Simons v. C. G. Bennett Lumber Co.

• Decision Date: 03 August 1965
• Docket Number: No. 10771,10771
• Citation: 404 P.2d 505,146 Mont. 129
• Parties: Jack W. SIMONS, Claimant and Appellant, v. C. G. BENNETT LUMBER COMPANY, Defendant and Appellee.
• Court: Montana Supreme Court

Page 505

404 P.2d 505

146 Mont. 129

Jack W. SIMONS, Claimant and Appellant, v. C. G. BENNETT LUMBER COMPANY, Defendant and Appellee.

No. 10771.

Supreme Court of Montana.

Submitted April 13, 1965.

Decided Aug. 3, 1965.

Lee A. Jordan (argued), Missoula, for appellant.

Mulroney, Mulroney & Delaney, Dexter L. Delaney (argued), Missoula, for appellee.

DOYLE, Justice.

The plaintiff, a 40 year old married father of three children was injured on August 2, 1960, while employed at St. Regis, Montana by the C. G. Bennett Lumber Company, a Plan one carrier.

The employer-defendant filed a first report of injury on August 22, 1960, and gave the cause of injury stating that the claimant was sitting on a sawmill carriage when it hit the end bumper and caught him off balance.

The claimant-employee filed his claim for benefits on September 28, 1960, and described the accident as follows:

'While running the carriage, the sawyer ran into the bumper with the carriage, snapping my neck in the nature of a whiplash.'

The claimant worked the rest of his shift on August 2, 1960, worked a full shift on August 3, 1960, and until noon on August 4, 1960, when the mill was temporarily shut down. The claim for benefits indicates that the claimant was working eight hours a day at an hourly salary of $2.45.

On August 4, 1960, in the afternoon the claimant went to Dr. Braun at the Western Montana Clinic in Missoula, Montana. Dr. Braun examined the claimant either two or three times between August 4th and August 7th at which time Dr. Braun referred the claimant to Dr. Kildow. On August 12, 1960, Dr. Kildow referred the claimant to H. Eugene Miles, a physical therapist, who filed a report with the Industrial Accident Board describing the injury as a 'Whiplash fracture to the left cervical area.' This initial report was received by the Industrial Accident Board on August 15, 1960.

On October 17, 1960, the claimant upon the advice of Dr. Kildow was referred to Dr. McKinstry, who in turn requested consultation with his present associate Dr. McDonald. Dr. McKinstry had placed the claimant in a neck brace, which the claimant wore for about six weeks. On November 29, 1960, claimant was hospitalized for six days until December 3, 1960.

On or about December 3, 1960, claimant first expressed concern about a severe low back pain. During the winter of 1960 and 1961, claimant was treated or examined on twelve different occasions by Dr. McKinstry, who placed him in a sacroiliac brace and he also received treatment from a nature therapist at Kellogg, Idaho. He further had some 28 treatments during this period from a Dr. Rogers, a chiropractor in Superior, Montana.

On April 6, 1961, Dr. McDonald again examined the plaintiff and stated:

'His low back pain was his most serious complaint at the time of our examination. There had been no change in his back symptoms in the six weeks prior to this examination. He wore a sacroiliac back brace for two weeks intermittently and felt that this made him worse. * * * The pain in his lower back is there all the time. * * * Associated with the low back pain there is numbness in the left leg which goes down the outside of the left leg to the little toe. He also notices numbness in the front of the right hip.'

On April 26, 1961, plaintiff wrote a letter to the Industrial Accident Board in which he complained about both his neck and low back injuries.

On April 29, 1961, a hearing was held in Missoula before the Industrial Accident Hearing Board, and on October 9, 1961, the Board made its decision that the claimant was making an average weekly wage of $98.00, that he was entitled to a temporary disability of 10 percent for 50 weeks from and after July 29, 1961, he having been previously paid from August 2, 1960, to July 29, 1961.

The Board found that the evidence established that the claimant suffered from a neck injury which subsided and, also from a back sprain which has resulted in a permanent partial disability amounting to approximately 10 percent. The order further specified that it was a full and final award. From the Board's decision the defendant did not appeal, however, on October 19, 1961, the claimant filed a petition for rehearing which was by the Board denied on October 23, 1961. Thereafter on November 7, 1961, the claimant appealed to the district court of Mineral County, and the matter was heard on August 5, 1963, before the Honorable Walter R. Flachsenhar, District Judge, and the claimant was represented by Attorney Fred Root as he had been earlier.

The court held as a finding of fact that after the date of the alleged injury on August 2, 1960, the claimant first evidenced symptoms of degenerative disk disease of his spine, the causes of which are unknown, but antedate and unrelated to employment. That no proof has been offered that the claimant's present post-operative physical condition is in any way causally related to the accident of August 2, 1960. The claimant underwent a spinal fusion operation in Spokane, Washington, on January 28, 1963, the cause of which was the degenerative disk disease aforementioned.

The claimant claims three specifications of error, being:

The Industrial Accident Board erred in each of the following respects:

(1) In establishing the claimant's pay rate at the time of injury on the basis of an eight hour day instead of a ten hour day as the uncontroverted evidence showed claimant was working, and in not using a six day work week as required by House v. Anaconda Copper Min. Co., 113 Mont. 406, 126 P.2d 814;

(2) In speculating that the claimant's back injury would heal in 50 weeks from and after July 29, 1961; and

(3) The District Court erred in affirming the actions of the Industrial Accident Board, and in refusing to award the claimant additional benefits to cover his medical and hospital bills, and weekly compensation to cover claimant's wage loss resulting from the spinal fusion which he underwent.

In this cause we are confronted with exhaustive briefs which run the gamut of claims, counter claims, expert opinions and a plethora of matters far remote from the decisive question to be answered.

There is merit in claimant's first specification of error relating to the pay rate at the time of injury.

R.C.M.1947, § 92-422, defines the word 'week' as:

"Week' means six working days, but includes Sundays.'

R.C.M.1947, § 92-423, defines 'wages' as:

"Wages' mean the average daily wages received by the employee at the time of the injury for the usual hours of employment in a day, and overtime is not to be considered.' Emphasis supplied.

Claimant was paid $2.45 per hour at the date of injury and was entitled to an award of six days or 48 hours per week for a total of $117.60 which is his computed wage for compensation, in conformity with House v. Anaconda Copper Min. Co., supra, and Graham v. Tree Farmers, Inc., 142 Mont. 483, 385 P.2d 83.

Claimant essays to claim under the 1961 legislative increase in compensation. He cannot prevail as his compensation rate is calculated on the date of injury. See Gaffney v. Industrial Accident Bd., 129 Mont. 394, 287 P.2d 256, and Yrkovich v. Industrial Accident Bd., 132 Yurkovich v. Industrial Accident Bd., 132 Mont. 77, 314 P.2d 866.

Claimant contends that the Industrial Accident Board in its hearing on April 29, 1961, and its Findings and Conclusions dated October 9, 1961, stated:

'That the evidence established that the Claimant suffered from a neck injury which subsided and, also from a back sprain which has resulted in a permanent partial disability of the body as a whole amounting to approximately ten (10) percent. That as of September 1, 1961, this medical bodily impairment has prevented the Claimant from returning to work in a sawmill, which was his employment at the time of the accident. That the evidence further established that with continued light employment the Claimant's back injury should subside and enable him to return to work at his regular employment.

'That a reasonable time during which the Claimant may be expected to engage in light work and allow healing of his back is fifty (50) weeks from and after July 29, 1961.', and decided and determined that there was a low back injury and that this finding made this question res adjudicata.

Under this same contention claimant urges that the Board speculated on the gravity of the injury to the lower back.

It is to be observed that between the date of the Board hearing and the hearing in district court the claimant has experienced spinal surgery, whereas the Board considered only a back sprain presented in the evidence adduced.

Anent the contention by claimant of his claim being res adjudicata it is further observed that the claimant on November 3, 1961, filed a notice of appeal to the district court which contains the following language, 'That said appeal is taken from said decisions and order so made and from the whole thereof.

'That said appeal is taken for the purpose of having the unlawfulness of the original order and decision and the order denying rehearing inquired into and determined.'

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