Woin v. Anaconda Copper Mining Co.

• Decision Date: 25 February 1935
• Docket Number: 7372.
• Parties: WOIN v. ANACONDA COPPER MINING CO.
• Court: Montana Supreme Court

43 P.2d 663

99 Mont. 163

WOIN v. ANACONDA COPPER MINING CO.

No. 7372.

Supreme Court of Montana

February 25, 1935

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Proceeding under the Workmen's Compensation Act by Jack Woin employee, opposed by the Anaconda Copper Mining Company employer. From a judgment reversing the order of the Industrial Accident Board denying compensation, the employer appeals.

Remanded with directions.

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

H. Lowndes Maury and A. G. Shone, both of Butte, for respondent.

STEWART Justice.

On May 2, 1924, Jack Woin, an employee of the Anaconda Copper Mining Company, was injured while engaged in his work as a miner at the Tramway mine in Butte. The company was operating under plan 1 of the Workmen's Compensation Act (Rev. Codes 1921, § 2816 et seq., as amended). Woin was in good health and ordinary physical condition at the time of the accident. He had worked in and about the mines at Butte since about the year 1907. Most of this time he had worked at the Tramway. When the accident occurred Woin and his partner were engaged in cleaning waste matter from a raise in the mine. The waste became clogged in a chute, and Woin undertook to "start it." In the operation he stepped on a rock and fell into what was denominated "the gob." He struck his left hip on a post or piece of timber which had been thrown into the gob. He was removed to St. James Hospital, where the disabled employees of the mine were then treated under contract. One of the hospital doctors treated his injury and caused an X-ray picture to be taken. This picture was mislaid or lost, and was never introduced in any of the proceedings. Dr. Shields, who caused it to be taken, testified that the picture showed a fracture of the left pubic bone and a slight separation of the right sacroiliac joint.

Woin remained in the hospital under treatment until June 27, 1924. At that time he was discharged and allowed to go home, but did not return to work until about the first part of October of the same year. At that time he was put back to work but at a different and easier job. He testified that after he was able to be around he went to the mine and was told by the assistant foreman that he had better come back and go to work as a car oiler; that that was an easier job than he had before and he could try it out and see if he could stand it; that his compensation was only $60 per month and that, if he could hold the job, he could make at least $100 and he would be that much better off; that it would be easier for him to get on at that particular time than later because they were opening up some new work and were going to put on some men anyhow. Woin said that he told the mine official that he was not sure that the doctor would let him go back to work; that he was not feeling well yet, but that he would go and find out; that he went immediately to the hospital where he saw the doctor and explained the matter. He told the doctor of the easier job and of the danger of losing a chance to go back to work unless he accepted the position at that time. He stated that the doctor said to him, "I don't like for you to work yet," and that he answered, "I will go and try anyway"; whereupon the doctor said, "All right." He testified further that he went to the mine and talked to another official, who told him to try it out for a few days and if he could do the work he could stay; that it was better for him to get more money in the nature of wages than to continue on compensation.

Woin then went to work as a car oiler. While this work was not as heavy as mining, it did involve actual labor, including the lifting and carrying of grease, oil, and lubricating equipment. He testified that he continued to suffer from his injuries, but that he did not stop work; that he made numerous calls to see the doctors and received treatment, including salve to rub on his injured hip, but that he gradually got worse and suffered more and more. He said, "I got more pain in my hip; then it get pain all the time, to oil car. *** I can't bend, can not stand that; I have to put leg way back *** when I bend to oil cars."

Woin testified that after about three years on the oiling job he reported to the mine officials that he could no longer do the work; whereupon he was given a job as a yard or clean-up man. On that job he had to pick up trash and clean up after the loading of ore cars and timbers. He stayed on that job for about a year, but claimed that he kept feeling more and more pain, and finally decided that he could not stand that work. He then stayed at home for a short time, and was then given a job as a sort of watchman in the "dry," a room where the men changed clothes. He worked in the "dry" for about a year, but his physical condition continued to get worse until he got so that he could not walk up and down the stairs, and he claimed that he had to use a cane in order to get around.

Witnesses who had known Woin as a husky, healthy man prior to the accident of 1924, testified that he was in bad condition during his work in the "dry," and that he used a cane. Some of the mine people testified that they did not see him use a cane, but that he was not in good physical condition, but rather thought that he was feeble. One McGlone, foreman at the mine, testified that he did not see him use a cane until the last few months he was at the mine; that he thought he had "miner's con" or silicosis; that he looked like a man who had spent too much time in the mine. In any event, he said, he seemed to be going down hill and failing constantly.

Finally, about March 28, 1930, Woin took a hospital slip for entrance into the hospital. At that time the Murray Hospital was the place of hospitalization for the miners employed in the Tramway mine; that hospital still has the contract, and Woin has remained therein as a patient ever since. It is generally admitted by all, and it was found by the Industrial Accident Board, that Woin is totally disabled and will never again regain his physical health.

It appears that at the time of the accident in 1924 the St. James Hospital had the contract for taking care of disabled employees working at the Tramway mine. Between 1924 and 1930 this contract was taken over by the Murray Hospital, and Woin went to that hospital in 1930. It is contended, though not important here, that if the existing incapacity is the result of the 1924 accident, St. James Hospital should bear the obligation of taking care of the man, but if the disability does not relate back to that event, but has resulted from some other or later cause, then the patient is properly a charge of the Murray Hospital.

It appears that soon after the accident of 1924 claim was made to the Industrial Accident Board, and compensation was paid for the period beginning May 1st and ending about October 1st, 21 weeks and 5 days, amounting to the sum of $273. The rate was $12.50 per week, and was the maximum amount allowed by law at the time. On the 6th day of November, 1924, after Woin had gone back to work, he signed a receipt in full settlement and satisfaction.

About February 1, 1933, Woin filed a petition with the Industrial Accident Board, praying for compensation and rating of disability. Therein he set forth the fact of the original injury of May 2, 1924; the other facts, as hereinbefore outlined, relative to his return to work after the accident, and his final entry and confinement in the Murray Hospital. In the petition it is alleged that his condition is getting worse and that he is without chance of recovery; that he is totally and permanently disabled for life as a direct and proximate result of the injury of 1924; that he was earning $4.75 per day at the time of the accident, and that he had always been capable of doing so previous to that time. The employing company filed an answer, which admitted that there was an accident on May 2, 1924; alleged that Woin received an injury resulting in a fracture of the inferior ramus of the left pubic bone and a strained right sacroiliac joint; admitted the treatment at the St. James Hospital, but denied that the condition of the patient was the result of the accident of 1924; alleged that Woin made application for compensation as the result of the 1924 injury and was paid in full therefor; that he recovered from that injury and returned to work. The answer generally denied responsibility. An appropriate reply was filed by the claimant.

The cause came to hearing before the board at Butte on May 10, 1933. Woin's case consisted of his own testimony detailing the particulars of the accident and the fact of his continued disability, and his activities since the date thereof. He produced witnesses to show his good physical condition prior to the accident, and two doctors who testified as to his then physical condition, and their opinions as to the reasons therefor. Dr. C. E. Emery testified that he believed that Woin was afflicted with tuberculosis of the left hip joint; that he was permanently disabled and that the condition was due to traumatism, and that it was the result of the injury of 1924. Dr. J. L. McCarthy gave like testimony, and expressed the opinion that the condition was due to the original injury.

Doctors H. W. Gregg, J. C. Shields, and Edward C. Person testified on behalf of the defendant company, and gave it as their opinions that the existing condition of Woin's hip was not due to the injury of 1924. Dr. Shields testified to an X-ray picture taken in 1928, and based part of his testimony thereon. A controversy arose over this picture, and there were differences of opinion as to what it showed.

After the...