No. 14564 

IN THE SUPREME COURT OF THE STATE OF MXIYiP7A 

1979 

PIERRE DUO?T (deceased) 

VIRGINIA m, 

Claht and Appellant, 

and 

AE;TNA FIRE -, 

Defendant and Respondent. 

Appeal from: Wrkers ' Ccanpensation Court 

Hon. William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Torger S. Oaas argued, Lewistuwn, Mntana 

For Respondent : 

Andrew J. Utick argued, Helena, Mntana 

Sulmnitted: June 6, 1979 

Decided : AU G - 9 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Through a hearing before the Workers' Compensation 

Court on December 1, 1977, claimant, Virginia Dumont, sought 

compensation benefits for the death of her husband which she 

alleged was the result of an injury he received in the 

course and scope of his employment by Wickens Bros. Construction Company on October 12, 1976. The Workers' Compensation 

Court denied the claim. Claimant petitioned for a rehearing 

before the lower court, and oral argument was heard as to 

whether a rehearing should be granted. By order dated and 

filed on September 29, 1978, the Workers' Compensation Court 

denied claimant's request for a rehearing. On October 31, 

1978, 31 days after the date of denial of the rehearing, the 

Workers' Compensation Court received and filed claimant's 

notice of appeal to this Court. 

Respondent insurance company moved to dismiss this 

appeal on the ground that this Court lacks jurisdiction 

because claimant failed to file a notice of appeal within 

the time allowed by law. This Court ordered the appeal set 

for oral argument and the motion to dismiss as well as the 

merits of the appeal were argued. 

Pierre (Pete) Dumont died on or about October 12, 1976, 

of a heart attack in his bed in his trailer home which had 

been moved to a job site near Forsyth, Montana, from ~umont's 

home in Lewistown. His body was discovered in bed by others 

who investigated when he did not report for work. On October 14, 1976, an autopsy was performed on the body of the 

deceased. The final anatomical diagnosis contained in such 

autopsy report reveals the following findings: 
"I. Marked stenosing arteriosclerosis of 

coronary arteries with: 

"A. Recent thrombosis of posterior right 

coronary artery. 

"B. Old occlusion, anterior descending branch 

of left coronary artery. 

"C. No gross evidence of recent or past myocardial infarction. 

"11. Hyperemia of lungs and liver. 

"111. Chronic pulmonary emphysema. 

" IV. Obesity. 

"V. Compression fracture of first lumbar 

vertebra, clinical." 

In her claim, claimant alleged that the deceased was 

subjected by his job to unusual strain and suffered an 

injury as defined in section 39-71-119 MCA, and that such 

injury arose out of and was in the course of his employment. 

The claim for compensation listed the date of such alleged 

injury as October 12, 1976. 

At the hearing several lay witnesses were called to 

testify concerning the deceased's job activities and particularly concerning his activities on October 12, 1976. In 

general such witnesses testified that his activities on the 

day of his death were quite normal. 

Claimant, who was not present on the job site on October 12, 1976, attempted to paint an entirely different picture. She testified in considerable detail about the duties, 

the long hours, and stresses and strains that the deceased 

was subjected to during the construction season of 1976. 

However, on cross-examination she admitted that the deceased, 

an employee of Wickens Bros. Construction Company for many 

years, was subjected in preceding years to similar stresses 

and strains and worked long hours, including weekends. 
Claimant further testified that the deceased, on July 

21, 1976, suffered an injury to his back and leg in an onthe-job incident and was hospitalized for about three days 

following which he remained home for one week. Claimant 

testified that the deceased returned to work before he was 

released by his physician and worked with pain. She stated 

that she spent time on the job site so she could assist with 

driving and treat his injured leg. She stated that during 

September 1976 the deceased had been having problems with 

his sleep and on occasions when he could not sleep would 

arise in the night and go out on the job. 

On October 12, 1976, claimant was not on the job site 

at Forsyth. Over objection of the respondent, claimant was 

allowed to testify that on the morning of October 12, 1976, 

her husband called her at Lewistown about two hours later 

than usual prior to his trip to Billings. She stated that 

he seemed upset and had stated to her that "all hell broke 

loose." When asked what had happened, he stated that it 

would take too long to explain and he would do so on the 

weekend. She further stated that he departed from his 

customary statement in closing a telephone conversation by 

saying goodbye without saying that he loved her. Claimant 

was unable to explain what the deceased was referring to in 

his phone coversation. She stated that she had attempted to 

determine from other employees what had occurred to give 

rise to the statement made to her by her husband on the 

telephone but had learned nothing. 

Respondent insurance company states that the crucial 

significance of the events of October 12, 1976, was explained 

by the medical witness. Dr. Hollis K. Lefever, testifying 

on behalf of claimant, was provided with a copy of the 
autopsy report. He was asked, over respondent's continuing 

objection, to respond to a hypothetical question based in 

large degree on certain disputed facts of the case and, 

respondent contends, on certain facts which were not in 

evidence. The hypothetical question asked of Dr. Lefever 

contained reference to the deceased's back injury of July 

21, 1976; it contained reference to an alleged incident nine 

days before the death when the deceased loaded some antifreeze into his pickup; it contained reference to an alleged 

incident two days before the death when the deceased allegedly 

hurt himself while loading a radiator into his pickup; and 

it contained reference to claimant's version of the events 

of October 12, 1976, and the deceased's trip to Billings for 

parts. On cross-examination, Dr. Lefever stated: 

"Q. Doctor, in the hypothetical that Mr. Oaas 

asked you to assume, is there any one incident 

or any one day in the fact situation given to 

you, that you could point to as the cause of 

this death, or is it just a build-up of all of 

these things? A. Well, I think the only day 

stated in the hypothetical question in which 

there was any chain of events that I might relate to this is, if I recall the hypothetical 

question correctly, concerning the hasty trip 

to Billings and the handling of heavy equipment. . ." 

Thus, argues respondent, Dr. Lefever, claimant's expert 

witness, made the events of October 12, 1976, critical to 

the case. Throughout the rebuttal testimony of Dr. Lefever, 

he kept referring to the events of "that day"--referring to 

October 12, 1976. Dr. Stephen Cade, respondent's expert 

witness, when asked the same hypothetical question as had 

been asked of Dr. Lefever, did not feel that there was any 

probable relationship between the events of October 12 and 

the death. However, he did explain that the closer in time 

that events of physical or emotional stress were to the 
death, the more likelihood there was of some relationship 

between the two. 

Based on the above, the hearings examiner summarized 

the testimony surrounding the events of October 12, 1976, as 

follows: 

"18. That four witnesses testified that they 

had seen and talked with Pete Dumont on the day 

of his death but that none of them observed him 

to be showing any signs of stress or strain, 

physical or emotional. None of those witnesses 

were aware of any unusual problems at the job, 

and none of them recall Pierre Dumont having 

mentioned any unusual problems. 

"19. That the only evidence that the deceased 

was undergoing unusual stress or strain is 

that from the testimony of the claimant, the 

widow of Pierre Dumont, who stands to gain, 

and that little or none of that testimony 

is corroborated by other evidence." 

The following issues are raised on appeal: 

1. Should this appeal be dismissed since this Court 

lacks jurisdiction because claimant failed to timely file a 

notice of appeal? 

2. Did the Workers' Compensation Court err in denying 

benefits to claimant under the Workers' Compensation Act? 

The first issue is directed at claimant's failure to 

timely file a notice of appeal. This Court has never been 

called upon to rule in a case involving the issue of the 

timeliness of filing a notice of appeal from a decision of 

the Workers' Compensation Court. 

Section 39-71-2904 MCA provides: 

"Notwithstanding 2-4-701 through 2-4-704, an 

appeal from a final decision of the workers' 

compensation judge shall be filed directly with 

the supreme court of Montana in the manner provided by law for appeals from the district 

court in civil cases." 

As to what constitutes a "final decision" of the Workers' 

Compensation judge, Rule 19 of the Workers' Compensation 

Court Rules (hereinafter referred to as WCCR) provides: 
"19A. The Court will, after the hearing, 

issue findings of fact and conclusions of law 

and an order setting forth the Court's determination of the disputed issues. The parties 

to the dispute may consider this order as a 

final decision of the Court for appeals purposes. However, any party to the dispute may 

request a rehearing before the Court within 

twenty (20) days after a party receives a copy 

of the order, and if any party submits a request for rehearing, the order issued by the 

Court shall not be considered a final decision 

of the Court for appeals purposes. 

"19B. If a request for a rehearing is filed, 

the parties requesting the rehearing shall set 

forth specifically and in full detail the 

grounds upon which the party considers the 

order to be incorrect. If the Court denies 

the request for rehearing, the original order 

issued by the Court shall be considered the 

final decision of the Court as of the day the 

rehearing is denied. If a rehearing is granted 

the matter will be set for hearing. The matter 

will be determined by the testimony taken at 

the initial hearing and at the rehearing. After the rehearing, the Court will issue an order 

setting forth the Court's final determination 

of the disputed issues." 

Finally, Rule 5, M.R.App.Civ.P., states in pertinent 

part: 

"The time within which an appeal from a judgment or an order must be taken shall be 30 days 

from the entry thereof . . ." 

The findings of fact and conclusions of law in this 

matter were adopted by the Workers' Compensation Court by 

order dated June 19, 1978. Claimant had 30 days thereafter 

within which to file a notice of appeal (Rule 5, M.R.App.Civ.P.) 

or 20 days within which to file a request for rehearing 

(Rule 19, WCCR). On June 29, 1978, according to the certificate of mailing, claimant mailed to the clerk of the 

Workers' Compensation Court, a request for rehearing. The 

filing of a request for rehearing suspended the time for 

filing of a notice of appeal. 

Thereafter, respondent filed formal objections to the 

sufficiency of claimant's request for rehearing, and claimant, 
in response to such objections, filed an amendment to her 

request for rehearing. On August 23, 1978, the Workers' 

Compensation Court heard oral argument on whether a rehearing should be granted. The Workers' Compensation Court 

entered its order denying rehearing and returning the file 

to the Division of Workers' Compensation on September 29, 

1978. In addition to denying the rehearing, this order had 

the effect of making the original order of the Workers' 

Compensation Court the final decision of the court for 

appeal purposes as of the day the rehearing was denied-- 

September 29, 1978. Thus, the last suspended day for the 

filing of a notice of appeal was September 29, 1978, and 

claimant's first day to file a notice of appeal was, and the 

time limit to file the notice of appeal commenced running, 

as of September 30, 1978. Since September has only 30 days, 

the 30-day time limit of claimant to file a notice of appeal 

expired on October 29, 1978. However, since October 29, 

1978, was a Sunday, it is not counted and the 30-day time 

limit to file a notice of appeal would expire on October 30, 

1978. It was not until the final day of the appeal period, 

on October 30, 1978, that claimant mailed her notice of 

appeal for filing, and the same was not received by the 

clerk of the Workers' Compensation Court until Tuesday, 

October 31, 1978. 

Under Rule 20(a), M.R.App.Civ.P., a notice of appeal is 

not deemed filed unless the notice is actually received by 

the clerk within the time fixed for filing. Thus, the 

notice of appeal was not received for filing by the clerk of 

the Workers' Compensation Court until the day after the 

appeal time expired. Accordingly, it is respondent's position that claimant has not timely perfected her appeal; that 

this Court is without jurisdiction to entertain the appeal; 
and that claimant is barred from seeking to have the Workers' 

Compensation Court's decision changed or in any way reversed 

or modified. 

Rule 4(a), M.R.App.Civ.P., which is made applicable to 

a Workers' Compensation Court proceeding by section 39-71- 

2904 MCA, provides: 

". . . An appeal shall be taken by filing a 

notice of appeal in the district court. Failure 

of an appellant to take any step other than the 

timely filing of a notice of appeal does not 

affect the validity of the appeal, but is 

ground only for such action as the Supreme 

Court deems appropriate, which may include dismissal of the appeal." 

Rule 4, M.R.App.Civ.P., is patterned after Rule 3 of the 

Federal Rules of Appellate Procedure. The second sentence 

of Rule 4(a), M.R.App.Civ.P., is identical to a like provision of Rule 3(a) of the Federal Rules. 9 Xoore's Federal 

Practice 11203.10 states: 

"The notice of appeal is filed with the clerk 

when it is received into his custody and control. 

Since timely filing of the notice is held to be 

essential to the jurisdiction of the court of 

appeals, the precise time that the notice was 

filed can be of overwhelming importance. The 

most certain way to effect timely filing is to 

deliver the notice to the office of the clerk 

personally on or before the date fixed for 

filing. But since personal delivery is often 

inconvenient and expensive, mailing is very 

frequently resorted to. When delivery is to 

be effected by mail, it must be borne in mind 

that the notice must be received by the clerk 

within the time allowed for its filing. This 

is quite contrary to the usual rule respecting 

the service of papers required to be served, 

which is that timely mailing constitutes timely 

service. " 

It is likewise stated in 9 Moore's Federal Practice 11204.02: 

"Discussion of the time for appeal must begin 

by directing attention to a host of cases holding with unanimity that unless an appeal is 

timely taken the reviewing court lacks jurisdiction to hear it. Although that holding is 

not as logically compelling as it once was, the 

necessity of providing a precisely ascertainable 
point of time at which litigation comes to an 

end strongly militates against its overthrow. 

As the Committee Note accompanying Rule 3 [of 

the Federal Rules] admonishes: 

"'Rule 3 and Rule 4 combine to require that 

a notice of appeal be filed with the clerk of 

the district court within the time prescribed 

for taking an appeal. Because the timely 

filing of a notice of appeal is "mandatory 

and jurisdictional", United States v. Robinson, 

361 U.S. 220, 224 (1960), compliance with the 

provisions of those rules is of the utmost 

importance.' 

"So care must be taken to insure that the 

notice of appeal is filed with the clerk of 

the district court within the time fixed for 

the particular appeal by Rule 4. . ." 

This is likewise the law of Montana. The above-mentioned 

authorities were cited with approval and specifically 

adopted by the Montana Supreme Court in connection with a 

Workers' Compensation appeal before the creation of the 

Workers' Compensation judge in Leitheiser v. Montana State 

Prison (1973), 161 Yont. 343, 505 P.2d 1203, where this 

Court dismissed an appeal filed by the defendant upon the 

grounds that the notice of appeal had been filed three days 

late. Respondent argues that this Court has consistently 

followed the application of the above-stated rules many 

times. State v. Wibaux County Bank (1929), 85 Mont. 532, 

281 P. 341; Reid v. District Court (1953), 126 Mont. 489, 

255 P.2d 693; McVay v. McVay (1954), 128 Mont. 31, 270 P.2d 

393; Jackson v. Tinker (1972), 161 Mont. 51, 504 P.2d 692; 

First National of Lewistown v. Fray (1978), Mont . I 

Claimant contends that respondent has failed to compute 

the time for filing the notice of appeal correctly. Claimant 

initially states that the Montana Rules of Appellate Civil 

Procedure became effective on January 1, 1968, approximately 

eight years prior to the present day Workers' Compensation 
Act (effective July 1, 1975). Therefore, claimant argues, 

there is no interplay between the Rules of Appellate Civil 

Procedure and the Workers' Compensation Act even though 

appeals from a decision of the Workers' Compensation Court 

are taken directly to the Supreme Court in the manner provided by law for appeals from a District Court in civil 

cases. Section 39-71-2904 MCA. 

The obvious example of this is that it is not even 

exactly clear from a reading of Rule 4(a), M.R.App.Civ.P., 

where the notice of appeal is to be filed in the case of an 

appeal from a decision of the Workers' Compensation Court. 

Of course, the reasonable and common sense understanding and 

practice is to file it with the Workers' Compensation Court, 

treating it, in effect, as a "District Court" within the 

scope and purpose of Rule 4 (a) . 

Respondent correctly points out that proceedings in the 

Workers' Compensation Court are not governed by the Rules of 

Civil Procedure and therefore is technically correct in 

asserting that Rule 77(d) and Rule 5, M.R.Civ.P., have no 

application here. 

Respondent's argument ignores the fact that proceedings 

in the Workers' Compensation Court are governed by the 

Montana Administrative Procedure Act by direct mandate of 

section 39-71-2903 MCA. Thus, section 2-4-623 MCA of the 

Administrative Procedure Act applies. The pertinent part of 

this statute states: 

". . . Parties shall be notified either personally or by mail of any decision or order 11 

... 

This provision of the above-cited statute is identical 

to Rule 77(d), M.R.Civ.P., insofar as requiring notice of 

decisions in Workers' Compensation cases. 
We hold, therefore, that a person who appeals from a 

final decision of the Workers' Compensation Court should in 

all fundamental fairness be given the same benefit of that 

provision of Rule 5, M.R.App.Civ.P., which states that: 

". . . except that in cases where service of 

notice of entry of judgment is required by 

Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service 

of notice of entry of judgment." 

This would mean, as is already the case where Rule 77(d), 

M.R.Civ.P., is applicable, that when service of the notice 

of the final decision of the Workers' Compensation Court is 

made as mandated by section 2-4-623 MCA and that service was 

made by mail, the provisions of Rule 21(c), M.R.App.Civ.P., 

are automatically put into play adding three days to the 

prescribed 30-day time limit for filing the notice of appeal. 

Thus, when one correctly adds the time limit set by 

Rule 4(a), M.R.App.Civ.P., as extended by Rule 21(c), 

M.R.App.Civ.P., the 30th day from September 29, 1978, is 

October 29, 1978. Since that day happened to be a Sunday, 

Rule 21(a), M.R.App. Civ.P., comes into play making the 30th 

day October 30, 1978. However, as previously stated, Rule 

21(c) comes into play adding three days to the prescribed 

period and the 33rd and final day for filing the notice of 

appeal was November 2, 1978. Thus, claimant's appeal was 

timely--not one day late as respondent claims. 

The second issue concerns the merits of the decision of 

the Workers' Compensation Court in denying claimant's benefits. 

This Court stated, at an early date, in Birdwell v. 

Three Forks Portland Cement Co. (1935), 98 Mont. 483, 495, 

"In order for the plaintiff to prevail it was 

necessary for her to prove by a preponderance 

of the evidence that Birdwell suffered an industrial accident, and that the injury was the 

proximate cause of his death." 
Perhaps the most succinct statement of the rule is 

found in Aho v. Burkland Studs (1969), 153 Mont. 1, 7, 452 

P.2d 415, 418, where this Court stated: "The claimant has 

the burden of proving his case . . ." 

Not only must claimant prove her case by a preponderance 

of the evidence, she must do so by a preponderance of the 

probative credible evidence. In LaForrest v. Safeway Stores, 

Inc. (1966), 147 Mont. 431, 437, 414 P.2d 200, 203, this 

Court stated: 

"The claimant has the burden to establish by a 

preponderance of the evidence that her condition resulted from an injury and not from a 

disease. [Citation omitted.] She has not sustained the burden of proof . . . By adroit 

questioning, claimant's counsel was able to get 

Dr. Davidson to admit to a 'possibility' of a 

supraspinatus tendon tear. However, such a 

'possibility' is not probative credible testimony and will not, without more, supply evidence. " 

The burden was upon claimant to establish by a preponderance of the probative credible evidence that her 

husband had died as the result of an injury which he sustained in the course and scope of his employment. The 

Workers' Compensation Court heard extended testimony from 

many witnesses. The testimony was conflicting. The lower 

court had the opportunity to observe the demeanor of the 

witnesses and to judge their credibility. Following the 

hearing, the Workers' Compensation Court entered very detailed findings of fact and conclusions of law. After 

carefully considering the evidence, the lower court ruled in 

favor of the insurer and denied benefits to claimant. That 

decision comes to this Court with the presumption that it is 

correct. Sedlacek v. Ahrens (1974), 165 Mont. 479, 485, 530 

P.2d 424, 427; Montana Farm Service Co. v. Marquart (1978), 

Mont. , 578 P.2d 315, 316, 35 St.Rep. 1066, 1068. 
The scope of review of a decision of the Workers' 

Compensation Court upon appeal has been stated many times. 

The rule is well summarized in Jensen v. Argonaut Insurance 

Company (1978), Mont . , 582 P.2d 1191, 1193, 35 

St.Rep. 1066, 1068, in the following language: 

"The standard of review applicable in determining the sufficiency of the evidence to support the findings of the Workers' Compensation 

Court has been stated in this language: 

"'Our function in reviewing a decision of the 

Workers' Compensation Court is to determine 

whether there is substantial evidence to support the findings and conclusions of that court. 

We cannot substitute our judgment for that of 

the trial court as to the weight of evidence on 

questions of fact. Where there is substantial 

evidence to support the findings of the Workers' 

Compensation Court, this Court cannot overturn 

the decision.' Steffes v. 93 Leasing Co. Inc. 

(U.S.F.&G.) (1978), Mont. , 580 P.2d 

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

Applying this standard to the instant case respondent 

argues it is clear that the decision of the lower court must 

be affirmed. There was a sharp conflict in the facts, 

particularly in regard to the events of October 12, 1976. 

In its statement of the case, respondent set forth a summary 

of the testimony of each witness to the events of October 

12, 1976, taken almost verbatim from the findings of fact of 

the lower court. Following each sentence are citations to 

the record which support the finding. Each and every fact 

found by the lower court is amply supported in the record. 

At the bottom line, the lower court chose to believe the 

testimony of Tom Wickens, Joseph Wickens, Myron Oakland, and 

Arlyn McJunkin rather than that of claimant. The decision 

as to the weight of the evidence on questions of fact is 

within the province of the Workers' Compensation Court and 

where, as here, it is supported by substantial evidence, 

this Court cannot overturn that decision. 
The decision of the lower court was also correct in its 

conclusion that claimant failed to prove a compensable 

injury and that such an injury caused the death of her 

husband. For an injury to be compensable under the Workers' 

Compensation Act, it must meet the definitional requirements 

of the statute. Section 39-71-119 MCA defines injury as: 

"'Injury' 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 and excluding disease not 

traceable to injury . . ." 

A discussion of what constitutes an injury has received 

a great deal of attention. Lupien v. IYlont. Record Publishing 

Co. (1964), 143 Mont. 415, 390 P.2d 455; Miller v. City of 

Billings (1976), 171 Mont. 91, 555 P.2d 747; Hurlbut v. 

Vollstedt Kerr Co. (1975), 167 Mont. 303, 538 P.2d 344; 

Erhart v. Great Western Sugar Co. (1976), 169 Mont. 375, 546 

The medical evidence in the instant case supports the 

conclusion that the deceased died as the result of a disease 

process, progressive in nature, that is not "traceable to 

injury." In his rebuttal testimony, Dr. Lefever accurately 

characterized the testimony of Dr. Cade as follows: 

". . . The fact of the matter is that Dr. Cade 

said that the death resulted from the normal 

sequence of events from the disease." 

When pressed on this point, Dr. Lefever stated: 

"Q. What evidence is there in the record--by 

the record, I mean the testimony that you were 

able to observe and hear at the hearing on December lst, to support a medical opinion to a 

reasonable degree of medical certainty that Mr. 

Dumont's death was merely the terminal event 

in the series of disease processes? A. Well, 

the original testimony showed the extent of 

the atherosclerotic process in his artery, the 

presence of atherosclerotic plaques and previ- 
ously diseased vessels, and I think that it 

would be a logical conclusion that at some time 

this disease process would have progressed to 

this event or a similar event at sometime. 

"Q. Is there any way that medical science can 

point a finger at a particular time and say when 

this will occur? A. No, I don't belive so. I 

think that frequently we see this disease as advanced or more advanced than this and see people who survive many years. I don't think there 

is any way of predicting with certainty what the 

outcomes are . . ." 

Dr. Cade was a little more emphatic. He testified: 

". . . it seems abundantly clear to me that he 

died of a disease process that had been occurring 

for years and years and that he had reached the 

typical end of that disease process." 

Respondent believes that the most significant case in 

the instant matter is Hurlbut v. Vollstedt Kerr Co., supra. 

Hurlbut was decided after the 1967 amendment to the injury 

definition which added the words "or unusual strain" to the 

definition of an injury contained in section 39-71-119 MCA. 

The facts of Hurlbut are strikingly similar to the instant 

case and respondent submits that Hurlbut is controlling. 

In Hurlbut the claimant was about 59 years old and had 

been employed by the lumber mill for ten years prior to the 

alleged accident--the last eight of those ten years as a 

superintendent. The policy of the employer was to not 

operate the mill when the temperature was too cold for the 

men and the machinery, and, in the latter part of December 

1972, the mill had been shut down due to the cold for more 

than a week. On the afternoon of January 5, 1973, the 

temperature rose to about -12OF and the owner of the mill 

ordered claimant to start up the operation the next day, and 

the claimant began contacting men to report for work. The 

next morning, January 6, 1973, claimant arrived at work and 

waited in the office for telephone calls from the employees 
to determine how many men would report. The temperature in 

the office was 50°F and claimant had his coat on. The 

outside temperature was -6OF, with low wind velocity. While 

sitting in the office, the claimant became dizzy and went 

outside to see if a little fresh air would help, but then 

became nauseated. He went home and his wife drove him to 

the hospital where his doctor diagnosed a myocardial infarction (heart attack). The claimant argued that he was entitled to compensation because the mill had never before 

been operated in weather as cold as it was that morning. He 

maintained that this condition constituted "unusual strain" 

because it was a unique, new, different and unusual demand 

placed upon claimant by the company. This Court, speaking 

through Justice Daly, affirmed a denial of compensation 

benefits, stating: 

"Any injury, to be compensable under the Workmen's Compensation Act, must meet the definitional requirements of the statute. Section 

92-418, R.C.M. 1947, defines injury as 

"'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 and excluding disease not 

traceable to injury * * *' 

"Thus, there are two elements in the statute 

which must be met (1) there must be a tangible 

happening of a traumatic nature, and (2) this 

must be shown to be the cause of physical harm. 

"Aside from the testimony that it was a few 

degrees colder than normal starting temperature 

and the mill had not previously operated in 

temperatures that cold, there was no testimony 

this imposed upon claimant any duty which was 

unusual in kind or amount. The duties performed 

by claimant on the day before his attack and 

on the day of the attack, January 6, 1973, 

were duties he had performed for the previous 

eight years as plant superintendent. Simply 

opening a mill on a day colder than was customary, with no inordinate kind or amount of work 

on his part, cannot be said to constitute 'a 

tangible happening of a traumatic nature.' 
Claimant has failed to carry the burden of proof 

that he was injured, within the meanins of the 

statute." Hurlbut, 167 Mont. at 306-07, 538 

P.2d at 346. 

Applying the test enunciated in Hurlbut to the instant 

case, it would seem that weak as the facts were in Hurlbut, 

they were stronger than those in the instant case. Claimant's own medical witness stated: "Well, I think the only 

day stated in the hypothetical question in which there was 

any chain of events that I might relate to this is, if I 

recall the hypothetical question correctly, concerning the 

hasty trip to Billings [which occurred on October 12, 19761 

. . ." Thus, Dr. Lefever ruled out any possible causal 

connection between the death and any of the events which 

allegedly preceded October 12, 1976. A search of the entire 

record fails to disclose anything unusual that occurred to 

the deceased on October 12, 1976, or even, for that matter, 

that the deceased's trip to Billings was "hasty." The only 

testimony to the contrary was the widow's testimony concerning her husband's phone call to her. 

In her brief, claimant relies on the cases of Jones v. 

Bair's Cafe (1968), 152 Mont. 13, 445 P.2d 923; Robins v. 

Ogle (1971), 157 Mont. 328, 485 P.2d 692; and Love v. Ralph's 

Food Store (1973), 163 Mont. 234, 516 P.2d 598. Claimant 

argues, incorrectly, that these cases only require a showing 

of some "unusual strain," either from the standpoint of a 

cause or effect, to meet the definitional requirements of an 

injury under the act. Claimant's analysis totally ignores 

the independent requirement that a strain must result from a 

tangible happening of a traumatic nature. The following 

language from Erhart v. Great Western Sugar Co. (1976), 169 

Mont. 375, 380-81, 546 P.2d 1055, 1058, quickly disposes of 

claimant's argument: 
"Not only must claimant show an unusual strain, 

but that the strain must result from a tangible 

happening of a traumatic nature. [Citations 

omitted.] In Love v. Ralph's Food Store, 163 

Mont. 234, 516 P.2d 598, we stated that Jones 

and Robins made this rule clear. See, also, 

the earlier cases: Lupien v. Montana Record 

Publishing Co., 143 Mont. 415, 390 P.2d 455; 

James v. V.K.V. Lumber Co., supra: Miller - - vSundance Recreation, Inc., l~l-~ont. 223, 441 

P.2d 194." 

Claimant must still prove that her husband's death was the 

result of a "tangible happening of a traumatic nature", 

which she totally failed to do. 

Finally, in her brief, claimant takes issue with the 

lower court's findings in connection with the medical testimony in the case as it relates to the causal relationship 

between stress and sudden coronary death. She cites some 

passages from Dr. Lefever's original testimony at the 

December 1, 1977, hearing which, when taken out of context 

as they are, appear to support her position. Respondent 

contends, and we agree, that claimant ignores Dr. Lefever's 

testimony in rebuttal which, as quoted previously, was 

different from his original testimony when confronted with 

the testimony of Dr. Cade. On rebuttal, Dr. Lefever admitted: " . . . there is more than one opinion about the 

significance of stress in sudden death." On redirect exam 

during the rebuttal deposition, Dr. Lefever stated: 

"Q. And going back to what Mr. Utick said, is 

there an acute difference of opinion among the 

medical community as to the cause of tension 

between stress and the initiating events and 

the original hemorrhage? A. Yes. 

"Q. There are thoughts on that both ways? A. 

There are more than one opinion about the significance of stress with relation to intimal 

hemorrhage." 

As Dr. Cade summarized: 

". . . It is not clear what the role of chronic 

stress is on the cardiovascular system. It is 
not clear whether stress can play a role in 

sudden death, in acceleration of coronary artery 

disease process. The studies are conflicting 

or the problem has not been adequately studied 

or no good study shows this and that or the 

other thing. " 

In summary, the testimony of both doctors agree that 

the medical community just does not know whether stress 

plays a role in sudden death or accelerates coronary artery 

disease. The lower court had all the medical testimony 

before it. A review of the entire testimony of both doctors 

reflects that the trial court quite adequately summarized 

such testimony in its findings and did not err in its findings. There was substantial evidence to support the findings 

of the court in denying benefits to claimant. 

The judgment of the court is affirmed. 

We concur: