Sykes v. Republic Coal Co.

• Decision Date: 04 May 1933
• Docket Number: 7045.
• Citation: 22 P.2d 157,94 Mont. 239
• Parties: SYKES v. REPUBLIC COAL CO.
• Court: Montana Supreme Court

22 P.2d 157

94 Mont. 239

SYKES v. REPUBLIC COAL CO.

No. 7045.

Supreme Court of Montana

May 4, 1933

Appeal from District Court, Musselshell County; Edgar J. Baker Judge.

Proceeding under Workmen's Compensation Act by William Sykes employee and claimant, opposed by the Republic Coal Company employer. From judgment setting aside findings of Industrial Accident Board and awarding compensation to employee employer appeals.

Affirmed.

W. W. Mercer, of Roundup, and Murphy & Whitlock, of Missoula, for appellant.

Loble & Adair, of Helena, and F. W. Mettler, of Roundup, for respondent.

MATTHEWS Justice.

Appeal of the Republic Coal Company from a judgment of the district court of Musselshell county, setting aside certain findings of the Industrial Accident Board and awarding William Sykes compensation in the sum of $1,791.43, with legal interest from May 1, 1931, being the date when payments under the order of the board ceased. The judgment was entered January 19, 1932, on an appeal from the order of the board and on the record made before the board at a hearing in January, 1930, supplemented by evidence as to the condition of the plaintiff from that date to the time of trial.

The uncontroverted evidence shows that in June, 1929, Sykes was a robust, able-bodied and hard-working man of the age of 42 years, and with a wife and three children to support. He had worked as a coal miner for 30 years and in the employ of the defendant company for the past 17 years; he had had no training fitting him for any other work, and had no means of supporting his family other than by his manual labor. On June 17, 1929, while Sykes was working in defendant's mine, a slab of rock, approximately five feet long, three feet wide, and three to four inches thick, fell from the ceiling, a distance of about six feet, upon Sykes' shoulders and back, knocking him down. Sykes was able to walk to a car and went to his home. Within a week he returned to work and worked until August 22d, when he was compelled to quit on account of severe pains in his back and neck; he remained in bed for 5 or 6 weeks under the care of a chiropractor; his left leg became partially paralyzed. As a result of this condition he was reported by his employer as "re-injured August 22, 1929," from which date the defendant paid him compensation for the period of 1 year. On August 22, 1930, the superintendent of the company offered Sykes light work for a month or two, which Sykes declined, whereupon the company ceased making payments. Sykes then petitioned the board for a determination of his disability and for a lump sum settlement, and a hearing was duly had at which lay witnesses, physicians who had attended him up to that date, and Dr. Garberson, who had examined him at the request of the defendant, testified.

All of the doctors agree that Sykes shows symptoms of an injury to his spinal column and later partial paralysis of the left leg, but could find no evidence, by physical examination and the use of the X-ray, of any bony lesion and therefore declare his disability to be functional, rather than organic. They all acquit him of malingering and declare him to be partially disabled, but ventured the opinion that he should eventually recover. He is rated by his physicians as a 25 per cent. disability. Dr. Garberson noted a "very slight suggestion of lipping in the lumbar region" and expressed the opinion that Sykes was suffering from arthritis of the spine. None of the doctors venture an opinion as to when the man would recover. Dr. Garberson's statement was: "I believe that his ultimate prognosis should be good and that he will probably recover with little or no disability."

On this evidence the board declared that Sykes "suffered a disability of a partial character and that such disability will have ended, in the opinion of the board, on or about May 1st, 1931," and ordered the payment to him of $20 per week for a period of 37 weeks, in addition to the payments already made. Sykes appealed from the order of the board, after a motion for a rehearing was denied.

At the opening of the trial in the district court, counsel for Sykes asked, and was granted, leave to submit additional evidence "in support of *** the objections to the findings of *** the board, for the reason that the court should be apprised of the present condition of the appellant and such medical testimony as is necessary *** should be admitted for the purpose of bringing the issues of fact and law *** down to date." The additional testimony adduced is to the effect that Sykes' disability did not end by May 1, 1931. Lay witnesses testified that at the time of trial he was unable to perform any labor; became exhausted driving a car; suffered continuously, and was in no better condition than at the time of the hearing before the board. Again the doctors, having re-examined the claimant, expressed the opinion that the man's condition was due to "traumatic neurosis," but that it was "a question of how much is physical and how much is psychic and mental condition"; that his condition was about the same as it was on previous examinations.

The court declared: "There is no evidence in the record that would justify the finding of the Industrial Accident Board that the period of any disability ended on May 1st, 1931;" that "from and after August 26th, 1930" the claimant suffered from "a twenty-five per cent *** partial disability, permanent in character" resulting from the accident, and, as he has a wife and three dependent children, he is entitled to $20 per week compensation, for 25 per cent. of 500 weeks, less the total of the payments made. Judgment was entered pursuant to the findings of fact and conclusions of law, for the sum of $1,791.43, with interest from May 1, 1931. Before the entry of judgment the defendant filed exceptions to the findings, which were overruled, and has now appealed from the judgment, challenging the correctness of the findings and predicating error on the admission of additional testimony.

It is first contended that the court exceeded its authority in permitting additional testimony to be introduced in the absence of an affidavit or other formal showing of the discovery of new evidence or changed condition, it being asserted that, as this court has declared in Morgan v. Butte Central Min. Co., 58 Mont. 633, 194 P. 496, that the position of the court was analogous to that of a judge, other than the one who presided at the trial, to whom a motion for a new trial has been submitted, the rules respecting new trials should apply.

Section 2960, Revised Codes of 1921, provides that on such a hearing as this, "the court may *** for good cause shown, permit additional evidence to be introduced, but, in the absence of such permission *** the cause shall be heard on the record of the board."

While the statute contemplates merely a review of the record before the board, unless there is some special reason or "good cause" for the reception of additional evidence, and in no case permits a full "trial de novo" (Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 P. 124; Dosen v. East Butte Min. Co., 78 Mont. 579, 254 P. 880), all parts of the Workmen's Compensation Act are to be given a liberal construction (section 2964, Rev. Codes 1921), and in the absence of some statutory requirement as to the manner in which the discretion of the court shall be invoked, the informal presentation of persuasive reasons why additional testimony should be taken, made in the presence of opposing counsel who thus has an opportunity to be heard on the subject, is a sufficient showing of "good cause."

Here the very purpose of the appeal was to test the correctness of the board's order limiting the period of payment, on the assumption that the claimant's disability would disappear within a given time. For this purpose it was necessary that the court be advised as to the claimant's condition at the time of the expiration of the period fixed and at the time of the trial. No error was committed either in granting the leave to introduce, or the reception of, the evidence bringing the record of fact conditions "up to date."

For a determination of the disagreement between the board and the court as to the duration of disability, we must look to the evidence adduced before the board. The questions of incapacity and the duration thereof are to be determined as are other fact questions. Gorrell v. Battelle, 93 Kan. 370, 144 P. 244. The period of payments is usually determined on the testimony of physicians as to the probable cause of the injury (Gregory v. Merrill Metal Co., 1 Cal. A. C. Dec. 408), but when this expert testimony is indecisive, the determination should be in favor of the injured workman (Spencer v. Gibson, 1 Cal. A. C. Dec. 565).

The most positive statement found in the record is that of Dr Garberson in response to the question: "Would you give it as your medical opinion that this man should fully recover without any permanent disability?" His answer was, "I think, to all intents and purposes, yes." Neither one of the two doctors ventured an opinion as to when the claimant would be likely to recover and, as will be later...