No. 14732
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
VIOLETTE MOEN I
Claimant and Respondent,
DECKER COAL COMPANY, Employer,
and
EMPLOYERS MUTUAL LIABILITY INSURANCE
COMPANY OF WISCONSIN,
Defendant and Appellant.
Appeal from: Workers1 Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
Montana
Randy Bishop argued, Billings, Montana
For Respondent:
Hoyt and Lewis, Great Falls, Montana
John Hoyt argued, Great Falls, Montana
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Submitted: September 21, 1979
Decided : D E C 1 4 1919
-
Filed:
DEC f <: : ;
"
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Employers Mutual Liability Insurance Company of Wis-
consin, the insurance carrier for the employer, Decker Coal
Company, appeals from a judgment of the Workers' Compensation
Court entered on behalf of Violette Moen, the claimant for
benefits due pursuant to the Montana Workers' Compensation
Act.
Mike Moen, decedent and husband of the claimant, was
employed as an oiler by Decker Coal Company at Decker,
Montana. On Saturday, November 1, 1975, the decedent was
working overtime steam cleaning various pieces of heavy
equipment. This was a task which was not part of his usual
job. Superintendent, Delmar Bradway had the decedent steam
cleaning a row of equipment during the morning. After noon,
the only remaining employees left at the site were Bradway
and the decedent.
Bradway testified that he and the decedent operated the
steam cleaner in the afternoon on the same equipment which
had been cleaned that morning in order to clean the batteries.
Although a union agreement with the Decker Coal Company
contains provisions prohibiting supervisory personnel from
doing the tasks of the rank and file members, Bradway testified
that he operated the steam cleaner while the decedent drove
an old Ford F600 truck on which the steam cleaner was mounted.
When they finished the job, the decedent was assigned the
task of draining the cleaner and storing the hoses. The
work day terminated about 3:30 p.m. Bradway also testified
that the decedent drove away in his pickup truck and did not
report any injury or ill effects from working that day.
The decedent visited briefly with James McCarthy, the owner
of the grocery store and post office in Decker, Montana, sometime
between 3:50 p.m. and 4:50 p.m. the same day but did not indicate
-2-
to McCarthy any ailments. About twenty minutes later the
decedent again came to McCarthyls premises and asked McCarthy
to drive him to Sheridan, Wyoming, some 35 miles away. McCarthy
testified that the decedent looked pale and promised to take him
as soon as he finished repairing a pump in his basement.
The decedent did not wait but apparently drove himself to
Memorial Hospital in Sheridan where he was admitted at approximately
6:00 p.m. Upon admission the decedent related a history to the
attending physician, Dr. William Williams, of having an abrupt
onset of left anterior chest pain with pain radiating into the
left arm at approximately 2:00 p.m., the same day. The decedent
further indicated that the pain went to its peak intensity within
ten to fifteen minutes and then continued until he presented
himself at the hospital. An electrocardiogram was performed
and findings were consistent with an acute anterior myocardial
infarction.
The decedent was put on a monitor and treated with medication
until approximately 2:57 a.m., November 2, 1975 when his heart
changed rhythm (arrhythmia) and after several electric shock
treatments and medication, the decedent died at 3:35 a.m. on
November 2, 1975. The cause of death was stated as an anterior
myocardial infarction with cardiac arrest. No autopsy was performed.
The decedent was 63 years of age.
A claim for compensation was filed by the decedent's widow
on September 27, 1976. The claim was denied by the appellant
on the grounds that Moen's death was not causally related to
his employment. A petition seeking a hearing before the Workers'
Compensation Court was filed on August 31, 1977 and amended
January 25, 1978. Pretrial conferences were held on ~eptember
1, 1977, April 6, 1978 and July 13, 1978. After several post-
ponements, the matter was heard on August 2, 1978. ~ollowingthe
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hearing, briefs were filed by both parties. On January 29,
1979, the decision of the court was rendered with findings of
fact and conclusions of law finding that Moen's death was
causally related to his employment and holding appellant liable
to claimant for benefits.
The two issues presented on this appeal are whether the
decedent suffered a compensable "injury" as defined by section
39-71-119, MCA, and if so whether such injury arose "out of
and in the course of his employment" within the scope of section
39-71-407, MCA? We find that the first issue is dispositive
of the case and reverse based upon the following reasoning.
Section 39-71-119, MCA, states in pertinent part:
"Injury - injured defined.
or 'Injury' or 'injured'
means :
"(1) a tangible happening of a traumatic nature
from an unexpected cause or unusual strain
resulting in either external or internal physical
harm . . ."
There are two elements in the statute which must be met:
" (1) there must be a tangible happening of a traumatic
nature, and
"(2) this must be shown to be the cause of physical
harm." (To the worker.) Dumont v. Wickens Bros. Const.
Co. (1979), Mont . , 598 P.2d 1099, 1108,
36 St.Rep. 1471, 1482; Hurlbut v. Vollstedt Kerr Co.
(1975), 167 Mont. 303, 538 P.2d 344.
In explaining the first element of the injury formula,
this Court has stated:
"A tangible happening must be a perceptible happening,
Webster's Third New International Dictionary. Some
action or incident, or chain of actions or incidents,
must be shown which may be perceived as a contributing
cause of the resulting injury. This Court has found
neuroses compensable, but a tangible, real happening
must be a cause of the condition." Stamatis v.
Betchel Power Corp. (1979), ,
Mont. - 601 P.2d
403, 406, 36 St.Rep. 1866, 1870; Erhart v. Great
Western Sugar Company (1976), 169 Mont. 375, 381, 456
P.2d 1055, 1058.
Regarding the causal element, the death must still be
proven to be the result of a tangible happening of a traumatic
nature. The claimant bears the burden of proving by a pre-
ponderance of the evidence that a tangible happening of a
traumatic nature proximately caused physical harm, McAndrews
v. Schwartz (1974), 164 Mont. 402, 412, 523 P.2d 1379, 1384,
and must show more than the mere possibility that the happening
caused the harm. Erhart, 169 Mont. at 380, 546 P.2d at 1058;
Stordahl v. Rush Implement Co. (1966), 148 Mont. 13, 20, 417
P.2d 95. If the evidence indicates a worker suffered a
heart attack while - work, rather than - -a result of work,
at as -
no injury occurred under the statute. Ness v. Diamond Asphalt
Company (1964), 143 Mont. 560, 564-65, 393 P.2d 43, 45-46.
Applying this bifurcated test to the record in the present
case demonstrates that the statutory requirements are not
satisfied. Here there is no tangible happening of a traumatic
nature. The only evidence going to the satisfaction of this
requirement is a notation on the records of the hospital medical
room indicating that the decedent's peak intensity of pain occurred
at approximately 2:00 p.m. on Saturday, November 1, 1975. Alone
this evidence is insufficient.
The remaining evidence which respondent asserts as
supportive of a valid claim goes to the collateral matter of
aggravation of the decedent's condition and are not solid
links forming a chain of events required by this Court in
Erhart, supra. The testimony of Dr. Fletcher that the
continued activity of the decedent lessened his chance of
survival as well as the lack of proximity to a hospital are
factors which may have aggravated the underlying myocardial
infarction but they do not complete the chain of events.
Claimant argues that several New Jersey cases are on point
with the current case and that the courts there found the
existence of a compensable injury. However, what claimant fails
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to recognize is "[tlhe displacement of the unusual-exertion
requirement in New Jersey by an essentially causal test . . ."
Larson's Workmen's Compensation Law S38.64(b) at 7-185.
Claimant's argument disregards Montana's independent requirement
that a strain must result from "a tangible happening of a
traumatic nature" in order to be compensable.
"Not only must claimant show an unusual strain,
but that the strain must result from a tangible
happening of a traumatic nature. [Citations
omitted.] In Love v. Ralph's Food Store, 163
-----
Mont. 234, 516 P.2d 598, we stated that Jones [v.
Bair's Cafe (1968), 152 Mont. 13, 445 P.2d 9 2 3 ; r
and Robins [L Ogle (1971), 157 Mont. 328, 485 P.2d
692,] made this rule clear. See, also, the earlier
cases: Lupien v. Montana Record Publishing Co.,
143 Mont. 415, - -
0 P.2d 455; James v. V.K.V. Lumber
Co., [I45 Mont. 466, 401 P.2d 2821, supra; Miller
-
- Sundance Recreation, Inc., 151 Mont. 223, 441
v.
P.2d 194." Dumont v. Wickens Bros. Const. Co. (197
.
-~ -. -
Mont , 598 P.2d 1099, 1108, 36 St.Rep.
1471, 1483 citing Erhart, 546 P.3d at 1058.
As we stated in Dumont and we reaffirm as applicable here:
"Claimant must still prove that her husband's death was the
result of a 'tangible happening of a traumatic nature,' which
she totally failed to do." Dumont, supra.
Moreover, these factors completely fail to satisfy the
causation element of the formula. The record is devoid of any
evidence that the heart attack occurred as a result of work
within the meaning of Ness, supra.
Since this Court finds no injury within the purview of
section 39-71-119, MCA, we hold that the decedent did not sustain
a compensable injury.
Reversed.
Chief Justice
We Concur:
Mr. Justice John C. Sheehy dissenting:
The majority does not meet head on the basic fact
situation established by the claimant on which the Workers'
Compensation Court found in favor of the claimant.
The facts as found by the Workers' Compensation Court
include these:
"That the testimony reveals that the decedent
reported for work about 8:00 a.m. Saturday,
November 1, and was assigned the task of steam
cleaning engines and transmissions of certain
heavy equipment operated by the employer. His
regular duties for which he was employed were those
of an oiler. The decedent was described as a good
oiler and worker. That the job of steam cleaning
was different from the job of an oiler.
"That the task of steam cleaning was described as
an unpleasant, dirty job which required one to
drag around the steam hoses from one part of a
machine or one machine to another. The steam
cleaner wore rain gear and goggles for protection
from getting wet and dirty. That the job was
described as not being more difficult than the job
of oiler.
"That Delmar Bradway, Maintenance Superintendent,
testified that the decedent worked at steam
cleaning until about noon on November 1 then had
lunch. He stated also that two mechanics who
also were working overtime on November 1 were excused
at noon because they wanted to go home. Apparently
in the afternoon the only employees left at the site
were Bradway and the decedent.
"Bradway further testified that in the afternoon he
and the decedent operated the steam cleaner to get
steam off the batteries on the equipment. He said
that he operated the steam cleaner while the deceased
drove an old Ford F600 truck on which the steam cleaner
was mounted. They finished the job and the decedent
was assigned to the task to drain the steam cleaner
and hang up the hoses. The work day, according to
the record, terminated about 3:30 p.m.
"That Bradway testified that the decedent signed
himself off the job at 3:30 p.m. and drove away in
his pickup truck and did not report any injury or
ill effects from working on the job. He later saw
the decedent standing by his pickup with the hood
raised and again the decedent did not indicate that
there were any ill effects from the job.
"That James McCarthy, an employer of Peter Kiewit
and Sons who also owns the grocery store and post
office in Decker, Montana saw the decedent sometime
between 3:50 p.m. and 4:50 p.m. on November 1,
1975 in the yard at his store. The decedent and
McCarthy visited as they did on many occasions in
the past. According to McCarthy the decedent
did not indicate that he wanted to see a doctor
nor that he was feeling bad. McCarthy then excused
himself and went to work on a pump in the cellar
of his building. A short time later the decedent
came to the door, knocked, and McCarthy came up from
the cellar. The decedent asked McCarthy, a long
time friend, to take him to town, which he had never
done before; and McCarthy said that he would be with
him in ten minutes, as soon as he was through with
the task of fixing the pump in his basement. Twenty
minutes later McCarthy saw the decedent. He looked
pale and wasn't his usual self.
"That the decedent apparently drove himself to Memorial
Hospital of Sheridan County, Wyoming a distance of
approximately 35 miles, where he was admitted at
approximately 6:00 p.m. on November 1, 1975. Upon
admission the decedent gave a history to the attending
physician, Dr. William Williams, of having an abrupt
onset of left anterior chest pain with pain radiating
into the left arm at approximately 2:00 p.m. November
1, 1975. The deceased further indicated that the pain
went to its peak intensity within 10 to 15 minutes
and then continued until he presented himself at the
hospital. An electrocardiogram was performed and
findings were consistent with an acute anterior myocardial
infarction.
"That the decedent was put on a monitor and treated
with medication until approximately 2:57 a.m.
November 2, 1975 when his heart changed rhythm and,
after several electric shock treatments and medication,
the decedent died.. . .
"Dr. Donald G. Fletcher, a physician and surgeon
who practices in Conrad, Montana, testified on behalf
of the claimant during which testimony the following
facts were established:
"a. An anterior myocardial infarction is
the most severe type of myocardial infarction
because the left anterior coronary arteries
supply blood to roughly half the heart.
"b. That the decedent suffered the actual
attack at the time the pain reached its peak
intensity which is approximately 2:00 p.m.
according to the history given to Dr. Williams
on November 1, 1975. The hospital records
regarding this history have been stipulated
into evidence.
"c. After suffering a myocardial infarction
at approximately 2:00 p.m. November 1, 1975,
the decedent's continued employment activities,
which, according to Delmar Bradway, consisted
of driving a 1963 or 1964 F600 Ford truck,
without power steering, and with a four speed
manual transmission with clutch, from one scraper
to another for approximately one and one
half hours, and thereafter driving himself
in an automobile to a hospital, a distance
of approximately 35 miles, aggravated the
existing, underlying myocardial infarction.
The said aggravation consisted of exertion
caused by the above activities which placed
an unusual demand on the decedent's heart
thereby causing further muscle damage to the
heart, making the heart more susceptible to
arrhythmia or anoxic fibrillation. The
employment activities of the decedent after
2:00 p.m. November 1, 1975, and exertion caused
by those activities reduced the decedent's
chances of living.
"d. That prompt first aid and medical attention
as soon after the onset of attack as possible
is the most important time for treatment of this
kind of injury. Such treatment consists of
immediate hospitalization, the administration of
oxygen, medication, monitoring, and placing the
patient in complete physical and emotional rest.
"That based on the testimony of Drs. Fletcher and Williams
the activities engaged in by the decedent after the
onset of the symptoms of a myocardial infarction
probably were a contributing factor in causing the onset
of the arrhythmia that led to his death.
"That although the strain of the activities engaged in
by the claimant at the time of the onset of symptoms
of the myocardial infarction may not have been unusual,
the activities and the results of such activities and
the resulting myocardial infarction were unusual."
The foregoing findings of the Workers' Compensation Court
demonstrate that the claimant, Violette Moen came to this Court
backed by the Workers' Compensation Court in her claim that
the continued work exertions required of her husband after
the onset of his infarction, the strain to which he was put
thereafter, and the driving of the automobile necessary to
seek medical attention, were tangible happenings of a traumatic
nature from an unexpected cause or unusual strain that resulted
in internal physical harm. As a result therefrom he suffered
death. Her case fits absolutely within the definition of an
injury as set out in section 39-71-407, MCA.
The majority opinion contains no effort to explain away
or set aside the findings of fact of the Workers' Compensation
Court as we have set,them forth above. In fact they could not
be set aside, because findings of the Workers' Compensation
Court enjoy the protection of Rule 52, Mont.R.Civ.P., and
must stand unless clearly erroneous. When substantial
evidence supports the findings of Workers' Compensation Court,
the appellate court cannot overturn them. Dumont v. Wickens
Bros. Const. Co. (1979), Mont. , 598 P.2d 1099, 1106,
36 St.Rep. 1471, 1480. We followed that rule recently in
Stamatis v. Bechtel Power Co. (1979), Mont . , 601
P.2d 403, 36 St.Rep. 1866.
I would affirm the Workers' Compensation Court in this
case.
F.
Justice
J ,
7
1. n
Justice