Tweedie v. Industrial Accident Board

• Decision Date: 22 January 1936
• Docket Number: 7458.
• Parties: TWEEDIE v. INDUSTRIAL ACCIDENT BOARD.
• Court: Montana Supreme Court

53 P.2d 1145

101 Mont. 256

TWEEDIE v. INDUSTRIAL ACCIDENT BOARD.

No. 7458.

Supreme Court of Montana

January 22, 1936

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Proceeding under the Workmen's Compensation Act by Mrs. George Tweedie before the Industrial Accident Board. From a judgment granting compensation and reversing an order of the Industrial Accident Board denying compensation, the Industrial Accident Board appeals.

Affirmed.

Raymond T. Nagle, Atty. Gen., C.J. Dousman, Asst. Atty. Gen., and Henry McClernan, of Helena, for appellant.

F. W Mettler, of Roundup, for respondent.

MATTHEWS Justice.

On September 16, 1929, George Tweedie received severe injuries as the result of an accident occurring while in the employ of the Eagle Coal Company in its mines at Bear Creek. He never was restored to capacity, and was paid compensation up to the time of his death on April 4, 1933.

Mary Tweedie filed claim for compensation as the widow of the deceased and hearings were had thereon in May, 1933, the claimant not being represented by legal counsel, when both laymen and doctors testified to some extent as to the condition of deceased from the time of injury until his death and as to the cause of death. The matter was held in abeyance until May 7, 1934, when the board, on findings filed, denied the claimant compensation on the ground that "to find that his death was caused by the accidental injury would be a mere 'guess' or 'stretch of the imagination."' The board then declared: "In addition to this the board finds no provision of law permitting a beneficiary to file a claim for compensation more than six months after the happening of the accident."

A petition for a rehearing was filed within time upon the grounds: (1) That the decision was influenced by fraud practiced on the board; (2) new evidence which the claimant could not have discovered with reasonable diligence prior to the hearing; and (3) that the evidence does not justify the findings of the board in that the evidence, other than that which was false and adduced in fraud, established claimant's right. Affidavits in support of the petition were filed dealing with the alleged fraud and false testimony. The petition was denied, and thereupon the claimant appealed to the district court.

At the opening of the trial in the district court counsel for the claimant asked leave to introduce testimony other than that adduced before the board "for the purpose of showing the actual facts occurring at the time of the injury and of the physical condition of the injured workman as caused by the accident, as having a material and important bearing upon the question as to whether the accident *** was the proximate cause or a contributing cause of the death"; to show that the board misunderstood portions of the testimony before it and attributed the death to a cause other than that showed by the evidence; to show that certain expert testimony was not correct; and to show the exact physical condition of the injured man from the time of the accident up to his death. Lengthy objections were interposed on the ground that all of the proposed testimony could have been presented to the board at the time of the hearing, and that, if the board misunderstood the evidence before it, that fact could be shown from the record. The objections were overruled and the trial proceeded.

The claimant produced evidence covering the entire issue raised and the record made before the board was not introduced until the close of the taking of testimony. The court disregarded the findings and decision of the board and made its own findings, in which it canvassed the evidence adduced and thereon declared that "the preponderance of the evidence, in my opinion, is that the cause of the death of the deceased was the injury." Continuing, the court declares: "It is therefore ordered, adjudged and decreed, that the plaintiff recover of the defendant the compensation which the statute provides, and that judgment is ordered entered accordingly."

Judgment was entered awarding Mrs. Tweedie compensation at $15 per week for 216 weeks, commencing the day after Tweedie's death; that on January 9, 1935, 87 weeks' payments were in arrears, amounting to $1,305, and interest thereon amounts to $65, creating a lump sum due of $1,370, which was ordered paid and the weekly payments continued from January 9, 1935, until the 216 weeks' payments shall have been made.

The board has appealed from the judgment, contending that the court erred in the following particulars: In permitting the introduction of testimony in addition to that adduced before the board; in trying the cause de novo; in setting aside the order of the board; and in finding that the injury in 1929 was the cause of death.

In order intelligently to discuss the questions thus presented, we must have a clear understanding of just what took place at the hearings before the board; two were held, one at Billings and one at Red Lodge. These hearings were conducted without the benefit of counsel, and not all the facts which might throw light on the question involved were presented. For example, little was said respecting the accident and the extent of the injuries sustained by the deceased; his condition during the period from the accident to his death was touched upon in such manner as to leave an inference that, at some time during that period, he had practically recovered from his injuries, particularly as to body injuries. That this evidence was misleading or misunderstood is demonstrated by the statement of the board in its order, to wit: "Tweedie made the usual recovery which is made in hundreds of cases of a similar nature, with the exception that his right leg fracture was particularly severe and the healing result of the leg injury was not as good as is usual." As to the first declaration, there was no positive testimony as to Tweedie's recovery, and, on the trial in the district court, it was shown that he was practically bedridden during the entire period. On the hearing there was some discussion of cancer of the liver, but no doctor testified that the man was suffering from that disease; the death certificate gave "acute uremia" as the cause. Dr. Stevens, who made the certificate without knowing of the injury, reported to the board that Tweedie's liver was "much enlarged," and stated: "I gave the cause of death acute uremia, probably sarcoma of liver and other complicating diseases not determined; *** it is very probable that the accident was the primary cause of these developments." Testifying before the board, the doctor was shown his report and asked if he cared to make a correction, when he changed his statement to read "probably carcinoma," a "primary" cancer, instead of "Sarcoma," a secondary cancer.

From a report made to the board by Dr. J. M. Flynn of Helena, as to the condition of Tweedie in October, 1930, determined by a thorough examination, the chairman of the board read to Dr. Stevens the following statement: "X-Ray, Stero-anterior-posterior of the lower lumbar vertebrae and pelvis. There is evidence of an old fracture of the left side of the body of the fifth lumbar vertebrae, with the spinous process rotated to the left out of line with the other processes, etc. Conclusion. Examinee has suffered marked trauma to the back with injury to the muscles and ligaments of the lumbar area." The chairman then propounded the question: "Now with that description of Mr. Tweedie's condition in October, 1930, and there being no other medical report with regard to any progress he made for the better or worse until his death or until you saw him, would you say that--could you say positively that the cause of death was his accident in 1929? A. No I could not say positively. Q. Would you say that it was a contributing cause? A. I could say that it was a contributing factor."

When Dr. Oleinick, who attended the deceased from the time of the injury up to about 3 months before his death, was on the stand, the chairman propounded to him the following question: "Dr. Stevens testified that carcinoma of the liver caused his death. Now we know the cause of death. What Mr. Riddell [a layman assisting Mr. Tweedie] wants to know is whether, if the carcinoma did cause his death, whether in your opinion the accidental injury he received in 1929 was the cause of the disability which brought about his death. By Mr. Riddell: Or a contributing cause. A. I am not in a position, under these circumstances, to say that the injury *** was the causative agent, either contributing or immediate, of death."

The decision of the board contains the following statement "Upon taking the...