McANDREWS v SCHWARTZ v GLACIER GE

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No. 12603 I N T E SUPREME COURT OF THE STATE OF M N A A H OTN 1974 PATRICIA I. McANDREWS, Claimant and Respondent, -vs - JOSEPH, EDGER, SYBILA & C R L SCHWARTZ, AO Employer and A p p e l l a n t s , GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant. Appeal from: D i s t r i c t Court o f t h e Third J u d i c i a l D i s t r i c t , Honorable Robert Boyd, Judge p r e s i d i n g . Counsel of Record: For A p p e l l a n t s : Norman C. Robb argued, Missoula, Montana For Respondent : Scanlon, B r o l i n and Connors, Anaconda, Montana Jack M. Scanlon argued, Anaconda, Montana Submitted: Decided : F i l e d : JUL 1 0 1974 A p r i l 25, 1974 JOL 1 0 1974 M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court. T h i s i s a workmen's compensation a c t i o n a r i s i n g o u t of an a c c i d e n t s u f f e r e d by c l a i m a n t P a t r i c i a I. McAndrews on June 25, 1970 w h i l e employed a s a s a l e s c l e r k o r checker by Schwartz Department S t o r e i n Anaconda, Montana. A t c l o s i n g time on June 25, 1970 she was looking f o r a p a i r of s l i p p e r s f o r a customer. She had t o go up a l a d d e r t o f i n d t h e s l i p p e r s , and was a s t e p o r two up t h e l a d d e r when she s l i p p e d and f e l l , o r t h e l a d d e r s l i p p e d from under h e r . She s t r u c k h e r r i g h t r i b s on t h e l a d d e r when she f e l l and h e r l e f t shoulder h i t t h e f l o o r . O t h e d a t e of t h e i n j u r y c l a i m a n t was p a i d $2.02 p e r hour n and s h e worked 8 hours p e r day, 5 days a week. She was married b u t had no dependent c h i l d r e n . As t h e a c c i d e n t o c c u r r e d a t c l o s i n g time c l a i m a n t went home and wrapped a towel around h e r r i b s . She worked a l l t h e f o l l o w i n g day June 2 6 t h , b u t t h a t n i g h t h e r r i b s h u r t s o she c a l l e d D r . Donald Good. The d o c t o r saw h e r a t t h e h o s p i t a l emergency room on t h e evening of June 26. g i v e n a r i b c o r s e t t o wear. Her r i b s were X-rayed and s h e was A t t h a t time h e r only complaint of i n j u r y was h e r r i b s . Claimant McAndrews f i l e d a c l a i m f o r compensation w i t h t h e workmen's Compensation D i v i s i o n , h e r e i n a f t e r c a l l e d t h e D i v i s i o n . G l a c i e r General Assurance Company was t h e workmen's compensation c a r r i e r f o r Schwartz. G l a c i e r accepted t h e claim and p a i d McAndrews temporary t o t a l compensation b e n e f i t s a t h e r l a w f u l r a t e s i n t h e amount of $2,609 f o r t h e p e r i o d from June 26, 1970 through October 7 , 1971, a p e r i o d of 67 weeks. Glacier a l s o paid doctor, h o s p i t a l and medical expenses f o r c l a i m a n t i n t h e sum of $4,934.90. I n t h e s p r i n g of 1971 McAndrews s u f f e r e d a n o t h e r a c c i d e n t , which was a n o n i n d u s t r i a l a c c i d e n t , when she f e l l i n t h e p a r k i n g l o t a t h e r apartment. On October 27, 1971, claimant was found to have a condition known as arteriosclerosis obliterans of her right common femoral artery. On December 1, 1971, Dr. J.R. Sims performed a surgical procedure known as an endarterctom and sympathectomy to relieve the arteriosclerosis obliterans in the femoral artery. was performed at St. Peter's Hospital in Helena. The operation The medical ex- pense for Dr. Sims' care and the operation amounted to $4,448.55. On April 5, 1972, a hearing was held before a Division hearing officer to determine (1) the nature and extent of the injuries sustained by claimant in the June 25, 1970 industrial accident, (2) the date the healing period ended for the injuries she sustained in that accident, (3) the nature and extent of the impairment or disability, if any, suffered by her in that accident, ( ) whether claimant was entitled to any further compensation and, 4 if so, the mount and extent thereof, and (5) whether there were any unpaid medical expenses connected with the injuries she sustained on June 25, 1970. McAndrews and Dr. Donald Good, her attending physician for the injures she received in the June 25 accident, testified at the hearing. The ~ivision'shearing officer made and entered his findings of fact and conclusions of law on September 18, 1972. The Division then entered an order dated September 26, 1972 awarding compensation, and adopting the hearing officer's findings and conclusions which in effect found that: (1) the injuries sustained by PlcAndrews in the June 25, 197Q accident were a fracture to her right ninth rib and some possible low back injury; (2) the healing period for her industrial accident injuries ended in October 1971; as a result of her low back injury McAndrews had an impairment of 5% to 10% of the 4 body as a whole; ( ) in addition to the compensation previously paid to her for and during the period from June 26, 13?0 through October 7, 1971, McAndrews was entitled to a further award of 75 weeks of compensation at the rate of $37 per week to be paid as follows: that 50 weeks for the period of October 8 , 1971 through September 21, 1972 be paid i n a lump sum of $1,850 and bfcAndrews be r e t a i n e d on compensation f o r t h e remaining 25 weeks based on a showing of l o s s of e a r n i n g c a p a c i t y ; (5) t h e c o n d i t i o n of a r t e r i o s c l e r o s i s o b l i t e r a n s was n o t proximately caused by t h e June 2 5 , 1970 a c c i d e n t and h e r r i g h t l e g problem r e s u l t i n g therefrom was n o t a proximate r e s u l t of t h e a c c i d e n t ; and (5) G l a c i e r was n o t r e s p o n s i b l e f o r t h e d o c t o r , h o s p i t a l and medical expenses i n c u r r e d by McAndrews f o r treatment of t h e a r t e r i o s c l e r o s i s o b l i t e r a n s . McAndrews requested a r e h e a r i n g b e f o r e t h e D i v i s i o n and was denied. She then appealed t o t h e d i s t r i c t c o u r t where a h e a r i n g o r t r i a l was h e l d on March 1 6 , 1973. testified. McAndrews and D r . J . R . Sims O June 19, 1973, t h e d i s t r i c t c o u r t e n t e r e d f i n d i n g s n of f a c t and c o n c l u s i o n s of law which r e v e r s e d t h e f i n d i n g s , conclus i o n s and o r d e r of t h e Division. It concluded: (1) t h a t t h e condi- t i o n of a r t e r i o s c l e r o s i s o b l i t e r a n s and c l a i m a n t ' s r i g h t l e g problems r e s u l t i n g therefrom were proximately caused by t h e June 25, 1970 a c c i d e n t ; (2) t h a t h e r h e a l i n g period ended on tiarch 21, 1972, r a t h e r than i n October 1971; (3) awarded h e r compensation i n t h e amount of $888 f o r t h e p e r i o d of October 7, 1971 through March 21, 1972; (4) t h a t claimant had a 20% impairment r a t h e r than a 5% t o 10% impairment a s found by t h e D i v i s i o n ; (5) awarded McAndrews a f u r t h e r award of 100 weeks of compensation a t $37 per week, payable i n a lump sum of $3,700; and (6) ordered G l a c i e r t o pay t h e medical b i l l s and expenses i n c u r r e d by NcAndrews because of t h e a r t e r i o s c l e r osis obliterans. Judgment was e n t e r e d a c c o r d i n g l y on June 21, 1973. G l a c i e r and Schwartz f i l e d motions r e q u e s t i n g t h e c o u r t t o amend i t s f i n d i n g s of f a c t and conclusions o r i n t h e a l t e r n a t i v e t o g r a n t them a new t r i a l . J u l y 11, 1973. The c o u r t denied both motions by o r d e r dated Schwartz and G l a c i e r appeal from t h e judgment and o r d e r denying t h e i r motions. G l a c i e r has p a i d McAndrews t h e $1,850 lump sum compensation award ordered by t h e D i v i s i o n i n i t s September 26, 1972 o r d e r awarding compensation. Other more d e t a i l e d f a c t s p e r t i n e n t t o t h e c a s e a l s o a p p e a r : Dr. Good c o n t i n u e d t o c a r e f o r and t r e a t McAndrews. In a d d i t i o n t o t h e June 26, 1970 examination a t t h e h o s p i t a l emergency room, he saw, examined and t r e a t e d h e r on June 29, J u l y 3 , 7 , 27, 29, 30 and 31 of 1970. A t a l l of t h e s e v i s i t s and examinations Mc- Andrews' o n l y complaints and symptoms were t h a t she had p a i n i n t h e r i g h t r i b cage and t h e d o c t o r t r e a t e d h e r f o r t h a t . D r . Good t e s t i f i e d he took a medical h i s t o r y from >lcAndrews on June 29, 1970 and he took n o t e s and k e p t r e c o r d s of h e r complaints and symptoms on each time he s u b s e q u e n t l y saw h e r . He t e s t i f i e d t h a t d u r i n g t h e p e r i o d from June 26, 1970 through August 27, 1970 McAndrews d i d n o t complain t o him of any i n j u r y t o , p a i n i n , o r d i f f i c u l t y w i t h h e r r i g h t l e g o r low back. He t e s t i f i e d h e r symptoms and complaints of p a i n were t h o s e which people w i t h a f r a c t u r e d r i b u s u a l l y have. He f u r t h e r t e s t i f i e d t h a t a t an o f f i c e v i s i t on August 28, 1970, McAndrews f o r t h e f i r s t time complained of p a i n and weakness i n h e r r i g h t l e g and low back. On t h a t d a t e he examined h e r r i g h t l e g and back and found h e r complaints symtomatic of a s a c r o i l i a c s t r a i n o r a possible herniated disc. O August 28, 1970, D r . Good a l s o n checked f o r and found a normal p u l s e i n h e r r i g h t l e g . He thought a t t h a t time t h a t a myelogram should perhaps be performed t o check o u t t h e p o s s i b i l i t y of a h e r n i a t e d d i s c , b u t he f i r s t wanted t o t r e a t h e r back and r i g h t l e g complaints c o n s e r v a t i v e l y w i t h t r a c t i o n , drugs, physical therapy, e t c . He p u t h e r i n t h e Community H o s p i t a l i n Anaconda f o r t h e p e r i o d of September 3 t o September 24, 1970 f o r a c o u r s e of t r a c t i o n on h e r r i g h t l e g . The t r a c t i o n was b e n e f i c i a l b u t due t o an a l l e r g y McAndrews had d i f f i c u l t y w i t h t h e t r a c t i o n . Dr. Good c o n t i n u e d t o s e e h e r and on September 29, 1970 she was s t i l l complaining of p a i n i n h e r r i g h t l e g and back s o he put h e r i n a lumbo-sacral b e l t . O October 15, 1970 D r . Good put McAndrews n back i n t h e h o s p i t a l f o r pneumonia and p l e u r i s y which were n o t r e l a t e d t o o r caused by t h e June 25, 1970 a c c i d e n t . She remained i n t h e h o s p i t a l u n t i l October 22, 1970 and w h i l e t h e r e s h e had p e r i o d i c c o m p l a i n t s of low back and l e g p a i n s o D r . Good t r e a t e d t h e s e comp l a i n t s by g i v i n g h e r benemide and physiotherapy. McAndrews c o n t i n u e d t o complain of low back and r i g h t l e g p a i n so on Novernber 1 8 , 1970 D r . Good a g a i n put h e r i n t h e h o s p i t a l f o r 10 days f o r a c o u r s e of p e l v i c t r a c t i o n t o t r e a t t h e s a c r o i l i a c strain. On January 29, 1971 D r . Good a g a i n examined ~ c ~ n d r e w s e g l' and back and a t t h a t time decided she should have a myelogram t o check o u t t h e p o s s i b i l i t y of a h e r n i a t e d d i s c . Dr. Good s e n t h e r t o D r . John Davidson, an o r t h o p e d i c s p e c i a l i s t i n B u t t e , f o r t h e myelogram. D r . Davidson put c l a i m a n t i n a B u t t e h o s p i t a l f o r 8 days from February 2 t o February 1 0 , 1971, d u r i n g which time a myelogram was performed and s h e had a c o u r s e of p h y s i c a l t h e r a p y . The myelogram was n e g a t i v e i n t h a t i t showed s h e had an e n t i r e l y normal s p i n a l c a n a l . She improved a g r e a t d e a l w i t h t h e p h y s i c a l therapy. Although t h e myelogram was n e g a t i v e , D r . Good made arrangements f o r McAndrews t o be examined by D r . Alexander Johnson, a neurosurgeon i n Great F a l l s , t o double check on t h e p o s s i b i l i t y of a h e r n i a t e d d i s c and t o determine whether h i s d i a g n o s i s of a s a c r o i l i a c s t r a i n a s t h e c a u s e of h e r low back and r i g h t l e g complaints was c o r r e c t . D r . Johnson examined McAndrews on A p r i l 1 5 , 1971 and concluded t h a t s h e had: (1) a s a c r o i l i a c j o i n t d i s e a s e , p o s s i b l y of a rheumatoid n a t u r e , and ( 2 ) a t y p i c a l r a d i c u l a r symptoms, which he f e l t might p o s s i b l y be from a h e r n i a t e d d i s c i n t h e lumbar s p i n e . D r . Johnson wanted t o know what t h e c e r e b r o s p i n a l f l u i d p r o t e i n from t h e myelograrn p e r formed by D r . Davidson d i s c l o s e d b e f o r e he made a d e c i s i o n a s t o any s u r g i c a l e x p l o r a t i o n . D r . Good t h e n s e n t NcAndrews t o B u t t e where a D r . P a t t e r s o n had a s p i n a l t a p performed t o g e t t h e c e r e b r o s p i n a l f l u i d p r o t e i n r e q u e s t e d by D r . Johnson. D r . Johnson r e - c e i v e d t h e r e s u l t s of t h e s p i n a l t a p and a g a i n examined McAndrews i n September 1971. Based on t h e r e s u l t s of t h e s p i n a l t a p and h i s second examination D r . Johnson r u l e d o u t a h e r n i a t e d d i s c and diagnosed t h e c a u s e of h e r low back and r i g h t l e g problems a s a s a c r o i l i a c j o i n t d i s e a s e , maximal r i g h t , and recommended t r e a t m e n t f o r i t by t h e use of s t e r o i d s , muscle r e l a x a n t s and h e a t . D r . Good t e s t i f i e d h i s d i a g n o s i s of t h e i n j u r i e s s u s t a i n e d by ElcAndrews a s a r e s u l t of t h e June 25, 1970 a c c i d e n t were (1) a f r a c t u r e of t h e n i n t h r i g h t r i b on t h e r i g h t s i d e and (2) a sacroiliac strain. T h i s was confirmed by D r . Johnson and D r . Davidson. D r . Good t e s t i f i e d t h e h e a l i n g p e r i o d f o r t h e f r a c t u r e d r i b ended s i x weeks a f t e r t h e a c c i d e n t and t h a t maximum h e a l i n g of t h e s a c r o i l i a c s t r a i n was reached i n October 1971. He a l s o t e s t i f i e d t h a t i n h i s o p i n i o n McAndrews had had no impairment from t h e f r a c t u r e d r i b and t h a t she may have 5% t o 10% impairment from t h e sacroiliac strain. G l a c i e r paid McAndrews temporary t o t a l compensation b e n e 7 i t s d u r i n g t h e e n t i r e p e r i o d from June 26, 1970 through October 7 , 1971 w h i l e she was undergoing t h e e x t e n s i v e c a r e and t r e a t m e n t o u t l i n e d above f o r f r a c t u r e d r i b and t h e low back and r i g h t l e g p a i n from the sacroiliac strain. T h i s was a p e r i o d of 57 weeks. The f i r s t 26 weeks were p a i d a t $42 per week and t h e remainder of 4 1 weeks were p a i d a t $37 p e r week a s provided by s e c t i o n 92-701, R.C.M. a s t h a t s t a t u t e r e a d on t h e d a t e of t h e a c c i d e n t . 1947, Glacier terminated compensation payments a s of October 7 , 1971, because t h e h e a l i n g p e r i o d had ended and s h e had been e v a l u a t e d and r a t e d f o r impairment. The D i v i s i o n and Mrs. 14cAndrews were s o a d v i s e d by G l a c i e r . G l a c i e r a l s o p a i d t h e d o c t o r , h o s p i t a l and medical expenses d u r i n g t h i s p e r i o d of time which amounted t o $4,934. X i t h r e s p e c t t o t h e n o n i n d u s t r i a l a c c i d e n t s u s t a i n e d by McAndrews i n t h e s p r i n g of 1971, t h e r e was c o n f l i c t i n g testimony. A t t h e h e a r i n g b e f o r e t h e D i v i s i o n , McAndrews twice s t a t e d t h a t s h e never had any i n j u r i e s n o r had s h e been involved i n any a c c i d e n t s e i t h e r p r i o r o r subsequent t o t h e June 25, 1970 a c c i d e n t . L a t e r s h e a d m i t t e d she had s u f f e r e d an i n d u s t r i a l a c c i d e n t i n 1966 when she f e l l a t Schwartz Department S t o r e and i n j u r e d h e r r i g h t h i p . F i n a l l y , s h e a d m i t t e d she had f a l l e n i n t h e parking l o t i n 1971, b u t gave s e v e r a l d i f f e r e n t v e r s i o n s of t h i s subsequent a c c i d e n t . McAndrews t o l d D r . Good about t h i s second a c c i d e n t b u t s h e d i d n o t t e l l Dr. Sims about i t . On October 27, 1971, Dr. Sims examined XcAndrews and found her to be suffering from arteriosclerosis obliterans of the right common or femoral artery. to relieve that condition. On December 1, 1971, he performed surgery Arteriosclerosis is hardening of the It is an aging process and all people have it to some arteries. degree. It progresses as people grow older. It is an extremely common disease and some people have it to a greater degree than others. Obliterans is a blockage or clot in a blood vessel. Dr. Sims said that during the surgery he found and removed a fresh blood clot and found evidence of an old clot. He testified that the fresh clot was only of several days duration and much too recent to be in any way related to the accident of June 25, 1970. As to the old clot, he said there perhaps was a relationship between it and the June 25, 1970 accident. Dr. Sims further testified he took a medical history from McAndrews when he first saw her on October 27, 1971, and the only accident or trauma she told him about was the June 25, 1970 accident. She did not tell him about her second accident in Nay or June 1971 when she fell down in the parking lot. Dr. Sims there- fore was unaware of the second accident when he said that the arteriosclerosis obliterans might be attributable to the first. Dr. Sims also testified he did not know other doctors had examined McAndrews for arteriosclerosis obliterans and had found no evidence of an obs~ructionor clot before he saw her on October 27, 1971, because she had not told him about that. In short, Dr. Sims had no way of knowing whether the June 25, 1970 accident or the parking lot accident of 1971 caused the clot, or whether in fact either accident caused anything. In regard to the arteriosclerosis obliterans, Dr.Good testified that he never found any symptoms or complaints that indicated McAndrews had that condition; that such a condition is not caused by trauma; and that the June 25, 1970 fall from the ladder neither caused nor aggravated any condition of arteriosclerosis obliterans. The main issue presented for review is whether the accident McAndrews suffered on June 25, 1970 while employed by Schwartz Department Store, was an industrial accident which proximately caused an injury as defined by section 92-418, R.C.14. ~cAndrews'right leg. 1947, to The Division found, concluded and ordered that the arteriosclerosis obliterans and McAndrewsl right leg problems were not proximately caused by the June 25, 1970 accident. On appeal the district court reversed the Division and held that the arteriosclerosis obliterans was a result of the accident, increased the percentage of permanent impairment, awarded her compensation therefor and ordered Glacier to pay medical expenses she incurred for that condition. Glacier and Schwartz contend the evidence is not sufficient to support the findings, conclusions and judgment of the district court. This Court has the entire record before it and finds that the only injuries suffered by McAndrews in the accident of June 25, 1970, were a fractured rib and a sacroiliac strain. The Division so found and awarded compensation and medical benefits for those injuries. It also found and ordered that the arteriosclerosis obliterans with its problem in her right leg was not a proximate result of the accident. Appellants Schwartz and The evidence Glacier accepted the ~ivision'sdecision and award. introduced before the district court consisted of an instant replay of McAndrewsl testimony before the Division, which added nothing new to the case, and Dr. Sims' oral testimony. The evidence before the district court did not preponderate against the ~ivision's findings, conclusions, and decision nor was it sufficient to justify the court's action in finding the arteriosclerosis obliterans was proximately caused by the June 25, 1970 accident. For this reason we have outlined the evidence in such great detail. On June 25, 1970, section 92-418, R.C.M. industrial injury as: 1947, defined an 11 I injuryi or I injured' means 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." (Emphasis supplied). Both Dr. Good and Dr. Sims said arteriosclerosis is hardening of the arteries; that it is an aging process; that it is an extremely common disease and most people have it to some degree; and, that it progresses as a person grows older. Both doctors said they were not surprised to find it in McAndrews, who was 63 at the time of the June 25, 1970 accident and that her arteriosclerosis predated that accident. Regarding the obliterans, Dr. Sims testified the old blood clot also predated that accident and the new clot was much too recent to be connected with it. To make the arteriosclerosis obliterans a compensable injury, claimant has the burden of proving by a preponderance of the evidence that the condition was proximately caused by a tangible happening of a traumatic nature from an unexpected cause resulting in internal physical harm and that such physical condition was a result therefrom. IicAndrews simply failed to prove such an injury. This Court has previously held that where a claimant's dis- ability is the result of a "disease not traceable to injury" it is not a compensable "injury" within the meaning of section 92-418, R.C.M. 1947. LaForest v. Safeway Stores, Inc., 147 Mont. 431, 437, 414 P.2d 200. Clearly ~cAndrews'arteriosclerosis obliterans is a result of a disease not traceable to the June 25, 1970 accident and therefore is not a compensable injury. The distirct court erred in finding and concluding that the arteriosclerosis obliterans related to the June 25, 1970 accident and in awarding her compensation and medical benefits for it. Since we have so found, it is unnecessary to consider the issue of probable cause. This case came to the district court with every presumption that the Division had decided it correctly. The district court was not justified in reversing the findings of the Division unless the evidence clearly preponderated against such findings. Rush Implement Co., 148 Mont. 13, 417 P.2d 95. Stordahl v. I f t h e r e i s s u f f i c i e n t evidence t o s u s t a i n t h e ~ i v i s i o n ' s f i n d i n g s , t h e d i s t r i c t c o u r t on a p p e a l must a f f i r m t h o s e f i n d i n g s . M i l l e r v. Townsend Lumber Co., 152 Mont. 210, 448 P.2d 148; Jones v. air's Cafes, 152 Mont. 1 3 , 445 P.2d 923. When t h e d i s t r i c t c o u r t p e r m i t s a d d i t i o n a l evidence t o be i n t r o d u c e d on a p p e a l from t h e D i v i s i o n ' s d e c i s i o n and t h e a d d i t i o n a l evidence i s n o t important o r adds n o t h i n g new t o t h e c a s e , t h e n t h e c o u r t i s bound by t h e same r u l e of a p p e a l which a p p l i e s where t h e a p p e a l i s heard only on t h e ~ i v i s i o n ' sr e c o r d . Const. Co., 106 Mont. 463, 78 P.2d 1078. Kelly v. West Coast The a d d i t i o n a l evidence p e r m i t t e d by t h e d i s t r i c t c o u r t was n e i t h e r important n o r added a n y t h i n g new t o t h e c a s e . A p p e l l a n t s were e n t i t l e d t o t h e presump- t i o n t h e D i v i s i o n decided t h e c a s e c o r r e c t l y . The d i s t r i c t c o u r t e r r e d i n f a i l i n g t o a f f i r m t h e D i v i s i o n ' s f i n d i n g s and d e c i s i o n . W a r e aware of t h e r u l e t h a t i f t h e d i s t r i c t c o u r t p e r m i t s e a d d i t i o n a l evidence t o be i n t r o d u c e d which was n o t p r e s e n t e d t o t h e D i v i s i o n , t h e c a s e goes t o t h i s Court w i t h t h e presumption t h e d i s t r i c t c o u r t decided i t c o r r e c t l y . Board, 93 >iont. 1, 16 P.2d 795. 3lurphy v. I n d u s t r i a l Accident This presumption i s n o t a p p l i c a b l e i n t h e i n s t a n t c a s e because of t h e i n s u f f i c i e n c y of t h e a d d i t i o n a l evidence. I t i s t h e d u t y of t h i s Court t o determine whether t h e d i s t r i c t c o u r t ' s d e c i s i o n i s supported by s u b s t a n t i a l c r e d i b l e evidence. - I f , a f t e r e s a n i n i n g a l l of t h e evidence b e f o r e t h e D i v i s i o n and t h e a d d i t i o n a l evidence i n t r o d u c e d b e f o r e t h e d i s t r i c t c o u r t , i t does n o t appear t h e evidence c l e a r l y p r e p o n d e r a t e s a g a i n s t t h e f i n d i n g s of t h e D i v i s i o n , t h e judgment of t h e d i s t r i c t c o u r t i n r e v e r s i n g t h e o r d e r of t h e D i v i s i o n must i n t u r n be r e v e r s e d by t h i s Court. S t o r d a h l v. Rush Implement Co., s u p r a . The d i s t r i c t c o u r t e r r o n e o u s l y o r d e r e d G l a c i e r t o pay t h e medical expenses McAndrews i n c u r r e d i n t h e sum of $4,949.72 t r e a t m e n t of t h e a r t e r i o s c l e r o s i s o b l i t e r a n s . for Glacier i s not o b l i g a t e d t o pay t h e s e medical b i l l s f o r two r e a s o n s : (1) t h e condi- t i o n was n o t t h e r e s u l t of an i n d u s t r i a l a c c i d e n t , and (2) t h e a c c i d e n t occurred i n 1970 and medical expenses under s e c t i o n 92-706, R.C.M. 1947, a t t h a t time, were l i m i t e d t o $5,000 and G l a c i e r had a l r e a d y paid $4,934.90 i n medical b i l l s f o r t h e f r a c t u r e d r i b and s a c r o i l i a c s t r a i n a s shown by t h e D i v i s i o n ' s f i l e s . The D i v i s i o n had n o t ordered payment of b i l l s i n excess of $5,000 and t h e d i s t r i c t c o u r t had no a u t h o r i t y t o do so i n any event. The f i n d i n g s , c o n c l u s i o n s and judgment of t h e d i s t r i c t c o u r t a r e s e t a s i d e and r e v e r s e d . i s affirmed. Costs t o a p p e l l a n t s b e f o r e t h i s Court and t h e d i s t r i c t court. W Concur: e ............................... Chief J u s t i c e ............................... Justices. The ~ i v i s i o n ' so r d e r of September 26, 1972 Nr. Justice Haswell and Mr. Justice Daly specially concurring: We concur in the result reached by the majority for a different reason. In our view the arteriosclerosis obliterans was not proven by a preponderance of the evidence to have been proximately caused by claimant's June 25, 1970 industrial accident.

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