dozois at the Mayc Clinic performed a colectomy and removed
the mucosa of the lower rectum. Hengel incurred over
$51,900.00 in medical bills. Hengel advised Intermountain
that it was liable for the hills because Hengel's ulcerative
colitis was "caused by stress from the strain of worrying
about his problems."
Intermountain denied liability for the ulcerative
colitis since the medical evidence did not demonstrate "any
specific cause/effect relationship between ulcerative colitis
and major stress."
The Workers' Compensation Court held Hengel's ulcerative
colitis is the result of stress occasioned by his industrial
accident. The Court stated that although medical science
does not know the cause of ulcerative colitis, all the
medical experts who testified agreed that stress could
exacerbate ulcerative colitis. The Court stated the claimant
could not be expected to prove a medically undemonstrahle
causal connection between stress and ulcerative colitis.
However, the Court held Hengel met his burden of proof by
showing his increased stress level coincided with the
development of ulcerative colitis, and that medical evidence
recognized a relationship between stress and ulcerative
co1it.i~. The Court relied on Conway v. Blackfeet Indian
Devel-opers, Inc. (Mont. 1983), 669 P.2d 225, 40 N.Y. St. Rep. 1437
and Moffett v. Rozeman Canning Co. (1933), 95 Mont. 347, 36
P.2d 973.
In Noffett, the claimant was injured while stacking
cases of canned peas. Within three weeks he had a tremor in
his left foot which spread to both legs, his tongue and head.
He was diagnosed as having Parkinson's disease. The doctors
who testified stated that they did not know what caused the
disease but conjectured that it could theoretically be caused
by trauma, infection, or emotion. The Court noted that the
claimant must prove the injury was the proximate cause of his
present condition. However, the record was devoid of direct
evidence of proximate cause, not because the claimant had
failed to prove his case but because the exact cause of the
disease was unknown to medical science. The Court held "the
rule that the claimant must show that the injury was the
proximate cause of the affliction does not require
demonstration of an undemonstrable proposition, but merely
that he produce sufficient evidence ... to cause in the
unprejudiced mind a conviction that such was the fact."
Moffett, 95 Mont. at 360, 26 P.2d at 978.
In Conway, the claimant caught his arm on the door of
the backhoe and huna suspended from his arm for a few minutes
before dropping about 9 feet to the ground. The sorenees
from the accident changed to numbness ir! his fingers, toes,
and arms. Gradually, he began to experience weakness in one
side and eventually was diagnosed as having multiple
sclerosis. The issue before the Court was whether the injury
caused the MS. Two doctors testified there was no causal-
effect between MS and the injury and one doctor testified
that the injury precipitated the outward symptoms of the
underlying MS. We held the Moffett rationale is valid in
cases where medical science is powerless to be of direct aid
and in those cases the Workers' Compensation Court should
look to indirect evidence to establish causation.
The first issue Intermountain raises on appeal is
whether the Moffett and Conway rationale should be applied in
this case. Intermountain contends that medical science has
ruled out stress as a cause of ulcerative colitis, and that
claimant should not be able to recover merely because the
true cause of t.he disease remains unknown. The cause of
ulcerative colitis is currently unknown to medical science.
All of the doctors who testified in the case agreed that
stress can exacerbate symptoms of the disease. One doctor
stated that he was "unaware of any specific cause/effect
relationship between ulcerative colitis and major stress."
One doctor stated that he personally did not believe that
stress caused ulcerative colitis. Another stated that there
seemed to be a possible cause and effect relationship. Stil-1
another stated ulcerative colitis could be aggravated or
possibly initiated by stress. Intermountain contends thzt
the statement of one doctor, Dr. Dozois, should be taken over
the statenents of other doctors because Dr. Dozois has more
experience with ulcerative colitis than the other doctors.
Dr. Dozois testified that he believes stress does not cause
ulcerative colitis. While Dr. Dozois is exceptionally
well-qualified, he is also a surgeon, not an epidemiologist.
And on review of the record it is clear to this Court as it
was in Lamb v. Missoula Imports, Inc. (1984), 684 P.2d 498,
41 St.Rep. 1414, that medical scj-ence remains sufficiently
undeveloped in the area of stress and ulcerative colitis to
rely on any one witness' statement as dispositive. We
therefore hold the Ploffettlconway rationale is applicable to
this case, and the Workers1 Compensation Court did not err in
holding the claimant satisfactorily met his burden of proof
by showing indirect evidence that stress occasioned by
claimant's industrial accident caused him to develop
ulcerative colitis. This conclusion is supported by the fact
that claimant developed ulcerative colitis only after
suffering major stress as a result of his back injury.
Next, Intermountain raises the issue of the burden of
proof as to aggravation of a condition follo``ingan
industrial injury. Hengel contends the stress occasioned by
the accident not only caused but aggravated his ulcerative
colitis as well. The evidence clearly shows that Hengel did
not have ulcerative colitis until after the accident. This
Court has not decided the issue of whether aggravation of a
condition arising after the accident is compensable under
Montana's Workers' Compensation Act. We do not reach this
issue because we have already ruled that Hengel was entitled
to cornpensat-ion for the medical bil1.s incurred as a result of
his colitis.
The final issue raised by Intermountain and only issue
raised by Hengel is whether he should have been awarded a 20%
penalty pursuant to § 39-71-2907, MCA. That section states:
39-71-2907. Increase & award for unreasonable
delay or refusal pay. wK~ payment of
compensation has been unreasonably delayed or
refused by an insurer, either prior or subsequent
to the issuance of an order by the workers'
compensation judge granting a claimant compensation
benefits, the full amount of the compensation
benefits due a claimant, between the time
compensation benefits were delayed or refused and
the date of the order granting a claimant
compensation benefits, may be increased by the
workers' compensation judge by 20%. The question
of unreasonable delay or refusal shall be
determined by the workers' compensation judge, and
such a finding constitutes good cause to rescind,
alter, or amend any order, decision, or award
previously made in the cause for the purpose of
making the increase provided herein.
Intermountain contends its denial of benefits was
reasonable. Hengel contends the denial was unreasonable and
motivated by economic concerns and a desire to "wear out" the
claimant. We begin with the standard of review. The
reasonableness of an insurer's denial is a question of fact
for the lower court and it will not be disturbed on appeal if
supported by substantial credible evidence. Wight v. Hughes
Livestock Co., Inc. (Mont. 1981), 634 P.2d 1189, 38 St.Rep.
1632. In this case there is substantial credible evidence of
a 1.egitimate dispute as to the causal connection between the
injury and cla.imantls present disability. The Workers'
Compensation Court dj.d not err in refusing to assess the
penalty.
Affirmed.
W Concur:
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