No. 12967 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

DOROTHY McQUISTON, 

Claimant and Respondent, 

HALE HUBBARD AND GLACIER GENERAL ASSURANCE 

COMPANY, Employer, 

Defendant and Appellant, 

DIVISION OF WORKMEN'S COMPENSATION 

Claim No. 59B-10128 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record : 

For Appellant : 

Brown and Gilbert, Bozeman, Montana 

William E. Gilbert argued, Bozeman, Montana 

For Respondent : 

Berg, Angel, Andriolo and Morgan, Bozeman, Montana 

Richard Andriolo argued, Bozeman, Montana 

Submitted: June 13, 1975 

Decided : ; 7 
Mr. 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 Compensation Division 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 employee of the Hubbards. 

She claims that on or about August 1, 1973, she slipped on a wet 

floor at the restaurant and 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 assistant manager of the cafe in their absence. They explained to the 

employees that Hovland would be the assistant manager 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, she was 

working and while going into the cafe's kitchen, she slipped on some 

water which had leaked onto the floor from a dishwashing machine. 

She did 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. 

She did not know the cause of the pain, but attributed it to the 

rushing around she did at work. She never reported the matter to 

Mr. Hovland, the assistant manager. 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's 
hearing, established that the last day claimant worked prior 

to taking her vacation was 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, (verified by the airline ticket admitted at the 

district court hearing) and to the best of her recollection never 

went into the cafe until late August or early September, because 

she was recuperating from her operation. Mrs. Hubbard did remember a conversation with claimant, but testified "I am really 

sorry to say this but she [claimant] did not ever report to me of 

an injury." 

The record indicates claimant worked a normal schedule at 

Bair's Cafe from August 16 until August 30, 1973, at which time she 

quit due to a personal matter not involving work or the alleged 

accident. She then worked 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, Dorothy McQuiston filed a claim for compensation with the Industrial Accident Board alleging an injury 

occurring on August 1, 1973, while employed by Hale Hubbard at Bair's 

Cafe, Bozeman, Montana. Answer was filed by the employer and defendant insurance carrier denying all material allegations of the claim, 

and affirmatively alleging 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 his managing agent or superintendent in charge, had actual knowledge of the alleged accident and injury and, in fact, had 
no knowledge thereof until notified of claimant's claim for compensation on April 29, 1974. 

Pursuant to stipulation of 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 law were adopted by the 

Division and its order awarding compensation was entered. The 

findings, conclusions, and order contained provisions determining 

disability and awarding compensation. 

A timely application for rehearing on all issues was filed 

by the employer. On October 7, 1974, an order granting a limited 

rehearing on the questions of disability and compensation was entered by the Division. A notice of appeal was 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 stipulation of counsel, this matter 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 evidence was 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 compensation by 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 issue presented to this Court for review is-- 

Did the district court abuse its discretion in reversing the decision of the Division without taking additional testimony? 

In Hurlbut v. Volstead Kerr Co., Mont. -I - P.2d 

, 32 St.Rep. 752, 755, this Court said: 

"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 * * *. 

"This presumption can be overcome however. Section 

92-834, R.C.M. 1947, provides that on appeal from 

the Division the district court has 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 court may 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 establish by a preponderance 

of the evidence that the injury resulted (a) from an 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., 95 Mont. 347, 26 P.2d 973. To 

prevail under the foregoing rule, it is necessary 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 evidence presented 
as to the occurrence of an accident, was that of claimant. The 

dishwasher who allegedly witnessed the slip was never identified, 

was not called to testify, and no reason was ever proferred why 

he could not be produced to testify. No testimony was taken 

from any of the doctors who treated claimant. There was no medical testimony which could relate the type of surgery performed 

by the doctors on claimant (removal of 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 a much 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 time was 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 60 days, unless the employer or his managing 

agent or superintendent has actual knowledge. 

From a complete review of the record and the law, we must 

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 Justice 
We concur: 

.................................... 

Chief Justice