Rumsey v. Cardinal Petroleum

• Decision Date: 02 January 1975
• Docket Number: No. 12699,12699
• Citation: 166 Mont. 17,530 P.2d 433
• Parties: Cecil J. RUMSEY, Claimant and Respondent, v. CARDINAL PETROLEUM, Employer, and Glacier General Assurance Company, Respondent and Appellant.
• Court: Montana Supreme Court

Page 433

530 P.2d 433

166 Mont. 17

Cecil J. RUMSEY, Claimant and Respondent, v. CARDINAL PETROLEUM, Employer, and Glacier General Assurance Company, Respondent and Appellant.

No. 12699.

Supreme Court of Montana.

Submitted Nov. 13, 1974.

Decided Jan. 2, 1975.

Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, Bruce R. Toole, argued, Billings, for respondent and appellant.

Michael J. Whalen, argued, Billings, for claimant and respondent.

JOHN C. HARRISON, Justice.

This is an appeal from a judgment of the district court, Yellowstone County, which reversed an order of the Workmen's Compensation Division and held in favor of the claimant, Cecil J. Rumsey.

On January 10, 1970, Cecil Rumsey, an employee of Cardinal Petroleum Company, suffered an injury while working as a 'roughneck' on an oil well. The accident occurred when a driller started a winch while claimant was attempting to connect a set of tongs to the drillstem of an oil well. Claimant was jerked across the platform of the oil rig and sustained injuries to his right arm, shoulder and chest. Claimant's hospital and surgery costs in the amount of $6,413.70 were paid by appellant. Weekly compensation benefits were paid from January 17, 1970 through February 4, 1970 and from February 2, 1971 through October 14, 1971, for a total of 39 1/7 weeks, in the amount of $1,695.71.

After a short period of recuperation, claimant quit his job at Cardinal Petroleum Company and went to Wyoming where he worked as a plasterer. During this period of time, he complained of an extensive ache in his right side and arm, along with chills and fever. He also found it difficult to breathe and experienced a sharp pain in his chest when he overexerted himself.

On October 7, 1970, claimant was admitted to the intensive care unit of a Wyoming hospital after having suffered severe chest pains. Claimant's illness was diagnosed as myocardial ischemia, a condition that has caused claimant to become permanently disabled.

Ischemia is a condition where there is an obstruction of the blood flow through the coronary arteries resulting in the lack of an adequate blood supply to the heart muscle. If the condition is extensive, angina pectoris or an oppressive pain under the breastbone results.

On March 19, 1971, claimant underwent surgery to restore the capacity of his right lung which had become severly compromised as a result of the industrial accident. The medical testimony presented to the Workmen's Compensation Division disclosed that the industrial accident had caused the claimant to suffer internal bleeding which had caused his right chest cavity to become filled with blood. The blood eventually formed a restrictive casing around the right lung and prevented it from functioning properly. The operation removed this thick casing of blood or pleura and the right lung was expanded.

On September 29, 1971, claimant petitioned the Workmen's Compensation Division to be declared permanently disabled and to be awarded a lump-sum settlement.

The crucial issue presented to the Workmen's Compensation Division was whether the industrial accident coupled with the compromised right lung and the resultant physical and emotional stress, had accelerated or aggravated the claimant's preexisting condition of myocardial ischemia.

During the hearing the depositions of two physicians, Doctor Movius and Doctor Roussalis were introduced.

Doctor Movius testified:

'Q. Now, backing up a little, and having in mind the condition of this lung during the 14 months before surgery, would the condition that existed there during that period of time impose any limitation upon the oxygen supply that would be furnished to the heart? A. Yes, sir.

'Q. And what would be the nature of that limitation? A. Well, as I mentioned earlier, it would be my opinion that the patient would actually be functioning with less than one lung inasmuch as the right one was completely constricted and very probably pushed somewhat to the left and limiting the function of the uninjured lung, so that so far as the total oxygenation is concerned under stress, he probably had less than 50% oxygenation to his body than was possible under maximum conditions before the injury.

'Q. And during this period of time when he was attempting to work he was under stress, is that correct? A. I don't think there is any doubt about it.

'Q. And with that limitation and strees, would that put any stress upon other vital organs of the body? A. I think so.

'Q. And which one? A. Primarily the heart.

'Q. Now, could you tell us, please, whether or not after the performance of this surgery there would now be any limitation of the oxygen supply to the heart because of this condition, as distinguished from what it would have been prior to the time of injury? A. Yes, there is some limitation, but not nearly so great as before. According to the tests, we find that, according to the average individual, he has 85% as much as a normal individual since the operation. But prior to the operation, I would estimate that it was somewhere in the region of 40 to 45%.

'Q. And what would cause the continued limitation of oxygen to the heart after the surgery has been completed, the healing period past? A. Well, I think that any stress phenomenon that any individual endures-and at this period of life we all know that there is a narrowing of your blood vessels and many people don't live to be at the age of many of us are. And if I may go into his history, the fact that he had a coronary problem in October of 1970, I think there is no question that the fact that he worked for approximately nine months with less than one lung greatly aggravated his probable present existing coronary narrowing and was largely responsible for the occurrence of his coronary at that time because of the continued vigorous work which he did with a markedly compromised-oxygen supply.'

Doctor Roussalis testified:

'Q. Then, Doctor, you explained in your opinion, your written opinion which is now attached to Doctor Movius' deposition, and I will quote, 'EKG revealed the patient to have myocardial ischemia which is not related to this injury and which will be of permanent nature'. I will just simply as you (sic), are you still of that opinion, and that is, the ischemia is not related to the injury which has been described in your history and for which this claim is made? A. That is correct.

'Q. And it is your opinion, then, if I understand you, this is a developmental disease of aging of our society? A. Correct.'

When the hearings examiner was confronted with the conflicting medical testimony, he decided to send pertinent portions of the file to an independent physician, Doctor Goulding, for his opinion. Doctor Goulding's two page report was sent by the hearings examiner to respective counsel along with a letter stating the report would be utilized in reaching a decision. Doctor Goulding's report stated, inter alia, that lung disease and emotional trauma were not factors in accelerating myocardial ischemia.

Upon receipt of this report, claimant's counsel wrote to the hearings examiner objecting to the use of evidence outside of the record and requesting the opportunity to cross-examine Doctor Goulding and to obtain additional medical testimony to rebut his findings.

On October 30, 1972, the hearings examiner denied compensation to claimant without affording him the opportunity to cross-examine Doctor Goulding and to rebut his findings.

Thereupon, claimant appealed to the district court which heard additional testimony from Doctor Movius and reversed the findings of the Division. The employer and its insurance company appealed.

The issues are:

1. Did the Division err in denying claimant an opportunity to cross-examine Doctor Goulding and to rebut his findings?

2. Did the district court err in reversing the findings of the Division?

Issue 1. We note the rules of evidence are more relaxed in an administrative proceeding than in a court of law. Section 92-812, R.C.M.1947; Ross v. Industrial Accident Board, 106 Mont. 486, 80 P.2d 362; Bergan v. Gallatin Valley Mlg. Co., 138 Mont. 27, 353 P.2d 320. However, these rules will not be relaxed to the point where due process of law and the fundamental rights of the injured workmen are disregarded.

In Mulholland v. Butte & Superior Min. Co., 87 Mont. 561, 289 P. 574, two referee physicians were selected by the Industrial Accident Board to render an opinion after the board was unable to reach a decision because of conflicting medical testimony. A written report favoring the claimant was submitted. Accordingly, the board found the claimant was totally disabled and awarded him compensation. Thereupon, the defendant company perfected an appeal to the district court which upheld the decision of the board after additional evidence was heard. This Court conceded the board had erred in depriving defendants of their right to cross-examine the physicians. However, the district court was not held in error because it was presumed that it had considered only competent testimony and had ignored the reports.

3 Larson, Workmen's Compensation Law, § 79.63, states:

'Under the increasingly common practice of referral of claimant to an official medical examiner or an independent physician chosen by the commission, it is particularly important that commissions not lose sight of the elementary requirement that the parties be given an opportunity to see such a doctor's report, cross-examine him, and if necessary provide rebuttal testimony.'

In Massachusetts Bond. & Ins. Co. v. Industrial Acc. Com'n, 74 Cal.App.2d 911, 170 P.2d 36, 37, the California Industrial Accident Commission referred a case to two independent physicians because of conflicting medical testimony. Upon appeal, the petitioner contended he had been denied due process of law when his request for an opportunity to cross-examine the physicians and to produce rebuttal testimony had been denied. The...