Kelly v. West Coast Const. Co. , 106 Mont. 463 ( 1938 )

I dissent. The Industrial Accident Board and the district court found that claimant sustained a compensable injury. Both determined that he was totally disabled. The only point of difference between the board and the court was whether the disability was temporary or permanent. The board apparently thought it was temporary, as it allowed compensation for only 78 weeks in addition to payments already made. The court thought the disability was permanent. In either case the proper order was to award compensation "during the period of disability" (Meznarich v. Republic Coal Co., 101 Mont. 78, 53 P.2d 82, 87;Lunardello v. Republic Coal Co., 101 Mont. 94,53 P.2d 87), subject to a maximum of 300 weeks if the disability was temporary (section 2912, Rev. Codes), or 500 weeks if permanent (sec. 2913).

The word "permanent," as used in the Workmen's Compensation Act, "does not mean eternal or everlasting, but merely that the disability is lasting or continuous, as distinguished from temporary." (Meznarich v. Republic Coal Co., supra; and seeSykes v. Republic Coal Co., 94 Mont. 239, 22 P.2d 157.)

In my opinion, the evidence before the court, and some of which was not before the board, indicates that the disability of claimant is permanent within the above definition of that term. If it should turn out to be otherwise, the board has jurisdiction to adjudicate that fact whenever that contingency arises. The doctors who disputed Dr. Lindstrom did so more on the issue as to whether the disability was or is due to the accident rather than on the permanent character of the disability.

I think the judgment of the district court should be affirmed.