Dosen v. East Butte Copper Mining Co.

• Decision Date: 02 April 1927
• Docket Number: 6061.
• Citation: 254 P. 880,78 Mont. 579
• Parties: DOSEN v. EAST BUTTE COPPER MINING CO.
• Court: Montana Supreme Court

254 P. 880

78 Mont. 579

DOSEN v. EAST BUTTE COPPER MINING CO.

No. 6061.

Supreme Court of Montana

April 2, 1927

Appeal from District Court, Silver Bow County; George Bourquin Judge.

Proceeding for compensation under the Workmen's Compensation Act by Bob Dosen, employé, opposed by the East Butte Copper Mining Company, employer. From a judgment of the district court on appeal from an award by the Industrial Accident Board, both claimant and the employer appeal. Reversed and remanded, with directions.

Kremer Sanders & Kremer, of Butte, for appellant.

Maury & Brown, of Butte, for respondent.

CALLAWAY C.J.

Bob Dosen, an employé of the East Butte Copper Mining Company and while in the course of his employment, was injured on March 3, 1922, by falling down a chute in one of the mines operated by that company. The employing company, referred to hereafter as the company, had elected to be bound by compensation plan No. 1 of the Workmen's Compensation Act, and was proceeding thereunder. The Murray Hospital was bound by contract to care for the company's injured employés. Upon the happening of the accident Dosen was taken to that hospital, where he was found to be suffering from a fractured jaw, a compound comminuted fracture with dislocation of the right ankle, and a fractured left fibula. The company reported the accident to the Industrial Accident Board, and upon April 15, 1922, Dosen filed with the board his formal claim for compensation.

The company accepted Dosen's claim for compensation, and, treating him as temporarily totally disabled, began paying him at the maximum rate of $12.50 per week. Dosen, referred to hereafter as the claimant, remained in the Murray Hospital for 8 months. Dr. Kistler, one of the attending surgeons, advised amputation of the right leg. The claimant refused to submit to amputation. He then voluntarily left the Murray Hospital and went to the "Mayo Hospital" at Rochester, Minn. There he was told the bone was rotten and the leg should come off. He then went to Chicago, where he remained 28 months, 22 of which were in a hospital. The doctors there told him the bone of the leg was rotten, no good. While in Chicago he submitted to an operation for an indirect inguinal hernia.

About September, 1924, the claimant asked for a final settlement, and considerable correspondence was had between his attorney and the Industrial Accident Board concerning the matter. The company continued paying compensation to the claimant at the rate of $12.50 per week, and has paid him $1,925 up to February 13, 1925. On February 25, 1925, at the request of the company, the claimant was examined by Dr. Allen B. Kanavel of Chicago, who made report to the company and the Industrial Accident Board. Following the receipt of Dr. Kanavel's report the company referred the matter to the board, which, through its chairman, on March 30, 1925, wrote claimant a letter, reciting the facts as understood by the board, and advising him to accept $450 in final settlement. This claimant refused to do. It seems the company offered him $500, which he likewise refused to accept. As the negotiations did not result in a settlement the board directed claimant to appear for examination at Helena in order that the extent of his disability might be determined. He appeared and submitted to an examination by Drs. John L. Treacy and Rudolph Horsky, physicians and surgeons selected by the board. The doctors fixed the rating of the claimant at "40 per cent. total disability." After consideration, the board, on June 5, 1925, found claimant had suffered a permanent partial disability, equivalent to 40 per cent. of a permanent total disability; that total disability for a permanent total disability in such a case, "taking into account the legal provisions governing and the American Experience Table of Mortality," would command a settlement of $6,211.40, of which 40 per cent. is $2,484.55, and thereupon ordered that the company pay that amount to the claimant, less the sum of $2,525 theretofore paid, leaving a net balance due claimant of $459.55, in full for his claim for compensation as the result of his injury. On June 25th claimant, through his attorneys, filed a petition for a rehearing, to which the company answered. The rehearing was had at Butte on December 1, 1925, before the chairman of the board, at which testimony was received, both parties being represented by counsel. Thereafter the board rendered its decision setting forth the facts we have recited above, with others, in which it discussed the evidence adduced and the law applicable thereto. The board says in its opinion that-

"There is substantial agreement among all the doctors who have made examination as to the present physical condition of claimant. He has a healed fracture of the lower jaw on the right side. This condition does not now cause disability. It possibly results in some pain and discomfort due to contraction of the nerves in the scar tissues around the fracture. He does present a marked spiry pyorrh a alveolaris. In plain English, his teeth are badly infected with pyorrh a, and the poison, which is generated by this infection and distributed through his system, very likely accounts for most of the pain and discomfort of which he complains. This condition of pyorrh a is in no wise connected with the injury and can undoubtedly be cleared up by proper medical attention. He has a small postoperative hernia on the right side. This may constitute some disability, but the condition has developed since the time of original injury and is not attributable to such injury. He has a scoliosis of the spine; that is, the curvature with a convexity to the right. This is a secondary condition due to the fact that his right leg is 1 1/2 inches shorter than the left leg, so that, when he stands or walks, there is a tilting of the pelvis. The tilting of the pelvis naturally produces a curvature of the spine. It is the same condition that is to be found in any person where one leg is shorter than the other. This condition of spine curvature possibly constitutes a small percentage of disability. Such disability would be removed by any method that would build up the short leg to a length equal to the longer leg. For instance, amputation of the defective leg and the substitution of an artificial member would correct the present spinal condition and remove what disability now results therefrom."

The board found that the fracture of the left fibula had healed in a normal way. It did not then constitute any disability. The right leg originally suffered a compound comminuted fracture, with dislocation of the right ankle. The fracture of the small bone of the left leg was about 6 inches above the ankle joint. A poor union was effected, and as a result of this the lower part of the fibula rests on the heel bone and results in a locking of the ankle joint. As a result of this condition osteomyelitis, or inflammation of the bone, followed. This condition involves both the tibia and fibula of the leg and extends to a point some 3 or 4 inches above the injury, and about halfway up the limb from the ankle to the knee.

The three doctors who testified at the hearing in Butte were of the opinion that it would be to claimant's best interests to submit to an amputation of the limb some 3 or 4 inches above the point of fracture and about halfway between the ankle and knee and the substitution of an artificial member; this for the purpose of stopping the spreading of the osteomyelitis, which might necessitate the amputation of the leg at a higher point.

In its opinion the board says the claimant is a man considerably below the average in mentality. "His physical appearance, other than the fact that he walks with considerable limp, is good." The board found that amputation of the leg at the point designated amounted to 28 per cent. of a permanent total disability. Adding to that 10 per cent. for scoliosis gives a 38 per cent. disability. The board added:

"In order to be fair with the claimant the board is disposed to throw in an additional 7 per cent., and find as a matter of fact that the claimant is now suffering a 45 per cent. total disability."

Up to December 18, 1925, the company had paid claimant $2,525, which was somewhat in excess of the amount fixed in the board's order of June 5, 1925. In addition to that the company had paid, in claimant's behalf, $66 for dental services and $85 for examination "by various doctors." Having determined that a 45 per cent. disability would bring the claimant $2,898, the board ordered the company to pay him $373 in addition to what it had theretofore paid, and made the further order that, if claimant should elect, the Murray Hospital, which was bound by its contract with the company to do so, should furnish him reasonable dental service, and all reasonable and necessary medical, surgical, and hospital care required in the amputation of the right limb at a point designed to stop the further spread of the osteomyelitis.

From this order claimant appealed to the district court of Silver Bow county. In his notice he apprised the company that the appeal "is taken upon all the questions of law and fact in the said cause," and, further, that claimant, upon leave of court, intended to introduce additional evidence and to ask the court to try the cause de novo. After the appeal was perfected, claimant's counsel moved the court to try the cause de novo and to permit additional evidence to be introduced at the trial of the cause upon the grounds set forth, which were in effect: That the injuries sustained by the claimant were of a nature to cause a total and permanent disability, and the percentage of claimant's "total and permanent disability" is constantly increasing that,...