### No. 12967 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1975

DOROTHY McQUISTON, Claimant and Respondent,

HALE 

### HUBBARDAND GLACIER GENERALASSURANCE COMPANY, Employer, Defendant andAppellant, DIVISION OFWORKMEN'S COMPENSATION ClaimNo. 59B-10128

Appeal from: District Court of theEighteenth Judicial District, Honorable

### W. W. 

### Lessley, Judgepresiding. Counsel of Record

### : ForAppellant: 

### Brown and Gilbert, Bozeman, Montana William 

### E. Gilbert argued, Bozeman, Montana ForRespondent: 

### Berg, Angel, Andriolo and Morgan, Bozeman, Montana Richard Andriolo argued, Bozeman, Montana

Submitted: June 13, 1975 Decided: 

## ; 

## 7Mr. Justice Gene 

### B. Daly delivered the Opinion of the Court.

This is an appeal from a judgment of the district court, Gallatin County, which reversed an order of the Workmen's CompensationDivision of the Department of Labor and Industry. Hale and Vivian Hubbard are the lessees and operators of Bair's Cafe in Bozeman,Montana. Dorothy McQuiston,hereinafter referred to as claimant,was a long time employeeof the Hubbards. She claims that on or aboutAugust 1, 1973, she slipped on a wet floor at the restaurantand twisted her back. During the summer of 1973,Hubbards were required to be absent from Bozeman due to health problems of Vivian Hubbard. Hubbards hired one Carrol Hovland, a school teacher, to be assistantmanager of the cafe in their absence. They explained to the employees that Hovland would be the assistantmanager and would generally be in charge. On July 17, 1973,Vivian Hubbard left Bozeman for Portland. Claimant testified that on or about August 1, 1973, shewas working and while going into the cafe's kitchen, she slipped on some water which had leaked onto the floor from a dishwashing machine. Shedid not fall to the floor but caught herself on the dishwashing machine. Claimant testified the only person present when she slipped

was a young man washing dishes who witnessed the accident.

Claimant testified she experienced a sharp pain in her left hip that day,which continued to bother her the next day at work. Shedid not know the cause of the pain, but attributed it to the rushing around she did at work. She never reported thematter to Mr. Hovland, the assistantmanager. Thereafter claimant went on vacation and returned to her regular employment on August 16, 1973. Claimant's date of the alleged accident, August 1, 1973,

was disputed. Employee time cards,offered at the Division'shearing, established that the last day claimantworked prior to taking her vacationwas July 27, 1973. Claimant testified she orally reported the accident to Mrs. Hubbard on or about August 16,when Mrs. Hubbard returned from Oregon,while they

were having a cup of coffee at the cafe. Mrs. Hubbard testified she did not return from Oregon until August 18, (verifiedby the airline ticket admitted at the district court hearing) and to the best of her recollection never went into the cafe until lateAugust or early September,because shewas recuperating from her operation. Mrs. Hubbard did remember a conversationwith claimant,but testified "Iam really sorry to say this but she [claimant]did not ever report to me of

an injury." The record indicates claimantworked a normal schedule at Bair's Cafe fromAugust 16 until August 30, 1973, at which time she quit due to a personal matter not involving work or the alleged accident. She thenworked a 40 hour week on a regular basis at the Pines Cafe in Bozeman from September 8 until October 20, 1373. Claimant began seeing doctors about a back pain in September and treatment culminated in an operation on November 5, 1973, at which time a vertebral disc was removed. On April 19, 1974,DorothyMcQuiston filed a claim for compensation with the Industrial Accident Board alleging an injury occurring onAugust 1, 1973,while employed by Hale Hubbard at Bair's Cafe, Bozeman,Montana. Answer was filed by the employer and defendant insurance carrier denying allmaterial allegations of the claim, and affirmativelyalleging claimant had not given written notice of the alleged injury to the employer within sixty days thereof, as required by section 92-807,R.C.M. 1947. Further, that neither the employer nor hismanaging agent or superintendent in charge,had actual knowledge of the alleged accident and injury and, in fact,hadno knowledge thereof until notified of claimant's claim for compensation onApril 29, 1974. Pursuant to stipulationof counsel at the time of the original hearing before the Workmen's Compensation Division and in accord with subsection 8, section 24-3.18(14) 

### - S18030 of the Montana Administrative Code relating to hearings before the Department of Labor and Industry of workmen's compensation cases, it

was agreed that the hearing on June 25, 1974, was for the sole purpose of determining liability. All issues relating to compensation and disability were reserved to be heard at a later date. On August 19, 1974,Roger 

### K. Hazell,Hearing Examiner, entered his findings of fact and conclusions of law and on September 6, 1974, the findings of fact and conclusions of lawwere adopted by the Division and its order awarding compensationwas entered. The findings, conclusions, and order contained provisions determining disability and awarding compensation. A timely application for rehearing on all issueswas filed by the employer. On October 7, 1974,an order granting a limited rehearing on the questions of disability and compensationwas entered by the Division. A notice of appealwas filed by the employer to the district court from that portion of the Division's order finding a compensable injury and that claimant had given notice as required under section 92-807,R.C.M. 1947. On November 25, 1974, by stipulationof counsel, thismatter was submitted to the district court for decision on the record of the Division as certified to the court by it with the addition of defendants' court Exhibit "A",an airline ticket. On December 27, 1974,the district court entered its findings of fact and conclusions of law reversing the Division. It found the evidencewas insufficient to establish that the claimant Dorothy McQuiston had suffered an industrial accident as alleged in her claim for compensation and that, even if such an accident had occurred,she was still barred from receiving compensationby her failure to comply with the provisions of section 92-807,R.C.M. 1947. From the final judgment of the district court, claimant appeals.The only issuepresented to this Court for review is-- Did the district court abuse itsdiscretion in reversing the decision of the Division without taking additional testimony? In Hurlbut v. Volstead Kerr Co., Mont. P.2d -I 

### -



## , 32 St.Rep. 752, 755, this Court said: "The findingsof fact and conclusions of law of the Workmen's CompensationDivision are presumed to be correct and if supportedby credible evidencemust be affirmed. Section 92-822,R.C.M. 1947

## * * 

## *. "This presumption can be overcome however. Section 92-834,R.C.M. 1947,provides that on appeal from the Division the district courthas authority to determine 

### "'

## * * * 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.' "Section 92-834 also provides the district court may, upon good cause shown,admit additional evidence. Section 92-835,R.C.M. 1947 and Montana case law hold that if this additional evidence is substantial, the district courtmay be justified in reversing the Division even though the evidence adduced before the Division clearly preponderates in favor of its order. 

## * * *I1 The burden is on claimant to establishby a preponderance of the evidence that the injury resulted (a) froman industrial accident, (b)arising out of, and (c) in the course of his employment. Kerns v. Anaconda Copper Min. Co., 87 Mont. 546, 289 P. 563; Moffett v. Bozeman Canning Co., 95Mont. 347, 26 P.2d 973. To prevail under the foregoing rule, it isnecessary for claimant to prove by a preponderance of the evidence that she suffered an injury by an industrial accident, and that the injury was the proximate cause of her present condition. At the hearing before the Division the only evidencepresentedas to the occurrence of an accident,was that of claimant. The dishwasher who allegedly witnessed the slipwas never identified,

was not called to testify, and no reasonwas ever proferred why he could not be produced to testify. No testimony was taken from any of the doctors who treated claimant. Therewas no medical testimony which could relate the type of surgery performed by the doctors on claimant (removalof a vertebral disc) to a slip on a wet floor as described by claimant,and at a time approximate to August 1, 1973,as opposed to amuch earlier or later time period. Claimant had previously injured her back in 1967. Section 92-807,R.C.M. 1947,provides: 

### " 

## * * * within sixty (60) days after the occurrence of [an industrial accident], which is claimed to have caused the injury,notice in writing 

## * * 

## * shall be served upon the employer or the insurer

## * 

## * *; provided, however, that actual knowledge of such accident and injury on the part of such employer or his managing agent or superintendent

### * 

## * * shall be equivalent to such service." Claimant admitted the only person she reported the incident to during any period of timewas to Mrs. Hubbard on or about August 16, 1973. The only testimony regarding this oral notification to Mrs. Hubbard is from claimant. This testimony is uncorroborated and is denied by Mrs. Hubbard. However, the statute demands written notice within 60days, unless the employer or his managing agent or superintendent has actual knowledge. From a complete review of the record and the law,wemust conclude the evidence clearly preponderates against the Division's findings, conclusions, and order. The district court did not err in reversing the Division's order. The judgment of the district court is affirmed.

1' Y JusticeWe concur:



## .................................... Chief Justice