Becktold v. Industrial Accident Board , 137 Mont. 119 ( 1960 )

MR. JUSTICE CASTLES

delivered tbe Opinion of tbe Court.

The claimant has appealed from the judgment of the district court of Carbon County wherein, the district court affirmed findings of fact and conclusions of law and an order of the Industrial Accident Board.

The claimant was injured in an industrial accident while employed at a sawmill in Carbon County on or about May 17, 1957. At that time his employer was enrolled under Plan Three of the Workmen’s Compensation Act.

At the time of the injury the claimant was a single man, but has since been married. At the time of the injury the claimant was earning $10 per day, six days per week plus room and board.

The claimant’s injury consisted of traumatic amputation of the thumb, index and middle fingers of the left hand at the metacarpal phalangeal joint. The Board and the district court found from a preponderance of the evidence that claimant’s injuries were limited to the left hand below the wrist. According to the claimant’s report to the Board initially, and also the employer’s report, the claimant was squaring ends of lumber with a power saw when he caught his left hand in the blade, cutting off two fingers and the thumb. No claim was made of any other injuries. See R.C.M. 1947, § 92-807.

At the hearing before the Board, for the first time, the claimant stated that the accident happened as follows: “Well there was a weight on the saw that come off and swung out and caught me through here (indicating) and my hand and throwed me against the wall about eight feet and cut my hand. ’ ’

Dr. Berg wheu asked by claimant’s counsel as to whether the claimant recounted to him how it happened said, “He was somewhat confused about that portion of it. * * * I remember his- — a little hemming and hawing, and he said he couldn’t recall it exactly, something about a beam swinging back and forth.”

It is immediately seen from claimant’s own stories about how the accident happened that there is self-contradictory evidence as to any other injuries.

Based on the claimant’s claim for compensation, the Industrial Accident Board paid all medical expenses and determined that the claimant was entitled to $28 per week disability. This determination was made upon the basis of the loss of a hand. On September 30, 1957, the claimant wrote to the Board inquiring a^ to the possibility of making a lump-sum settlement because of the injury. Subsequent to this, on November 13th, the Board was informed by counsel in the present appeal that he was then representing the injured workman. The hearing was had before the Board, and findings of fact and conclusions of law were made. This determination by the Board was then appealed to the district court. Further testimony was elicited before the district court, and upon the conclusion thereof, the court made findings of fact and conclusions of law which affirmed the Board’s findings. Upon this, judgment was entered and this appeal was taken.

The Board, after the hearing, awarded the claimant 200 weeks compensation. This award was based on the “specific injury statute”, being R.C.M.1947, §92-709, as amended in 1957, and granted the claimant the amount of compensation he would receive under the provisions of this statute if he had sustained the loss of his entire hand at the wrist. Although claimant lost only his thumb and two fingers, the testimony at the hearing showed the award was justified. It is not disputed that the 200 week award is the award which the claimant should receive in view of the uselessness of the remaining two fingers and the rest of the hand. The claimant’s position is that he suffered other injuries in addition to the loss of his thumb and fingers and as a result thereof has total partial disability entitling him to compensation for a maximum of 500 weeks. The injury to the hand, without anything more, had it occurred prior to March 13, 1957, would have supported the claimant’s position based on this court’s holding in Spieth v. Stuart, 130 Mont. 216, 299 P.2d 106.

In the Spieth case, this court held that the “specific injury statute”, section 92-709, did not limit the number of weeks of compensation which could be awarded for a permanent partial disability covered by section 92-703, R.C.M.1947.

However in 1957, section 92-703 was amended. This amendment became effective March 13, 1957, and as pertinent reads: “* * * provided, however, that compensation for partial disability resulting from the loss of or injury to any member shall not be payable for a greater number of weeks than is specified in section 92-709 for the loss of such member. ’ ’ Emphasis added.

This amendment controls the amount of compensation due where the claim is confined solely to the amputated parts of the body. When other injuries are suffered in addition to those resulting in amputation, the specific injury statute would not provide the limitation of compensation if the additional injuries complained of were proven. The question presented on this appeal is simply one of whether sufficient proof of additional injuries was presented to support the claim of compensation of Fred Becktold. The Industrial Accident Board held the proof insufficient and confined its award to the amputation injuries. The district court on appeal affirmed the findings of fact of the Industrial Accident Board. On appeal to this court we are asked to re-examine these findings.

The claimant’s testimony was that ever since his hand healed, he has, in addition to trouble caused by the amputation, suffered from pains in his arm and shoulder. The testimony was that the pain and stiffness in the arm and shoulder was of such a nature that it affected his ability to work.

The Industrial Accident Board had the claimant examined by a doctor, other than the one who performed the amputation. This doctor gave the claimant a complete examination including X rays of the back and shoulders. The claimant described all the abnormalities which he attributed to his injury to the doctor, stating that they consisted of pain in the shoulder and back in the mornings when the injured arm was used, and ache in the entire arm during cold weather. After the complete examination, the doctor testified the X rays had not disclosed any fracture, dislocation, bone or joint abnormalities other than the amputated fingers and thumb.

His opinion was expressed as follows:

“It was my impression that there was no significant disability above the wrist joint.

“Q. Did you find any other disability of which Mr. Becktold is suffering other than that caused by the amputation of the thumb and fingers on the left hand? A. No, it was my feeling that all significant disability was confined to the hand.”

The doctor’s testimony established that any abnormality, if present, could not be seen or demonstrated. From this followed the doctor’s opinion that the injury and damaging effects of the injury were not significant above the claimant’s wrist. No evidence was offered regarding the pain and discomfort which affected the claimant’s ability to work except the evidence offered by claimant in his own behalf.

The claimant’s testimony was not directly controverted, but neither was it substantiated by anything other than claimant’s self-serving statements, which as previously related were not entirely consistent.

In this connection, Dr. Berg, who examined claimant for the Board, testified as follows:

“Q. Doctor, in your report, on page 2 second paragraph, you say, ‘All motions of the spine are accomplished without difficulty’' — what does that mean exactly? A. Well, in a normal manner.

“Q. How about complaints of pain? A. Without any.

“Q. When you say ‘without difficulty’ — it means that when you had the man perform certain tests, to check the motion of Ms back, he didn’t complain of pain to yon?

A. Correct. ’ ’

In spite of Ms testimony before the Board, claimant was not very voluble about these pains prior to the hearing. He was cross-examined in this regard and the following facts were brought out at the hearing before the Board.

“Q. You had these pains in the hospital? A. Yes.

“Q. And did you make any complaint to the nurse? A. No.

“Q. To Dr. McGahan [claimant’s doctor] ? A. At the time, no.

“Q. When did you make your complaint to Dr. MeGahan about these pains? A. Oh about a month later.

”Q. I must have misunderstood you in answer to Mr. McAlear’s questions because I thought you said you didn’t report them to Dr. McGahan; were you in error at that time? You told Mr. McAlear that you did not report to Dr. McGahan, that you did not report to the doctor these pains in your shoulder. A. I did not, no.

“Q. You never reported them to Dr. McGahan? A. No.

“Q. The first man you told about these pains was Dr. Berg? A. Dr. Berg, yes.”

It is also worthy of note that Dr. McGahan did not testify in claimant’s behalf.

If the evidence does not clearly preponderate against the findings of the Board, the district court must affirm the Board’s order. Moffett v. Bozeman Canning Co., 95 Mont. 347, 26 P.2d 973. Similarly, “This court will not reverse the findings of the district court except where the evidence preponderates against it.” Murphy v. Anaconda Co., 133 Mont. 198, 205, 321 P.2d 1094, 1098, quoting from State ex rel. Ebel v. Schye, 130 Mont. 537, 305 P.2d 350.

Here the only evidence which is contrary to the findings of the Board and of the district court, that there is no disability above the wrist, is the subjective testimony of the claimant. This does not constitute a preponderance which would overturn the findings of both the Board and the district court which were based on objective credible evidence.

While we realize that there are cases in other jurisdictions which allow compensation on the basis of claimant’s testimony standing alone, we feel that to condone such a practice would be tantamount to waiving all requirements for proof of disability. Though an occasional valid claim may go uncompensated, this is preferable to a situation in which a workman could obtain compensation solely upon his testimony of disability without any substantiation by objective witnesses. And where, as here, the claimant’s own story and claim is not entirely consistent with his subsequent testimony, this is particularly apt.

Claimant received the maximum compensation allowable under the specific injury statute for a single person. The Board and the district court do not appear to have abused their discretion in fixing the award. Because of our conclusion on this point it is unnecessary to discuss the other specification of error which goes to the conflict over the amount of wages which the claimant earned before and after the accident.

The judgment is affirmed.

MR. CHIEF JUSTICE HARRISON and MR. JUSTICE ANGSTMAN concur.