Birnie v. U.S. Gypsum Co., 9818
| Decision Date | 16 July 1958 |
| Docket Number | No. 9818,9818 |
| Citation | 134 Mont. 39,328 P.2d 133 |
| Parties | John BIRNIE, Plaintiff and Respondent, v. UNITED STATES GYPSUM COMPANY, Defendant and Appellant. |
| Court | Montana Supreme Court |
Raymond E. Dockery, Jr., Lewistown, for appellant.
Howard C. Gee, Lewistown, for respondent.
This is an action under the Workmen's Compensation Act, R.C.M.1947, Sec. 92-101 et seq.
There is no question but that the plaintiff, John Birnie, was injured in an accident arising out of and in the course of his employment by the United States Gypsum Company, in its plant at Heath, Montana, on December 30, 1954.
At the time of the accident Birnie was of the age of 70 years, married, his wife being his only dependent.
The United States Gypsum Company, a corporation, plaintiff's employer, was enrolled under Plan No. 1 of the Workmen's Compensation Act of the State of Montana.
The plaintiff Birnie worked for the said United States Gypsum Company for some ten or eleven years and had been engaged in heavy manual work for many years, having been employed as a stacker for the Company. On December 30, 1954, he was employed to assist in the loading of gypsum boards into a freight car. The boards were brought into the car on a mechanical conveyor, each board was four feet wide and twelve feet long. One of these boards was delayed in the conveyor and the board following, struck and forced it forward, hitting plaintiff on the right leg and knocking him down. Plaintiff was first removed from the scene of the accident to the Company's laboratory and then Mr. Hruska, an office employee, and Mr. Scott, manager of the board plant, took plaintiff to Dr. Eck in Lewistown for treatment.
Dr. Eck on February 17, 1955, made report to the Board that the plaintiff Birnie was injured and suffered contusions resulting in phlebitis to right leg just below knee; that plaintiff was disabled by his injury; that he was not able to attend to any part of his regular occupation; and that there was no evidence of malingering.
Five days after the accident plaintiff, receiving no relief from the pain and suffering, went to the hospital and called Dr. Schubert who, according to the record, attended and treated plaintiff up to time of hearing on his claim.
It was testified that up to the time of the accident plaintiff was a very active man but that since the accident he has suffered a great deal of pain from his injured leg; that his leg swells every night and that he cannot do any heavy work or labor. This evidence was not controverted.
Referee for the Industrial Accident Board held a hearing at Lewistown on February 10, 1956, on the claim filed by the plaintiff Birnie for compensation, at which hearing plaintiff appeared in person and by attorney and the defendant, United States Gypsum Company, by its attorney. Evidence was taken and the matter thereafter submitted and findings of fact and conclusions of law were filed and served.
Thereafter, and on April 16, 1956, the Industrial Accident Board made its order based on the evidence, findings and conclusions and ordered that the defendant, United States Gypsum Company, pay to the plaintiff compensation at the rate of $26.50 per week for a period of 140 weeks, with credit being allowed to the defendant for compensation paid for seven weeks, amounting to $185.50. It was further ordered that all compensation due between the date of the last compensation paid and the date of the Board's order be paid in a lump sum and that all further compensation be paid every four weeks unless otherwise ordered by the Board.
It was further ordered that the claimant accept payments so specified in the order in full settlement of his claim for compensation arising out of his accidental injury of December 30, 1954, while in the employ of the United States Gypsum Company.
The defendant, United States Gypsum Company, appealed to the district court from the decision and order of the Industrial Accident Board, and from the order denying rehearing in the proceeding and action.
A hearing was had before the district court on September 19, 1956, at Lewistown, Montana, where the record of the evidence taken before the Industrial Accident Board, their findings of fact, conclusions of law and orders, were submitted to the court. Additional testimony was submitted and received by the court, and thereafter the district court on February 1, 1957, filed its findings of fact as follows:
'1. That the record contains evidence legally sufficient to support the findings filed herein by the Industrial Accident Board of the State of Montana.
From the foregoing facts, the court concluded:
'1. That the Order of the Industrial Accident Board of the State of Montana should be affirmed.
Judgment was accordingly given and filed on February 1, 1957, which reads in part as follows:
'It Is Hereby Ordered and Adjudged, That the Order of the Industrial Accident Board of the State of Montana, in claim number 364-A-40, be, and it is hereby affirmed;
'It Is Further Ordered, That the appeal herein be, and it is hereby dismissed.'
From the above judgment the defendant, United States Gypsum Company, has appealed to this court. It is the contention of the defendant Company that plaintiff's injury has been completely healed, although plaintiff is presently disabled; that there are independent causes which probably completely or at least partially contributed to the plaintiff's present disability; and that with an arthritic condition and calcium in the arteries, such injured workman is not entitled to benefits of the Workmen's Compensation Act.
The plaintiff Birnie contends that his injury of December 30, 1954, has disabled him from ever again engaging in and performing heavy work and labor; that he cannot resume the work he was doing at the time of his injury; that he constantly suffers from the effects of the injury and that he cannot engage in any form of remunerative work and labor.
Dr. J. W. Schubert testified as to plaintiff's condition as follows:
On re-direct examination the doctor, testifying in regard to the work plaintiff was engaged in at the time of the injury testified...
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...Accident Fund, 111 Mont. 83, 106 P.2d 178; Morgan v. Industrial Accident Board, 133 Mont. 254, 321 P.2d 232; Birnie v. United States Gypsum Co., 134 Mont. 39, 328 P.2d 133; Dean v. Anaconda Co., Is there sufficient evidence in the record to sustain the findings of the Industrial Accident Bo......
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...condition is not denied compensation if the disability was aggravated or accelerated by industrial injury. In Birnie v. United States Gypsum Co., 134 Mont. 39, 328 P.2d 133, we affirmed an award where trauma had accelerated a preexisting arthritic condition. In Young, we affirmed an award w......
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