No. 80-179 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

RITA A. HARMON, 

Claimant and Appellant, 

DEACONESS HOSPITAL, Employer and 

INSURANCE CO. OF NORTH AMERICA, 

Defendant and and Respondent. 

Appeal from: Workers' Compensation Court 

Honorable William Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sandal1 & Cavan, Billings, Montana 

For Respondent: 

Anderson, Brown, Gerbase, Cebull & Jones, Billings, 

Montana 

Filed: .J~f@i - .L 4 ~981 

Submitted on briefs: November 6, 1980 

Decided: 1 4 qp" , 

9. 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

claimant and appellant, Rita Harmon, appeals from a 

judgment of the Workers' Compensation Court denying her 

petition for temporary total disability benefits under the 

Workers' Compensation Act for injuries allegedly suffered 

during her employment with the Deaconess Hospital in Billings, 

Montana. 

Claimant was an employee of Deaconess Hospital on 

August 6, 1978. She was employed as a nurse's aide in the 

pediatrics ward and was working the 6:00 a.m. to 3:00 p.m. 

shift that day. As a nurse's aide, claimant's duties included, among other things, assisting in the transfer of 

patients from surgical gurneys to hospital beds. Claimant 

alleges that at about 1:00 p.m., while lifting a patient 

weighing approximately fifty pounds, she "felt a snap" in 

her back and "felt a sharp pain as it snapped." 

Claimant went to the nurses at the desk and told them 

she had felt her back snap and that it was giving her pain. 

A registered nurse at the desk, Nevada Hellmer, recalled 

claimaint's complaint of lower back pain but could not 

remember whether claimant had stated she hurt her back 

lifting a patient. The nurses advised claimant to go to the 

emergency room to have the pain checked out, which she did 

immediately. 

Claimant was admitted to the emergency room at Deaconess Hospital at approximately 1:15 p.m. on August 6, 

1978. She filled out all necessary papers and forms, 

Claimant testified she informed at least one or more persons 

that she hurt her back while lifting a patient. Dr. Mark 

Larsen examined claimant in the emergency room and took Xrays. He diagnosed claimant as having an arthritic condi- 
tion and prescribed pain killers and bed rest from August 6 

to August 8, or until the pain decreased. 

Claimant left the emergency room at 3:00 p.m. and was 

given a ride home by a licensed practical nurse, Linda 

Gillispie. Gillispie testified that claimant told her that 

she had hurt her back on the floor while lifting a patient. 

The treatment record of the emergency room examination 

states the patient had pain from her low back to her coccyx, 

that she had the same problem a year ago, and that there is 

no history of trauma. The registered nurse who noted "no 

history of trauma" testified that the note indicated that 

claimant gave no statement that any unusual activity could 

have caused the lower back pain. 

Claimant's husband testified that he called the house 

supervisor at the hospital at about 10:OO p.m. on the night 

of August 6, 1978, to inform her that his wife would miss 

work and that she injured her back while lifting a patient. 

Nancy Bates made a note of his call but testified she did 

not recall if she was advised that claimant had been injured 

in an industrial accident. The absentee record states the 

claimant was absent due to low back pain. 

Claimant returned to work on or about August 13, 1978, 

and continued to work until approximately February 3, 1979. 

During this period, claimant suffered increasing difficulty 

and pain with respect to her back. It was not until February 1979 that claimant next saw a doctor, at which time she 

learned she was pregnant. Claimant's obstetrician, Dr. Lee 

Raitz, suggested that the medication she was taking for her 

back might affect her pregnancy and that she should see Dr. 

Phillip Griffin. 
Claimant testified that Dr. Griffin would not take any 

X-rays because of her pregnancy, but that he did review the 

X-rays taken by Dr. Larsen in August. Dr. Griffin told 

claimant she had a slipped disk and recommended more bed 

rest and medication. The doctor's records indicate that the 

low back pain was not due to pregnancy. 

On February 17, 1979, Dr. Griffin hospitalized claimant 

for severe back pain. An orthopedic surgeon, Dr. James 

Schwarten, was called in for consultation. Upon reviewing 

the X-rays taken August 6, 1978, Dr. Schwarten confirmed Dr. 

Griffin's opinion by diagnosing claimant as having a "herniated lumbar disk. " Both doctors concurred in their treatment, recommending bed rest, therapy and the use of a corset. 

Dr. Schwarten suggested that surgery might be necessary. 

Claimant was released from the hospital on February 22, 

1979, and advised not to return to work. On September 22, 

1979, claimant's child was born. She testified that since 

September 22, 1979, she has continued to suffer problems 

with her back which have prevented her from returning to 

work prior to the time of trial. 

Claimant admits that no written notice of her claim for 

compensation was made until February 1979. She maintains, 

however, that the employer or a supervisor in charge was 

given verbal notice of her injury and had actual knowledge 

of her accident and injury within the required sixty days. 

The issues raised on appeal are whether respondentemployer had notice or actual knowledge of the industrial 

injury as defined in section 39-71-603, MCA; and, if so, 

whether claimant suffered a compensable industrial injury as 

defined in section 39-71-119, MCA. 
Claimant contends she suffered a compensable injury and 

that the actions taken by her shortly thereafter gave her 

employer actual notice in accordance with the statute. 

Respondent's position is that neither the Deaconess 

Hospital nor its managing agent in charge had actual knowledge of the accident allegedly suffered by claimant. Even 

though the supervisor knew claimant had low back pain, 

respondent argues that this is not equivalent to the knowledge that claimant was injured in an accident. 

If the Workers' Compensation Court's findings are based 

on conflicting evidence, as they are in this case, this 

Court's function on review is confined to determining whether there is substantial evidence on the whole record 

supporting such findings. Hume v. St. Regis Paper Company 

(1980) , Mont. , 608 P.2d 1063, 37 St.Rep. 378. If 

there is substantial evidence to support the findings of the 

Workers' Compensation Court, we cannot overturn that decision. Jensen v. Zook Bros. Const. Co. (1978), 178 Mont. 59, 

581 P.2d 1191, 1193, 35 St.Rep. 1066, 1068; Steffes v. 93 

Leasing Co., Inc. (U.S.F.&G.) (1978), 177 Mont. 83, 580 P.2d 

450, 452, 35 St.Rep. 816, 818. 

A review of the record indicates claimant testified 

that on August 6, 1978, she advised one or more of the 

emergency room personnel that she was hurt on the job. 

Claimant's husband testified he told a registered nurse that 

his wife was injured while lifting a patient. Claimant's 

testimony was corroborated by Linda illi is pie, but the 

Workers' Compensation Court dismissed Gillispie's testimony 

because she was not a managing agent or supervisor in charge. 

Two registered nurses testified they had no recollection if 
either claimant or her husband had advised them of an industrial accident on August 6, 1978. 

This Court has previously held that the testimony of a 

witness that he does not remember whether a certain event or 

conversation took place does not contradict positive testimony that such event or conversation did take place. Lasby 

v. Burgess (1930), 88 Mont. 49, 289 P. 1028; Lindbolm v. 

Employers' Liability Assurance Corp. (1930), 88 Mont. 488, 

295 P. 1007; Blaser v. Clinton Irrig. Dist. (1935), 100 

Mont. 459, 53 P.2d 1141; In re Nelson (1936), 103 Mont. 43, 

60 P.2d 365. Thus, we have here the uncontradicted positive 

testimony of claimant and her husband that the employer or 

its agent had actual knowledge of claimant's accident and 

injury on August 6, 1978, the day it is claimed to have 

happened. 

The Workers' Compensation Court also relied on the 

absence of any notation of an industrial accident in the 

treatment records of the emergency room or in claimant's 

absentee records. An emergency room nurse testified that 

normally the treating physician would fill out an Industrial 

Accident Board sheet; however, a new group of doctors had 

taken over emergency room services in July 1978, and they 

were having problems with the forms. In fact, there was 

established no automatic procedure for reporting industrial 

accidents until at least two months after claimant was seen 

in the emergency room. Also, the absentee record dated 

August 6, 1978, stated the reason for claimant's absence was 

low back pain. The nurse who filled out the record testified 

that she would not distinguish between regular pain and an 

industrial accident in making the note. 
As stated previously, our function is to determine 

whether the Workers' Compensation Court findings are supported by substantial evidence. Substantial evidence is 

such as will convince reasonable men and on which such men 

may not reasonably differ as to whether it establishes the 

party's case, and, if all reasonable men must conclude that 

the evidence does not establish such case, then it is not 

substantial evidence. Adami v. Murphy (1945), 118 Mont. 

172, 164 P.2d 150; Grand Trunk Railway Co. v. Ives (1892), 

144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485. 

We hold the court's finding of fact that the employer 

did not have actual knowledge of claimant's injury within 

the statutorily required time is not supported by substantial evidence on the whole record. 

While still on shift duty and wearing the uniform of a 

nurse's aide, claimant reported to emergency room personnel 

that her back hurt. Dr. Larsen authorized X-rays to be 

taken. It is at that point that an agent of Deaconess 

Hospital had actual knowledge of claimant's alleged industrial accident. 

Dr. Larsen was the emergency room physician on duty for 

Deaconess Hospital. Section 28-10-103, MCA, provides: ". . . 

An agency is actual v+hen the agent is really employed by the 

principal. . ." Section 28-10-604, MCA, provides: "As 

against a principal, both principal and agent are deemed to 

have notice of whatever either has notice of and ought, in 

good faith and the exercise of ordinary care and diligence, 

to communicate to the other." Thus, Deaconess ~ospital had 

notice of claimant's alleged industrial accident on the day 

it occurred through Dr. Larsen, its managing agent. 
The purpose of the notice requirement or actual knowledge in lieu thereof is to enable the employer to protect 

himself by prompt investigation of the claimed accident and 

prompt treatment of the injury involved with a view toward 

minimizing its effects by proper medical care. See 2 

Larson, Workmen's Compensation Law, 55 78.00 et seq. In the 

instant case, within two hours of the alleged accident, the 

employer had notice, a diagnosis and prescribed medical 

treatment for the injury. Thus, the purpose of the statute 

was fulfilled, and the employer was protected. 

The second issue is whether the finding of the Workers' 

Compensation Court that claimant did not suffer a compensable injury is supported by substantial evidence. 

In Stamatis v. Bechtel Power Co. (1979), Mont . 

- , 601 P.2d 403, 406, 36 St.Rep. 1866, 1870, we stated: 

"The Act in pertinent part defines an injury 

in this language: 

II I II In jUrytt or "injured" means: 

" ' (1) a tangible happening of a traumatic 

nature from an unexpected cause or unusual 

strain resulting in either external or internal physical harm and such physical condition 

as a result therefrom . . .' Section 39-71- 

119(1), MCA. 

"We have previously interpreted this language 

to mean that a claimant can recover if the 

physical harm suffered is unusual either from 

the standpoint of cause or effect. Love v. 

Ralph's Food Store (1973), 163 Mont. 234, 

242, 516 P.2d 598, 602; Robins v. Ogle (1971), 

157 Mont. 328, 333, 485 P.2d 692, 695; Jones 

v. Bair's Cafe (1968), 152 Mont. 13, 19, 445 

P.2d 923, 926. However, claimant must still 

prove a tangible happening of a traumatic 

nature. Dumont v. Wickens Bros. Construction 

Co., supra, 598 P.2d at 1108; Erhart v. Great 

Western Sugar Company (1976), 169 Mont. 375, 

380-381,546 P.2d 1055, 1058; Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 303, 

306-307, 538 P.2d 344, 346. We have explained the meaning of a tangible happening 

of a traumatic nature in these words: 
"'A tangible happening must be a perceptible 

happening. [Citations omitted.] Some action 

or incident, or chain of actions or incidents, 

must be shown which may be perceived as a 

contributing cause of the resulting injury. 

This court has found neurosis compensable, but 

a tangible, real happening must be the cause 

of the condition. [Citations omitted. 1 . . . In the recent case of Love where a gradual 

buildup of back pain was found compensable, 

this Court emphasized two specific incidents 

of strain were perceptible from the record.' 

Erhart, supra, 169 Mont. at 381, 546 P.2d at 

1058." 

In the court's findings there exists no evidence that 

claimant did not suffer a tangible happening of a traumatic 

nature causing the physical pain. In the record, there is 

evidence that claimant "felt a snap" while lifting a patient 

weighing approximately fifty pounds. This is a tangible, 

perceptible happening. 

The X-rays taken in the emergency room were viewed by 

three doctors. The first doctor diagnosed claimant as 

having an arthritic condition while the other two were of 

the opinion that she had a slipped disk. We must conclude 

there is not substantial evidence that claimant did not 

suffer a compensable injury. The facts in the whole record 

indicate the contrary to be true. 

The judgment of the Workers' Compensation Court is 

vacated and set aside. The cause is remanded to the Workers' 

Compensation Court to enter judgment to conform to this 

opinion. 

We concur: