Robins v. Ogle
| Decision Date | 03 June 1971 |
| Docket Number | No. 11937,11937 |
| Citation | 485 P.2d 692,157 Mont. 328 |
| Parties | Peggy ROBINS, Plaintiff and Respondent, v. Herbert H. OGLE, Employer, Glacier General Assurance Company, Defendants and Appellants. |
| Court | Montana Supreme Court |
Murphy, Robinson, Heckathorn & Phillips, Kalispell, I. James Heckathorn, argued, Kalispell, for defendants-appellants.
Richard J. Conklin, argued, White Sulphur Springs, for plaintiff-respondent.
In a workmen's compensation case, the Industrial Accident Board held that claimant did not suffer an accidental injury within the meaning of the Act and denied compensation. On appeal to the district court of Flathead County, the decision of the Indurstrial Accident Board was reversed with the court finding the accidental injury compensable, fixing temporary total disability benefits, the percentage and commencing date for permanent partial disability, and remanding the case to the Board for further adjudication. From this judgment, the employer and his insurance carrier appeal.
The claimant and respondent upon appeal is Peggy Robins, a 39 year old employee of Herbert Ogle at the Husky Cafe near the city limits of Kalispell. Claimant's basic job was that of a waitress, but on the night of her accidental injury she was working as a cook on the night shift as she had done on some previous occasions. Among other things, the night cook's duties include mopping the floor of the cafe.
On February 2, 1969 claimant, while working as a cook on the graveyard shift, was engaged in lifting a mop pail full of water when she felt a pull and a burning sensation. She finished out her shift and went to the doctor the following afternoon. Her back injury consisted of a herniated disc which was eventually surgically removed.
Claimant was paid 8 weeks of temporary total disability following her injury by Glacier General Assurance Company, the Plan II carrier for the employer. On April 1, 1969, claimant entered into a lease of the cafe with the owner. At this time Glacier General ceased payment of compensation. Subsequently they paid claimant an additional 6 weeks temporary total disability following her admission to the hospital for surgical removal of a herniated disc in June and July, 1969. The record is not clear concerning payment of medical and hospital expenses; we are advised in claimant's brief that the medical expenses for this additional surgery remain unpaid.
Claimant petitioner the Industrial Accident Board for a hearing. The case was submitted to the Board on the issue of liability only. The Board entered findings of fact and conclusions of law to the effect that 'the preponderance of the evidence fails to establish an accidental injury compensable under section 92-418 of our Act' and that the previous payments of compensation by Glacier General were 'merely a humanitarian gratuitous advancement by the carrier'. Claimant appealed to the district court from the Board's order denying compensation.
The district court permitted additional testimony consisting mainly of the testimony of claimant's attending physician, Dr. David V. Kauffman of Whitefish. Claimant also testified. The testimony at the district court hearing will be referred to later in this opinion.
The district court reversed the findings and conclusions of the Industrial Accident Board on the issue of compensability. The conclusions of law of the district court are indicative of the gist of its judgment:
The employer and Plan II carrier now appeal from the judgment of the district court based on the foregoing conclusions of law.
Two underlying issues are raised in this appeal:
(1) Did claimant suffer an 'unusual strain' within the meaning of section 92-418, R.C.M.1947 so as to render her injury compensable?
(2) Can the district court upon appeal from an Industrial Accident Board determination that there is no compensable injury, determine the percentage of claimant's disability?
Directing our attention to the first issue, section 92-418 provides:
Appellant concedes that claimant suffered a strain, but contends that she did not suffer an 'unusual' strain within the meaning of the statute. Appellant argues that if this strain case is compensable, then every strain case is compensable without exception.
This statute was interpreted in Jones v. Bair's Cafe, 152 Mont. 13, 445 P.2d 923 wherein we held compensable as an 'unusual strain' an injury wherein a dishwasher, during an unusually heavy work period due to a basketball tournament crowd, picked up a heavy tray of dishes from the floor and received a back strain resulting in physical harm that developed into a severe muscle spasm in the lower back, sciatic nerve irritation, and probable disc trouble.
In that case we noted that prior to 1961, section 92-418 defined 'injury' or 'injured' as referring only 'to an injury resulting from some fortuitous event, as distinguished from the contraction of disease'. In 1961 this definition was changed to mean 'a tangible happening of a traumatic nature from an unexpected cause, resulting in either external or internal physical harm, and such physical condition as a result therefrom and excluding disease not traceable to injury'. Under this definition we held that the death of an employee by heart attack stemming from a disease of the arteries was not an 'injury' within this definition and therefore was noncompensable. Lupien v. Montana Record Publishing Co., 143 Mont. 415, 390 P.2d 455. Later we held that a lumber stacker who bent over to...
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Dumont v. Wickens Bros. Const. Co.
...call to her. In her brief, claimant relies on the cases of Jones v. Bair's Cafe (1968), 152 Mont. 13, 445 P.2d 923; Robins v. Ogle (1971), 157 Mont. 328, 485 P.2d 692, and Love v. Ralph's Food Store (1973), 163 Mont. 234, 516 P.2d 598. Claimant argues, incorrectly, that these cases only req......
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Marcott v. Louisiana Pacific Corp.
...730 P.2d at 1142; Paulson, 673 P.2d at 1283; Holton, 637 P.2d at 14. In this regard, Marcott primarily relies on Robins v. Ogle (1971), 157 Mont. 328, 485 P.2d 692 and Shepard v. Midland Foods, Inc. (1983), 205 Mont. 146, 666 P.2d 758, under which he claims his ruptured calf muscle is absol......
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Erhart v. Great Western Sugar Co., 13130
...thereto. * * *' In the instant case, the record as a whole does not indicate claimant is entitled to compensation. In Robins v. Ogle, 157 Mont. 328, 333, 485 P.2d 692, 695, we found compensable, a back injury received by a cook mopping a cafe floor when she lifted a heavy pail of water. In ......
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Love v. Ralph's Food Store, Inc.
...unusual strain' added by legislative amendment in 1967, Jones v. Bair's Cafes, 152 Mont. 13, 19, 445 P.2d 923, 926 and Robins v. Ogle, 157 Mont. 328, 333, 485 P.2d 692. Jones involved the compensability of a back injury resulting from a dishwasher picking up a heavy tray of dishes from the ......