Shugg v. Anaconda Copper Mining Co.

• Decision Date: 08 June 1935
• Docket Number: 7416.
• Citation: 46 P.2d 435,100 Mont. 159
• Parties: SHUGG v. ANACONDA COPPER MINING CO.
• Court: Montana Supreme Court

46 P.2d 435

100 Mont. 159

SHUGG v. ANACONDA COPPER MINING CO.

No. 7416.

Supreme Court of Montana

June 8, 1935

Appeal from District Court, Silver Bow County; H. E. McHugh, Judge.

Proceeding under the Workmen's Compensation Act by Edwin S. Shuggclaimant, opposed by the Anaconda Copper Mining Company employer.From a judgment dismissing the claimant's appeal from order of the Industrial Accident Board denying additional compensation on the ground of want of jurisdiction, claimant appeals.

Affirmed.

H. A Tyvand, of Butte, for appellant.

D. M. Kelly, D'Gay Stivers, John V. Dwyer, John A. Groeneveld, and J. T. Finlen, Jr., all of Butte, for respondent.

MATTHEWS Justice.

Edwin S. Shugg has appealed from a judgment of dismissal, "on the merits," of his appeal from an order of the Industrial Accident Board denying him additional compensation on the ground of want of jurisdiction.The history of the case is rather involved, as will be seen from the following statement from the record:

Shugg had been in the employ of the defendant company for eighteen years, when, on June 2, 1930, he sustained compensable injury.The "Attending Physician's Report" made to the board by Dr. J. C. Shields, on June 19, 1930, gives the nature of the injury as "contusion and sprain of left foot and contusion of right shoulder," and adds: "Probable period of disability 3--4 weeks."The "Employer's Report" is of like tenor.The injured man filed his claim for compensation on July 14, 1930, wherein he describes the accident as follows: "Timbering, falling rock struck my left leg and injured it"; a like statement is found in the "Employer's Report."

The company paid the claimant $15 per week for a period of 68 weeks at the end of which it secured from him a receipt "in full settlement and satisfaction" of his claim for the injury described as "contusion and sprain of left foot and contusion of right shoulder."This receipt was signed by the claimant and approved by the company on September 23, 1931.It was filed with the board the following day, with the company's supplemental report advising the board that the injured man had fully recovered and had returned to work on September 22, 1931.

In October, 1931, the claimant made application for additional compensation on the ground that he was still disabled by reason of the accident.The company resisted on the ground that he was suffering from flat feet and that this constituted his only disability.A hearing was had on March 17, 1932, at which the claimant and one Dr. T. B. Moore testified for the claimant, and Dr. J. C. Shields, who made the "Attending Physician's Report" above, testified for the company.No testimony was adduced as to the nature of the accident.The claimant explained his then condition of flat feet and pain in both feet and legs, with the left leg slightly smaller than the right, as rendering him totally disabled, and testified that he had had no trouble with his feet prior to the accident.

Dr. Moore described claimant's condition as due to "flat feet" and "progressive arthritis," totally disabling him as a miner, but could not say whether or not the injury sustained had anything to do with his condition.He testified that one could have flat feet without pain or much disability, but it was the combination of the two afflictions which caused claimant's condition.

Dr. Shields testified that he examined the claimant on the day of the accident and that he then had "complete flat feet," was injured only in the left foot and leg, and that there was no injury to bones or ligaments, but that claimant then complained of pains in his right leg also.He testified that the slight atrophy of the left leg was due to nonuse, and that all of the symptoms related by the claimant, and his condition as exhibited at the hearing, "arise exclusively from flat feet."

On July 14, 1932, with the record of the hearing, the report and final receipt of and for the amount already paid to the claimant before it, the board declared that it was "of the opinion that, following the healing period or after the time that Shugg passed from a total disability of a temporary character that there was a small amount of permanent partial disability to the left foot," but added: "We think that the defendant company has paid all of the compensation that would be due for the partial disability in addition to paying Shugg compensation during the time he was temporarily disabled."On its findings the board ordered the company to pay the claimant $15 per week for 68 weeks, beginning with the date of the accident, with full credit for payments already made, "to be in full and final settlement."No appeal was taken from this order and no motion for a rehearing was filed, as permitted by section 2955 of the Revised Codes of 1921, within 20 days after the service of the order of the board.

On May 27, 1933, the claimant filed with the board a "petition to set aside the former order and to grant a hearing again."This petition was presented by present counsel for Shugg, who did not represent him theretofore.Therein it is alleged that Shugg's injuries resulted when, on June 2, 1930, "a great amount of rock and dirt fell upon his shoulders and back, placing such a large amount of weight" upon him that both his feet were injured by the breaking of the arches, wounds and sprains, and that "his feet and legs are now partially paralyzed and becoming more paralyzed and affected as time passes."Claimant further alleges that he has not received or accepted full settlement of his claim for compensation.The prayer is that the order of July 14, 1932, be set aside, the case reopened, and the matter "heard again" and claimant awarded compensation for total disability permanent in character.To this petition the company filed a demurrer, on the grounds that the petition does not state facts sufficient to constitute a cause of action, and that the board has no jurisdiction of the person of the defendant or of the subject of the action.

In an order dated May 29, 1933, the board recites the former proceedings leading up to the order of July 14, 1932, with its service on counsel for claimant, that no appeal was taken and no motion for a rehearing made, and holds that it was without jurisdiction to grant a new hearing.No appeal was taken from this order of the board, but on June 17, 1933, claimant presented to the board "a petition for a hearing and rehearing," in which it is charged that the board acted without authority in dismissing the former petition without a hearing on the demurrer, and has, at no time, granted claimant a right to be heard in order to determine his condition subsequent to March 17, 1932, and that the order of July 14, 1932, is "unreasonable."

On June 20, 1933, the board wrote counsel reviewing the history of the latest attempt to secure a new hearing and the result thereof, and closing with the statement: "In view of the facts in the case the board feels that it has no authority to consider an application for a rehearing at this time.You may take this letter as a refusal of the board to assume any further jurisdiction in the case."

On July 19, 1933, claimant gave notice of appeal to the district court, which appeal was, on motion of the company, dismissed on January 6, 1934.No appeal was taken from the judgment of dismissal.

On January 11, 1934, claimant filed with the board a "petition to reopen and reviewthis case and to award additional compensation."This petition in effect seeks to have the board blot out all that has gone before, and cause the case to "be heard again" on the theory of injury on June 2, 1930, by reason of "a great amount of rock and dirt" falling on his back in such manner as to crush him down and break the arches of both of his feet.

To this petition the company filed an answer, admitting that the claimant was injured on June 2, 1930, by rock falling on the left leg, and that the injury consisted of "a contusion and sprain of the left foot and contusion and sprain of the right shoulder"; it alleges the payments made and full recovery of the claimant with his request to return to work; his receipt for full settlement, the lapse of more than two years, and that the board has no power to alter, rescind, or amend the settlement.It further alleges the order of July 14, 1932, and the judgment of dismissal on May 29, 1933, from which no appeals were taken, became res adjudicata and bar this proceeding.By reply the claimant denied the new matter set up in the answer.

This matter being presented to the board, it denied the petition and dismissed the proceeding by an order in which is recited the fact that the decision of July 14, 1932, was based on medical evidence presented on behalf of the claimant with respect to "the disability of the left foot," stating: "There was no contention by the claimant of any injury other than to the left foot"; that this "petition does not inform the board as to what additional disability there is, if any, nor does it inform the board as to what increase in disability has taken place."The board then declares: "We believe that the claimant is not entitled to have a hearing for the purpose of being awarded additional compensation unless a petition is presented with supporting medical statements that the disability which Edwin S. Shugg is now suffering is different entirely from that suffered at the time of the former hearing."This order of dismissal was made February 27, 1934.

On March 13, 1934, claimant filed a "petition for hearing and rehearing," which was promptly denied on the insufficiency of the grounds stated.Claimant thereupon appealed to the district court, and in due time the company moved to dismiss the appeal.The court overruled...