Dumont v. Wickens Bros. Const. Co.

• Decision Date: 09 August 1979
• Docket Number: No. 14564,14564
• Citation: 598 P.2d 1099,36 St.Rep. 1471,183 Mont. 190
• Parties: Pierre DUMONT (Deceased), Virginia Dumont, Claimant and Appellant, v. WICKENS BROS. CONSTRUCTION COMPANY, Employer, and Aetna Fire Underwriters, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1099

598 P.2d 1099

183 Mont. 190

Pierre DUMONT (Deceased), Virginia Dumont, Claimant and Appellant, v. WICKENS BROS. CONSTRUCTION COMPANY, Employer, and Aetna Fire Underwriters, Defendant and Respondent.

No. 14564.

Supreme Court of Montana.

Submitted June 6, 1979.

Decided Aug. 9, 1979.

Torger S. Oaas, argued, Lewistown, for claimant and appellant.

Andrew J. Utick, argued, Helena, for defendant and respondent.

HARRISON, Justice.

Through a hearing before the Workers' Compensation Court on December 1, 1977, claimant, Virginia Dumont, sought compensation benefits for the death of her husband which she alleged was the result of an injury he received in the course and scope of his employment by Wickens Bros. Construction Company on October 12, 1976. The Workers' Compensation Court denied the claim. Claimant petitioned for a rehearing before the lower court, and oral argument was heard as to whether a rehearing should be granted. By order dated and filed on September 29, 1978, the Workers' Compensation Court denied claimant's request for a rehearing. On October 31, 1978, 31 days after the date of denial of the rehearing, the Workers' Compensation Court received and filed claimant's notice of appeal to this Court.

Respondent insurance company moved to dismiss this appeal on the ground that this Court lacks jurisdiction because claimant failed to file a notice of appeal within the time allowed by law. This Court ordered the appeal set for oral argument and the motion to dismiss as well as the merits of the appeal were argued.

Pierre (Pete) Dumont died on or about October 12, 1976, of a heart attack in his bed in his trailer home which had been moved to a job site near Forsyth, Montana, from Dumont's home in Lewistown. His body was discovered in bed by others who investigated when he did not report for work. On October 14, 1976, an autopsy was performed on the body of the deceased. The final anatomical diagnosis contained in such autopsy report reveals the following findings:

"I. Marked stenosing arteriosclerosis of coronary arteries with:

"A. Recent thrombosis of posterior right coronary artery.

"B. Old occlusion, anterior descending branch of left coronary artery.

"C. No gross evidence of recent or past myocardial infarction.

"II. Hyperemia of lungs and liver.

"III. Chronic pulmonary emphysema.

"IV. Obesity.

"V. Compression fracture of first lumbar vertebra, clinical."

In her claim, claimant alleged that the deceased was subjected by his job to unusual strain and suffered an injury as defined in section 39-71-119 MCA, and that such injury arose out of and was in the course of his employment. The claim for compensation listed the date of such alleged injury as October 12, 1976.

At the hearing several lay witnesses were called to testify concerning the deceased's job activities and particularly concerning his activities on October 12, 1976. In general such witnesses testified that his activities on the day of his death were quite normal.

Claimant, who was not present on the job site on October 12, 1976, attempted to paint an entirely different picture. She testified in considerable detail about the duties, the long hours, and stresses and strains that the deceased was subjected to during the construction season of 1976. However, on cross-examination she admitted that the deceased, an employee of Wickens Bros. Construction Company for many years, was subjected in preceding years to similar stresses and strains and worked long hours, including weekends.

Claimant further testified that the deceased, on July 21, 1976, suffered an injury to his back and leg in an on-the-job incident and was hospitalized for about three days following which he remained home for one week. Claimant testified that the deceased returned to work before he was released by his physician and worked with pain. She stated that she spent time on the job site so she could assist with driving and treat his injured leg. She stated that during September 1976 the deceased had been having problems with his sleep and on occasions when he could not sleep would arise in the night and go out on the job.

On October 12, 1976, claimant was not on the job site at Forsyth. Over objection of the respondent, claimant was allowed to testify that on the morning of October 12, 1976, her husband called her at Lewistown about two hours later than usual prior to his trip to Billings. She stated that he seemed upset and had stated to her that "all hell broke loose." When asked what had happened, he stated that it would take too long to explain and he would do so on the weekend. She further stated that he departed from his customary statement in closing a telephone conversation by saying goodbye without saying that he loved her. Claimant was unable to explain what the deceased was referring to in his phone conversation. She stated that she had attempted to determine from other employees what had occurred to give rise to the statement made to her by her husband on the telephone but had learned nothing.

Respondent insurance company states that the crucial significance of the events of October 12, 1976, was explained by the medical witness. Dr. Hollis K. Lefever, testifying on behalf of claimant, was provided with a copy of the autopsy report. He was asked, over respondent's continuing objection, to respond to a hypothetical question based in large degree on certain disputed facts of the case and, respondent contends, on certain facts which were not in evidence. The hypothetical question asked of Dr. Lefever contained reference to the deceased's back injury of July 21, 1976; it contained reference to an alleged incident nine days before the death when the deceased loaded some antifreeze into his pickup; it contained reference to an alleged incident two days before the death when the deceased allegedly hurt himself while loading a radiator into his pickup; and it contained reference to claimant's version of the events of October 12, 1976, and the deceased's trip to Billings for parts. On cross-examination, Dr. Lefever stated:

"Q. Doctor, in the hypothetical that Mr. Oaas asked you to assume, is there any one incident or any one day in the fact situation given to you, that you could point to as the cause of this death, or is it just a build-up of all of these things? A. Well, I think the only day stated in the hypothetical question in which there was any chain of events that I might relate to this is, if I recall the hypothetical question correctly, concerning the hasty trip to Billings and the handling of heavy equipment . . ."

Thus, argues respondent, Dr. Lefever, claimant's expert witness, made the events of October 12, 1976, critical to the case. Throughout the rebuttal testimony of Dr. Lefever, he kept referring to the events of "that day" referring to October 12, 1976. Dr. Stephen Cade, respondent's expert witness, when asked the same hypothetical question as had been asked of Dr. Lefever, did not feel that there was any probable relationship between the events of October 12 and the death. However, he did explain that the closer in time that events of physical or emotional stress were to the death, the more likelihood there was of some relationship between the two.

Based on the above, the hearings examiner summarized the testimony surrounding the events of October 12, 1976, as follows:

"18. That four witnesses testified that they had seen and talked with Pete Dumont on the day of his death but that none of them observed him to be showing any signs of stress or strain, physical or emotional. None of those witnesses were aware of any unusual problems at the job, and none of them recall Pierre Dumont having mentioned any unusual problems.

"19. That the only evidence that the deceased was undergoing unusual stress or strain is that from the testimony of the claimant, the widow of Pierre Dumont, who stands to gain, and that little or none of that testimony is corroborated by other evidence."

The following issues are raised on appeal:

1. Should this appeal be dismissed since this Court lacks jurisdiction because claimant failed to timely file a notice of appeal?

2. Did the Workers' Compensation Court err in denying benefits to claimant under the Workers' Compensation Act?

The first issue is directed at claimant's failure to timely file a notice of appeal. This Court has never been called upon to rule in a case involving the issue of the timeliness of filing a notice of appeal from a decision of the Workers' Compensation Court.

Section 39-71-2904 MCA provides:

"Notwithstanding 2-4-701 through 2-4-704, an appeal from a final decision of the workers' compensation judge shall be filed directly with the supreme court of Montana in the manner provided by law for appeals from the district court in civil cases."

As to what constitutes a "final decision" of the Workers' Compensation judge, Rule 19 of the Workers' Compensation Court Rules (hereinafter referred to as WCCR) provides:

"19A. The Court will, after the hearing, issue findings of fact and conclusions of law and an order setting forth the Court's determination of the disputed issues. The parties to the dispute may consider this order as a final decision of the Court for appeals purposes. However, any party to the dispute may request a rehearing before the Court within twenty (20) days after a party receives a copy of the order, and if any party submits a request for rehearing, the order issued by the Court shall not be considered a final decision of the Court for appeals purposes.

"19B. If a request for a rehearing is filed, the parties requesting the rehearing shall set forth specifically and in full detail the grounds upon which the party considers the order to be incorrect. If the Court denies the request for rehearing, the original order issued by the Court shall be considered the final decision of the Court as of the day the rehearing is denied. If a rehearing is granted the matter will...