No. 12852 INTHE 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 JackM. 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

### 1975Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal originates from an industrial accidentwhich occurred on December 7, 1960. Plaintiff Rex K. Lewis was atthat time an employee of defendant Anaconda Company. While performing his duties as a boilermaker, hewas injured tothe extent of a fractured left

### wrist and a fractureof both nasalbones. He was awarded $229.44 in temporary total disabilitybenefits pursuant to section 92-701, R.C.M. 1947. On March 27, 1961, a petition for lump sum settlement inthe 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 forgedby a claims manager of theAnaconda Company. An action on ~ewis' behalf was thereafter commenced contending that his injuries entitledhim to that lump sum settlement, and that the allegedly fraudulent actions of the Anaconda company's agent had effectivelydeprived him of that award. The actionwas dismissedby the districtcourt inDeer Lodge County for failure to statea claimupon which relief could be granted. That decisionwas appealed tothis Court. We affirmed the district court and ruled that the forged documents

were not, by themselves, sufficient toestablish a right torelief and this Court had no jurisdiction tomake such a determination until the proper administrative procedures were exhausted inproceedings before the Industrial Accident Board. Lewis v. The Anaconda Company, 160 Mont. 478, 503 P.2d 535. Lewis then petitioned theWorkmen's Compensation Division forconsideration of his case and hearing was held on April 17,1973. Its decisionwas adverse toLewis. He was granted a rehearing, which alsoresulted inan unfavorable ruling. An appeal was taken tothe districtcourt, Deer Lodge County. On August 12, 1974, judgment was entered specifically sustaining the findings and conclu-sions of theworkmen's Compensation Division and denying the appeal in itsentirety. In the more than ten year interimbetween the time that ~ewis's industrial accident occurred and the time that his case

was reopened before theworkmen's Compensation Division, Lewis engaged ina 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 thewelding shop. This employment was voluntarily terminated by Lewis nine months later, allegedlybecause of the residual effects of his injuries. Lewis then leased a service station and was selfemployed in the year 1962. This leasewas terminated in the latterpart of 1962, and for the next seven years Lewis held a number of differentjobs in various states. On January 

### 1, 1969, Lewis became a permanent member of the Anaconda police department. Two years laterhe 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 forpermanent partial disability in the amount of $3500. Lewis' appeal to this Court isbased primarily on the premise that theWorkmen's Compensation Division acted in total disregard of uncontm-d credible evidence indenying his claim forrelief and the district court erred in sustaining such action. Lewis points out that under Montana's legislative scheme an injured workman may elect toproceed under either of two statutory sections inorder toestablishhis right tocompensation. Under section 92-703, R.C.M. 1947, the claimant's right torecover depends upon his ability todemonstrate an actual loss of earnings and thenumber of persons dependent upon him. But, recovery under section 92-709, R.C.M. 1947, isbased on a specific statutory schedule, and proof of an actual loss of earnings 

### isnotrequired. 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 todemonstrate any permanent partial disability resulting from his 1960 injury, and he was thereforenot entitled torecover under either of the above provisions. With respect to section 92-703, R.C.M. 1947, the Division placed particular emphasis on several of itsnumerous findings of fact: 1) that the claimant had voluntarily terminated his employment with the company in order tooperate 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 asa police officer since 1969. The Division specificallyrecognized the existence of some evidence tending to establish that Lewis had indeed suffered some loss of earning over the years. But, inthe ~ivision's view, Lewis simply failed toestablishby a preponderance of credible evidence that this loss of earnings or earning capacitywas 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 aspromulgated by thehearings officer in the May 23, 1973, hearing: "21. That there isno credible evidence inthe file or therecord that the claimant ever sought or received medical treatment for the injury to his leftwrist from early 1961until atthe request of his attorneyhe saw Dr. George E. Trobough on March 11, 1972, more than eleven years afterhis accident, and further, there isno 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 jury

# ."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 twentyfivepercent permanent residual disability to thebody as a whole. "23. That the claimantwas 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 towarrant any permanent disability from this accident. I 11 Under these facts, the district court specifically found theworkmen's Compensation Division tohave regularly pursued 

### its authority, and 

### its findings of factwere 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., 

# - Mont

# . , 541P.2d 788, 32 St.Rep. 1041; Hurlbut v. Vollstedt Kerr Co.

## , Mont

# . , 538 P.2d 344, 32 St. Rep. 752; Birnie

v. U.S. Gypsum Co., 134Mont. 39, 328 P.2d 133. Here we arepresented with a basic conflict in the evidence. In actions under theworkmen'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 theDivision become the equivalent of a jury verdict or findings of a judge and 

### its action

### willnot 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 rulehas 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 determinewhether or not there 

### is substantial evidence to support the judgment of the district court. Ascan be immediately ascertained from the foregoing summary of the evidence, there 

### is a complete testimonial conflictbetween the parties. In such a situation the issuebecomes one of credibilityof thewitnesses which 

### is and must be concluded by the IndustrialAccident Board which had the opportunity toobserve thewitnesses asthey testified 9: 9: 9:. "

### Lewis simply provides us with no legal basis for upsetting the factual conclusions of theworkmen's Compensation Division or the district court. Accordingly, those decisions must be affirmed. Lewis also urges us to decide a collateral constitutional issue, a claimwhich 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 theworkmen's Compensation Division and theAnaconda Company in arbitrarily and capriciouslyapplying a double standard in administering the workmen's CompensationAct discriminates againsthim 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 cannotbe considered on appeal. Britt v. Cotter Butte Mines, 108Mont. 174, 176, 89 P.2d 

### 266; State ex rel. Anderson v. State Board of Equalization, 133Mont. 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 issuesmay, under certain circumstances,be raised for the first time on appeal. In Clark the Court specifically invited the parties to raise the particular constitutionalquestion involved, and in that context created the exception. That exception is clearlynot applicable to the instant case, where no such invitationwas extended. The judgment of the district court is 

### affirmed.

Justice

### We Concur:

Chief Justice

Justices. 

# $9 42-