No. 14564 

### INTHE SUPREME COURT OF THE 

### STATE OF MXIYiP7A 1979

PIERRE DUO?T (deceased) VIRGINIA 

### m, Clahtand Appellant,



### and AE;TNA 

### FIRE

## -, Defendant and Respondent.

Appeal from: Wrkers

## ' CcanpensationCourt Hon. WilliamE. Hunt, Judgepresiding. Counselof 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

# 1979Mr. Justice John Conway Harrison delivered the Opinion of the Court. Through a hearing before theWorkers' 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 inthe

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 filedon September 29, 1978, theWorkers' Compensation Court denied claimant's request for a rehearing. On October 31, 1978, 31days after the date of denial of the rehearing, the Workers' Compensation Court received and filed claimant's notice of appeal tothis Court. Respondent insurance company moved todismiss this appeal on the ground that thisCourt lacks jurisdiction because claimant failed tofilea notice of appeal within the 

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

### set for oral argument and themotion todismiss as

### well 

### as the 

### meritsof the appeal 

### were argued. Pierre (Pete) Dumont died on orabout October 12, 1976, of a heart attack inhisbed inhis 

### trailer home which had been moved toa job 

### sitenear Forsyth, Montana, from ~umont's home inLewistown. Hisbody was discovered inbed by others who investigated when he did not report forwork. 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 arteriosclerosisof coronary 

### arteries with: "A. Recent thrombosis of posterior right coronary artery. "B. Old occlusion, anterior descending branch of leftcoronary artery. "C. No gross evidence of recent orpast 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 tounusual strain and suffered an injury as defined in section 39-71-119 MCA, and that such injury arose outof and 

### was inthe course of his employment. The claim for compensation listed the date of such alleged injury asOctober 12, 1976. Atthe 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

### werequite normal. Claimant, who 

### was not present on the job 

### site on October 12, 1976, attempted topaint an entirely differentpicture. She testified inconsiderable detail about the duties, the long hours, and 

### stresses and strains that the deceased

was subjected toduring the construction season of 1976. However, on cross-examination she admitted that the deceased,

an employee of Wickens Bros. Construction Company formany years, was subjected inpreceding years to 

### similar 

### stresses and strains and worked long hours, includingweekends.Claimant further testified that the deceased, on July 21, 1976, suffered an injury to his back and leg inan onthe-job incident and was hospitalized for about three days following which he remained home for one week. Claimant testified that the deceased returned towork before he was released by his physician and worked with pain. She stated that she spent 

### timeon thejob 

### site so she could assistwith driving and treathis injured leg. She stated that during September 1976 the deceased had been having problems with his sleep and on occasions when he could not sleepwould arise inthe night and go out on the job. On October 12, 1976, claimant was not on the job 

### site atForsyth. Over objection of the respondent, claimant 

### was allowed to testify that on themorning of October 12, 1976, her husband called her 

### atLewistown about two hours later than usual prior to his trip to Billings. She stated that he seemed upset and had stated toher that "all hell broke loose." When asked what had happened, he stated that 

### it would take too long toexplain and he would do so on the weekend. She further stated that he departed from his customary statement inclosing a telephone conversation by saying goodbye without saying that he loved her. Claimant

was unable toexplain what the deceased 

### was referring to in hisphone coversation. She stated that she had attempted to determine from other employees what had occurred togive rise to the statementmade 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 theautopsy report. He was asked, over respondent's continuing objection, torespond to a hypothetical question based in large degree on certain disputed facts of the case and, respondent contends, on certain factswhich 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 deathwhen 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 intohis pickup; and 

### it contained reference toclaimant's version of the events of October 12, 1976, and the deceased's trip toBillings for parts. On cross-examination, Dr. Lefever stated: "Q. Doctor, inthe hypothetical that Mr. Oaas asked you to assume, 

### is there any one incident or any one day in the fact situation given to you, thatyou could point toas the cause of this death, or 

### is 

### itjust a build-up of 

### allof these things? A. Well, I think the only day stated inthe hypothetical question inwhich there was any chain of events that I might 

### relate to this 

### is, if I recall the hypothetical question correctly, concerning the hasty trip toBillings 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 ashad been asked of Dr. Lefever, did not feel that there was any probable relationship between the events of October 12and the death. However, he did explain that the closer in

### time that events of physical or emotional 

### stress were to thedeath, 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 thatnone of them observed him tobe showing any signs of 

### stress or strain, physical or emotional. None of those witnesses 

### were aware of any unusual problems atthe 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 togain, and that 

### littleor none of that testimony 

### is corroborated by other evidence." The following issues areraised on appeal: 1. Should this appeal be dismissed since this Court lacks jurisdiction because claimant failed totimely filea notice of appeal? 2. Did theWorkers' Compensation Court 

### err indenying benefits to claimant under theWorkers' Compensation Act? The firstissue 

### isdirected atclaimant's failure to timely filea notice of appeal. This Court has never been called upon torule ina case involving the issue of the timeliness of filing a notice of appeal from a decision of theWorkers' Compensation Court. Section 39-71-2904 MCA provides: "Notwithstanding 2-4-701 through 2-4-704, an appeal from a final decision of theworkers' compensation judge shallbe filed directlywith the supreme court of Montana inthemanner provided by law for appeals from the district court incivil cases." As towhat constitutes a "finaldecision" of theWorkers' Compensation judge, Rule 19 of theWorkers' Compensation Court Rules (hereinafter referred to asWCCR) 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 tothe disputemay consider this order 

### as a final decision of the Court for appeals purposes. However, any party tothe disputemay 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 forrehearing, 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 infulldetail the grounds upon which the party considers the order tobe incorrect. If the Court denies the request for rehearing, the original order issued by the Court shallbe considered the final decision of the Court 

### as of the day the rehearing 

### isdenied. If a rehearing 

### is granted the

### matter 

### willbe 

### set for hearing. The matter 

### willbe determined by the testimony taken at the initialhearing and atthe rehearing. Af

### ter the rehearing, the Court

### willissue an order setting forth the Court's final determination of the disputed issues." Finally, Rule 5, M.R.App.Civ.P., states inpertinent part:"The 

### timewithin which an appeal from a judgment or an order must be taken shallbe 30 days from the entry thereof 

# . . ."

The findings of factand conclusions of 

### law in this matter 

### were adopted by theWorkers' Compensation Court by order dated June 19, 1978. Claimant had 30 days thereafter within which to filea notice of appeal (Rule 5, M.R.App.Civ.P.)

or 20 days within which tofile

### a request for rehearing (Rule 19, WCCR). On June 29, 1978, according to the 

### certificate of mailing, claimantmailed 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 tothe sufficiency of claimant's request for rehearing, and claimant,inresponse to such objections, filed an amendment to her request for rehearing. On August 23, 1978, theWorkers' 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 totheDivision of Workers' Compensation on September 29, 1978. In addition todenying the rehearing, this order had the effect of making the original order of theWorkers' Compensation Court the final decision of the court for appeal purposes asof 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 firstday tofilea notice of appeal was, and the 

### time limittofilethe notice of appeal commenced running,

as of September 30, 1978. Since September has only 30 days, the 30-day 

### time limitof claimant to filea 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 limitto filea notice of appeal would expire on October 30, 1978. Itwas 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 theWorkers' Compensation Court until Tuesday, October 31, 1978. Under Rule 20(a),M.R.App.Civ.P., a notice of appeal 

### is not deemed filedunless the notice is actually received by the clerk within the 

### time fixed for filing. Thus, the notice of appeal 

### was not received for filingby the clerk of theWorkers' 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 thisCourt 

### iswithout jurisdiction toentertain the appeal;and that claimant 

### isbarred from seeking tohave the Workers' Compensation Court's decision changed or inany way reversed

or modified. Rule 4(a),M.R.App.Civ.P., which 

### ismade applicable to

a Workers' Compensation Court proceeding by section 39-71- 2904 MCA, provides: 

# ".

. . An appeal shallbe taken by filing a notice of appeal inthe 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 dis

### missal of the appeal." Rule 

### 4, M.R.App.Civ.P., 

### ispatterned 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 likeprovision 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 

### isreceived intohis custody and control. Since timely filing of the notice 

### is held tobe essential to the jurisdiction of the court of appeals, the precise 

### time that the notice was filed can be of overwhelming importance. The most certainway to effect timely filing is to deliver the notice tothe office of the clerk personally on or before the date fixed for filing. But sincepersonal delivery 

### is often inconvenient and expensive, mailing 

### isvery frequently resorted to. When delivery 

### is to be effected by mail, 

### it must be borne inmind that the notice must be received by the clerk within the 

### timeallowed for 

### its filing. This 

### is quite contrary to the usual rule respecting the service of papers required tobe 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 toa host of cases holding with unanimity thatunless an appeal is timely taken the reviewing court lacks jurisdiction tohear it. Although that holding 

### is not as logically compelling as it once was, the necessity of providing 

### a precisely ascertainablepoint of 

### time atwhich litigation comes to an end stronglymilitates against 

### its overthrow. As the Committee Note accompanying Rule 3 [of theFederal Rules] admonishes: "'Rule 3 and Rule 

### 4 combine torequire that a notice of appeal be filedwith the clerk of the districtcourtwithin the 

### timeprescribed for taking an appeal. Because the timely filing of a notice of appeal 

### is "mandatory and jurisdictional", United Statesv. Robinson, 361 U.S. 220, 224 (1960), compliance with the provisions of those rules 

### is of the utmost importance.' "So caremust be taken toinsure that the notice of appeal 

### is filedwith the clerk of the district courtwithin the 

### timefixed for the particular appeal by Rule 

### 4. 

# . 

# ."

This 

### is likewise the 

### lawof Montana. The above-mentioned authorities

### were citedwith approval and specifically adopted by theMontana Supreme Court inconnection with a Workers' Compensation appeal before the creation of the Workers' Compensation judge inLeitheiser v. Montana State Prison (1973), 161Yont. 343, 505 P.2d 1203, where this Court dismissed an appeal filedby the defendant upon the grounds that thenotice 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. Statev. 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), 128Mont. 31, 270 P.2d 393; Jackson v. Tinker (1972), 161Mont. 51, 504 P.2d 692; FirstNational 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 theMontana Rules of Appellate Civil Procedure became effective on January 

### 1, 1968, approximately eightyears prior to thepresent day Workers' CompensationAct 

### (effective July 1, 1975). Therefore, claimant argues, there is

### no interplay between the Rules of Appellate Civil Procedure and theWorkers' Compensation Act

### even though appeals from a decision of theWorkers' Compensation Court

aretaken directly tothe Supreme Court inthemanner 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 

### tobe filed inthe 

### case of an appeal from a decision of theWorkers' Compensation Court. Of course, thereasonable and common sense understanding and practice 

### is tofile

### it with theWorkers' Compensation Court, treating 

### it, ineffect, as a "District Court" within the scope and purpose of Rule 4(a)

# . Respondent correctly points out thatproceedings inthe Workers' Compensation Court are not governed by the Rules of CivilProcedure and therefore 

### is technically correct in asserting thatRule 77(d) and Rule 5, M.R.Civ.P., have no application here. Respondent's argument ignores the fact thatproceedings intheWorkers' Compensation Court are governed by the Montana Administrative Procedure Act

### by directmandate 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 shallbe notified either personally orby mail

### of any decision or order 11 

# ... This provision of the above-cited statute 

### is identical toRule 77(d),M.R.Civ.P., insofar asrequiring notice of decisions inWorkers' 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 incases where service of notice of entry of judgment 

### is required by Rule 77(d) of the Montana Rules of Civil Procedure the 

### time shallbe 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, thatwhen service of the notice of the final decision of theWorkers' Compensation Court 

### is made asmandated by section 2-4-623 MCA and that servicewas made by mail, the provisions of Rule 21(c),M.R.App.Civ.P.,

are automatically put intoplay adding three days to the prescribed 30-day 

### time limitfor filing the notice of appeal. Thus, when one correctly adds the 

### time limit setby 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 tobe a Sunday, Rule 21(a),M.R.App. Civ.P., comes intoplay making the 30th day October 30, 1978. However, aspreviously stated, Rule 21(c) comes intoplay adding three days to the prescribed period and the 33rd and finalday 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 theWorkers' Compensation Court indenying claimant's benefits. This Court stated, atan early date, inBirdwell v. Three Forks Portland Cement Co. (1935), 98 Mont. 483, 495,

"In order for the plaintiff toprevail itwas necessary for her toprove by a preponderance of the evidence that Birdwell suffered an indus

### trial accident, and that the injury

### was the proximate cause of his death."Perhaps the most succinct statement of the rule is found inAho v. Burkland Studs (1969), 153Mont. 

### 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, shemust do soby 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 toestablishby 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 toget Dr. Davidson toadmit to

### a 'possibility' of a supraspinatus tendon 

### tear. However, such a 'possibility' 

### isnot probative credible 

### testimony and 

### willnot, without more, supply evidence.

### " The burden was upon claimant toestablishby a preponderance of the probative credible evidence that her husband had died asthe resultof an injury which he sustained inthe 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 toobserve the demeanor of the witnesses and tojudge their credibility. Following the hearing, theWorkers' Compensation Court entered very detailed findings of factand conclusions of 

### law. After carefully considering the evidence, the lower court ruled in favor of the insurer and denied benefits toclaimant. That decision comes tothis Court with the presumption that it is correct. Sedlacek v. Ahrens (1974), 165Mont. 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 statedmany 

### times. The rule 

### is

### well summarized inJensen v. Argonaut Insurance Company (1978), Mont

# . , 582 P.2d 1191, 1193, 35 St.Rep. 1066, 1068, inthe following language: "The standard of review applicable indetermining the sufficiency of the evidence to support the findings of theWorkers' Compensation Court has been stated inthis language: "'Our function inreviewing 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 theweight of evidence on questions of fact. Where there 

### is substantial evidence to support the findings of theWorkers' Compensation Court, this Court cannot overturn the decision.' Steffesv. 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 inthe facts, particularly inregard 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. Atthe bottom line, the lower court chose tobelieve the testimony of Tom Wickens, Joseph Wickens, Myron Oakland, and Arlyn McJunkin rather than that of claimant. The decision

as tothe weight of the evidence on questions of factis within the province of theWorkers' Compensation Court and where, 

### as here, it 

### is supported by substantial evidence, this Court cannot overturn that decision.The decision of the lower courtwas also correct in

### its conclusion that claimant failed toprove a compensable injury and that such an injury caused the death of her husband. For an injury tobe compensable under theWorkers' 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, orunusual strain, resulting ineither external orinternal physical harm, and such physical condition as a result therefrom and excluding disease not traceable toinjury 

# . . ."

A discussion of what constitutes an injury has received



### a great deal of attention. Lupien v. IYlont. Record Publishing Co. (1964), 143Mont. 415, 390 P.2d 455; Millerv. City of Billings (1976), 171Mont. 91, 555 P.2d 747; Hurlbut v. Vollstedt Kerr Co. (1975), 167 Mont. 303, 538 P.2d 344; Erhart v. GreatWestern Sugar Co. (1976), 169 Mont. 375, 546

The medical evidence inthe instant case supports the conclusion that the deceased died 

### as the result of a disease process, progressive innature, that 

### is not "traceable to injury." In hisrebuttal testimony, Dr. Lefever accurately characterized the testimony of Dr. Cade as follows: 

# ".

. . The factof thematter 

### is that Dr. Cade said that the death resulted from the normal sequence of events from the disease." When pressed on thispoint, Dr. Lefever stated: "Q. What evidence 

### is there inthe record--by the record, I mean the testimony that you 

### were able toobserve and hear atthe hearing on December lst, to support a medical opinion toa reasonable degree of medical certainty thatMr. Dumont's death 

### was merely the terminal event inthe 

### series of diseaseprocesses? A. Well, the original testimony showed the extent of the atheroscleroticprocess inhis artery, the presence of atheroscleroticplaques and previ-ously diseased vessels, and I think that 

### it would be a logical conclusion that atsome 

### time thisdiseaseprocess would have progressed to this event or a similar event atsometime. "Q. Is there any way thatmedical science can point a finger ata particular 

### timeand say when thiswilloccur? A. No, I don't belive so. I think that frequently

### we 

### see this disease as advanced ormore advanced than this and 

### see peoplewho survivemany years. I don't think there is any way of predicting with certainty what the outcomes are

# . . ."

Dr. Cade was a littlemore emphatic. He testified: 

# ".

. 

# . it 

### seems abundantly clear to

### me that he died of a diseaseprocess that had been occurring for years and years and that he had reached the typical end of that diseaseprocess." Respondent believes that themost significant 

### case in the instantmatter 

### isHurlbut v. Vollstedt Kerr Co., supra. Hurlbut was decided after the 1967 amendment to the injury definition which added thewords "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. InHurlbut the claimant was about 59 years old and had been employed by the lumber 

### millfor ten years prior to the alleged accident--the lasteight of those ten years as a superintendent. The policy of the employer was tonot operate themillwhen the temperature was too cold for the

men and themachinery, and, inthe latterpart of December 1972, the

### millhad been shut down due tothe cold formore than a week. On the afternoon of January 

### 5, 1973, the temperature rose to about -12OF and the owner of themill ordered claimant to startup the operation the next day, and the claimant began contacting men toreport forwork. The

next morning, January 6, 1973, claimant arrived atwork and waited inthe office for telephone calls from the employeestodetermine how many men would report. The temperature in the officewas 50°F and claimant had his coat on. The outside temperature was -6OF, with low wind velocity. While sitting inthe office, the claimant became dizzy and went outside to 

### see if a 

### little fresh airwould help, but then became nauseated. Hewent 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 tocompensation because the

### millhad never before been operated inweather ascold 

### as it was thatmorning. He maintained that this condition constituted "unusual strain" because 

### itwas 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, tobe compensable under theWorkmen'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 ineither external or internalphysical 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)theremust be a tangible happening of 

### a traumatic nature, and (2) this must be shown tobe the cause of physical harm. "Aside from the testimony that 

### it was a few degrees colder than normal starting temperature and the

### millhad not previously operated in temperatures that cold, there was no testimony this imposed upon claimant any duty which was unusual inkind oramount. 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 eightyears asplant superintendent. Simply opening 

### a millon a day colder than 

### was customary, with no inordinatekind or amount of work on hispart, cannot be said toconstitute 'a tangible happening of a traumatic nature.'Claimant has failed tocarry the burden of proof that he was injured, within themeanins of the statute." Hurlbut, 167 Mont. at306-07, 538 P.2d at346. Applying the 

### test enunciated inHurlbut to the instant

case, 

### it would 

### seem thatweak as the facts

### were inHurlbut, they 

### were stronger than those in the instant case. Claimant's own medical witness stated: "Well, I think the only day stated inthe hypothetical question inwhich therewas any chain of events that I might 

### relate to this 

### is, if I recall the hypothetical question correctly, concerning the hasty trip toBillings [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 todisclose anything unusual that occurred to the deceased on October 12, 1976, or even, for thatmatter, that the deceased's trip toBillings was "hasty." The only testimony to the contrary 

### was thewidow's testimony concerning her husband's phone call toher. In her brief, claimant 

### relies on the cases of Jones v. Bair's Cafe (1968), 152Mont. 13, 445 P.2d 923; Robins v. Ogle (1971), 157Mont. 328, 485 P.2d 692; and Love v. Ralph's Food Store (1973), 163Mont. 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 oreffect, to

### meet the definitional requirements of an injury under the act. Claimant's analysis totally ignores the independent requirement that a strainmust result from a tangible happening of a traumatic nature. The following language from Erhart v. GreatWestern 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 strainmust 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 thisrule clear. See, also, the earlier cases: Lupien v. Montana Record Publishing Co., 143Mont. 415, 390 P.2d 455; James v. 

### V.K.V. Lumber Co., supra: Miller

### v- - Sundance Recreation, Inc., l~l-~ont. 223, 

### 441 P.2d 194." Claimant must 

### still prove thather husband's death was the result of a "tangible happening of a traumatic nature", which she totally failed to do. Finally, inher brief, claimant takes issue with the lower court's findings inconnection with the medical testimony inthe case as 

### it relates to the causal relationship between 

### stress and sudden coronary death. She 

### cites some passages from Dr. Lefever's original testimony atthe 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 inrebuttal which, asquoted previously, was different from his original testimony when confronted with the testimony of Dr. Cade. On rebuttal, Dr. Lefever admitted: "

# . . 

# . there ismore 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 towhat Mr. Utick said, 

### is there an acute difference of opinion among the medical community as tothe cause of tension between 

### stress and the initiating events and the original hemorrhage? A. Yes. 

### "Q. There are thoughts on thatboth ways? A. There aremore than one opinion about the significance of stress with relation to intimal hemorrhage." As Dr. Cade summarized: 

# ".

. . It 

### is not clearwhat the role of chronic 

### stress ison the cardiovascular system. It isnot clear whether stress can play a role in sudden death, inacceleration 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 themedical community just does not know whether 

### stress plays a role in sudden death or accelerates coronary artery disease. The lower court had allthemedical 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 indenying benefits toclaimant. The judgment of the court 

### is affirmed.

We concur: