### No. 12929 INTHE SUPREME COURT OF 

### THE STATE OF 

### MONTANA 1975

HARRY 

### L. 

### HURLBUT.,', Plaintiff, -vs

# - VOLLSTEDT 

### KERR COMPANY, Employer, and INDUSTRIAL INDEMNITY COMPANY, Defendant and Appellant.

Appeal from: 

### District Court of theFourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record

### : For Appellant

### : Marra and Wenz, Great Falls, Montana Joseph

### R. Marra argued, and Charles R. 

### Johnson

argued, Great Falls, Montana For Respondent: Richard 

### J. Conklin argued, White Sulphur Springs,

Montana

Submitted: May 

### 8, 1975 Decided

### : 

# mg8

-1. 

### .

# 79z Filed:

# ,IN22

# 19B

### Mr. Justice Gene B. Daly delivered the Opinion of the Court.

The Division of Workmen's Compensation of the Department of Labor and Industry denied the claim of one Harry L. Hurlbut. Appeal was taken to the district court, Meagher County which reversed the ~ivisions' holding and awarded Hurlbut $3,696, plus benefits of $66 per week and medical costs. This appeal isfrom the district court's judgment. Harry L. Hurlbut, hereinafter referred toas claimant, about 59 years old, had been employed by the lumber millof theVollstedt Kerr Company, hereinafter referred to as the Company, of White Sulphur Springs, Montana, for ten years prior to the alleged accident. The last eight of those ten years claimant

was employed as superintendent. The Company policy was not to operate the millwhen the temperature was too cold for the men and themachinery, usually when the temperature was around -5O~ahrenheit orbelow. In the latter part of December 1972, temperatures inWhite Sulphur Springs 0 were as low as -30 Fahrenheit and caused themilltobe shut down formore than a week. On the afternoon of January 

### 5, 1973, the temperature rose to around -12' F. and Dick Vollstedt, owner of the Company, ordered claimant to startup the millthenext day. Claimant protested that itwas too cold and they should "play itby ear". Nevertheless, Vollstedt ordered that the millcommence operation the next morning. Claimant began contactingmen toreport forwork the next day; some by telephone and some personally. The next morning, January 

### 6, 1973, claimant arrived atthe milloffice atabout 6:20 a.m. and waited in his office for telephone calls from %heemployees to determine how many men would report. The 0 temperature in the office

### was 50 to 55' F. and claimant had his coat on. The outside temperature was -6O F., with low wind velocity.While sitting in the office claimant became dizzy, he went ourside to see if a littlefresh airwould help, but then became nauseated. He went home and hiswife drove him to the hospital where his doctor diagnosed the problem as a myocardial infarction, which simply means that an area of the heart muscle diesby reason of the occulsion of a heart blood vessel supplying that area. This diagnosiswas subseqeuntly confirmed by laboratory tests. Z4r. Hurlbut made application for compensation for his myocardial infarction (commonly termed a heart attack), to the ~orkmen's Compensation Division. Hisclaimwas denied and subsequently he petitioned the Division for a hearing. Hearing

was held wherein claimant and his attending physician, Albert V. Jellen, M.D., gave testimony. The hearing examiner denied the claim on the grounds that claimant "did not in fact suffer

an accidental injury arisingout of and in the course of his employment." Appeal was taken to the districtcourt which entered judgment for claimant. Defendants Vollstedt Kerr Company and Industrial Indemnity Company appeal from thatjudgment. The issuebefore this Court iswhether theworkmen's Compensation ~ivision's findings, conclusions and order were supported by credible evidence and subsequentlywhether the district court was justified inrefersing the ~ivision's findings, conclusions and order after taking evidence? Claimant's argument atthe Division hearing and the district court hearing was that the lumber millhad never before been operated inweather as cold as it was the morning of January 

### 6, 1973. There is some conflict in regard to the temperature that morning, but therecord discloses the temperature was between

-SO and -10' Fahrenheit. Claimant maintains this condition constituted an "unusual strain" because it was a unique, new, different and unusual demand placed upon claimant by the Company.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

IIa 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 diseasenot traceable to injury 9~

# * a*" Thus, there are two elements in the statutewhich must be met (1) there must 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 itwas a few degrees colder than normal startingtemperature and the millhad not previously operated intemperatures that cold, therewas no testimony this imposed upon claimant any duty which was unusual inkind 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 millon a day colder than was customary, withno inordinate kind or amount

I1 of work on hispart, cannot be said toconstitute 

### a tangible happening of a traumatic nature." Claimant has failed to carry theburden of proof that he was injured, within the meaning of the statute. Further, therewas no proof in therecord that the myocardial infarction had any causal connection toclaimant's employment. Claimant's doctor, Dr. Jellen, testified there are two principal causes of myocardial infarction: (1) arteriosclerosis,

a gradually developing condition that has nothing todo with trauma, strain or anxiety; and (2) when a blood clotwhich had previously and gradually formed somewhere inside theheart breaks loose and occludes a heart blood vessel. There was considerable discussion regarding probabilities inrelation

### co the second cause, theblood clot, however, the doctor testified: "Q. 

### Doctor, can you say with any degree of medical

certaintywhat was the cause of Mr. 

### ~urlbut's myocardial infarction? A. 

### No, 

### I am afraid 

### I couldn't. "Q. 

### Do you know whether or not this condition

resulted from either arteriosclerosis or a clotting? A. 

### No, no, I 

### wouldn't be ableto tell, tomake any statement in any of these directions because L 

### don

## 't 

### know. II 

### Claimant failed tocarry hisburden and therefore cannot qualifyunder the statute forbenefits. Nicholson v. Roundup Coal Mining Co., 79 Mont. 358, 257 P. 

### 270; Landeen v. Toole County Refining Co., 85 Mont. 41, 277 P. 

### 615; Woin v. Anaconda Copper Min. Co., 99 Mont. 163, 43 P.2d 663; Ricks v. Teslow Consolidated, 162Mont. 469, 512 P.2d 1304. The findings of fact and conclusions of law of the Workmen's Compensation Division arepresumed tobe correct and if supported by credible evidence must be affirmed. Section 92-822, R.C.M. 

### 1947; Birnie v. 

### U.S. Gypsum Co., 134Mont. 39,

This presumption can be overcome however. Section 92-834, R.C.M. 

### 1947, provides that on an appeal from the Division, the district court has authoritytodetermine 

# "* Jc 

### whether ornot theboard regularly pursued 

### its authority, and whether ornot the findings of theboard ought tobe sustained, and whether or not such findings arereasonable under allthe circumstances of the case. It 

### Section 92-834 alsoprovides the districtcourt may, upon good cause sho~m, admit additional evidence. Section 92- 835, R.C.M. 

### 1947 and Montana case law holds that if this additional evidence is 

### substantial, the district court may be justified inreversing the Division even though the evidence adduced before the Division clearly preponderates in favor of itsorder. Young v. Liberty Nat. Ins. Co., 138Mont. 458, 357 P.2d 886; 0'~ei.l v. Industrial Acc.Bd., 107 Mont. 176, 81P.2d 688. This Court has repeatedly held that where the appeal tothe district court isheard only on the Division's certified record or when the district court permits additional evidence to

### be introduced and the additional evidence isnot important or adds nothing new to the case, then the districtcourt may not

reverse the Division unless the evidence clearly preponderates against the findings of the Division. Stordahl v. Rush Implement Co., 148Mont. 13, 417 P.2d 95; Jones v. 

### air's Cafes, 132Mont. 13, 

### 445 P.2d 923; McAndrews v. Schwartz, 164Mont. 402, 523 P.2d 1379, 31 St.Rep. 517; Beatty v. Wellman Power and Gas, Inc., Mont

# . Y 

### P.2d 

## , 32 St.Rep. 680. Here, the additional evidence admitted by the district court shed no new light on the circumstances surrounding the alleged accident as to the cause of the alleged injury. With the exception of testimony relating to the degree of claimant's disability, which was not an issuebefore the court, the additional testimony atthe district courtwas merely repetitive of that admitted atthe Division hearing. Such redundant testimony can
It 

### inno way be said to clearlypreponderate against the ~ivision's findings

# . II 

### The judgment of the district court 

### isreversed and the order of 

### theWorkmen's Compensation Division is affirmed and reinstated. 

# &-/[-- Justice

We Concur:

### ." ",



### Chief Justice