Stordahl v. Rush Implement Co.
| Decision Date | 13 July 1966 |
| Docket Number | No. 11043,11043 |
| Citation | 417 P.2d 95,148 Mont. 13 |
| Parties | Pete STORDAHL, Claimant-Respondent, v. RUSH IMPLEMENT COMPANY, Employer, and Glacier General Assurance Company, Defendants-Appellants. |
| Court | Montana Supreme Court |
Erwin L. Anzjon (argued), Missoula, for appellants.
Joseph P. Hennessey (argued), Billings, for respondent.
This is an appeal from a judgment given the respondent by the trial court, sitting without a jury, in the Thirteenth Judicial District for the County of Yellowstone.
The original claimant, Stordahl, was employed by the Rush Implement Company, and the employer had elected to come under Plan Two of the Montana Industrial Accident Board. The employee was insured by the Glacier General Assurance Company.
We shall refer to claimant as such, even though he is now deceased as will appear.
Claimant on June 18, 1963, was seated tightening bolts on a grain swather, when someone tripped the hydraulic mechanism on the header of the machine. The header fell striking claimant in the back, causing a compression fracture of Dorsal 11 and 12, the two lowest vertebrae of the dorsal spine.
Claimant was hospitalized, treated and released from the hospital on July 5, 1963.
On August 12, 1963, he was re-admitted to the hospital and after comprehensive examinations and tests, the claimant failed to respond. Claimant continued to be hospitalized and diagnostic studies made after August 12 revealed that claimant was experiencing difficulty with his bladder and legs. There was further exploratory surgery in the area of the fracture which revealed nothing significant, and claimant became a paraplegic.
On September 20, 1963, a myelogram was performed which disclosed a blockage in the spinal canal at D-2. After further exploration a malignant tumor was discovered at D-2 by the pathologist and the attending physician an orthopedic surgeon. The distance between the fracture of June 18 and tumor was five to six inches.
Both doctors testified at the Industrial Accident Board hearing that in their opinion the tumor was present prior to the accident, that the disc surgery performed in early August neither hastened nor aggravated the tumor.
On January 16, 1964, the insurer filed a petition with the Industrial Accident Board to determine its liability for compensation and medical treatment. This hearing was had on February 26, 1964.
The claimant died on February 4, 1964, and no autopsy was requested by claimant's family as to the cause of death. Section 69-2308, R.C.M.1947, is highly restrictive as to authority for performing an autopsy. In this cause, such authorization could only be given by the wife of the claimant.
On March 16, 1964, the hearing officer for the Industrial Accident Board ruled that the claimant had been paid legal compensation from June 18, 1963, to the date of death, February 4, 1964, this payment being for the fracture incurred as the result of an industrial accident; that the claimant died as the result of a tumor on his spine on February 4, 1964; that the undisputed medical evidences failed to show any causal relationship as between the accidental injury and the cancerous tumor and that further benefits were denied.
A rehearing was granted and held by the Industrial Accident Board on September 24, 1964, at Billings where additional testimony was given by the claimant. On November 16, 1964, the commission again denied further payments to claimant stating in its opinion, in part,
Claimant introduced into evidence over appellant's objection an article by Dr. R. H. Rigdon of the Pathology Department of the Univesity of Texas medical branch, written in 1957. This article defines the Ewing postulates here for accepting trauma as a cause of cancer:
(1) The authenticity and sufficient severit of the trauma.
(2) Previous integrit of the wounded part.
(3) The identity of the injured area with that giving origin to the tumor; a blow in one part of the body cannot be made the cause of a tumor arising in another part.
(4) The tumor must be of the type that could conceivably result from trauma.
(5) There must be a proper time interval between the receipt of the injury and the appearance of the tumor. (Emphasis added.)
The claimant's tumor appeared some six inches from the trauma, hence it fails to meet the third postulate of Ewing.
Thereafter, on March 22, 1965, this cause was heard on appeal by the claimant before the Honorable Guy C. Derry, who on July 30, 1965, reversed the findings of the Board and awarded claimant's estate 500 weeks or total compensation. Judge Derry wrote a lengthy memorandum which recited the facts, as he viewed them, together with the pertinent case law. At this hearing before Judge Derry one further witness testified over objection of the appellant carrier. The testimony of this witness was of no significance as it pertained to hospital and doctor bills only. It was this testimony cited by the appellant as the seventh specification of error.
Appellant cites six other specifications of error. The six specifications are comingled with the single question, 'Was the District Court correct in reversing the Industrial Accident Board, on the evidence adduced at the three hearings?'
The posed question leads us to the applicable statute which is section 92-418, R.C.M.1947, and reads as follows:
We take cognizance of a sentence in the trial court's long memorandum which states, 'In view of the fact that two members of the Board who signed the decision never heard any of the testimony and the Chairman of the Board never heard the main portion of the evidence, it seems that the trial court on the appeal is in as good a position to evaluate the evidence from the cold record as the Board.'
With this statement we cannot agree. This court in Moffett v. Bozeman Canning Co., 95 Mont. 347, 351, 26 P.2d 973, 974, stated the rule: .
'If in the present case it does not appear that the evidence clearly preponderates against the findings of the board, the judgment of the court reversing the order of the board must in turn be here reversed, and the decision of the board dismissing the application must stand.'
In the recent case of Lupien v. Montana Record Publishing Co., 143 Mont. 415, 420, 390 P.2d 455, 458, this court recognized the foregoing rule when it stated:
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Coleman v. State, 81-115
...of Billings (1979), Mont., 596 P.2d 460, 36 St.Rep. 968; Farris v. Clark (1971), 158 Mont. 33, 487 P.2d 1307; Stordahl v. Rush Implement Company (1966), 148 Mont. 13, 417 P.2d 95. The following excerpts are taken from the State's expert "Question: Did you make a comparison of the Q-2 hair t......
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Bara v. Clarksville Memorial Health Systems
...although we do not require of doctors the same strictness in testifying that was once required. See Stordahl v. Rush Implement Company (1966), 148 Mont. 13, 417 P.2d 95. Although we still formally adhere to a "reasonable medical certainty" standard, the term is not well understood by the me......
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Azure v. City of Billings, 14079
...medical certainty", must preface or be appended to every statement of opinion rendered by a medical expert. In Stordahl v. Rush Implement Company (1966), 148 Mont. 13, 417 P.2d 95, this Court determined that there is no particular standard of strictness required so long as it is "determined......
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Erhart v. Great Western Sugar Co., 13130
...not possible to attribute the condition to any particular stress in the life of claimant. This Court said in Stordahl v. Rush Implement Co., 148 Mont. 13, 20, 417 P.2d 95, 99: 'Whenever a medical expert testifies that an asserted cause of disease is possible, this alone is not to be accepte......