                               No. 12967

       I N THE SUPREME C U T OF THE STATE O M N A A
                        OR                 F OTN

                                  1975



D R T Y McQUISTON,
 OOH

                        Claimant and Respondent,



HALE H B A D AND GLACIER GENERAL ASSURANCE
      UBR
COMPANY, Employer,

                        Defendant and Appellant,

DIVISION O WORKMEN'S
          F         COMPENSATION
Claim No. 59B-10128



Appeal from:   D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
               Honorable W. W. Lessley, Judge p r e s i d i n g .

Counsel o f Record :

     For Appellant :

          Brown and G i l b e r t , Bozeman, Montana
          William E. G i l b e r t 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 Compen-
sation 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 assis-
tant manager of the cafe in their absence.     They explained to the
employees that Hovland would be the assistant manager and would gen-
erally 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 remem-
ber 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.    Claim-
ant began seeing doctors about a back pain in September and treat-
ment 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 com-
pensation 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 defend-

ant 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 re-
quired by section 92-807, R.C.M. 1947.   Further, that neither the
employer nor his managing agent or superintendent in charge, had ac-

tual knowledge of the alleged accident and injury and, in fact, had
no knowledge thereof until notified of claimant's claim for com-

pensation 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 Depart-
ment 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 compen-
sation 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 enter-
ed 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 dis-
trict 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 de-
cision 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 circum-
         stances 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 employ-
ment.   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 in-
jury by an industrial accident, and that the injury was the prox-
imate 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 med-
ical 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 approx-
imate 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 inci-
dent to during any period of time was to Mrs. Hubbard on or about
August 16, 1973.   The only testimony regarding this oral notifica-
tion to Mrs. Hubbard is from claimant.    This testimony is uncorrob-
orated 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
