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Onstad v. Payless ShoeSource8/24/2000
ing party." Moralli v. Lake County (1992), 255 Mont. 23, 27, 839 P.2d 1287, 1289. We review a district court's decision regarding a motion for a directed verdict to determine if the court abused its discretion. See Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 274, 824 P.2d 263, 267.
26 Citing Sykes v. Republic Coal Co. (1933), 94 Mont. 239, 22 P.2d 157, and Schumacher v. Empire Steel Mfg. Co. (1977), 175 Mont. 411, 574 P.2d 987, Payless points out that where a mental injury is preceded by a physical injury, the resulting disability is compensable under workers' compensation. In making this argument, Payless relies upon the only evidence that Onstad suffered physical injury from the assault: her own deposition testimony that she had a visibly reddened neck where Luplow grabbed her.
27 Payless asserts that a physical injury need not be serious in order to justify workers' compensation coverage of mental injury arising therefrom. In support, it cites Blythe v. Radiometer America, Inc. (1993), 262 Mont. 464, 866 P.2d 218. Blythe, a hospital worker, was pricked by a needle contaminated with the HIV virus. He later asserted that he suffered from psychosis as a result of the stress of fearing that he had contracted AIDS. Blythe received medical and disability benefits under the Workers' Compensation Act for his psychosis.
28 The issue of whether Blythe had originally suffered a compensable physical injury which led to his mental injury was neither posed nor adjudicated, however. Blythe filed for benefits under the Workers' Compensation Act and his employer accepted liability. Blythe, 262 Mont. at 467, 866 P.2d at 220. Unlike Onstad's injury in the present case, the issue of whether Blythe's injury was subject to the Workers' Compensation Act was never in question.
29 The present case is further factually distinguishable from Blythe in that Onstad does not allege that her mental damages arose from the only physical injury of which there is evidence-the red marks on her neck where Luplow grabbed her. In that respect, the present case is more comparable to Yarborough v. MMIA (1997), 282 Mont. 475, 938 P.2d 679, than to Blythe.
30 Yarborough, a firefighter, suffered posttraumatic stress disorder which he alleged arose out of a fire in which his face and hands were burned. He filed a workers' compensation claim for temporary total disability, permanent partial disability, and medical benefits. The Workers' Compensation Court ruled that because the evidence indicated Yarborough's condition arose from emotional or mental stress, it was excluded from the definition of injury as set forth at ยง 39-71-119, MCA. This Court affirmed the denial of Yarborough's claim, noting that although Yarborough had suffered burns to his face and hands, no medical expert had testified that his posttraumatic stress disability resulted from those physical injuries. Yarborough, 282 Mont. at 483, 938 P.2d at 684.
31 When the District Court ruled on Payless's motion for directed verdict, the evidence concerning Onstad's injuries consisted of testimony by Onstad and her mother; the testimony of Dr. Marian Martin, a clinical psychologist who had evaluated Onstad at her attorney's request to determine how this incident had affected her and to make recommendations of what might be done to help her; and the testimony of licensed clinical social worker Linda Crummet, who had counseled Onstad. Although Payless correctly points out that Dr. Martin testified that the trauma to Onstad would not have been as great had she not been physically touched, none of the evidence in the record connects Onstad's posttraumatic stress to the post-assault red marks on her neck. Instead,
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