*1 79 MOEN, Respondent, v. DECKER VIOLETTE Claimant CO., Employer, MUTUAL LIABILI- EMPLOYERS COAL Ap- WISCONSIN, CO., TY OF INSURANCE Defendant pellant. No. Sept. 1979. Submitted Decided Dec. 1979.

Rehearing Denied Jan. Hanson, Dietrich, & L. Ran- Haughey, Billings, Toole Crowley, dall for defendant and Bishop, argued, Billings, appellant. Falls, Lewis, for claimant Great Hoyt, argued, & C.

Hoyt John and respondent. of the Court. the opinion delivered

MR. HASWELL JUSTICE *2 Wisconsin, Mutual Insurance Employers Liability Company the insurance carriers for the Decker Coal employer, Company, ap- from a of the Workers’ peals judgment Compensation Moen, on entered behalf of Violette the claimant for benefits due to the Montana Workers’ Act. pursuant Moen, claimant, Mike decedent and husband of the was Decker, as an oiler Decker Coal at employed Mon- Company tana. On November the decedent was Saturday, working overtime steam various cleaning This pieces heavy equipment. was a not task which was of his usual part job. Superintendent, had the Delmar decedent steam a row of Bradway cleaning equip- noon, ment After during morning. remaining only left at the site were and the decedent. employees Bradway testified that he and the decedent the steam operated Bradway on had been cleaner in the afternoon the same which equipment to the batteries. cleaned that in order clean morning Although with the Decker Coal contains provi- union agreement Company from the tasks of the doing sions prohibiting supervisory personnel members, testified that he rank and file Bradway operated on decedent drove an old Ford F600 truck steam cleaner while the was mounted. When finished the they job, which the steam cleaner and stor- the cleaner draining the decedent was task assigned terminated about 3:30 p.m. Bradway the hoses. The work ing day truck and that the decedent drove in his pickup also testified away not or ill effects from working day. did any injury report the owner of with McCarthy, The decedent visited briefly James Decker, Montana, sometime store and office in the grocery post to same but did not indicate 3:50 and 4:50 day between later the decedent minutes ailments. About twenty McCarthy any to drive and asked came to premises McCarthy again McCarthy’s Sheridan, miles away. McCarthy to some 35 him Wyoming, to him take looked pale promised that the decedent testified his basement. pump as he finished repairing soon to but drove himself not wait decedent did apparently The was admitted at approx- where he in Sheridan Hospital Memorial a history admission the decedent related 6:00 p.m. Upon imately Williams, of having Dr. William attending physician, into the of left chest pain pain radiating onset anterior abrupt same The p.m., day. arm at 2:00 approximately left ten within that the went its peak intensity further indicated at he himself presented minutes and then continued until to fifteen and findings electrocardiogram performed An hospital. infarction. consistent with an acute anterior myocardial decedent was a monitor and treated with medication put a.m., until 1975 when his heart 2:57 and after several electric shock rhythm changed (arrhythmia) medication, treatments and the decedent died a.m. cause of death was stated as an anterior *3 infarction with cardiac arrest. No was per- autopsy was 63 formed. The decedent of years age. was the decedent’s widow on claim for filed

A compensation by 27, on the was 1976. The claim denied by appellant September that was not related to his employ- Moen’s death grounds causally a the Workers’ hearing Compensa- ment. A before petition seeking 25, 31, and January was filed on amended August tion Court 1, 1977, April conferences were held September 1978. Pretrial 13, 6, the matter and several postponements, 1978. After July 2, briefs August Following hearings, was heard 1978. 1979, decision January filed both On parties. law of of fact conclusions findings court rendered related his death was employment Moen’s finding causally for benefits. liable claimant holding appellant on this are whether two issues presented appeal 39-71-119, section a as defined by compensable “injury” suffered MCA, so in the and if whether such arose injury “[out and] 39-71-407, of section of his within the scope course employment” case and We find that the first issue is MCA? dispositive reasoning. reverse based upon following 39-71-119, MCA, states in part: Section pertinent or or means: ‘Injury’ ‘injured’ “Injury injured defined. “(1) of a nature from an unex- a traumatic tangible happening or inter- cause or unusual strain in either external resulting pected nal harm ...” physical be met: which must two in the statute are elements

There nature, of a traumatic “(1)” be a tangible happening there must (To harm.” “(2) shown to be the cause physical this must be (1979), Mont. 598 worker.) Const. Co. v. Wickens Bros Dumont 1471, 1482; 1099, 1108, Vollstedt Kerr Hurlbut v. 36 St.Rep. P.2d (1975), 538 P.2d 344. 167 Mont. Co formula, this Court of the injury the first element In explaining stated: has be a perceptible happening, must

“A tangible happening or action in Some Dictionary. Webster’s Third New International incidents, cident, shown which may or must be or chain of actions This resulting cause of contributing be perceived real but a tangible, hap neuroses has found compensable, v. Betchel the condition.’’Stamitis be the cause of must pening 403, 406, Mont, (1979), 36 St.Rep. 601 P.2d Power Corp. (1976), 1870; 169 Mont. Western Sugar Company Erhart v. Great element, the death must still be pro the causal Regarding of a traumatic nature. of a tangible happening to be the result ven of proving by preponderance bears the burden claimant of a traumatic nature prox the evidence that tangible happening harm, McAndrews v. caused Schwartz physical imately *4 1384, 1379, 402, 412, 523 must show more P.2d 164 Mont. harm. caused the that the mere happening than the possibility 1058; 380, v. Rush Im Erhart, at 546 P.2d at Stordahl 169 Mont. the evidence (1966), 417 P.2d 95. If 148 Mont. Co. plement work, rather suffered a heart attack while at indicates worker work, no occured under the statute. Ness than a result injury as 560, 564-65, (1964), 143 Mont. v. Diamond Company Asphalt 43, 45-46. P2d this bifurcated test the record in the

Applying present that the not case demonstrates are satisfied. statutory requirements no there is of a traumatic nature. The on tangible Here happening to the this is a nota evidence satisfaction of ly going requirement on the records of the room that the tion medical hospital indicating decedent’s occurred at intensity peak 1, 1975. Alone this evidence is insuf Saturday, ficient. asserts as evidence which remaining respondent supportive claim to the collateral matter of aggravation

of valid goes decedent’s condition and are not solid links chain forming Erhart, events this Court in required by supra. that the of the decedent lessened his

Dr. Fletcher continued activity to a are chance of survival well as the lack of proximity hospital factors which have in- aggravated may underlying farction but do not the chain of events. they complete

Claimant that several argues New cases are Jersey point the current case and that the courts there found the existence of a However, what compensable claimant fails is recognize of the unusual-exertion in New displacement requirement “[t]he causal test. . .” Jersey by essentially Larson’s Workmen’s Com- 38.64(b) Law pensation 7-185. Claimant’s argument § Montana’s that a disregards strain must independent requirement result from “a of a tangible traumatic nature” in order happening to be compensable. strain,

“Not must claimant show an unusual but that the only strain must result from a of a traumatic nature. tangible happening Store, In Love v. Food 163 Mont. Ralph’s [Citations omitted.] (1968), 516 P.2d we stated that Bair’s [v. Jones Cafe 923;] Mont. 445 P.2d and Robins 157 Mont. Ogle [v. See, also, 692,] made this rule clear. the earlier *5 84 415, Co., 143 Mont. v. Record Publishing

cases: Montana Lupien 466, 455; Co., 401 Mont. 390 v. Lumber P.2d V.K.V. [145 James Inc., Recreation, 282], Mont. v. 151 P.2d Miller Sundance supra; 223, Wickens Bros Const. Co. 441 P.2d 194.” Dumont v. Erhart, Mont., citing 1483 St.Rep. at 1058. P.3d here: we reaffirm as applicable As we stated in Dumont and her husband’s death was the result must still that “Claimant prove nature,’ a which totally traumatic she of “tangible happening Dumont, do.” supra. failed to

Moreover, the fail to causation satisfy factors these completely is evidence any The record devoid element of formula. meaning of work within attack occurred result the heart Ness, supra. within the of section no injury purview

Since this Court finds MCA, 39-71-119, a com- decedent did not sustain we hold that the pensable

Reversed. HARRISON, AND concur. MR. SHEA JUSTICES dissenting: MR. SHEEHY JUSTICE situation, not head on the basic fact does meet majority which the Workers’ established the claimant on by Compensation Court found favor of claimant. Court include

The facts as found Workers’ by these: for work reveals that the decedent reported

“That the task and was assigned a.m. Saturday, about 8:00 heavy and transmissions certain engines of steam cleaning His for which duties operated regular employer. equipment was de- an oiler. The decedent were those of he was employed of steam cleaning and worker. That the job scribed as oiler good as an oiler. job was different from as an was described unpleasant, task of steam cleaning “That the from around the steam hoses one to required drag which job dirty wore rain gear The steam cleaner of a machine to another. one part That job from wet getting dirty. for protection goggles of an oiler. more difficult than the job as not being was described testified Maintenance Superintendent, “That Delmar Bradway, noon on at steam until about cleaning that the decedent worked two then had lunch. stated also that mechanics November 1 He who also were overtime on 1 were excused working *6 to noon because wanted home. in the afternoon they go Apparently at the and the decedent. left site were only employees Bradway further testified that in the afternoon he and the dece- “Bradway dent the steam cleaner to steam off the batteries on the operated get He said that he the steam cleaner while the equipment. operated drove an old Ford F600 truck on which the steam cleaner deceased and was mounted. finished the the decedent was They job assigned to the task to drain the steam cleaner and the hoses. The hang up record, to work terminated about 3:30 day, according p.m. “That testified the decedent himself off the Bradway signed at 3:30 and drove in his and job truck did not p.m. away pickup or ill effects from on the He later report any injury working job. saw the decedent his with the hood raised and standing by pickup the decedent did not indicate that there were ill effects again any from the job. Kiewit and Sons an Peter McCarthy, employer

“That James Decker, office in Mon- store and post who also owns the grocery and 4:50 p.m. sometime between.3:50 p.m. tana saw the decedent and at his store. The decedent 1975 in the on November yard in the Accor- past. on occasions visited as did they many McCarthy to that he wanted did not indicate to the decedent ding McCarthy then excused was bad. McCarthy a doctor nor that he feeling see A cellar of his building. to on a in the and went work pump himself knocked, door, and Mc- to the decedent came short time later the McCarthy, decedent asked from the cellar. The came Carthy up town, done friend, which he had never him to time take long before; him in ten that he would be with said and McCarthy

minutes, as soon as he was with the task of fixing through pump in his the decedent. basement. minutes later saw Twenty McCarthy wasn’t He looked his usual self. pale “That drove himself to Memorial apparently distance of County, Wyoming approximate- Sheridan Hospital miles, was at 6:00 where he admitted ly approximately p.m. a history 1975. admission the decedent Upon gave Williams, Dr. William of having the attending physician, into the onset of left anterior chest with pain radiating abrupt pain left arm 2:00 went to intensity deceased further indicated that the its peak within 10 to minutes and then continued until he presented himself at An was electrocardiogram the hospital. performed anterior infarc- were consistent an acute findings tion. a monitor and treated with

“That the decedent put when a.m. November medication until approxmately and, after electric shock his heart several changed rhythm medication, died. treatments and the decedent Fletcher, a who surgeon practices “Dr. Donald G. physician Conrad, Montana, during testified on behalf claimant which facts established: following *7 of “a. An infarction is most severe type anterior myocardial arteries left anterior coronary infarction because the myocardial half the blood to heart. roughly supply time the the actual attack at the “b. That the decedent suffered 2:00 p.m. which is intensity approximately reached its peak Williams on November to Dr. history given according been this have records regarding history hospital into evidence. stipulated a infarction at

“c. After suffering myocardial approximately 1, 1975, employ- decedent’s continued which, of activities, consisted to Delmar Bradway, according ment truck, steering, without a or 1964 F600 Ford power driving clutch, one from a manual transmission with and with four-speed hours, one and one half and to another for scraper approximately a a thereafter himself in an automobile to driving hospital, miles, of aggravated existing, distance consisted infarction. The said myocardial aggravation underlying of exertion caused the above activities which an unusual by placed decedent;s further muscle demand on the heart thereby causing heart, ar- to the the heart more damage making susceptible or activities of the anoxic fibrillation. The rhythmia employment and exertion caused after 2:00 p.m. of those activities reduced the decedent’s chances by living. “d. That first aid and medical attention as soon after the prompt onset of attack as is the most time for treatment possible important of this kind of Such treatment consists of immediate medication, hospitalization, administration of oxygen, monitoring, in placing patient emo- complete physical tional rest.

“That on the based of Drs. Fletcher and Williams the activities in the decedent after the onset of the engaged by symp- toms of infarction were a fac- myocardial probably contributing tor in the onset of the that causing led to his death. arrhythmia

“That the strain of the the clai- although activities engaged by mant at the time of the onset of infarc- symptoms unusual, tion not have been the activities and may the results such activities and the infarction were resulting myocardial unusual.” the Workers’ Court foregoing findings Compensation claimant,

demonstrate Violette Moen came to this Court backed the Workers’ in her claim that the continued work exertions her husband after the onset of required thereafter, infarction, to which he put the strain his attention, medical to seek necessary of the automobile driving traumatic nature from an unex- tangible happenings cause or unusual strain that resulted in internal pected physical harm. As result therefrom he suffered death. Her case fits ab- *8 within the definitions of solutely as set out in section injury 39-71-119, MCA. no or set contains effort explain away

The majority opinion as we have Court aside the findings Workers’Compensation aside, could not be set because set them forth above. In fact they the protection of the Workers’ Court enjoy findings Mont.R.Civ.P., er- and must stand unless clearly of Rule evidence the findings roneous. When substantial supports Court, court cannot over- the appellate Workers’ Compensation (1979), 183 Mont. v. Wickens Const. Co. them. Dumont turn v. rule in Stamatis recently 1106. We followed 598 P.2d 184 Mont. Betchel Power Co. in this case. the Workers’ Compensation would affirm

I concurs. DALY MR. JUSTICE