### 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, Judgepresiding. Counsel of Record: For Appellant: Sandal1 & 

### Cavan, Billings, Montana For Respondent: Anderson, Brown, Gerbase, Cebull & 

### Jones, Billings,

Montana



## .J~f@i .L4

## ~981 Filed: 

# - Submitted on briefs: November 6, 

### 1980 Decided: 

# 14qp"

, 

# 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' CompensationAct for injuriesallegedly suffered during her employment with the Deaconess Hospital in Billings, Montana. Claimantwas 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 atabout 1:00 p.m., while lifting a patient weighing approximately fiftypounds, she "felta snap" in her back and "felta sharp pain as it snapped." Claimant went to the nurses at the desk and told them shehad felther back snap and that itwas giving her pain. A registered nurse at the desk,Nevada Hellmer, recalled claimaint's complaintof lower back pain but could not remember whether claimanthad 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. Claimantwas admitted to the emergency room atDeaconess Hospital at approximately 1:15 p.m. onAugust 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 killersand bed rest from August 6 toAugust 8, or until the pain decreased. Claimant leftthe emergency room at3:00 p.m. and was given a ride home by a licensed practical nurse, Linda Gillispie. Gillispie testified thatclaimant 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 thatany unusual activity could have caused the lower back pain. Claimant's husband testified thathe called the house supervisor atthe hospital atabout 10:OO p.m. on the night of August 6, 1978, to inform her thathiswife would 

### miss work and that she injured her back while lifting a patient. Nancy Batesmade a note of hiscallbut testified she did not recall if she

### was advised thatclaimant had been injured inan industrial accident. The absentee record 

### states the claimant was absent due to low back pain. Claimant returned towork on or about August 13, 1978, and continued towork until approximately February 3, 1979. During thisperiod, claimant suffered increasingdifficulty and pain with respect toher back. Itwas not untilFebruary 1979 thatclaimant next saw a doctor, atwhich time she learned shewas pregnant. Claimant's obstetrician, Dr. Lee Raitz, suggested that themedication she was taking for her back might affecther pregnancy and that she should see Dr. PhillipGriffin.

### Claimant testified that Dr. Griffinwould not take any X-rays because of her pregnancy, but that he did review the X-rays taken by Dr. Larsen inAugust. Dr. Griffin told claimant she had a slipped disk and recommendedmore bed rest and medication. The doctor's records indicate that the lowback 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 takenAugust 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 surgerymight 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 wasmade until February 1979. Shemaintains, 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 arewhether 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 itsmanaging agent in charge had actual knowledge of the accident allegedly suffered by claimant. Even though the supervisor knew claimanthad low back pain, respondent argues that this isnot equivalent to the knowledge that claimant was injured in an accident. If the Workers' CompensationCourt's findings are based

on conflicting evidence, as they are in this case, this Court's function on review is confined to determiningwhether 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. Jensenv. Zook Bros. Const. Co. (1978),178 Mont. 59, 581 P.2d 1191, 1193, 35 St.Rep. 1066, 1068; Steffesv. 93 Leasing Co., Inc. (U.S.F.&G.) (1978), 177Mont. 83, 580 P.2d 450, 452, 35 St.Rep. 816, 818. A review of the record indicates claimant testified that onAugust 6, 1978, she advised one or more of the emergency roompersonnel 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 testimonywas corroborated by Linda illi is pie, 

### but the Workers' CompensationCourt dismissed Gillispie's testimony because shewas not a managing agent or supervisor in charge. Two registered nurses testified they had no recollection ifeither claimant orher husband had advised them of an industrial accident on August 6, 1978. This Court has previously held that the testimony of a witness thathe 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' LiabilityAssurance Corp. (1930), 88 Mont. 488, 295 P. 1007; Blaser v. Clinton Irrig. Dist. (1935), 100 Mont. 459, 53 P.2d 1141; Inre Nelson (1936), 103Mont. 43, 60 P.2d 365. Thus, 

### we have here the uncontradicted positive testimony of claimant and her husband that the employer or 

### itsagent had actualknowledge of claimant's accident and injury on August 6, 1978, the day it isclaimed tohave happened. The Workers' Compensation Court also relied on the absence of any notation of an industrial accident inthe treatment records of the emergency room or inclaimant's absentee records. An emergency room nurse testified that normally the treatingphysician would filloutan Industrial Accident Board sheet; however, 

### a new group of doctors had taken over emergency room services inJuly 1978, and they



### were having problems with the forms. In fact, therewas established no automatic procedure for reporting industrial accidents until atleast two months after claimant

### was seen inthe 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 inmaking the note.

### As stated previously, our function is to determine whether the Workers' CompensationCourt findings are supported by substantial evidence. Substantial evidence is such as will convince reasonable men and on which such men may not reasonablydiffer 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), 144U.S. 

### 408, 12S.Ct. 679, 36 L.Ed. 485. We hold the court's finding of fact that the employer did not have actual knowledgeof 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, claimantreported 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, itsmanaging agent.The purpose of the notice requirement or actual knowledge inlieu thereof istoenable the employer toprotect himself by prompt investigation of the claimed accident and prompt treatment of the injury involved with 

### a view toward minimizing itseffectsby proper medical care. See 2 Larson, Workmen's Compensation Law, 

### 55 78.00 

### etseq. 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

### iswhether the finding of theWorkers' Compensation Court thatclaimant did not suffer a compensable injury is supported by substantial evidence. InStamatis v. Bechtel Power Co. (1979), Mont

# .

, 601 P.2d 403, 406, 36 St.Rep. 1866, 1870, 

### we stated: 

### - "The Act inpertinent part defines an injury in this language:

II I IIInjUrytt or "injured" means: 

### "

## '(1)a tangible happening of a traumatic nature from an unexpected cause or unusual strainresulting ineither external or internalphysical harm and such physical condition asa result therefrom 

# .

# . .' Section 39-71- 119(1),MCA. "We have previously interpreted this language tomean thata claimant can recover if the physical harm suffered isunusual either from the standpoint of cause or effect. Love 

### v. Ralph's Food Store (1973), 163Mont. 234, 242, 516 P.2d 598, 602; Robins v. Ogle (1971), 157Mont. 328, 333, 485 P.2d 692, 695; Jones v. Bair's Cafe (1968), 152Mont. 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 at1108; Erhartv. Great Western Sugar Company (1976), 169Mont. 375, 380-381,546 P.2d 1055, 1058; Hurlbut v. VollstedtKerr Company (1975), 167Mont. 303, 306-307, 538 P.2d 344, 346. We have explained themeaning of a tangible happening of a traumatic nature inthese words:"'A tangible happening must be a perceptible happening. [Citationsomitted.] Some action or incident, or chain of actions or incidents, must be shown which may be perceived as a contributing cause of theresulting injury. This courthas 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, thisCourt emphasized two specific incidents of strain

### were perceptible from the record.' Erhart, supra, 169Mont. at381, 546 P.2d at 1058." In the court's findings there existsno evidence that claimant did not suffer 

### a tangible happening of a traumatic nature causing the physical pain. In the record, there is evidence thatclaimant "felta snap" while lifting a patient weighing approximately fiftypounds. This is a tangible, perceptible happening. The X-rays taken inthe emergency room 

### were viewed by three doctors. The firstdoctor diagnosed claimant as having an arthriticconditionwhile the other two 

### were of the opinion that she had 

### a slipped disk. We must conclude there isnot substantialevidence thatclaimant did not suffer a compensable injury. The facts inthewhole record indicate the contrary tobe true. The judgment of theWorkers' Compensation Court is vacated and setaside. The cause isremanded to the Workers' Compensation Court toenter judgment toconform to this opinion.

Weconcur: