Mulholland v. Butte & Superior Mining Co.
| Decision Date | 20 June 1930 |
| Docket Number | 6690. |
| Parties | MULHOLLAND v. BUTTE & SUPERIOR MINING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Frank L. Riley Judge.
Proceedings under the Workmen's Compensation Act by John Martin Mulholland, employee, against the Butte & Superior Mining Company, employer. From a judgment affirming an award of the Industrial Accident Board, the employer appeals.
Affirmed.
Kremer Sanders & Kremer, of Butte, for appellant.
A. G Shone, of Butte, for respondent.
John Martin Mulholland, an employee of the Butte & Superior Mining Company, was accidentally injured on the back of the head while in the course of his employment. He received treatment at a hospital, was paid compensation, returned to work, again returned to the hospital, was paid further compensation, later returned to work, and, after being in service some four years, was discharged. Shortly after his discharge he filed a formal petition for compensation and rating of disability, claiming a 75 per cent. permanent total disability as a result of injury to his brain caused by the accident.
After a hearing, the Industrial Accident Board awarded claimant compensation for 150 weeks, at the rate of $6.25 per week. Thereupon both claimant and the employing company asked for a rehearing, which was granted. Before the rehearing could be had, claimant filed an amended petition praying to be rated a permanent total disability, alleging that he could no longer perform ordinary manual labor and could not perform any labor whatsoever which necessitated his being above the surface of the ground, or which required a quick movement on his part, because of dizziness and vertigo; that he had suffered an obstruction of the arterial blood supply to different parts of his body and limbs and particularly that, by an obstruction and embolism resulting from the injury to his brain, he had suffered the loss of blood supply to his feet upon which gangrene had ensued requiring the amputation of both feet; that he was permanently and totally disabled as a direct and proximate cause of his injury.
To the amended petition the company answered, and, the issues being joined, a hearing was had before the Board. The hearing, as counsel for the company say, resolved itself into a battle of the experts, a number of whom appeared as witnesses for the claimant, and a number for the company. An expert for the claimant asserted that claimant is suffering from a rare ailment known as "Raynaud's disease," which manifested itself in a symmetrical gangrene of both feet and was the result of the injury to the posterior portion of claimant's brain. There was a conflict in the testimony of the experts as to the seat of the vasamotor centers of the brain, and whether in all the literature upon Raynaud's disease trauma of the brain had been cited as a cause of the disease. The evidence having been concluded, the Board took the matter under advisement, but being overwhelmed, apparently, by the mass of technical testimony submitted, decided that it would be better advised if the testimony of the experts were submitted to two referee physicians selected by the Board, and transcripts of the testimony were submitted to Dr. S. A. Cooney and Dr. J. L. Treacy, of Helena, requesting them to make a written report giving their opinion as to the cause of claimant's present condition. In due time Doctors Cooney and Treacy reported in writing to the Board, stating it to be their opinion that, as the attending physician gave it as his best judgment, the injury which the claimant suffered was connected with his subsequent disability and that other competent authorities give it as their opinion that Raynaud's disease might result from serious cerebral traumatism, they felt that under the conditions the claimant is entitled to the benefit of the doubt, and that he is entitled to compensation.
Thereupon the Board found the claimant to be a total disability of a permanent character as a result of the accident, and awarded him compensation accordingly. The company filed a petition for rehearing, the principal ground being "the erroneous action of the board in submitting the testimony of the various experts who had testified before the board to Doctors Cooney and Treacy, the defendant company being deprived of the right of cross-examining the said doctors, and as the opinion of the board affirmatively shows that the decision and order of the board was not based upon the testimony submitted to the board by the various expert witnesses who testified before it, but upon the opinion of Doctors Cooney and Treacy, who were not witnesses before the board, and that in so submitting the testimony aforesaid the board acted without and in excess of its powers." The motion for rehearing having been denied, the company appealed to the district court.
The appeal having been perfected, the company moved the court to try the appeal de novo and to permit additional evidence to be introduced, setting forth as one of the grounds of the motion the erroneous action of the Board in submitting the evidence before it to the referee physicians, and using their opinion as the basis for its order and decision. To this motion the claimant filed objections, which were overruled. Thereafter, the claimant being present in person and by counsel, and the company being represented by counsel, the cause was heard by the district court upon the record of the Board as certified, as well as upon additional evidence which the court permitted to be introduced. Witnesses on the part of claimant and company were examined, and, the evidence being closed, the cause was taken under advisement. Thereafter the court, with the record of the Board and additional evidence before it, found and determined "that the findings of fact of said board are reasonable under all the circumstances of the case, and should be, and are, sustained (save and except that the finding that the rating of the claimant as...
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