Dotyv.Industrial Accident Fund

Supreme Court of MontanaJun 24, 1936
102 Mont. 511 (Mont. 1936)
102 Mont. 51159 P.2d 783

No. 7,576.

Submitted June 15, 1936.

Decided June 24, 1936. Rehearing denied July 22, 1936.

Workmen's Compensation — Appeal by Claimant to District Court — When Review, not Trial De Novo — Absence of Additional Evidence — When Only Decision of Industrial Accident Board may be Overturned — Death of Workman Due to Pneumonia Caused or Aggravated by Industrial Accident — Burden of Proof — Insufficiency of Evidence. Workmen's Compensation — Appeal to District Court — Absence of Additional Evidence — Review on Record Made by Industrial Accident Board — When Only Decision of Board may be Overturned. 1. The Industrial Accident Board, vested with full power and jurisdiction to try and finally determine all matters respecting workmen's compensation, subject to review by the courts, is the trier of fact, its findings being equivalent to the verdict of a jury or the findings of the district court sitting without a jury, and where on appeal to the district court there is no additional evidence adduced, the re-examination of the case by it is a review and not a trial de novo, and the decision of the board can be overturned only if on examination of the record it can be said that the evidence clearly preponderates against it. Same — Evidence Held Sufficient to Sustain Finding of Board That Death of Workman not Due to Industrial Accident on Theory That Injury Caused or Aggravated Pneumonia from Which Death Ensued. 2. Evidence in a workman's compensation case in which the widow of a workman who died of pneumonia following an accident sustained by being struck on the right side by the handle of a plow while plowing in hard soil, based her claim on the contention that the accident caused the pneumonia or aggravated a condition causing it, held to support the finding of the Industrial Accident Board, reversed by the district court on appeal, that decedent's death did not result from the accidental injury and that therefore claimant was not entitled to recover. Same — Quotations from Medical Works not Called to Attention of Board as Evidence Contradicting Medical Experts not Entitled to Consideration on Appeal by Supreme Court. 3. Quotations in claimant's brief from works on the science of medicine and surgery asserted by claimant for compensation under the Workmen's Compensation Act to contradict the testimony of medical experts in the case, which were not brought to the attention of the board as evidence or by cross-examination of the witnesses and therefore not incorporated in the record on appeal on which the cause was reviewed by the district court, may not be considered by the supreme court. Same — Death Due to Industrial Accident — Burden of Proof on Claimant. 4. The Workmen's Compensation Act provides for compensation only for injuries arising out of and in the course of the claimant's employment, or, in case of death of the workman, where death is caused by such injuries, and the burden of establishing by a preponderance of the evidence that death in such case resulted from an accidental injury is upon the claimant.

Appeal from District Court, Gallatin County, in the Sixth Judicial District; Robert C. Stong, a Judge of the Thirteenth District, presiding.

Mr. Raymond T. Nagle, Attorney General, and Mr. C.J. Dousman, Assistant Attorney General, for Appellant, submitted a brief; Mr. Dousman argued the cause orally.

Mr. James H. Morrow, Jr., for Respondent, submitted a brief and argued the cause orally.


The only question raised by appellant and decided by the Industrial Accident Board and by the district court was whether that accident caused or contributed to the subsequent death. Of course, the burden was upon the claimant to establish by a preponderance of the evidence the fact that decedent's death resulted from the accidental injury. ( Woin v. Anaconda C. Min. Co., 99 Mont. 163, 177, 43 P.2d 663; Birdwell v. Three Forks Portland Cement Co., 98 Mont. 483, 40 P.2d 43; Moffett v. Bozeman Canning Co., 95 Mont. 347, 26 P.2d 973.)

Since no new or additional evidence was given in the district court, the case being submitted only upon the record made before the Industrial Accident Board, that court sat only as a court of review and should not have set aside the decision of the board unless the evidence contained in the record "clearly preponderated" against the board's decision. That same record is before this court, and this court is in as good a position to determine the preponderance of the evidence as was the district court; therefore, unless this court can determine from the record that the evidence clearly preponderates against the decision of the board, the judgment of the district court must be reversed. (Secs. 2948, 2954, 2960, Rev. Codes 1921; Anderson v. Amalgamated Sugar Co., 98 Mont. 23, 30, 37 P.2d 552, 554; Moffett v. Bozeman Canning Co., supra; Williams v. Brownfield-Canty Carpet Co., 95 Mont. 364, 26 P.2d 980; Landeen v. Toole County Refining Co., 85 Mont. 41, 53, 277 P. 615; Herberson v. Great Falls Wood Coal Co., 83 Mont. 527, 533, 273 P. 294; Kerns v. Anaconda C.M. Co., 87 Mont. 546, 554, 289 P. 563; Birdwell v. Three Forks Portland Cement Co., supra; Rom v. Republic Coal Co., 94 Mont. 250, 22 P.2d 161; Morgan v. Butte Central M. M. Co., 58 Mont. 633, 194 P. 496.) Accordingly, it remains only to determine by an analysis of the record of the board's proceedings whether the evidence clearly preponderates against its findings. Of course, the number of witnesses testifying one way or another is not conclusive. (Subd. 2, sec. 10672, Rev. Codes 1921; Parchen v. Chessman, 53 Mont. 430, 434, 164 P. 531.) [Here follows a review of the evidence.]

We commend to the attention of the court the extended annotation appearing in 20 A.L.R., at pages 1, 66. None of those cases appear to go to the length of dispensing with the necessity of evidence of a causal connection between the industrial accident and the disease subsequently causing death, and none of them appear to disagree with the rule that where the evidence is substantially in conflict, the decision of the trier of facts should be sustained. Not only does this record fail to show that the evidence before the board preponderated against its findings, but it is difficult to see how it could have come to any other conclusion. The decision of the board should be reinstated and the judgment of the district court should be reversed.


We contend that the Industrial Accident Board in accepting the testimony and statements of Drs. Cooney, Treacy and Thorkelson have accepted the theory that trauma is not a cause of pneumonia, and hence pneumonia is not compensable, and have disregarded the testimony of eye-witnesses and direct testimony, and accepted in lieu thereof indirect and hearsay evidence. Trauma to a chest wall of an individual can cause pneumonia. We cite "Practice of Medicine" by William Osler. In the seventh edition, page 166, from the paragraph entitled "Trauma-Contusion Pneumonia," it is said: "Pneumonia may follow directly upon injury, particularly of the chest, without necessarily any lesion of the lungs. There have been several well marked cases at the Johns Hopkins Hospital. Stearn described three clinical varieties: First, the ordinary lobar pneumonia, following a contusion of the chest wall. Secondly, a typical case with slight fever and not very characteristic physical signs; thirdly, cases with the physical signs and features of broncho pneumonia." Another noted medical authority is "Sajous' Analytic Cyclopedia of Practical Medicine:" "Pneumonia often follows `catching cold' owing to the associated lowering of the resisting powers; in many cases, however, no history of exposure to cold is obtainable. Traumatism to the chest predisposes to it * * *"

Where disability results to an employee arising out of and during the course of his employment, which disability is caused by pneumonia resulting from his employment, it is compensable. (28 R.C.L. 794; Ann. Cas. 1918B, 328; Southwestern Surety Ins. Co. v. Owens, (Tex.Civ.App.) 198 S.W. 66, 20 A.L.R. 66; A. Breslauer Co. v. Industrial Com., 167 Wis. 202, 167 N.W. 256; Hanna v. Michigan Steel Casting Co., 204 Mich. 139, 170 N.W. 6; Vogeley v. Detroit Lumber Co., 196 Mich. 516, 162 N.W. 975; Folts v. Robertson, 188 App. Div. 359, 177 N.Y. Supp. 34; Dumbluskey v. Philadelphia R. Coal I. Co., 270 Pa. 22, 112 A. 745.)

It is sufficient to justify an award of compensation under the Workmen's Compensation Act, if by weakening resistance or otherwise an accident so influences the progress of existing disease as to cause death or disability. ( Blackburn v. Coffeyville Vitrified Brick Tile Co., 107 Kan. 722, 193 P. 351.) Pre-existing disease, or disturbed physical condition, when aggravated by an accident, is compensable. ( Graybar Elec. Co. v. Industrial Com. of Utah, 73 Utah, 568, 276 P. 161.) Workmen are entitled to compensation when previously existing latent conditions not disabling are aggravated by fortuitous events, aside from usual course of events, occurring in the course of employment which produces disability. ( Murphy v. Industrial Acc. Board, 93 Mont. 1, 16 P.2d 705.)

The only physical cause as shown by the evidence of the deceased's condition previous to his death was an injury he received out of and during the course of his employment. Therefore, if a traumatic injury can be a cause, contributing or predisposing to pneumonia, the only reasonable inference that can be deduced is that the death of the decedent was the result of an injury arising out of and during the course of his employment. To arrive at any other conclusion upon the evidence presented in this case would be to hold that trauma is not a cause of pneumonia. The Industrial Accident Board so held.


The Industrial Accident Board has appealed from a judgment of the district court reversing its decision denying compensation to the widow of Orville Doty, who died of lobar pneumonia on May 5, 1934, following an industrial accident suffered on April 27, 1934. The question presented to the board was as to whether or not the accident caused the pneumonia or aggravated a condition which would cause pneumonia. This question was determined by the board in the negative on conflicting expert testimony. The district court reversed the board on the record made before the board alone.

The undisputed facts are that Doty, an FERA worker who was "undernourished" and not in good physical condition, and who had been treated for pleurisy in March, 1934, while holding a plow in hard sod, was struck on the right side by the handle of the plow, or, according to the report of the attending physician (the osteopathic physician who had theretofore treated him), and the claim filed with the board, the strain of trying to hold the heavy plow in hard ground "pulled a rib out of place." Doty complained of pain in his side, but worked the remainder of the day; there was no work for him the following day. The osteopathic physician attended him on April 29, and, according to his report, "due to the displacement of the rib and then exposure an inflammation was set up right away causing a severe case of pleurisy which terminated in Lobar Pneumonia of the lower right lobe."

Dr. F.I. Sabo, who had just completed his intern work and located at Three Forks, was called in at noon on May 2; he found Doty in a dying condition and called in A.C. Kelly, M.D., and another M.D. for consultation on May 4, but it was then too late to do anything for the patient. Dr. Sabo performed an autopsy on the body, the report of which, as well as the doctor's testimony, is in the record. He testified that the pleurisy "would probably produce an area of reduced resistance, predisposed to pneumonia," and was of the opinion that the injury "could have caused the pneumonia, consequently the death," but admitted that this was the first case in his experience where such was the result, although he had treated similar cases of injury by blows about the chest where the blows were "without crushing injury," and that he did not know whether trauma is accepted as a cause of lobar pneumonia.

Reverting to the osteopath's report and testimony, there was no evidence that Doty was subjected to "exposure"; in fact, the testimony was that on April 27 "it was pretty nice weather; just a little bit cool, no hot day or anything like that."

The affidavit of Dr. A.C. Kelly was received in evidence; therein the doctor recites the history of Doty's case and that on May 4 he found him suffering from "a double pneumonia," and closes: "After consulting with Dr. Sabo and the patient and his wife, I determined on my findings that the man's pneumonia was a condition that was superimposed at the site of injury to lung and that pneumonia was the direct cause of the man's death and that the injury was a contributing factor in bringing about this pneumonia." There was no opportunity given for cross-examination of this witness.

On the hearing, Drs. S.A. Cooney and J.L. Treacy sat as referee physicians, hearing all of the evidence and questioning the witnesses on the stand, with the understanding that they were to consider the evidence and render their expert opinions, not as witnesses for the board, but "in an impartial way for the benefit of the board." Summarizing the expert opinion of these "referees": Pneumonia only results from severe irritation about the lungs; it is possible that an injury in the region of the ribs might cause a condition that results in severe irritation and pneumonia, but in the absence of a fracture of the rib or crushing, and in view of the fact that the blow described did not even leave a discoloration of the skin, the injury was not sufficiently severe to have caused a condition resulting in pneumonia.

The chairman of the board agreed to permit the claimant to choose a physician to consider the record and report his findings to the board. Dr. Thorkelson, of Butte, was chosen and to him was submitted the entire record, including the report of the post mortem examination. In his report the doctor analyzed the testimony and the report, commenting thereon at considerable length, and, in the course of his discussion, said: "We must bear in mind that injury cannot produce pneumonia. Pneumonia is brought about by a bacterial invasion in the lungs." The doctor explained that an injury severe enough to injure the lungs, or exposure and neglect, can constitute "a predisposing factor which permits pneumonia to develop," but that "it is difficult to imagine that an injury to the chest wall, which leaves no external sign whatever, could possibly cause injury to the lung proper." His deduction is that "the injury is simply a coincidence" and "the accident did not play a part" in causing Doty's death. Taking the identical record on which Dr. Thorkelson based his expert opinion, and without any additional evidence being introduced, the district judge arrived at the opposite conclusion.

Dr. Thorkelson, chosen by the claimant, must certainly be credited with being unbiased, but, aside from his report, the record before the board presented, as shown above, a conflict in the testimony; a conflict between witnesses appearing before the board, thus granting to the chairman the advantage of seeing them on the stand, hearing of their qualifications, and judging as to their credibility and the weight to be given to their testimony, respectively; an advantage not shared by the district judge.

The board is vested with full power, authority, and [1] jurisdiction to try and finally determine all matters respecting compensation, "subject only to review in the manner and within the time in this Act provided." (Sec. 2947, Rev. Codes.) The board is the trier of fact, and its findings are equivalent to the verdict of a jury or the findings of a court sitting without a jury ( Kerns v. Anaconda C.M. Co., 87 Mont. 546, 289 P. 563), and, as in such cases where there is no additional evidence adduced before the court, the re-examination is a review and not a trial de novo ( Dosen v. East Butte C.M. Co., 78 Mont. 579, 254 P. 880), the decision of the board can be overturned only if on an examination of the cold record it can be said that the evidence clearly preponderates against that decision ( Rom v. Republic Coal Co., 94 Mont. 250, 22 P.2d 161; Moffett v. Bozeman Canning Co., 95 Mont. 347, 26 P.2d 973; Birdwell v. Three Forks P.C. Co., 98 Mont. 483, 40 P.2d 43).

It is true that we sustained the district court in reversing [2] the board "on the record" in the Moffett Case, but there the experts, having given their opinion that the claimant's disease was not caused by his injury, frankly stated that they, and the "authorities" generally, did not know what causes that disease and admitted that it is known to "follow" trauma. We therefore held that their answers should have been stricken and "wholly disregarded by the trier of facts." There was, therefore, no substantial evidence in the record of that case supporting the decision of the board, and there was substantial evidence justifying the judgment of the district court. Herein there is substantial evidence supporting the decision of the board, and, even on the cold record, it is apparent that the preponderance of the evidence is in favor of that decision.

The above rules are peculiarly applicable here, as the trial court "on the cold record" set his judgment as a layman against that of an acknowledged expert authority based on the identical record.

Counsel for the claimant has in his brief quoted from certain [3] works on the science of medicine and surgery which he contends contradict the expert testimony in the case at bar. These works are not available to us, and we cannot say that the full text would support his position, nor even that the experts quoted do so; but if he is correct, those works were not brought to the attention of the board either by submission as evidence or by cross-examination of the witness on the stand, and cannot now be considered. Where, as here, the appeal presents a review solely, the appeal must be decided by the appellate court upon what was before the trial court; that is, upon the record evidence and nothing else. ( Newell v. Whitwell, 16 Mont. 243, 40 P. 866.) This rule applies with equal force to the appeal to the district court and the appeal here. This court has, in this class of cases, appellate jurisdiction only ( Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 P. 124), and cannot consider matters dehors the record to discredit witnesses who, on the record, appear to be entitled to full credit as men of recognized standing in their profession. However, if we were to consider the works suggested, it does not appear that the doctors, granting, as they did, that a sufficiently severe injury to the chest could predispose the injured party to pneumonia and thus be a contributing cause of death, were not in accord with the consensus of medical opinion on the subject when they declared that the injury sustained by Doty was not such as would bring the case within the declarations made.

Sympathy for the widow is a strong incentive for the award of [4] compensation, but the courts, as well as the board, are bound by the Compensation Act which provides only for compensation for "an injury arising out of and in the course of his employment, or, in the case of his death from such injury" (sec. 2911, Rev. Codes), the burden being upon the claimant to establish by a preponderance of the evidence that the decedent's death resulted from the accidental injury ( Woin v. Anaconda C. Min. Co., 99 Mont. 163, 43 P.2d 663, and cases there cited). The claimant having failed to so establish liability, the decision of the board was inevitable, and, as no additional evidence was presented to the trial court, the court erred in reversing the board.

The judgment is reversed and the cause remanded to the district court of the sixth judicial district, with direction to sustain the decision of the board.

ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur.

MR. CHIEF JUSTICE SANDS, being absent, did not hear the argument and takes no part in the foregoing decision.