Moffett v. Bozeman Canning Co.

• Decision Date: 10 November 1933
• Docket Number: 7149.
• Parties: MOFFETT v. BOZEMAN CANNING CO.
• Court: Montana Supreme Court

26 P.2d 973

95 Mont. 347

MOFFETT v. BOZEMAN CANNING CO.

No. 7149.

Supreme Court of Montana

November 10, 1933

Rehearing Denied Nov. 21, 1933.

Appeal from District Court, Gallatin County; B. B. Law, Judge.

Proceeding under the Workmen's Compensation Act by Carl A. Moffett claimant, opposed by the Bozeman Canning Company, employer and the Aetna Life Insurance Company, insurance carrier. From a judgment reversing an order of the Industrial Accident Board which disallowed the claim, employer and insurance carrier appeal.

Remanded with direction to modify judgment, and, as modified affirmed.

ANDERSON, J., dissenting.

W. S. Rynerson, of Butte, and Clift & Glover, of Great Falls, for appellants.

Eugene F. Bunker, of Bozeman, for respondent.

MATTHEWS Justice.

On August 12, 1928, Carl A. Moffett was in the employ of the Bozeman Canning Company, operating under plan 2 of the Workman's Compensation Act (Rev. Codes 1921, §§ 2978-2989), with the Aetna Life Insurance Company as insurance carrier. The claimant was a strong, able-bodied young man, twenty-four years of age, and was engaged in piling cases of canned peas, which weighed approximately forty pounds, in tiers until they reached a height greater than his own. On the date above mentioned Moffett attempted to swing a case into place, but, by reason of the fact that it was stuck to the case below it, encountered a weight of eighty pounds when he expected but forty; he immediately felt pain in his right side and back, at the top of his hip bone, and was unable to continue his labors. Moffett was examined and treated by Dr. Seerly, of Bozeman, and the next day reported to the plant, where he was given the light work of gluing cartons, in which he continued for some time, but was forced to quit the employ of the company because unable to work. He worked in a pool hall during the winter, but finally became totally unable to perform any labor.

The insurance carrier paid compensation in the sum of $30 and $26 hospital expenses. Moffett signed a final compensation receipt for these items on October 19, 1928; his accident and the payments made were reported to the Industrial Accident Board. Nothing further was reported to the board until September, 1930, when claim was made that Moffett was totally disabled, and compensation therefor was demanded. The insurance carrier resisted the claim, and a hearing was had before the board which resulted in its disallowance, from which order the claimant appealed to the district court. The court reversed the order of the board and ordered the payment of compensation. From this judgment the insurance carrier and the employer appealed.

Such additional evidence as was adduced before the court is unimportant, and we may therefore consider the matter as though determined on the record.

In a case arising under the Workman's Compensation Act, the burden is on the claimant to establish by a preponderance of the evidence that the injury resulted (a) from an industrial accident (b) arising out of and (c) in the course of his employment. Kerns v. Anaconda Copper Min. Co., 87 Mont. 546, 289 P. 563; Landeen v. Toole County Refining Co., 85 Mont. 41, 277 P. 615; Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 257 P. 270; Wirta v. North Butte Min. Co., 64 Mont. 279, 210 P. 332, 30 A. L. R. 964.

In order for claimant to prevail under the foregoing rule, it was necessary for him to prove by a preponderance of the evidence that he suffered an injury by an industrial accident, and that the injury was the proximate cause of his present condition. Kerns v. Anaconda Copper Min. Co., above.

The Workman's Compensation Act makes the Industrial Accident Board the trier of facts, and permits a review only, by the court, except in cases when, for good cause shown, evidence is permitted in addition to the record before the board. Rom v. Republic Coal Co., 94 Mont. 250, 22 P.2d 161; Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 P. 124; Dosen v. North Butte Min. Co., 78 Mont. 579, 254 P. 880.

The case came to the district court with the presumption that the board had decided correctly. Rom v. Republic Coal Co., above; Radonich v. Anaconda Copper Min. Co., 91 Mont. 437, 8 P.2d 658. The district court on appeal from the board is not justified in reversing a finding of the board unless the evidence clearly preponderates against such finding. Rom v. Republic Coal Co., above; Morgan v. Butte Central M. & M. Co., 58 Mont. 633, 194 P. 496.

If in the present case it does not appear that the evidence clearly preponderates against the findings of the board, the judgment of the court reversing the order of the board must in turn be here reversed, and the decision of the board dismissing the application must stand. Rom v. Republic Coal Co., above.

It is conceded that the claimant suffered an industrial accident, and that, at the time of the hearing before the board, he was totally and permanently disabled. The question for determination is as to whether or not the injury received was the proximate cause of the affliction causing the disability.

The evidence clearly shows that, up to the moment of the accident, the claimant was a strong, healthy young man; the next day, on visiting the doctor's office, he was more nervous than is usual in a patient in the office; within three weeks he had a pronounced tremor in his left foot which gradually spread to both legs, his tongue and head. The doctors who testified all agree that the claimant is suffering from Parkinson's disease (paralysis agitans), or a Parkinsonian syndrome, both of which are commonly known as shaking palsy, and that either disease renders the patient totally disabled; is progressive and incurable. The expert testimony is that this affliction is seldom visited upon the young; it is an old man's disease.

However, as to the proximate cause of the claimant's affliction, there is an apparent conflict in the testimony of the several learned men who presumed to express an opinion on the subject. Dr. A. C. Kelly, of Bozeman, testifying for the claimant, stated that in his opinion Moffett's condition "was caused at the time of the injury." Dr. C. B. Rodes, of Butte, who examined the claimant in December, 1930, stated that, because of certain things, he was "inclined to believe or feel that the accident was not the cause." Dr. S. A. Cooney, of Helena, in answer to a hypothetical question, stated that in his opinion the injury was not the cause of the claimant's condition. Dr. John L. Treacy, of Helena, attended the hearing at the request of the board, listened to the testimony, questioned certain of the witnesses, and examined the claimant. He reported to the board that his "best opinion" was that the injury did not produce the condition, but that it is "almost certainly a result of an infection which resulted in encephalitis lethargia, resulting in the present Parkinsonian syndrome." This report is accompanied by one from Dr. H. A. Bolton, of Warm Springs, who declares that he cannot give the cause, but "probably due to previous infection."

If this were all of the expert testimony before us for consideration, of course, the district court would have erred in reversing the order of the board. In a case dependent, for the solution of a question, on the expert testimony of medical men based upon experience and knowledge of the consensus of opinion of medical authorities, the board, as trier of the facts, must, when the experts are not in agreement, determine which expert, or experts, it will credit. The board having decided the question on credible evidence, the courts are without authority to set its findings aside.

Here, however, a peculiar situation is presented by the evidence. The doctors are in accord on the subject just discussed; they disagree as to the cause of the affliction they are asked to pass upon, but in doing so they frankly admit that they do not know, and the "authorities" do not know what causes the disease. As Dr. Cooney finally stated: "The cause is absolutely unknown; there is none shown." However, from excerpts from works used in the examination of the doctors, it appears that experience, extending over years, and the observation of many such cases, have shown to the "authorities" that the condition manifests itself after the patient has suffered from trauma, infection or emotion, shock, grief, and the like, and therefore "theoretically they give these various causes."

Admitting, then, that the claimant's affliction is one which follows upon the heels of an injury, trauma, or infection, or emotion, but that no power on earth can say how or why, or in any given case, which of the theoretical causes was the present cause, the medical men venture to opine that this was the cause or that was not the cause.

There are two classes of cases in which expert testimony is admissible: The one where the conclusions to be drawn by the jury depend upon the existence of facts peculiarly within the knowledge of men whose experience and study enable them to speak with authority upon the subject; if in such a case the jury, with all the facts before them, can formulate a conclusion, it is their sole province to do so. In the other class fall those cases wherein the conclusion, as well as knowledge of the facts from which it is drawn, depends upon the professional or scientific knowledge of witnesses. In this latter class of cases the expert is permitted to give his opinion, based upon his professional or scientific knowledge and experience, because only thus can the jury act intelligently. Copenhaver v. Northern Pacific Ry. Co., 42 Mont. 453, 113 P. 467.

When called as an expert, a professional man must first show his qualifications to speak with authority, and may then testify only as to...