Love v. Ralph S Food Store

No. 12427
I N THE SUPREME C U T OF THE STATE O MONTANA
OR F
1973
DELLA M. LOVE,
Claimant and Respondent,
-vs -
RALPH'S F O STORE, I N C . ,
OD
Employee and Appellant,
and
TRUCK INSURANCE EXCHANGE,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
Honorable W. W. Lessley, Judge p r e s i d i n g .
Counsel of Record:
For Appellants :
Bennett and Bennett, Bozeman, Montana
Lyman Bennett, Jr. and Lyman Bennett 1 1 argued, Bozeman,
1
Montana
For Respondent :
Thomas A. Olson argued, County Attorney, Bozeman
Montana
Submitted: September 27, 1973
Decided :
DECS ~$n
Filed :
OEC:: I9?3
M. Justice Frank I . Haswell delivered the Opinion of the Court.
r
This i s an appeal by the employer's insurer in a Workmen's Compensation
case. The Workmen's Compensation division (formerly the Industrial Accident
Board) found no compensable injury and denied the employee's claim. On
appeal, the d i s t r i c t court heard additional testimony, found a compensable
in jury and awarded the employee benefits total ing $9,259 -86. The employer ' s
insurer now appeals from t h a t judgment.
Claimant i s Della M . Love, an employee of Ralph's Food Store, Inc. i n
Bozeman, Montana. The employer's Plan I1 insurer under the Montana Workmen's
Compensation Act i s Truck Insurance Exchange.
Claimant was employed as a meat wrapper a t the store. In general her
duties involved wrapping and marking meat, cleaning and stocking the meat
display cases, and washing parts of the meat saws and grinders. She claims
t o have suffered an accidental injury to her lower back resulting in temporary
total and permanent partial d i s a b i l i t y as well as substantial medical expenses.
Claimant f i l e d a claim f o r compensation with the Workmen's Compensation
Division on January 16, 1969. She claimed an accidental injury to her lower
back on August 26, 1968 which she described as caused "by continuously l i f t -
ing something heavy" and that she had developed a type of a r t h r i t i s . She
attached a l e t t e r to her claim stating in relevant part t h a t she did not "quite
understand how industrial accident operates b u t Dr. Whitehair (her attending
physician) was very positive t h a t t h i s was an industrial accident claim * * *."
This l e t t e r went on t o indicate t h a t she was required t o unload freight f o r
the meat department and carry i t into the meat department which involved heavy
lifting.
Subsequently her employer f i l e d his f i r s t report of injury giving
August 29, 1968 as the date of claimant's injury and describing the injury in
t h i s language: "Unknown complaint of back and said she could not l i f t trays
above her shoulders."
The claim adjuster f o r the employer's insurer f i l e d a report indicating
t h a t claimant "claims back hurt, no particular incident, ' j u s t an accumulation
o f a l l t h e l i f t i n g " ' and f i l e d a memo w i t h h i s s u p e r i o r s t a t i n g t h a t "From
i n f o r m a t i o n o f claimant theFe was no accident and an accumulation o f 1 i f t -
ing."
Dr. M h i t e h a i r , c l a i m a n t ' s primary a t t e n d i n g physician, l i s t s a v a r i e t y
o f dates f o r t h e accident i n v a r i o u s r e p o r t s and claims f o r h i s s e r v i c e s
f i l e d w i t h t h e Workmen's Compensation D i v i s i o n : J u l y 16, 1968, approximately
J u l y 20, 1968, June 15, 1968. D r . K e l l y , who performed surgery on c l a i m a n t ,
l i s t e d t h e d a t e of t h e a c c i d e n t as August 29, 1968. The h o s p i t a l and p h y s i c a l
t h e r a p i s t i n d i c a t e d t h e date o f c l a i m a n t ' s a c c i d e n t as September 18, 1968
( t h e d a t e o f c l a i m a n t ' s admission t o t h e h o s p i t a l ) .
An employee o f t h e Workmen's Compensation D i v i s i o n t a l k e d t o c l a i m a n t
over t h e phone and f i l e d t h e f o l l o w i n g memorandum s t a t i n g i n p e r t i n e n t p a r t :
"On t h e day she a l l e g e s i n j u r y they were having a chuck
r o a s t sale. She had t o l i f t many more t r a y s o f meat on t h i s
day, and handle more chuck roasts, which a r e heavy, than usual.
She a l s o cleaned t h e g r i n d e r e t c . which weighs about 50# * * *
she had done t h i s many times before. However, t h e chuck r o a s t
s a l e made i t necessary t o l i f t many more r o a s t s on t h i s par-
t i c u l a r day."
A hearing on t h e c l a i m was h e l d before t h e Workmen's Compensation D i v i -
sion. Testimony i n d i c a t e d t h a t claimant had had back problems p r i o r t o t h e
alleged injury. Dr. Whitehair, h e r physician, i n d i c a t e d t h a t X-rays taken
about a year p r i o r t o t h e a l l e g e d i n j u r y d i d , n o t r e v e a l much more than a l i t t l e
e a r l y o s t e o a r t h r i t i s o f t h e spine which, according t o t h e doctor, i s n o t a t
a l l unusual. A t t h a t t i m e c l a i m a n t missed no work and responded t o conserva-
t i v e therapy c o n s i s t i n g o f muscle r e l a x a n t s , p a i n k i l l e r s , and u l t r a s o u n d
diathermy.
D r . Whitehair t e s t i f i e d t h a t on September 3, 1968 he again examined
c l a i m a n t and found fundamentally d i f f e r e n t problems a t t h i s time as compared
w i t h e a r l i e r examinations. This t i m e c l a i m a n t was h o s p i t a l i z e d f o r f i v e
days and t r e a t e d f o r nerve r o o t i r r i t a t i o n by t r a c t i o n and muscle r e l a x a n t s .
A f t e r h e r release, claimant was p e r m i t t e d t o work where i t would n o t r e q u i r e
1 i f t i n g anything over 5 pounds.
I n e a r l y 1970 claimant was again h o s p i t a l i z e d . A myelogram i n d i c a t e d
a h e r n i a t e d d i s c and surgery was recommended. During surgery a fragment o f
nucleus pulposus was found i n t h e nerve canal where t h e nerve goes i n t o t h e
v e r t e b r a e and removed.
A t t h i s hearing c l a i m a n t ' s testimony was very c o n f u s i n g concerdi ng
t h e dates o f t h e occurrence she r e l i e s upon as t h e b a s i s o f h e r c l a i m f o r
compensation. She t e s t i f i e d under cross examination t h a t she s u f f e r e d an
i n j u r y on J u l y 13, 1968 and another on August 26, 1968, i l l u s t r a t e d by t h e
following testimony#
"Q. L e t ' s t a l k about t h e e a r l y p a r t of J u l y ; what happened,
i f anything? A. I d o n ' t know what you mean.
"Q. The reason f o r t h e question i s t h i s , Mrs. Love:
you i n d i c a t e d on E x h i b i t ' B ' your i n j u r y occurred J u l y
13th. A. I t s t a r t e d then.
"Q. A l l r i g h t , t e l l us what happened then? A. I was j u s t
unloading t h e boxes and washing t h e meat p a r t s and i t s t a r t e d ,
my back s t a r t e d t w i n g i n g i n t h e lower p a r t , and t h a t ' s t h e
d a t e i t s t a r t e d , when i t was n o t i c e a b l e .
"Q. Did something happen on t h e 26th o f August d i f f e r e n t
than what happened i n J u l y ? A. I t j u s t b u i l t up t o t h e
p o i n t where I c o u l d n ' t stand i t any l o n g e r .
"Q. Right, you had a heavy l i f t i n g job, am I r i g h t ? A. Yes.
"Q. You had a heavy l i f t i n g j o b f o r q u i t e a w h i l e ? A. Yes.
"Q. And f i n a l l y i t g o t t o o much f o r you, i s t h a t r i g h t ?
A. Yes."
Scmetime i n , t h e l a t t e r p a r t o f J u l y o r t h e f i r s t p a r t o f August a
chdnge i n b u t c h e r s occurred which r e q u i r e d c l a i m a n t t o do h e a v i e r work than
before. Claimant t e s t i f i e d t o a p a r t i c u l a r i n c i d e n t t h a t occurred a f t e r t h e
new butcher came. She had washed heavy p a r t s o f t h e meat g r i n d e r and was
l i f t i n g them o u t o f a low s i n k when she had sharp pains i n t h e lower p a r t o f
her back. Claimant t e s t i f i e d she had a l o t o f t r o u b l e w i t h h e r back a f t e r
t h i s , t h a t h e r back g o t p r o g r e s s i v e l y worse, and she f i n a l l y c o u l d n o t do t h e
work any l o n g e r .
The hearings o f f i c e r f o r t h e Workmen's Compensation D i v i s i o n made
f i n d i n g s o f f a c t "That no s p e c i f i c date and no s p e c i f i c i n c i d e n t has been
e s t a b l i s h e d t o i n d i c a t e t h a t an a c c i d e n t a l i n j u r y occurred t h a t i s cornpensable
under t h e p r o v i s i o n s o f t h e Workmen's Compensation A c t . " and "That c l a i m a n t
f a i l e d t o e s t a b l i s h by a preponderance of c r e d i b l e evidence t h a t she s u f f e r -
ed an a c c i d e n t a l i n j u r y as d e f i n e d i n Section 92-418, R.C.M. 1947." Con-
c l u s i o n s o f law were entered t h a t c l a i m a n t d i d n o t s u f f e r a compensable i n -
j u r y and was n o t e n t i t l e d t o b e n e f i t s under t h e Workmen's Compensation Act.
Claimant appealed t h i s d e c i s i o n t o t h e d i s t r i c t c o u r t o f G a l l a t i n
County. The d i s t r i c t c o u r t , over t h e i n s u r e r ' s o b j e c t i o n s , p e r m i t t e d addi -
t i o n a l testimony by c l a i m a n t concerning dates and occurrences forming t h e
basis o f t h e c l a i m f o r compensation.
A t t h e hearing i n d i s t r i c t c o u r t c l a i m a n t t e s t i f i e d she f i r s t h u r t her
back a t t h e s t o r e on J u l y 12, 1968. Her testimony concerning t h a t i n c i d e n t
i s as f o l l o w s :
"Q. What p a r t i c u l a r i n c i d e n t happened t h a t day? A. Well,
when Carl Geertz took over R a l p h ' s Food S t o r e he was having
me wash t h e meat g r i n d e r and saw p a r t s . And I was washing
t h e funnel type t h i n g t h a t t h e meat goes i n t o f o r t h e meat
g r i n d e r . And i t was i n t h e s i n k and I was washing i t , and
I was t r y i n g t o g e t i t up and my back h u r t so bad I had t o
drop i t . I c o u l d n ' t l i f t i t . And Fay, I asked Fay i f he
would f i n i s h washing i t , and he d i d . I had t o go s i t down."
Claimant t e s t i f i e d t h a t she continued working although her back was b o t h e r i n g
her. She t e s t i f i e d t h a t t h e butcher would h e l p her by doing p a r t o f her work.
Claimant t e s t i f i e d t h a t i n August a change o f butchers occurred. At
t h a t t i m e a change t o o k p l a c e i n c l a i m a n t ' s d u t i e s - - t h e r e a f t e r c l a i m a n t had
t o c a r r y l u n c h meat and bacon from t h e back room where t h e t r u c k unloaded i t
t o t h e meat department, and had t o wash a casing weighing 50 t o 60 pounds
t n a t went on t h e o u t s i d e o f t h e meat saw. She t e s t i f i e d concerning an i n c i -
dent t h a t occurred i n t h e l a t t e r p a r t o f August:
"Q. And towards t h e end of August d i d you remember a
p a r t i c u l a r i n c i d e n t t h a t happened? A. Well, my back
j u s t kept g e t t i n g worse and worse. I j u s t had t o s i t down
more o f t e n .
"Q. D i d you t r y t o l i f t t h a t 50 pound p i e c e of m e t a l ? A.
Yes, I t r i e d t o .
"Q. D i d i t h u r t y o u r back? A. Yes.
"Q. This would be about t h e end of August. What happened
t o you a f t e r these change of d u t i e s , what d i d your back do?
A. Well, I found out -- I t h i n k i t was going i n t o muscle
spasms, which I d i d n ' t know i t was doing.
"Q. For example, what kind of symptoms did you have?
A. I had constant pain, and m legs hurt when I stood.
y
And i t would take me a few minutes t o make up m mind t h a t
y
I would take a s t e p before I could do i t .
"Q. You had trouble walking? A. Yes. I knew i t was going
t o hurt.
"Q. When you went t o t h e doctor t h a t was j u s t i n the f i r s t
part of September, whatever t h e records show? A. Yes."
Claimant went on t o explain t h a t the dates i n the d i f f e r e n t reports were
approximations and t h a t t h e variance in dates i n the d i f f e r e n t reports were
in some cases typographical e r r o r s and i n some cases e r r o r s of memory.
The d i s t r i c t court found t h a t claimant received a compensable indus-
t r i a l accident on July 12 and i n l a t e August, 1968, and awarded her temporary
t o t a l d i s a b i l i t y compensation, permanent p a r t i a l d i s a b i l i t y compensation,
and medical expense benefits t o t a l ing $9,259.86. From this award, the em-
pl oyer ' s insurer appeal s.
W will summarize t h e issues f o r review i n t h i s fashion:
e
(1 ) Did claimant s u f f e r a compensable i n d u s t r i a l accident within
t h e coverage of the Montana Workmen's Compensation Act?
(2) I s the claim barred by the one year s t a t u t e of 1imitations i n
section 92-601, R.C.M. 1947?
( 3 ) Did t h e d i s t r i c t court properly permit additional evidence t o be
taken from claimant a t t h e d i s t r i c t court hearing?
(4) Did t h e d i s t r i c t court e r r i n determining t h e amount of the award
t o claimant?
The f i r s t issue i s t h e principal issue i n this appeal. The t h r u s t of
a p p e l l a n t ' s argument i s t h a t claimant did not e s t a b l i s h a tangible happening
of a traumatic nature constituting an unusual s t r a i n a t a s p e c i f i c point i n
time; therefore there i s no compensable injury; and the hearings o f f i c e r of
the Workmen's Compensation Division c o r r e c t l y so found. Appellant f u r t h e r
argues t h a t there was no evidence a t the d i s t r i c t court hearing preponder-
ating against such finding so i t must stand.
Section 92-418, R.C.M. 1947, a s i t existed a t t h e time of t h i s claim,
defines a compensable injury under the Workmen's Compensation Act:
"Injury or injured defined. 'Injury' or 'injured' means
a tangible happening of a traumatic nature from an unex-
pected cause o r unusual s t r a i n , resul ting in e i t h e r external
or internal physical harm, and such physical condition as
a r e s u l t therefrom and exclud.ing disease not traceable to
injury. 11
Two cases have construed t h a t part of the foregoing s t a t u t e relating
to the term "or unusual s t r a i n " added by l e g i s l a t i v e amendment i n 1967,
Jones v . Bair's Cafes, 152 Mont. 13, 19, 445 P.2d 923 and Robins v . Ogle,
157 Mont. 328, 333, 485 P.2d 692.
Jones involved the compensability of a back injury resulting from a
dishwasher picking u p a heavy tray of dishes from the floor during an u n -
usoally heavy work schedule due t o a basketball tournament crowd. In con-
struing the meaning of the term "or unusual s t r a i n " added by l e g i s l a t i v e
amendment in 1967 and how the Court should measure i t , w concluded:
e
" * * * B adding the separate d i s t i n c t phrase, 'or unusual
y
s t r a i n , ' the legislature intended to cover j u s t such a
situation as w have here. There was no 'unexpected cause'
e
b u t there was an 'unusual s t r a i n ; ' thus the measure would
seem to be the r e s u l t of a tangible happening of a traumatic
nature which results in physical harm, be i t a rupture, a
s t r a i n or a sprain."
I n Robins t h i s Court considered the compensability of a back injury
received by a cook mopping a cafe floor who was l i f t i n g a mop pail f u l l of
water when she f e l t a pull and a burning sensation. In holding the injury
compensable w said:
e
" * * *The preposition ' o r ' preceding the term 'unusual s t r a i n '
simply signifies a tangible happening of a traumatic nature
either (1) from an unexpected cause, or ( 2 ) from an unusual
s t r a i n . Accordingly, a tangible happening of an unexpected
nature from an unusual s t r a i n qualifies, irrespective of
whether the s t r a i n i s 'unusual ' from the standpoint of cause
or e f f e c t . While i t may be arguable in the instant case
whether the s t r a i n was unusual from the standpoint of cause,
i t i s clear that the e f f e c t here was unusual--herniation of
an intervertebral disc resulting from picking u p the bucket
in the wrong manner and turning t o pick u p the mop. An u n -
usual result from a work-related s t r a i n qualifies as 'an
unusual s t r a i n ' under section 92-418, R.C.M. 1947. * * *"
Both Jones and Robins make i t clear that the s t a t u t e requires a tangible
happening of a traumatic nature in addition t o the resulting unusual s t r a i n .
Here the decision of the hearings officer of the Workmen's Compensation
Division appears t o be predicated on the absence of such tangible happening
of a traumatic nature. The memorandum opinion accompanying t h i s decision,
a f t e r pointing out the discrepancies and contradictions concerning the date
of the injury and the cause of claimant's back problems, concludes with t h i s
statement:
"The confusion as t o the date of accident along with the
statements and testimony about the gradual buildup of
back pain tend t o indicate that there i s no compensable
injury under the provisions of the Workmen's Compensation
Act."
However a t the hearing in d i s t r i c t court t h i s confusion was explained
by claimant and the d i s t r i c t judge believed her. Her testimony clearly
supported two specific i n j u r i e s , one on July 12 in which she was trying t o
l i f t a part of a meat grinder t o wash i t in a low sink and strained her back
t o the extent she dropped i t ; and the second on August 26 when she t r i e d to
l i f t a 50 pound casing on the meat saw and suffered muscle spasms. In f a c t
there was no testimony t o the contrary except the confusion t h a t arose from
claimant's own testimony before the Workmen's Compensation Division.
In cases where the d i s t r i c t court hears a Workmen's Compensation
appeal on the basis of the record before the Board plus additional testimony,
the d i s t r i c t court becomes t r i e r of the f a c t s , and the judge of the c r e d i b i l i t y
of any witness de novo as t o such additional testimony. Dosen v . East Butte
Copper Mining Co., 78 Mont. 579, 254 P. 880; Novak v. Industrial Accident Board,
73 Mont. 196, 235 P . 754; Nicholson v . Roundup Coal Min. Co., 79 Mont. 358, 257
P. 270; Paulich v . Republic Coal Co., 110 Mont. 174, 102 P.2d 4. Where the
d i s t r i c t court receives additional evidence not presented to the Board, every
presumption i s in favor of correctness of the d i s t r i c t court's decision. Obie
v . Obie Signs, Inc., 143 Mont. 1 , 386 P.2d 68. Here the testimony of claimant
i n d i s t r i c t court, although inconsistent in some respects to that given i n the
hearing before the Board, was nevertheless believed by the d i s t r i c t court and
under such circumstances constitutes a preponderance of substitute evidence
supporting the d i s t r i c t court's finding.
The second issue f o r review i s whether the claim i s barred by section
92-601, R.C.M. 1947. This s t a t u t e provides:
"Claims must be presented within what time. In case of
or
personal i n j u r . ~ death, a l l claims shall be forever barred
unless in writing under oath t o the employer, the
insurer, or the board, as the case may be, within twelve
months from the date of the happening of the accident,
e i t h e r by the claimant or someone legally authorized to
a c t f o r him in his behalf."
In our view t h i s contention lacks any substance.
Claimant f i l e d a claim f o r compensation with the Industrial Accident
Board on January 16, 1969, covering an injury on August 26, 1968. This was
well within the twelve month period required by section 92-601, R.C.M. 1947.
Because the record indicates t h a t the two injuries during the summer of 1968
were closely intertwined and re1 ated,,i t would be unconscionable to deny claim-
ant redress because the July 12 injury was not specifically identified.
The issue of the bar of the s t a t u t e of limitations was not raised a t
the hearing before the Workmen's Compensation Division a1 though many vary-
ing dates of the accidental injury appeared in various reports. The follow-
ing excerpt indicates the scope of the issues a t the hearing.
"The fol 1owing proceedings were had :
"MR. SHERMAN: This i s the time and place the Workmen's
Compensation Division has s e t t o hear the disputed case of
Della M. Love v. Ralph's Food Store and Truck Insurance
Exchange, No. 6039-B-54. F i r s t of a1 1 , I would 1i ke t o get
a statement of the issues involved i n t h i s case.
"MR. OLSON: As I understand i t from reviewing the f i l e ,
the Hearings Officer will realize t h i s i s an old case, and
the issue i s really whether or not there was an industrial
accident under the terms of the Montana Act, and then, of
course, i f there was an accident, what award i s coming t o
the claimant, i f any.
"MR. BENNETT: I represent the Truck Insurance Exchange, the
insurer of the employer, and from m f i l e , the indications I
y
have are that there i s a claim for compensation dated Sep-
tember 4 , 1970 showing the date of injury July 13, 1968, and
apparently there was a previous claim f o r compensation i n
the f i l e dated August 29, 1968.
"MR. SHERMAN: A u g u s t 26th.
"MR. BENNETT: August 26, 1968, r i g h t , and there i s an issue
as t o whether or not an injury as defined by the s t a t u t e
occurred on e i t h e r date, and i f such did, the issue as t o
which date, and obviously, the question of what the amount
of the award i s i f the Workmen's Compensation Division, in
f a c t , determines there was an injury as defined by the s t a t u t e .
"MR. SHERMAN: Very we1 1 , proceed. "
Additionally the employer and his insurer had actual knowledge of the claim
and conducted an extensive investigation of the claim long before one year
had elapsed following the alleged injury. Such circumstances, coupled with
no showing of prejudice, estop the employer and his insurer from insisting
on l i t e r a l compliance with the s t a t u t e with respect to the July 12 injury.
Proceeding to the third issue, w find t h a t the d i s t r i c t court properly
e
permitted additional testimony from claimant a t the d i s t r i c t court hearing.
Many cases decided by this Court have approved t h i s as a reasonable exercise
of discretion vested in the d i s t r i c t court. Young v . Liberty Nat. Ins. Co.,
138 Mont. 458, 357 P.2d 886; Johnson v . Industrial Accident Board, 157 Mont.
221, 483 P.2d 918; O'Neil v . Industrial Accident Board, 107 Mont. 176, 81
P.2d 688; Tweedie v . Industrial Accident Board, 101 Mont. 256, 53 P.2d 1145.
The following excerpt from Paulich v . Republic Coal Co., 110 Mont. 174, 187,
102 P.2d 4, i l l u s t r a t e s the correct rule:
"This court has indicated and held that the d i s t r i c t court
i s n o t precluded from admitting testimony through the same
witnesses and on the same matters t h a t were t e s t i f i e d t o
before the board, and in the Kelly Case, supra, i t said t h a t
where the testimony so adduced i s important and d i f f e r s in
any degree from the testimony adduced before the board on
the same matters, the record of the board may be disregarded."
Directing our attention t o the final issue f o r review we find that
determination of the degree or extent of claimant's d i s a b i l i t y i s properly a
matter for i n i t i a l determination by the Workmen's Compensation Division sub-
j e c t t o subsequent appeal to the d i s t r i c t court. Robins v . Ogle, 157 Mont.
328, 485 P.2d 692. The Board determined t h a t the injury was not compensable
and therefore did not award compensation. The d i s t r i c t court had no juris-
diction to determine i n i t i a l l y the extent of d i s a b i l i t y nor the amount of
compensation payable and should have remanded the claim t o the Board f o r t h a t
determination. Robinsv. Ogle, 157 Mont. 328, 485 P.2d 692; Lind v . L i n d ,
142 Mont. 211, 383 P.2d 808; Obie v . Obie Signs, Inc., 143 Mont. 1 , 386 P.2d
68.
For these reasons, the judgment of the d i s t r i c t court i s modified by
striking the amount of compensation, and as so modified the judgment of
the district court is affirmed. The cause is remanded to the Workmen's
Compensation Division of the Department of Labor and Industry for establish-
ment of the extent of claimant's disability and the amount of her award.
-------- k d - J * - & d
?
Justice
Harrison.
M r . J u s t i c e Wesley C a s t l e s d i s s e n t i n g :
I concur i n remanding t h e c a s e on t h e l a s t i s s u e b u t
d i s s e n t on t h e o t h e r i s s u e s . The f a c t s of t h i s c a s e a r e sub-
s t a n t i a l l y d i f f e r e n t , i n m view and i n view of t h e Board, from
y
t h o s e r e l a t e d by t h e m a j o r i t y opinion.
The i n q u i r y h e r e should be whether t h e r e was a t a n g i b l e
happening of an unexpected n a t u r e from an unusual s t r a i n . See:
Robins v. Ogle, 157 Mont. 328, 485 P.2d 692; Jones v. air's
Cafes, 152 Mont. 13, 16, 445 P.2d 923.
The whole t e n o r of c l a i m a n t ' s testimony i s t h a t she does
n o t know when t h e t r o u b l e came on b u t does know t h a t s h e has had
a s o r e back f o r a long time, a t l e a s t s i n c e 1965.
I n Jones t h i s Court s a i d :
he d i s t r i c t c o u r t on appeal from t h e board
i s n o t j u s t i f i e d i n r e v e r s i n g a f i n d i n g of t h e
board u n l e s s t h e evidence c l e a r l y preponderates
a g a i n s t such f i n d i n g . I'
See a l s o : S t o r d a h l v. Rush Implement Co., 148 Mont. 1 3 , 417 P.2d
95; Rom v. Republic Coal Co., 94 Mont. 250, 22 P.2d 161.
The Board found s p e c i f i c a l l y t h a t no s p e c i f i c d a t e o r
i n c i d e n t was e s t a b l i s h e d and t h a t no c r e d i b l e evidence of a c c i -
d e n t a l i n j u r y a s d e f i n e d i n s e c t i o n 92-418, R.C.M. 1947, was
offered.
I n one of h e r claims dated January 16, 1969, c l a i m a n t gave
a s t h e d e s c r i p t i o n of t h e i n j u r y t h e d a t e o f August 26, 1968, and
t h a t " t h i s i n j u r y was caused by c o n t i n u o u s l y l i f t i n g something
heavy. I have developed a t y p e of a r t h r i t i s . "
I n a n o t h e r of h e r claims d a t e d September 4 , 1970, c l a i m a n t
gave a d a t e of i n j u r y of J u l y 13, 1968, and t o d e s c r i b e t h e a c c i -
d e n t s a i d , "other r e p o r t given t o Sam Munson." In the report
given t o Sam Munson i n h e r own handwriting d a t e d June 8 , 1970,
she s a i d , "k
i 9; * I do n o t r e c a l l any p a r t i c u l a r i n c i d e n t of
s l i p p i n g o r f a l l i n g t h a t might have caused m back t o be h u r t b u t
y
I t h i n k i t was a combination of l i f t i n g of t h e heavy bacons and
the saw casing cover which was so heavy. On July 13, 1970, 1
had a lot of pain in my back and it was hard to straighten up
when I was stooped over. I do not recall any particular moment
it started to hurt but I just noticed it was sore. * ik *I1
Claimant admitted that at no time did she ever tell her
employer what day she was injured. Dr. Whitehair's report dated
October 30, 1968, gives the date of the accident as June 15, 1968.
Dr. Whitehair's report dated December of 1968, gives the date of
the accident as July 20, 1968, and a third report of Dr. Whitehair
gives the date of the accident as July 16, 1968. Thus from
claimant and her doctor we have the following dates: June 15,
July 12, July 13, July 16, July 20, August 24, and August 26.
These conflicting dates, coupled with her statement that she did
not recall any incident, amounts to exactly what the hearings
officer found, that no tangible happening of an unexpected nature
occurred or was shown.
The so-called additional testimony before the district court
"clarifying the confusion over the various dates when the injury
occurred'' does nothing to show a traumatic happening.
I would reverse the trial court and affirm the Board.
I fear that this decision overlooks the rules of burden of proof,
presumption of correctness of the findings, rules on additional
testimony; and under the guise of "liberal1'construction has
required no proof at all---rather just an assertion that sometime
during a three month period a sore back of long standing became
an unusual strain from a traumatic happening of an unexpected nature.