No. 96-055

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

JACQUI WALLS,

Petitioner and Appellant,

vs.

TRAVELERS INDEMNITY COMPANY,

Respondent/Insurer for

BMC WEST/POULSEN'S, INC., a Montana corporation,

Employer.

APPEAL FROM: Workers' Compensation Court
State of Montana
The Honorable Michael McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jeff R. Lynch, Lynch & Chisholm, Great Falls,
Montana

For Respondent:

Kirk D. Evenson, Marra, Wenz, Johnson & Hopkins,
Great Falls, Montana

Submitted on Briefs: July 18, 1996

Decided: January 23, 1997
Filed:

__________________________________________
Clerk

Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from the findings of fact, conclusions of
law and judgment of the Workers' Compensation Court entered on
January 17, 1996, denying Petitioner Jacqui Walls (Walls)
compensation and medical benefits for an alleged work-related
injury. We affirm.

The sole issue on appeal is whether the Workers' Compensation
Court's denial of Walls' claim for benefits is supported by substantial credible evidence.

FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 1993, Jacqui Walls (Walls) began working as a
cashier at BMC West/Poulsen's, Inc. (Poulsen's), a hardware, lumber
and homeware retailer located in Great Falls, Montana. Walls
submitted a workers' compensation claim to her employer, Poulsen's,
alleging that on June 2, 1994, she injured her back while lifting
a heavy lawn ornament. Poulsen's was enrolled under Compensation
Plan II of the Workers' Compensation Act and its insurer was
Travelers Indemnity Company (Travelers). Travelers refused to
accept liability on Walls' claim for workers' compensation
benefits, contending that her damages were not the result of a
work-related injury. After both parties complied with the
mediation procedure set forth in the Workers' Compensation Act, a
mediation report and recommendation was submitted on September 22,
1994. Travelers rejected this recommendation on October 19, 1994.

Subsequently, Walls filed a petition for hearing in the
Workers' Compensation Court on September 1, 1995. In her petition,
Walls alleged that on June 2, 1994, she suffered an industrial
injury arising out of and in the course of her employment with
Poulsen's. Specifically, she contended that she injured her lower
back when she assisted Linda Wilson (Wilson), a customer, by
lifting and carrying a heavy lawn ornament from its display to the
cash register area. Travelers responded and denied that Walls had
suffered a compensable work-related injury. Rather, Travelers
argued that Walls injured her back while moving her personal
belongings from her boyfriend's residence, not while working at
Poulsen's assisting a customer.

Trial was held on January 10, 1996, before the Workers'
Compensation Court. Walls testified in person and presented three
other witnesses on her behalf: her former roommate, Carol
LaRocque; her former boyfriend, Zane Carter; and her son, Chase
Walls. Travelers presented six additional witnesses to defend
against Walls' claim: the customer Walls assisted, Linda Wilson;
Walls' supervisor, Van Crowe; and four other Poulsen's employees,
including Vince Miranti and Dennis Olson. On January 17, 1996, the
Workers' Compensation Court entered its findings of fact,
conclusions of law and judgment denying Walls' claim. From this
judgment, Walls appeals.

DISCUSSION

Was the Workers' Compensation Court's denial of Walls' claim
for benefits supported by substantial credible evidence?

In its January 17, 1996 judgment, the Workers' Compensation
Court entered detailed findings of fact and found that Walls did
not injure her back while working at Poulsen's on June 2, 1994.

Based on these findings and relying on Ricks v. Teslow Consolidated
(1973), 162 Mont. 469, 484, 512 P.2d 1304, 1313, the court
determined that Walls had not proven by a preponderance of the
evidence that she was entitled to compensation. Therefore, the
court concluded that Walls was entitled to neither compensation,
medical benefits nor attorney fees or costs.

Walls argues that the Worker's Compensation Court's decision
to deny Walls' claim is unconscionable because the court relied
only on the impeached testimony of Wilson, the customer that Walls
assisted on June 2, 1994, and ignored all other evidence concerning
Walls' claim. Walls asserts that Wilson's testimony was impeached
by two other witnesses whose testimony contradicted her
recollection of part of the events of June 2, 1994. Walls explains
that after Wilson testified that Walls gave no indication that she
hurt her back while lifting and carrying a heavy lawn ornament from
its display to the cash register area, Wilson subsequently gave
incorrect testimony that Walls had also moved the lawn ornament
from the cash register area to Wilson's car.

Walls insists that this part of Wilson's testimony "was
designed to further indicate that Ms. Walls could not possibly have
injured her back if she was then able to transport the [lawn
ornament] from her checkout stand to Ms. Wilson's car."

Furthermore, Walls points out that the store manager, Van Crowe,
testified that cashiers do not assist customers by taking purchased
items to their cars and that another store employee, Dennis Olson,
testified that he, not Walls, had assisted Wilson by taking the
lawn ornament from the cash register area to her car. Walls
contends that the Workers' Compensation Court should not have given
Wilson's testimony any weight, not only because Wilson offered
testimony that was later proven untrue, but because her testimony
was "designed specifically to prevent Ms. Walls from obtaining
benefits for a work-related injury."

Additionally, Walls asserts that all other evidence supports
Walls' claim that she injured her back at work. Specifically,
Walls contends that she reported her injury to her employer and
informed at least three friends on the date the injury occurred and
also reported her injury to her physician. Walls argues that the
trial court ignored this evidence. Furthermore, Walls accuses the
trial court of framing its findings of fact in terms of witness
credibility to prevent meaningful review of its decision by this
Court and "[t]o hamper [Walls'] likelihood of reversal." Walls
urges this Court to reframe our standard of review by adopting a
more reasonable and equitable standard to ensure meaningful
appellate review of issues of witness credibility.

Travelers responds that Walls' arguments lack merit and the
Workers' Compensation Court's decision should not be disturbed.
Travelers asserts that upon careful review of the trial court's
findings, it is clear that the court did not rely solely on
Wilson's testimony and ignore all other testimony presented.
Rather, Travelers points out that the court carefully considered
all testimony and drafted detailed findings to explain its
decision. Specifically, Travelers refers to Finding of Fact No.
22, wherein the trial court summarized the conflicting testimony
and explained what testimony it considered credible. Travelers
argues that this finding, alone, shows that substantial credible
evidence supports the trial court's finding that Walls did not
injure her back on the job.

Additionally, Travelers argues that Wilson's inability to
perfectly recall who assisted her by taking the lawn ornament from
the cash register area to her car is insignificant and does not
impeach her testimony. To support this argument, Travelers points
out that in Finding of Fact No. 7, the trial court stated that
resolving the conflict in testimony concerning who took the lawn
ornament to Wilson's car "is not central to my decision."
Moreover, Travelers argues that Walls' assertion that Wilson had a
motive to testify falsely is "absurd" because Wilson had absolutely
no stake in the outcome of this case.

Finally, Travelers argues that Walls' assertion that the trial
court purposely framed its findings in terms of witness credibility
to avoid meaningful appellate review is unfounded. Travelers
points out that the trial court recognized the conflicting nature
of the testimony, and, therefore, based its decision upon witness
credibility. Consequently, Travelers contends that because the
Workers' Compensation Court was in the best position to observe the
character and demeanor of the witness, we should not substitute our
judgment for that of the trial court. We agree.

We review the Workers' Compensation Court's findings of fact
to determine if they are supported by substantial evidence.
Wunderlich v. Lumbermens Mut. Casualty Co. (1995), 270 Mont. 404,
408, 892 P.2d 563, 566. We have defined "substantial evidence" as
consisting of "more than a mere scintilla of evidence but may be
somewhat less than a preponderance." Wunderlich, 892 P.2d at 566.
Furthermore, "[w]here the findings are based on conflicting
evidence, the Court's function is to determine whether there is
substantial evidence to support the findings and not to determine
whether there is sufficient evidence to support contrary findings."
Nelson v. Semitool, Inc. (1992), 252 Mont. 286, 289, 829 P.2d 1, 3.
We will not substitute our judgment for that of the trial court
when the issue concerns the weight given to certain evidence or the
credibility of the witnesses. Wunderlich, 892 P.2d at 566.

Walls requests that we reframe our standard of review
concerning witness credibility by adopting a more reasonable and
equitable standard. However, Walls, in essense, is requesting that
we review the record to determine whether substantial credible
evidence supports findings contrary to those of the Workers'
Compensation Court. Clearly, this is not the appropriate standard.
See Nelson, 829 P.2d at 3. As is evident from the record, the
Workers' Compensation Court was presented with conflicting
evidence, from witnesses testifying in person. Therefore, we will
defer to the trial court's judgment concerning witness credibility
and review the record only to determine whether the trial court's
findings are supported by substantial credible evidence. See
Wunderlich, 892 P.2d at 566.

Additionally, Walls alleges that Wilson had a motive to
testify falsely and that Wilson's testimony was impeached by two
other witnesses whose testimony conflicted with a portion of her
own. Therefore, Walls argues that the trial court erred by giving
Wilson's testimony any weight. We give due regard to the trial
court not only to judge the credibility of the witnesses, but to
resolve inconsistencies in witness' testimony. Rafanelli v. Dale
(1996), 924 P.2d 242, 249, 53 St.Rep. 746, 751. Furthermore, "even
if a portion of a witness' testimony is shown to be false or
unreliable, the trier of fact need not discount the entirety of
that witness' testimony." Rafanelli, 924 P.2d at 249 (citing Kis
v. Pifer (1978), 179 Mont. 344, 350, 588 P.2d 514, 517-18).

In this case, the Worker's Compensation Court was the trier of
fact. The trial court noted, in Finding of Fact No. 7, that
Wilson's testimony concerning who took the lawn ornament to
Wilson's car conflicted with other witness testimony. However, the
trial court stated that resolving this conflict "is not central to
my decision." It is clear from the trial court's findings that the
trial court carefully considered Wilson's testimony and accepted
her testimony concerning the circumstances surrounding Walls'
alleged back injury. Furthermore, despite her allegation, Walls
has presented absolutely no proof that Wilson was motivated to
testify falsely to prevent Walls from obtaining benefits for her
alleged work-related injury. Therefore, we conclude that the trial
court did not err in relying on Wilson's testimony.

Furthermore, despite Walls' argument, the trial court did not
rely solely on the testimony of Wilson. Rather, the Workers'
Compensation Court made detailed findings concerning specific
testimony of numerous witnesses. Moreover, in Finding of Fact No.
22, the trial court summarized this conflicting testimony and
recorded its decision concerning the credibility of the witnesses
as follows:

After considering all of the testimony, especially the
testimony recited in these findings of fact, and
considering the demeanor of the witnesses, I find the
testimony of Wilson, Crowe, Miranti and Dennis Olson
credible and do not believe that claimant hurt her back
at work. According to claimant, her alleged injury was
witnessed by Wilson. Wilson, however, testified credibly
that she saw no sign of any injury and that claimant did
not report any injury to her. Claimant asserted that she
told numerous people of her injury prior to her 4:30 p.m.
meeting with Crowe but did not call a single witness who
could verify her assertion. Olson, who has a close
relationship with claimant, recalled claimant telling him
of the incident the next day. Claimant's assertion that
she called Dr. Dietrich's office at 3:00 p.m. on the day
of her alleged injury did not ring true in light of the
doctor's notes indicating that she did not call him until
June 8th and that at the time he contemplated seeing her
only if the medication he prescribed by telephone did not
alleviate her symptoms. I find Crowe's testimony
concerning his 4:30 p.m. meeting with claimant and his
awareness that claimant was moving to be credible and
convincing. Miranti's testimony that claimant told him
that she hurt her back while "moving" was also credible
and convincing. While "moving" could refer to "moving
the [lawn] ornament," I find such explanation of her
statement to be implausible, especially in light of
claimant's assertion that she hurt her back when
"lifting" the ornament. Finally, the testimony of
claimant's witnesses did not persuade me that claimant
injured herself at work. Claimant told those witnesses
of the alleged accident after she had been placed on
probation and after she had already staked out a claim
for a work-related injury. While their testimony about
the move occurring after June 2nd was credible, claimant
moved her furniture and effects over several days and I
am persuaded that she in fact commenced moving things out
of Carter's residence at the end of May when she
admittedly made her decision to move. [Emphasis in the
original.]

After reviewing the record and the trial court's detailed
findings, as referred to above, we conclude that the trial court
did not ignore any witness testimony. Rather, the trial court
considered all witness testimony, observed the demeanor of the
witnesses, judged their credibility and concluded that the
testimony of Travelers witnesses was more credible than the
testimony of Walls' witnesses. Based upon this determination, the
trial court concluded that Walls did not injure her back at work,
and, therefore, denied her compensation and medical benefits. The
trial court's decision was grounded in the record, in its judgment
of the credibility and demeanor of all the witnesses and in the
law. Accordingly, we hold that substantial credible evidence in
the record supports the Workers' Compensation Court's findings of
fact and decision.

Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE
/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.
/S/ KARLA M. GRAY