                                      No. 12296

       I N THE SUPREME COURT OF THE STP-TE OF M N A A
                                               OTN

                                        1972



REX LEWIS,

                              P l a i n t i f f and A p p e l l a n t ,

    -vs   -
THE ANACONDA COllPANY e t a 1. ,

                              Defendant and Respondent.



Appeal from:        D i s t r i c t Court of t h e T h i r d J u d i c i a l D i s t r i c t ,
                    Honorable Frank E. B l a i r , Judge p r e s i d i n g .

Counsel o f Record:

    For A p p e l l a n t :

              Jack M. Scanlon a r g u e d , Anaconda, Montana,

    F o r Respondent:

              Henningsen and P u r c e l l - , B u t t e , Montana,
              Rex F. Henningsen a r g u e d , B u t t e , Montana.



                                                        Submitted:        October 1 8 , 1972

                                                           Decided 8flV2 4     1972
Filed:qfp~t
                   a.. ~ 9
Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court.
           This is an appeal from a judgment entered i n t h e d i s t r i c t court
of Deer Lodge County on April 22, 1972, following a ruling t h a t the second
amended complaint f a i l e d t o s t a t e a cause of action; and the motion t o d i s -
miss i t , was granted without leave t o amend.
           I t appears t h a t on December 7 , 1960, p l a i n t i f f Lewis, an employee
of the Anaconda Company, suffered an industrial accident resulting i n a
fractured l e f t wrist and f r a c t u r e of both nasal bones.    Lewis f i l e d his
claim f o r compensation and received compensation payments of $229.44.                   On
or about March 1 , 1961, Lewis a s s e r t s he had a discussion w i t h one John
Emory, the claims manager of the Anaconda Company, and was advised t h a t
upon his return t o work his benefits under the workmen's compensation a c t
terminated and he should not see an attorney as there would be no need t o .
           Thereafter, i t i s alleged, John Emory drafted a petition f o r a
lump sum settlement f o r $1,825, forged Lewis' name thereon, submitted the
same t o the Industrial Accident Board and i t was approved on March 27, 1961                  .
On April 3, 1961, John Emory requested a check from the Butte claims o f f i c e
f o r the $1,825 and i t was issued and Emory delivered t o the claims o f f i c e a
release w i t h the forged signature of Lewis.         Then, allegedly, Emory forged
the name of Lewis t o the check and negotiated i t .
           Some years l a t e r , i n 1971, Lewis had another industrial accident
and he was represented a t t h a t time by Jack M. Scanlon, Esq., as his attorney.
In reviewing the claim f i l e this attorney discovered these f a c t s and notified
Lewis i n March of 1971. Thereafter t h i s action was commenced seeking t o
recover damages f o r fraudulent conversion by means of the forgery of his
check f o r $1,825, praying f o r special damages of $9,028, $30,000 general
damages f o r mental pain and anguish, with a second cause of action seeking
exemplary damages in the amount of $400,000.
           The gravamen of p l a i n t i f f ' s contended cause of action i s t h a t by
reason of h i s i n j u r i e s he was e n t i t l e d t o the lump sum settlement and was de-
prived of i t by the fraudulent actions of the agent of t h e defendant Anaconda
Company.
           However, he did not have anything t o do w i t h the proceedings
involving the p e t i t i o n f o r the lump s m settlement, i t s approval and pay-
                                             u
ment of the amount approved.           The d i s t r i c t judge i n his decision of April
18, 1972, on the motion t o dismiss p l a i n t i f f ' s second amended complaint,
stated :
           "No where, e i t h e r i n the second amended complaint o r
           the deposition of the p l a i n t i f f , does i t appear t h a t
           he suffered the l o s s he complains of. He held good
           jobs during the 10 year i n t e r v a l ; was even examined
           by the Anaconda Company Medical S t a f f and placed
           back t o work on one occasion. N complaint was made
                                                     o
           by him i n a l l of the 10 years. In h i s deposition
           he says he breaths w i t h d i f f i c u l t y through one side
           of h i s nose, but a t no time has he sought medical care
           f o r i t o r any condition about which he complains i n
           this action.
           "Moreover, he has had no medical opinion t o the e f f e c t
           t h a t he has a 25 per cent permanent d i s a b i l i t y as a
           r e s u l t of the industrial accident occuring December
           27, 1960.
           " I t seems t o us t h a t i f he had a 25 per cent perma-
           nent d i s a b i l i t y , i t would have shown up i n a ten year
           period and t h a t he would have sought competent medical
           help a t some time during t h a t period.
           "No medical opinion presently e x i s t s t o the e f f e c t
           t h a t p l a i n t i f f ever suffered a 25 per cent permanent
           or p a r t i a l d i s a b i l i t y .


           "Finally, there is no c l e a r allegation t h a t t h e plain-
           t i f f ever suffered o r now s u f f e r s a 25 per cent perma-
           nent, p a r t i a l d i s a b i l i t y in the complaint as a r e s u l t
           of the injury he received December 27, 1960. * * *"
           There must be a determination by the Industrial Accident Board a s
t o whether or n o t Lewis was e n t i t l e d t o any f u r t h e r compensation or t o a
lump sum settlement f o r his i n j u r i e s ,    (Section 92-821, R.C.M.             1947.)
P l a i n t i f f wants t o r e l y upon the alleged forged documents a s establishing
his r i g h t s under the workmen's compensation a c t , b u t i n this position he i s
clearly i n error.      Before any form of re1 i e f can be considered i t i s incumbent
upon him t o s a t i s f y the Industrial Accident Board t h a t he was e n t i t l e d t o
such f u r t h e r compensation.   W held i n P r o f i t t v . J . G . Watts Const. Co.,
                                    e
140 Mont. 265, 370 P.2d 878, t h a t our courts do not have j u r i s d i c t i o n t o
make such a determination i n the f i r s t instance, there must be a previous
hearing and finding by the Industrial Accident Board.              Nothing herein con-
tained shall bar subsequent action before the Industrial Accident Board.
          The decision of the d i s t r i c t court of April 18, 1972, was c o r r e c t
and the judgment entered thereon




W concur:
 e                                   (
