Gugler v. Industrial Acc. Fund

• Decision Date: 23 February 1945
• Docket Number: 8467.
• Parties: GUGLER v. INDUSTRIAL ACCIDENT FUND.
• Court: Montana Supreme Court

157 P.2d 89

117 Mont. 38

GUGLER v. INDUSTRIAL ACCIDENT FUND.

No. 8467.

Supreme Court of Montana

February 23, 1945

Rehearing Denied April 5, 1945.

Appeal from District Court, Fourth Judicial District, Ravilli County; C. E. Comer, Judge.

Proceeding under the Workmen's Compensation Act by Chester Gugler claimant, opposed by the Industrial Accident Fund. From a judgment reversing order of the Industrial Accident Board denying compensation, the Industrial Accident Fund appeals.

Affirmed.

CHEADLE and MORRIS, JJ., dissenting.

George Niewoehner, of White Sulphur Springs, for appellant.

J. D Taylor, of Hamilton, and Rankin & Acher, of Helena, for respondent.

Paul T Keller, of Helena, and Coleman, Jameson, Lamey, Kilbourne & Haughey, of Billings, amici curiae on petition for rehearing only.

ANGSTMAN Justice.

Plaintiff was accidentally injured while working for the city of Hamilton as sexton of the cemetery owned and operated by the city. The city was then operating under Plan III of the Workmen's Compensation Act. Plaintiff sought compensation from the Industrial Accident Board, which was denied. On appeal to the district court the order of the board was reversed. This appeal followed.

The only question before this court is whether plaintiff's claim is barred because of failure to present it within twelve months from the date of the happening of the accident as provided in section 2899, Revised Codes. The board held that the claim was barred but the court held it was not.

The material facts to be considered are these: Plaintiff was injured on November 23, 1936, by having a piece of steel from a sledge hammer strike him in the eye as he was pounding a boulder. On the day of the accident he went to Dr. Hayward for treatment. Dr. Hayward examined the eye, rendered first aid care and treated the eye on each and every succeeding day in Novmber, and on fifteen days in December, and on January 2nd, 5th and 9th, 1937. Gugler continued working during the time he was being treated and lost no wages.

The city clerk of Hamilton, being without forms on which to submit a report of the accident to the Industrial Accident Board, wrote to the board for blank forms. On December 7 1936, the Industrial Accident Board received from the employer city a report of the injury on a printed form supplied by the board. The report was dated December 2nd, 1936, and signed on behalf of the employer city by its clerk, C. H. Raymond. The report stated that the accident was occasioned by "steel chip off of hammer while breaking a rock. Steel chip striking and cutting eye;" that Dr. Herbert Hayward is the attending physician and that the probable length of the disability would be two weeks. Mr. Gugler testified that he was present at the time the city clerk made out the report and that he supplied the information to the clerk regarding the accident.

On December 18, 1936, the board received a report from Dr. Hayward. The report stated that a "flying piece of steel from hammer struck and cut eye;" that the injury consisted of "laceration of cornea, deep and catching edge of iris caused by flying piece of steel." His report estimated that the disability would likely exist for three or four weeks. On January 15, 1937, the board received a written claim under oath from the doctor for services for the treatment of plaintiff amounting to $58, which was audited, approved, and, with plaintiff's knowledge, paid by the board.

Plaintiff continued to work, has lost no wages and at the time of the hearing in the district court on January 12, 1943, was still employed. No other claim than the one filed by Dr. Hayward was filed with the board until February 13, 1939, at which time plaintiff had learned that he had lost the sight of one eye. There was evidence that at first all the parties involved, including the employer city, its mayor and city clerk, the attending physician and plaintiff, thought the injury to plaintiff's eye was relatively trivial and that within a short time the eye would return to normal functioning. The condition of the eye did not improve as expected and about a year and seven months after the accident plaintiff again consulted Dr. Hayward and other doctors. On January 12, 1939, Dr. E. S. Murphy of Missoula removed a steel splinter from the eye. This was the first information that plaintiff or anyone else had that a foreign body had become lodged in the eye. On January 14, 1939, Dr. Murphy wrote the board as follows: "Mr. Chester Gugler has been gradually losing the sight of his left eye as the direct result of an injury to it in November of 1936. I recommend reopening of the case and request permission to send him to a competent ophthalmologist." On December 6, 1940, Dr. Ray W. Key of Missoula reported to the board that he had examined plaintiff and that in his opinion the left eye was of little use, and that it probably would atrophy within a year or so, menacing the right eye by sympathetic ophthalmia.

The court held that the verified claim of the doctor and the reports filed with the board by the employer and doctor constituted a substantial compliance with section 2899. Section 2899, Revised Codes, provides: "In case of personal injury or death, all claims shall be forever barred unless presented in writing under oath to the employer, the insurer, or the board, as the case may be, within twelve months from the date of the happening of the accident, either by the claimant or some one legally authorized to act for him in his behalf."

Plaintiff did not direct Dr. Hayward to present a claim for him but as noted above Dr. Hayward, with plaintiff's knowledge, presented a claim for doctor services which was approved by the board and paid. The claim for doctor services is in law a part of the compensation for the injury to the workman. Murray Hospital v. Angrove, 92 Mont. 101, 10 P.2d 577; Liest v. United States F. & G. Co., 100 Mont. 152, 48 P.2d 772.

It is contended by the board that the claim presented by Dr. Hayward under section 2917 was his own claim and that it has nothing to do with the claim of plaintiff. That is not correct. In Murray Hospital v. Angrove, supra, in discussing the provision of section 2917, which relates to doctor services, this court said [92 Mont. 101, 10 P.2d 580]: "This provision is for the restoration of the injured employee, and is comparable to repairs of machinery or restoration of the plant after injury by fire; it applies, however, only in case the injury received is such as would entitle the injured person to compensation, as it refers back to 'the injury' theretofore discussed in the act and for which provision is made for compensation. It is a part of the compensation for the injury. Central L. & C. Works v. Industrial Comm., 290 Ill. 436, 125 N.E. 369; Harper on Workmen's Compensation (2d Ed.) 294."

Our statute clearly treats the medical fees as part of the compensation. Thus section 2919 provides in part as follows: "Compensation, other than medical, surgical, hospital and burial benefits provided shall run consecutively." Section 2918 in treating of "compensation" uses the phrase "except as may be required by the provisions of the preceding section." And in section 2920 the word "compensation" is qualified by the phrase "other than that provided in section 2917." These statutes make it clear that the Legislature regards the claim for medical services as a part of the compensation due to the injured employee as was held in the Angrove case.

Since the question has already been decided by this court decisions of other jurisdictions are of little moment, but it is noteworthy that the great weight of authority elsewhere sustains the conclusion in the Angrove case. Thus in the note in 144 A.L.R. p. 617, it is said: "Where the facts are sufficient to show that an employer or his insurance carrier has furnished an injured employee medical and hospital services, it is generally held that this constitutes a payment of compensation, or a waiver which suspends the running of the time for filing a claim for compensation."

Of the cases there cited the following squarely hold that the payment for medical or hospital services constitutes payment of "compensation": Industrial Commission v. Globe Indem. Co., 1923, 74 Colo. 52, 218 P. 910; Royal Indem. Co. v. Industrial Commission, 1930, 88 Colo. 113, 293 P. 342; Industrial Commission v. Lockard, 1931, 89 Colo. 428, 3 P.2d 416; Frank v. Industrial Commission, 1935, 96 Colo. 364, 43 P.2d 158; Jackson v. Industrial Commission, 1922, 302 Ill. 281, 134 N.E. 749; Yellow Cab Co. v. Industrial Commission, 1925, 315 Ill. 235, 146 N.E. 160; J. F. Imbs Mill. Co. v. Industrial Commission, 1927, 324 Ill. 416, 155 N.E. 380; Richardson v. National Ref. Co., 1933, 136 Kan. 724, 18 P.2d 131; Ketchell v. Wilson & Co., 1933, 138 Kan. 97, 23 P.2d 488; Taylor v. Missouri P. R. Co., 1937, 146 Kan. 668, 73 P.2d 62; Chamberlain v. Bowersock Mills & Power Co., 1939, 150 Kan. 934, 96 P.2d 684, 129 A.L.R. 654; Bishop v. Dolese Bros. Co., 1942, 155 Kan. 288, 124 P.2d 446; Pittman v. Glencliff Dairy Products Co., 154 Kan. 516, 119 P.2d 470, 144 A.L.R. 600; Elsas v. Montgomery Elev. Co., 1932, 330 Mo. 596, 50 S.W.2d 130; Parker v. St. Louis Car Co., Mo.App., 1940, 145 S.W.2d 482; Mussler v. American Car & Foundry Co., Mo.App. 1941, 149 S.W.2d 429; Martensen v. Schutte Lumber Co., 1942, 236 Mo.App. 1084, 162 S.W.2d 312; Baade v. Omaha Flour Mills Co., 1929, 118 Neb. 445, 225 N.W. 117; Gould v. Champeney & Turk, 1937, 249 A.D. 911, 292 N.Y.S. 530; Gabrielli v. New York, 1940, 258 A.D. 1015, 16 N.Y.S.2d 866; Kloberdanz v. Sheffield Farms Co., 1940, 260 A.D. 823, 22 N.Y.S.2d 361.

A few cases are there cited as taking the opposite view. If we had any doubt on the point it would be resolved...