No. 12852 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

REX F: TXWIS , 

Plaintiff and Claimant, 

ANACONDA COMPANY, 

Defendant and Respondent. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, Judge presiding. 

Counsel of Record: 

For Plaintiff: 

Scanlon and Connors, Anaconda, Montana 

Jack M. Scanlon argued, Anaconda, Montana 

For Respondent: 

Henningsen, Purcell and Genzberger, Butte, Montana 

Rex F. Henningsen argued, Butte, Montana 

Submitted: November 6, 1975 

Decided : DEC 1 8 1975 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal originates from an industrial accident which 

occurred on December 7, 1960. Plaintiff Rex K. Lewis was at that 

time an employee of defendant Anaconda Company. While performing 

his duties as a boilermaker, he was injured to the extent of a 

fractured left wrist and a fracture of both nasal bones. He was 

awarded $229.44 in temporary total disability benefits pursuant to 

section 92-701, R.C.M. 1947. On March 27, 1961, a petition for 

lump sum settlement in the amount of $1,825 was approved by the 

Industrial Accident Board but Lewis received no part of this award. 

Over ten years later, an investigation revealed that this petition 

had been forged by a claims manager of the Anaconda Company. 

An action on ~ewis' behalf was thereafter commenced 

contending that his injuries entitled him to that lump sum 

settlement, and that the allegedly fraudulent actions of the 

Anaconda company's agent had effectively deprived him of that 

award. The action was dismissed by the district court in Deer 

Lodge County for failure to state a claim upon which relief could 

be granted. That decision was appealed to this Court. We 

affirmed the district court and ruled that the forged documents 

were not, by themselves, sufficient to establish a right to relief 

and this Court had no jurisdiction to make such a determination 

until the proper administrative procedures were exhausted in proceedings before the Industrial Accident Board. Lewis v. The Anaconda 

Company, 160 Mont. 478, 503 P.2d 535. 

Lewis then petitioned the Workmen's Compensation Division 

for consideration of his case and hearing was held on April 17,1973. 

Its decision was adverse to Lewis. He was granted a rehearing, 

which also resulted in an unfavorable ruling. An appeal was taken 

to the district court, Deer Lodge County. On August 12, 1974, 

judgment was entered specifically sustaining the findings and conclu- 
sions of the workmen's Compensation Division and denying the 

appeal in its entirety. 

In the more than ten year interim between the time that 

~ewis's industrial accident occurred and the time that his case 

was reopened before the workmen's Compensation Division, Lewis 

engaged in a number of different occupations. Approximately two 

months after the accident he returned to the Anaconda Company as 

a boilermaker, where he was on restrictive duty in the welding 

shop. This employment was voluntarily terminated by Lewis nine 

months later, allegedly because of the residual effects of his 

injuries. Lewis then leased a service station and was selfemployed in the year 1962. This lease was terminated in the 

latter part of 1962, and for the next seven years Lewis held a 

number of different jobs in various states. On January 1, 1969, 

Lewis became a permanent member of the Anaconda police department. 

Two years later he suffered another industrial accident in the 

course of his employment as a police off.i?w which resulted in 

the fracture of his right wrist. He was awarded a lump sum 

settlement for permanent partial disability in the amount of 

$3500. 

Lewis' appeal to this Court is based primarily on the 

premise that the Workmen's Compensation Division acted in total 

disregard of uncontm-d credible evidence in denying his claim 

for relief and the district court erred in sustaining such action. 

Lewis points out that under Montana's legislative 

scheme an injured workman may elect to proceed under either of two 

statutory sections in order to establish his right to compensation. 

Under section 92-703, R.C.M. 1947, the claimant's right 

to recover depends upon his ability to demonstrate an actual loss 

of earnings and the number of persons dependent upon him. But, 

recovery under section 92-709, R.C.M. 1947, is based on a specific 

statutory schedule, and proof of an actual loss of earnings is not 
required. Spieth v. Stuart, 130 Mont. 216, 299 P.2d 106. Thus, 

under one section the claimant is compensated for his actual loss 

of wages, while the other provides the claimant with an indemnity 

for the loss of possible future earnings in an amount determined 

by the legislature. Jones v. Glacier General Assurance Co., 145 

Mont. 326, 400 P.2d 888. 

The conclusion of the workmen's Compensation Division 

was that Lewis failed to demonstrate any permanent partial disability 

resulting from his 1960 injury, and he was therefore not entitled 

to recover under either of the above provisions. With respect to 

section 92-703, R.C.M. 1947, the Division placed particular emphasis on several of its numerous findings of fact: 1) that the 

claimant had voluntarily terminated his employment with the 

company in order to operate his service station; 2) that no 

evidence was offered regarding the amount of claimant's earnings 

in the years between 1963 and 1968; and 3) that claimant has been 

steadily employed as a police officer since 1969. The Division 

specifically recognized the existence of some evidence tending to 

establish that Lewis had indeed suffered some loss of earning over the 

years. But, in the ~ivision's view, Lewis simply failed to establish by a preponderance of credible evidence that this loss of 

earnings or earning capacity was a result of the industrial 

accident. 

In support of its denial of relief under section 92-709, 

R.C.M. 1947, the Division offered these findings of fact as promulgated by the hearings officer in the May 23, 1973, hearing: 

"21. That there is no credible evidence in the file 

or the record that the claimant ever sought or 

received medical treatment for the injury to his 

left wrist from early 1961 until at the request of 

his attorney he saw Dr. George E. Trobough on March 

11, 1972, more than eleven years after his accident, 

and further, there is no credible evidence in the 

record that the claimant ever complained of any 

permanent physical disablement resulting from that 

injury during the ten or eleven years following the 

in j ury . 
"22. That Dr. George E. Trobough testified that 

when he saw the claimant more than eleven years after 

the injury, the claimant was suffering from a twentyfive percent permanent residual disability to the body 

as a whole. 

"23. That the claimant was examined on March 26, 

1973, by Dr. Charles E. Buehler, Butte, Montana, who 

reported that he could 'find no physical abnormalities 

with this man's left wrist to warrant any permanent 

disability from this accident. I 11 

Under these facts, the district court specifically found 

the workmen's Compensation Division to have regularly pursued its 

authority, and its findings of fact were reasonable under the circumstances. It was therefore incumbent upon the district court to 

sustain those findings and the resulting conclusions of law. 

Section 92-834, R.C.M. 1947; DeLeary v. Anaconda Aluminum Co., - 

Mon t . , 541 P.2d 788, 32 St.Rep. 1041; Hurlbut v. Vollstedt 

Kerr Co. , Mon t . , 538 P.2d 344, 32 St. Rep. 752; Birnie 

v. U.S. Gypsum Co., 134 Mont. 39, 328 P.2d 133. 

Here we are presented with a basic conflict in the evidence. 

In actions under the workmen's Compensation Act, the appellate court 

must sustain Division action if the evidence is sufficient to 

support the findings, even though some evidentiary conflict may 

exist. Dean v. Anaconda Co., 135 Mont. 13, 335 P.2d 854. Once 

promulgated, the findings of the Division become the equivalent 

of a jury verdict or findings of a judge and its action will not 

be reversed unless the preponderance of the evidence is clearly 

to the contrary. Wieri v. Anaconda Copper Mining Co., 116 Mont. 

524, 156 P.2d 838. The applicable rule has remained unchanged since 

its explication in Cartwright v. Industrial Accident Board, 115 

Mont. 596, 599, 147 P.2d 909: 

11 Our function in this case is to determine whether 

or not there is substantial evidence to support the 

judgment of the district court. As can be immediately 

ascertained from the foregoing summary of the evidence, 

there is a complete testimonial conflict between the 

parties. In such a situation the issue becomes one of 

credibility of the witnesses which is and must be concluded by the Industrial Accident Board which had the 

opportunity to observe the witnesses as they testified 

9: 9: 9:. " 
Lewis simply provides us with no legal basis for 

upsetting the factual conclusions of the workmen's Compensation 

Division or the district court. Accordingly, those decisions must 

be affirmed. 

Lewis also urges us to decide a collateral constitutional 

issue, a claim which extends to the due process and equal protection provisions of the United States and Montana Constitutions. 

He argues that the actions of the hearing officers of the workmen's 

Compensation Division and the Anaconda Company in arbitrarily 

and capriciously applying a double standard in administering the 

workmen's Compensation Act discriminates against him by depriving 

him of a benefit he is entitled to, thus violating his constitutional 

rights of equal protection and due process. The question is 

presented for review for the first time to this Court. It is 

untimely, and therefore cannot be considered on appeal. Britt v. 

Cotter Butte Mines, 108 Mont. 174, 176, 89 P.2d 266; State ex rel. 

Anderson v. State Board of Equalization, 133 Mont. 8, 19, 319 P. 

2d 221. 

Lewis cites In re lark's Estate, 105 Mont. 401, 74 

P.2d 401, as authority for the proposition that constitutional 

issues may, under certain circumstances, be raised for the first 

time on appeal. In Clark the Court specifically invited the 

parties to raise the particular constitutional question involved, 

and in that context created the exception. That exception is 

clearly not applicable to the instant case, where no such invitation was extended. 

The judgment of the district court is affirmed. 

Justice 
We Concur: 

Chief Justice 

Justices. $9 42-