Gaffney v. Industrial Acc. Bd. of Mont.
Citation | 287 P.2d 256,129 Mont. 394 |
Decision Date | 22 August 1955 |
Docket Number | No. 9453,9453 |
Parties | Leslie L. GAFFNEY, Claimant and Appellant, v. INDUSTRIAL ACCIDENT BOARD OF The State of MONTANA, Defendant and Respondent. |
Court | United States State Supreme Court of Montana |
John C. Harrison, Leo J. Kottas, Helena, argued orally, for appellant.
Arnold H. Olsen, Atty. Gen., LaVerne V. Harris, Sp. Asst. Atty. Gen., argued orally, for respondent.
This is an appeal from a judgment of the district court for Lewis and Clark County, which judgment affirmed the order of the Montana Industrial Accident Board in which the claim of Leslie L. Gaffney under the Act was denied.
The claimant Gaffney, an ex-service, unmarried man of about 54 years of age, was employed by the Montana state apprenticeship council, which was enrolled under Plan Three of the Compensation Act.
The record sets forth that on December 17, 1948, claimant, in his employment as a fieldman of the Montana state apprenticeship council, in ascending the stairs of the Jordan Hotel in Glendive, Montana, leading from the lobby to his room, and carrying a heavy bag or suitcase, slipped and stumbled on the stairstep throwing the weight on his left leg and thigh, rupturing the muscle therein and also striking his head on the top step; that with the assistance of the bellboy he got on his feet and did make it to his room, suffering a great deal of pain in the left thigh and leg and in his head; that when he reached Billings he went to Dr. Biehn who diagnosed the injury as ruptured muscle in his left thigh. For a period of months after December 17, 1948, he was treated by Dr Biehn; that the muscles in his left leg gave him considerable pain and his locomotion was affected. The left arm and side of neck were impaired. This made it difficult and lessened his ability to drive a car, and his head continued to bother him.
September 13, 1949, claimant notified the Industrial Accident Board in substance that the accident at Glendive on December 17, 1948, resulted in a permanent disability and asked for a claim blank to file. The claim blank was furnished to claimant and was filed with the Board. A hearing on his claim was had on October 28, 1953, before the chairman of the Board, and at that hearing the chairman stated: 'May I say that the Board, on September 15, 1949, wrote a letter to Mr. Gaffney in which was enclosed a claim blank with directions to Mr. Gaffney to fill out, and it also shows on October 19, 1949, Gaffney's claim for compensation was duly filed and there is no question of the timeliness of the filing of the claim.'
The record discloses that the only sworn evidence presented at the hearing before the chairman of the Board was by the claimant Gaffney and Dr. Paul R. Schiewe.
Dr. Schiewe, physician and surgeon of the Veterans' Administration, Fort Harrison, Montana, was called as a witness by claimant. Dr. Schiewe had reviewed the files of claimant from the Veterans' Administration Hospital at Miles City, Montana.
Since December 17, 1948, it has been necessary for claimant to enter the Veterans' Administration Hospital at Miles City and Fort Harrison for treatment for his injury and general physical condition. Dr. Schiewe testified at the hearing before the Board, inter alia, that he had Leslie Gaffney under observation within the last past month at the Veterans' Hospital at Fort Harrison; that during the time he has made and had made clinical tests of the patient; that the records of the previous treatment at the Veterans' Administration Hospital at Miles City were examined; that at Fort Harrison Gaffney had a complete history and physical examination, laboratory studies and X-ray, as well as a complete evaluation of his medical illness; that it was shown that Gaffney was suffering from Parkinsonism or Parkinson's disease; that Gaffney's record shows he has, during the past six or seven years, had several falls and an automobile accident; that his reactions caused by Parkinson's disease would cause a greater tendency to fall; that a fall such as he described at the hotel in Glendive could possibly speed up his disability from Parkinson's disease; that the Miles City X-rays taken of his neck and shoulder, in the doctor's opinion, showed that considerable de-mineralization was present and that he 'wondered if there was destruction in the joint' itself.
Dr. Schiewe further testified that in his interpretation in the curvical spine there were arthritic changes which could be due to trauma or age itself; that this condition is not synonymous with a herniated disc, but the usual disc has this association in X-ray findings--the joint space may be narrow; that a fall could cause it, and an injury to the neck or head could cause it; that it would be possible for an individual to have such an injury and have it lay dormant and thereafter a fall would aggravate it.
That a patient with Parkinson's disease, should he fall, regardless of the injury, such fall 'might lead to a bone or soft tissue or the tendons, and their ability to recuperate is impaired'; that a person with Parkinson's disease, if he falls and sprains his wrist, that wrist may become stiff, 'ends up being stiff'; that atrophic changes occur rapidly and the patient ends up with a progessively greater amount of disability. When Dr. Schiewe was asked, 'In other words, a person with Parkinson's disease who suffers an unusual fall, will aggravate his deterioration from the Parkinson's disease?' he replied: 'I think I could say yes to that statement.'
On cross-examination by the chairman, Dr. Schiewe was asked:
In the doctor's opinion, Gaffney could have had Parkinson's disease since 1918. He pointed out that multiple diseases are frequently present and have to be kept in mind all the time.
The doctor's testimony is not as clear as one would like it to be; nevertheless in dealing with such elusive diseases as Parkinson's disease and cerebral arterial sclerosis and the effects of traumatic injuries in aggravating and accelerating such afflictions, even the most learned authorities may differ. However, taking all of Dr. Schiewe's testimony, he leaves no doubt that the fall of December 17, 1948, suffered by Gaffney, was and is a contributing cause to his present total and permanent disability, which condition the Board acknowledges. There is no sworn medical testimony in the record to the contrary. The only sworn witnesses before the district court were Leslie L. Gaffney and one Bryan D. Beauchamp. The respondent Industrial Accident Board offered no evidence. Such additional evidence as was adduced before the district court is unimportant and we therefore consider the matter as determined on the record made before the Board.
There is no dispute in this case as to the facts as found by the Board as follows:
'I. Leslie L. Gaffney, claimant herein, was injured in an accident arising out of and in the course of his employment by the Montana State Apprenticeship Council on or about the 17th day of December, 1948, at Glendive, Montana.
In connection with his earnings Gaffney testified that he had stayed on the job and worked the best that he could, as he was directed to do, until he could not continue. The fact that after the accident, Gaffney could not do his job as well as before, and that he was instructed to continue and do the best he could, certainly brings into play subdivision 3 of section 93-1301-6, R.C.M.1947. Lindblom v. Employers' Liability Assur. Corp., 88 Mont. 488, 295 P. 1007, 1010.
At the hearing before the chairman of the Board, on cross-examination the chairman of the Board asked Gaffney if he remained on the payroll steadily after the accident so Gaffney would not have to claim compensation and Gaffney answered that he did not claim compensation at the time, although he filed the report of the accident and that he was kept on the payroll because he was entitled to leave time which he had accumulated. These statements in Gaffney's testimony stand undisputed. His employer did not testify.
The Industrial Accident Board founded its denial of Gaffney's claim on its deductions ...
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