Malmedal v. Industrial Acc. Bd.

• Court: Montana Supreme Court
• Writing for the Court: CASTLES; HARRISON, C. J., and ANGSTMAN; BOTTOMLY; ADAIR
• Citation: Malmedal v. Industrial Acc. Bd., 342 P.2d 745, 135 Mont. 554 (Mont. 1959)
• Decision Date: 21 July 1959
• Docket Number: No. 9951,9951
• Parties: Orlando MALMEDAL, Plaintiff and Appellant, v. INDUSTRIAL ACCIDENT BOARD, Defendant and Respondent.

Page 745

342 P.2d 745

135 Mont. 554

Orlando MALMEDAL, Plaintiff and Appellant, v. INDUSTRIAL ACCIDENT BOARD, Defendant and Respondent.

No. 9951.

Supreme Court of Montana.

July 21, 1959.

Rehearing Denied Aug. 20, 1959.

Kelly, Battin & William R. Taylor, Billings, J. H. McAlear, Red Lodge, for appellant.

William T. Kelly, Billings, and J. H. McAlear, Red Lodge, argued orally for appellant.

L. V. Harris, Helena, for respondent.

L. V. Harris, Helena, argued orally for respondent.

CASTLES, Justice.

This is an appeal from a district court judgment which affirmed an Industrial Accident Board order, which order had granted the claimant total disability payments for 200 weeks. The district court heard new evidence at the time of hearing the appeal from the Board's order as to the then condition of the claimant.

The record before the Board, the district court, and now this court reveals a back injury, commonly called 'disc trouble'. The exact date and circumstances attending the accident are confused by the claimant's own reports to his doctors, the Board and by his testimony. However, since the Board found disability arising out of his employment, we need not be detained by the exactness of the accident and resulting injury except to mention the discrepancy in claimant's stories since these factors would have some bearing on the Board's and district court's exercise of discretion in making an award, particularly as to retaining jurisdiction so that a later review might be had.

The claimant was at the time of the accident in 1954 a 38-year-old truck driver. He was married and had five minor children dependent upon him. He now has a sixth child. His education was eighth grade. His work history was manual labor and truck driving. At the time of the accident he lived in a rental place with an acre of ground available for gardening. Since the injury and subsequent operation he has not worked, nor sought work, but has watched after the children while his wife worked.

The appeal is directed to the district court's affirmance of the Board's order that the claimant was not totally and permanently disabled and that 200 weeks would be a reasonable period during which claimant may be expected to recover and rehabilitate himself. Coupled to this contention is that a lump-sum award of compensation should have been made.

The theory of the appellant seems to be that the Board must award 500 weeks compensation in a lump sum on the testimony before it.

The medical testimony before the Board was provided by three doctors, one of whom had treated the claimant and performed an operation. The medical evidence established generally that the operation was successful and that the claimant has made a good recovery. Two of the doctors said that his disability was ten or twenty percent disability. One of the doctors stated that in his opinion, the claimant, although with a good recovery, was 100 percent disabled. This doctor repeated his opinion before the district court at the later hearing on his then condition. The appellant's brief has dwelt at great lengths on the medical testimony. We have carefully read his excerpts of the medical testimony, as well as the whole record, and without going into detail say that generally the weight of the testimony does not establish that the claimant is either totally or permanently disabled. Nonetheless, the Board and the district court gave the claimant the benefit of the doubt by granting total disability for a period of 200 weeks. Appellant's counsel asserts that such a period must come from an 'Ouija Board' and does not have any basis from the record. It is true that the number of weeks is a prediction, but our query will be whether or not it is an abuse of discretion under the facts and circumstances of the case.

R.C.M.1947, Sec. 92-713, provides:

'If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established, or compensation terminated in any case, where the maximum payments for disabilities as provided in this act have not been reached, adjustments may be made to meet such changed conditions by increasing, diminishing or terminating compensation payments in accordance with the provisions of this act.'

R.C.M.1947, Sec. 92-826, provides for continuing jurisdiction of the Board within limits not herein applicable.

This principle of continuing jurisdiction was commented upon by this court in Meznarich v. Republic Coal Co., 101 Mont. 78, 91, 53 P.2d 82, 86, as follows:

'Construing a statute which permits a modification of the 'award' when it is shown that 'the disability of the workman has increased or diminished' in a case similar to the case at bar, the Supreme Court of Kansas has, we think,...