No. 12929 

IN THE 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 the Fourteenth 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 : mg 8 -1. . 79z 

Filed : ,IN 2 2 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 is from the district court's judgment. 

Harry L. Hurlbut, hereinafter referred to as claimant, 

about 59 years old, had been employed by the lumber mill of 

the Vollstedt 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 mill when 

the temperature was too cold for the men and the machinery, usually 

when the temperature was around -5O~ahrenheit or below. In the 

latter part of December 1972, temperatures in White Sulphur Springs 

0 

were as low as -30 Fahrenheit and caused the mill to be shut down 

for more 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 start up the mill the next 

day. Claimant protested that it was too cold and they should "play 

it by ear". Nevertheless, Vollstedt ordered that the mill commence 

operation the next morning. 

Claimant began contacting men to report for work the 

next day; some by telephone and some personally. The next 

morning, January 6, 1973, claimant arrived at the mill office 

at about 6:20 a.m. and waited in his office for telephone calls 

from %he employees 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 little fresh air would help, but 

then became nauseated. He went home and his wife 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 dies by reason of the occulsion of a heart blood 

vessel supplying that area. This diagnosis was 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. His claim was 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 arising out of and in the course of his 

employment." Appeal was taken to the district court which 

entered judgment for claimant. Defendants Vollstedt Kerr Company 

and Industrial Indemnity Company appeal from that judgment. 

The issue before this Court is whether the workmen's 

Compensation ~ivision's findings, conclusions and order were 

supported by credible evidence and subsequently whether the district court was justified in refersing the ~ivision's findings, 

conclusions and order after taking evidence? 

Claimant's argument at the Division hearing and the 

district court hearing was that the lumber mill had never before 

been operated in weather as cold as it was the morning of January 

6, 1973. There is some conflict in regard to the temperature that 

morning, but the record 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, to be compensable under the Workmen's 

Compensation Act, must meet the definitional requirements of 

the statute. Section 92-418, R.C.M. 1947, defines injury as 

I I a 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 disease not traceable to 

injury 9~ * a*" 

Thus, there are two elements in the statute which must be met 

(1) there must be a tangible happening of a traumatic nature, 

and (2) this must be shown to be the cause of physical harm. 

Aside from the testimony that it was a few degrees 

colder than normal starting temperature and the mill had not 

previously operated in temperatures that cold, there was no 

testimony this imposed upon claimant any duty which was unusual 

in kind 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 mill on a day 

colder than was customary, with no inordinate kind or amount 

I1 of work on his part, cannot be said to constitute a tangible 

happening of a traumatic nature." Claimant has failed to 

carry the burden of proof that he was injured, within the 

meaning of the statute. 

Further, there was no proof in the record that the 

myocardial infarction had any causal connection to claimant'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 to do with 

trauma, strain or anxiety; and (2) when a blood clot which had 

previously and gradually formed somewhere inside the heart 

breaks loose and occludes a heart blood vessel. There was 

considerable discussion regarding probabilities in relation 
co the second cause, the blood clot, however, the doctor testified: 

"Q. Doctor, can you say with any degree of medical 

certainty what 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 able to tell, to make 

any statement in any of these directions because 

L don ' t know. I I 

Claimant failed to carry his burden and therefore 

cannot qualify under the statute for benefits. 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, 162 Mont. 469, 512 P.2d 1304. 

The findings of fact and conclusions of law of the 

Workmen's Compensation Division are presumed to be correct and 

if supported by credible evidence must be affirmed. Section 

92-822, R.C.M. 1947; Birnie v. U.S. Gypsum Co., 134 Mont. 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 authority to determine 

"* Jc whether or not the board regularly pursued 

its authority, and whether or not the findings of 

the board ought to be sustained, and whether or not 

such findings are reasonable under all the circumstances of the case. It 

Section 92-834 also provides the district court 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 in reversing the Division even though the evidence adduced 

before the Division clearly preponderates in favor of its order. 

Young v. Liberty Nat. Ins. Co., 138 Mont. 458, 357 P.2d 886; 

0'~ei.l v. Industrial Acc.Bd., 107 Mont. 176, 81 P.2d 688. 

This Court has repeatedly held that where the appeal 

to the district court is heard only on the Division's certified 

record or when the district court permits additional evidence to 
be introduced and the additional evidence is not important or 

adds nothing new to the case, then the district court may not 

reverse the Division unless the evidence clearly preponderates 

against the findings of the Division. Stordahl v. Rush Implement Co., 148 Mont. 13, 417 P.2d 95; Jones v. air's Cafes, 

132 Mont. 13, 445 P.2d 923; McAndrews v. Schwartz, 164 Mont. 

402, 523 P.2d 1379, 31 St.Rep. 517; Beatty v. Wellman Power and 

Gas, Inc., Mon t . 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 issue before the court, the additional 

testimony at the district court was merely repetitive of that 

admitted at the Division hearing. Such redundant testimony can 

It in no way be said to clearly preponderate against the ~ivision's 

findings . I I 

The judgment of the district court is reversed and the 

order of the Workmen's Compensation Division is affirmed and 

reinstated. 

&-/[-- Justice 

We Concur: ." ", 

Chief Justice