McCoy v. Mike Horse Min. & Mill. Co.

• Decision Date: 19 February 1953
• Docket Number: No. 9199,9199
• Citation: 252 P.2d 1036,126 Mont. 435
• Parties: McCOY v. MIKE HORSE MINING & MILLING CO.
• Court: Montana Supreme Court

Page 1036

252 P.2d 1036

126 Mont. 435

McCOY v. MIKE HORSE MINING & MILLING CO.

No. 9199.

Supreme Court of Montana.

Submitted Nov. 13, 1952.

Decided Jan. 9, 1953.

As Amended on Denial of Rehearing Feb. 19, 1953.

Myles J. Thomas, Helena, for appellant.

Toomey & Hughes, Michael J. Hughes, Helena, for respondent.

FREEBOURN, Justice.

Porter McCoy was accidentally injured on January 30, 1948, while in the course of his employment as a crusherman for the Mike Horse Mining an Milling Company, a corporation. The industrial accident board of the state of Montana awarded McCoy compensation, which award, upon appeal by the Mike Horse Company to the district court of Lewis and Clark county, was by order of said district court set aside. From such district court order McCoy appeals.

On February 28, 1948, the Mike Horse Company filed with the industrial accident board a written notice designated 'Employer's First Report of Injury' and 'signed this 26th day of Feb. 1948' by 'A. E. Haesler, Official Title General Supt.' In such report A. E. Haesler, general superintendent of the Mike Horse Company, states: 'Porter McCoy * * * crusherman * * * was * * * on duty at time of accident' and when injured 'was pulling a rock from the crusher and strained his side * * * muscle strain rt. side;' the accident occurring 'Jan. 30, 1948.'

MCoy filed a claim for compensation dated the '18 day of April, 1949,' which was filed with the industrial accident board on April 22, 1949.

After hearing had, the industrial accident board, by order made January 4, 1950, denied and dismissed McCoy's claim because it 'was not filed within the year period' and was 'barred by the statute.'

McCoy, on January 7, 1950, filed his petition for rehearing with the board. Both McCoy and the Mike Horse Company were notified by the board on January 16, 1950, that such rehearing was granted. Although no rehearing was ever held, the board on May 1, 1950, rendered a 'decision and order' abrogating and changing 'its original order' and in such 'decision and order' found that McCoy 'was accidentally injured on January 30th, 1948, while in the employ of defendant company'; that the accident was 'duly reported to the Board by the attending physician' and 'by the employer'; that 'the employer's report, dated February 26th, 1948, was received in the office of the Board of February 28th, 1948. The employer advised the Board, also on February 28th, 1948, that the claimant had returned to work for them.' The board further found that McCoy had filed his claim for compensation on April 22, 1949, contending that he was disabled from January 30, 1948, to February 5, 1948, and from March 6, 1949, to the date of hearing, and that McCoy 'suffered a hernia and other injuries to his abdomen on January 30th, 1948, while in the employ of the defendant company and that the hernia occurred on said date; that its appearance was accompanied by pain; that it was immediately preceded by some accidental strain suffered in the course of employment; and that it did not exist prior to the date of the alleged injury.'

The decision of the board went on to state: 'With reference to the claimant's failure to file a claim within the statutory period of one year, the Board finds that claimant was not properly advised of his physical condition; that he was not told that the had a hernia until more than a year from the date of his accidental injury had elapsed; that he was advised there was nothing wrong with him that occurred as a result of accident; and that his condition due to a hernia and other injuries was not brought to his attention properly. Claimant's right to compensation cannot be foreclosed under such circumstances. It is therefore ordered and adjudged that the defendant company pay the said Porter McCoy compensation at his legal rate of compensation for the period from January 30th, 1948, to February 5th, 1948, and from March 6th, 1949 for a period of time to be fixed by the Industrial Accident Board.'

The Mike Horse Company made application for rehearing on May 10, 1950, which was by the board on June 2, 1950, denied. From the board's order denying such rehearing the Mike Horse Company appealed to the district court of Lewis and Clark county, which appeal was heard on May 10, 1951. Upon hearing in the district court, the trial judge ordered the decision of the board awarding McCoy compensation vacated and set aside, and directed the claim of McCoy for compensation be denied and dismissed, with judgment in favor of the Mike Horse Company and against McCoy for costs.

From such order of the district court McCoy appeals.

The evidence is sufficient, if McCoy's claim is not barred by the statute, to sustain the decision of the board awarding him compensation. It definitely appears that the accident occurred and the injury was sustained on January 30, 1948, while McCoy's written claim for compensation was not filed with the board until April 1949.

The statute, R.C.M.1947, Sec. 92-601, 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.'

The trial court had before it the following evidence: That the clinic doctors to whom McCoy was sent for treatment after the accident were paid 'an allowance made by the company and the man contributed a part of that,' McCoy contributing but $1 a month; that for over a period of a year, between January 30, 1948, and March 10, 1949, the clinic doctors made several cursory physical examinations of McCoy--the examining doctor testifying, 'I never gave him what I consider a complete physical examination in reference to all his complaints,'--never informing McCoy what caused his pain, merely advising him to 'take a few days off and go back to work'; that they did nothing to ease his pain and refused to take X-ray pictures which he requested; that it was not until Dr. Gallivan, to whom McCoy went on March 10, 1949, 'called the employers' and a clinic doctor, that X-ray pictures...