No. 12792 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

MARTIN BEATTY, Claimant and Respondent,

WELLMAN POWER 

### AND GAS, INC., and TWIN CITY FIRE INSURANCE COMPANY, Defendant and Appellant.

Appeal from: District Court of the Third Judicial District, Honorable Robert J. Boyd, ~udge presiding. Counsel of Record: For Appellant: McKeon and Skakles, Anaconda, Montana Michael J. McKeon argued, Anaconda, Montana For Respondent: Scanlon, Brolin and Connors, Anaconda, Montana Jack M. Scanlon argued, Anaconda, Montana



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## 1% Filed: '* Submitted: May 7, 1975 Decided

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# JU&

# a 1975

### Mr. Justice John Conway Harrison delivered the Opinion of the Court

# . This isa workmen's compensation case arising from an industrial accident that allegedly occurred on November 13, 1972. Claimant Martin T. Beatty was employed as a pipefitter by Wellman Power and Gas, Inc. The Montana workmen's Compensation Division (hereinafter referred toas the Division) held that claimant failed to establish, by a preponderance of the credible evidence, that an industrial accident had in fact occurred and denied compensation. On appeal tothe district court, Deer Lodge County, additional evidencewas presented and that court found an industrialaccident had occurred and remanded the matter tothe Division for establishment of claimant's disability and determination of the medical payments and award due him. From the district court's judgment Wellman Power and Gas, Inc. and 

### itsinsurer, Twin City Fire Insurance Company, appeal. Prior tothe perfection of this appeal claimant died from causes unrelated tothe accident. Martin T. Beatty claimed he suffered an industrial accident on November 13, 1972. Describing that accident he testified:

It

We were pulling a pipe with a come-along and it pinned me against thewall." He claimed he reported the accident tohis employer on that date, November 13, 1972. The "~mployer'sFirst Report of Occupational Injury or

### ise ease" filedwith the Division on January 12, 1973, put the allegations of the claim in issueby answering this question on the form: "Describe in fullhow accident happened and 

### GIVE CAUSE-- Tellwhat employee was doing when injured:

11 A,. We cannot describe accident because it was not reported tothis office, and we willnot acknowledge itshappening on thisjob. This report made per Hartford request. ItClaimant here, a former police officer retired on a total disability claim from the police pension fund, had filed three prior industrial accident claims and atthe time of the alleged accident here had been the recipient of a settlement representing 233 weeks of compensation for a total of $10,500 received on April 27, 1972.The record iqdicates that claimant did not seek medical attentionuntilNovember 22, 1972, nine days after the alleged injury, when he was admitted to the Anaconda Community Hospital under a diagnosis of "pneumonia", with this brief history--patient admitted toemergency room per wheel chair--complains of pain in 

### back--dyspnea--coughing--feet swollen--has been drinking for two weeks. Several issues arepresented by both parties on appeal. We find this issue dispositive: Did the district court errinreversing the ~ivision's finding that an industrial accident had not occurred? We note here that inMontana it 

### is clearly established the district court isjustified inreversing the findings of the Division onlywhen there exists a clear preponderance of the evidence against 

### its findings. IcAndrews v. Schwartz, 164Mont. 402, 523 P.2d 1379, 31 St.Rep. 517; Jones 

### v. 

### air's Cafes, 152Mont.13, 445 P.2d 923; Stordahl v. Rush Implement Co., 148 Mont. 13, 417 P.2d 95. Consequently a detailed presentation of the evidence before the Division 

### is crucial for a proper disposition of this

case. The principal issuebefore the Divisionwas whether claimant had, in fact, suffered an industrial accident with resultant injury as contemplated by section 92-418, R.C.M. 1947. To substantiatehis claim an accident had occurred claimant introduced his own testimony and that of Ed Darcy and Alvin Palmer.Ed Darcy, a co-worker with claimant on the date of the alleged accident, explained the accident in thismanner: "Yes, I raised a piece of pipe, it seems tome it was prettyheavy, itwas pretty long and we were raising it up and Beattywas holding on to it and itwas swinging and it isvague, but I can remember the pipe swinging and him backing up against thewall. 1I However, on cross-examination Darcy testified: "MR. MCKEON: Ed, we had a telephone conversation two days ago, didn't we? A. Right. "Q. And you told me atthat time your particular version of the event, didn't you? A. 

### I think I told you that I didn't remember the accident. "Q. You alsohad a conversationwith the adjuster from the insurance company, didn't you, sometime after the date of November 13, 1972? A. Right. 

### "Q. And atthat time I believe you told the insurance representative-----

"Q. Atthat time did you tellhim you didn't remember anything about this accident? A. I believe that 

### is what I said. "Q. You said that, didn't you? A. Yes. 

### "Q. And atthat time you said that you believed that no accident in fact happened, isn't that correct? A. Well, letme put it thisway the accident, it seemed so out 1 of proportion it didn t seem likean accident, 

### 1 didn't say anything.?I Stilllater during cross-examination, this information was elicited:"You received a phone call fromMr. Beatty some couple of weeks after the alleged accident, didn't you? A. Right.

"Q. And atthat time didn't you tellme that you felt thatMr. Beattywas trying to coerce you into saying therewas an accident? A. No, I didn't say that, I said he was trying to influence me. "Q. Into saying that there was in fact an accident? A. Yes. It Claimant's second witnesswas Alvin Palmer, foreman at Wellman Power and Gas, Inc. He testifiedhe was not present when the alleged accident occurred but he had asked claimant later thatII day ifhe was sick or something orhad a bad ha.ngover or some11 11 thing. He further testified claimant appeared tohave a stomachache or out of wind or something like that.'' When claimant testified on his own behalf, he explained the alleged accident thisway: "Well, inpulling this 14 inch cast iron over the top of the tanks and the other pipes why Charlie Hubbard said that he didn't believe that we could hold itback without coming over the other pipes and we had a plank from the top over to thewall on a beam and I was standing out on this plank and when they raised it up and the fittingscome inI couldn't hold itback and itbacked me up against thewall. I' Claimant also testifiedhe was hospitalized on November 22, 1972, some nine days afterthe alleged accident occurred. However, the record indicates claimant's afflictionwas diagnosed as pneumonia atthe time of his hospitalization. Dr. Howard Mize, Don Hornbacher, Jack Somers and Robert Wolf testified for defendants. Dr. Mize testifiedhe examined claimant subsequent tothe alleged accident when claimant was complaining of low back pain, difficulty inhis gait and lack of sensation inhis extremities; that claimant had quite an extensivehistory inregard tohisback relatingback to 1967, when he was examined and treated by Doctors Sereen and Davidson. In 1969, back difficultiesagain compelled claimant to see Dr. Trobough who gave him a 40%disabilityrating. Again, in 1971and in 1972, claimant was treatedby Drs. Simrns and Kanty inregard tohis back. Allof thismedical historywas prior toNovember 13, 1972, the date of the alleged accident involved here. In addition tohis testimony 

### Dr. Mize wrote a letterto defendants' attorneywhich was received into evidenceby the Division. That letter stated: "In addition, inview of thenature of the accident that Mr. Beatty described tome it seems unlikely that this trivial injury in itself could have produced all of the pathology that 

### Mr. Beatty claims. I'Power Jack Somers, a foreman atWellman/and Gas, Inc. atthe time of the alleged accident, testified that he was never notified about

an accident. He testified: 

### "Q. Were any phone calls ever made toyou after the alleged accident? A. Yes. Q. Who called You? A. 

### Mr. Beatty called me and one of his lawyer's secretaries called me.

IlQ. What did Mr. Beatty say toyou? A. He wanted toknow if I could help him with his accident. "Q. What did you say? A. I said I knew nothing about itbecause it never was reported tome. "Q. Did he trytotalkyou into saying therewas an accident? A. Yes. I I Finally, Robert Wolf, then general foreman of the pipe not crew atWellman Power and Gas, Inc., testifiedhe was/notified of

an accident on November 13, 1972. He further statedhe had seen claimant atthe end of thework day on that day and his condition

was "~ust likeeverybody elsehurrying to get tothe parking lot
Jc Jc **" A.fterallevidence was submitted, the Division entered 

### its findings of facts and conclusions of law. It held that the claimant did not suffer an industrialaccident. Compensation was denied. Claimant then appealed tothe district court. That court heard testimony of claimant and hiswife, who did not testify at the Division hearing. Defendant Wellman Power and Gas, Inc. argues the wife's testimony was hearsay and that defense counsel objected atthe hearing before the district court. However, it 

### is of interest tonote that thewife acknowledged, during testimony, that her husband's back problem predated the date of the alleged accident. The district court reversed the findings of the Division. Reviewing allof the evidence, we believe the district court erred inreversing the findings of the Division. The evidence does not clearlypreponderate against those findings.The inconsistencies and vagueness of claimant's witnesses, combined with the attempts to influence their testimony and claimant's failure to see a doctor untilnearly nine days had elapsed with the subsequent diagnosis of pneumonia, clearly support the ~ivision's decision. The Division occupied a farbetter position to make the crucial factual determination of whether an industrial accident had in fact occurred. It could observe the demeanor of thewitnesses and determine their credibility. Weare cognizant of the rule that the district court may

reverse the Division only if substantial evidence clearly preponderating against the findings is introduced inthe district court. Rumsey v. Cardinal Petroleum, Mont

# . 530 P.2d 433, 32 St. Rep. 1, and cases cited therein. However, in the instant case, the additional testimony added littleornothing to the testimony presented before the Division. Claimant retestified as to the facts of the alleged industrial accident but his testimony was merely

a "rehash" of the testimony presented before the Division. Similar testimony met with disapproval in Rasmussen v. Gibson Products Co. of Bozeman, Mont

# . , 527 P.2d 563, 31 St.Rep. 860. claimant's wife also testifiedbefore the district court. Her testimony was that claimant had experienced pain inhis lower back

on the date of the alleged accident. However, no effortwas made to determine if theback pains were caused by the alleged accident

or whether they were the result of claimant's long history of back problems.We find the other contentions raised by claimant tobe without merit. The district court erred when itreversed the ~ivision's findings. The evidence did not clearly preponderate against those findings. The judgment of the district court isreversed and the cause is dismissed.

### We Concur:



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