No. 14545
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
WALTER HUME,
Claimant and Appellant,
VS .
ST. REGIS PAPER COMPANY, Employer,
Defendant and Respondent.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Moore, Lympus & Doran, Kalispell, Montana
James D. Moore argued, Kalispell, Montana
For Respondent:
Warden, Walterskirchen & Christiansen, Kalispell, Montana
Merritt Warden argued, Kalispell, Montana
--
Submitted: December 11, 1979
Decided: MAR - 7 1$8_0
Filed:
M" ' :'i3@
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
claimant, Walter Hume, filed a petition with the Workers'
Compensation Court, Flathead County, seeking compensation
for injuries suffered during his employment with defendant,
St. egis Paper Co. Claimant appeals the denial of his
petition.
On October 7, 1975, appellant was pulling and stacking
timber for his employer, St. Regis Paper Company, when he
stretched muscles in his shoulder and lower neck. Appellant
continued to work for ten months following this injury,
during which time he received a second injury. He stopped
working on August 6, 1976, after seeing two chiropractors
and a Kalispell neurologist, Dr. Nelson. Respondent, St.
Regis, paid total disability benefits to appellant for this
injury until May 25, 1977. Upon receiving the report from a
Spokane neurologist, Dr. Lynch, that appellant's "chronic
pain probably is more psychogenic in origin, than due to
tissue injury," respondent terminated benefits to claimant.
Claimant filed a petition with the Workers' Compensation
Court seeking temporary total disability or, in the alterna-
tive, a determination of the degree of his disability with
an award of permanent partial disability and payment for
benefits unreasonably terminated by respondent.
A hearing on claimant's petition took place on October
4, 1977. Three witnesses testified at the hearing: the
claimant, his treating physician, Dr. Nelson, M.D., and
defendant's only witness, Sidney M. Brown, who was the
insurance director for defendant.
The Workers' Compensation Court took judicial notice of
the contents of the file from the Division of workers' Com-
pensation and advised counsel that it would grant leave to
take the deposition of the author of any record or document
in the file if counsel found the procedure objectionable.
No objections were made. The file included the reports of
four medical doctors and two chiropractors.
After the hearing had concluded and upon the respondent's
request, the court ordered the appellant to submit to a
medical examination by Dr. Richard C. Dewey, M.D. The
Workers' Compensation Court entered findings of fact and
conclusions of law and judgment on June 8, 1978. Its find-
ings of fact stated the results of Dr. Dewey's examination
and the report of a Spokane V.A. Hospital, which respondent
furnished to the court several months after the hearing
concluded.
The court's conclusions of law stated that the claimant
failed to prove by a preponderance of the credible evidence
that his present symptoms and complaints were related to the
accident of October 7, 1975. The court's judgment denied
all of appellant's requests for relief. Claimant has appealed
this judgment .
Appellant presents four issues to this Court for review:
1. Was the judgment of the Workers' Compensation Court
supported by substantial evidence, or did the court err in
disregarding medical evidence establishing that appellant's
work-related injury caused appellant's disability existing
at the time of the hearing?
2. Did the court err in ordering appellant to submit
to a physical examination after the hearing when no new
relevant medical allegations were raised during the hearing
itself?
3. Did the court err in considering a medical report
from t h e V.A. H o s p i t a l which was s u b m i t t e d t o t h e c o u r t f o u r
months a f t e r t h e r e c o r d had been c l o s e d ?
4. Did t h e c o u r t e r r i n t a k i n g j u d i c i a l n o t i c e of t h e
m e d i c a l r e p o r t s c o n t a i n e d i n t h e f i l e from t h e Workers' Com-
pensation Division?
W a l t e r Hume c o n t e n d s t h a t t h e judgment of t h e Workers'
Compensation C o u r t i s n o t s u p p o r t e d by s u b s t a n t i a l e v i d e n c e
and s h o u l d be r e v e r s e d . He a r g u e s t h a t he p r e s e n t e d a prima
f a c i e c a s e t h r o u g h u n c o n t r o v e r t e d e v i d e n c e t h a t he was
e n t i t l e d t o compensation b e n e f i t s . H e f u r t h e r argues t h a t
he proved by s u b s t a n t i a l e v i d e n c e t h a t he was i n j u r e d a s a
r e s u l t of h i s i n d u s t r i a l a c c i d e n t , t h a t h i s p r e s e n t c o n d i t i o n
i s p a i n f u l and d i s a b l i n g , and t h a t s a i d c o n d i t i o n i s a
r e s u l t of t h e a c c i d e n t . The d e f e n d a n t and t h e Workers'
Compensation C o u r t r e c o g n i z e d t h a t c l a i m a n t was e n t i t l e d t o
compensation and m e d i c a l b e n e f i t s u n t i l May 2 5 , 1977, when
b e n e f i t s were t e r m i n a t e d d e s p i t e t h e a b s e n c e of e v i d e n c e of
any i n t e r v e n i n g c a u s e o r any a l t e r n a t i v e e x p l a n a t i o n f o r
c l a i m a n t ' s p r e s e n t , u n d i s p u t e d l y p a i n f u l and d i s a b l i n g
condition.
C l a i m a n t - a p p e l l a n t a r g u e s f u r t h e r t h a t t h e Workers'
Compensation Judge abused h i s d i s c r e t i o n by opening t h e
r e c o r d a f t e r t h e h e a r i n g on t h e m e r i t s , w i t h o u t r e q u i r i n g
t h e d e f e n d a n t t o show e x c u s e o r good c a u s e . T h i s removed
any i n c e n t i v e f o r t h e company o r c a r r i e r t o p r e p a r e f o r
t r i a l and p l a c e d an a d d i t i o n a l burden on t h e c l a i m a n t .
Claimant a l l e g e s t h a t he made a p r o p e r o b j e c t i o n t o any
consideration of t h e a d d i t i o n a l post-hearing evidence.
F i n a l l y , a p p e l l a n t u r g e s t h a t t h e Workers' Compensation
Judge i m p r o p e r l y took j u d i c i a l n o t i c e of t h e e n t i r e w o r k e r s '
Compensation D i v i s i o n f i l e . Even though t h e c o u r t a d v i s e d
counsel that it would grant leave to take the deposition of
the author of any medical report or other document in the
file if counsel found the procedure objectionable, this
allegedly violated the rule in Hert v. J. J. Newberry Co.
(1978)I - Mont. , 584 P.2d 656, 35 St.Rep. 1345, rehear-
ing denied ,
Mont. - 587 P.2d 11, 35 St.Rep. 1353A, and
thus deprived claimant of his right to cross-examine and
interpose objections.
Respondent argues that the lower court did not commit
error in taking judicial notice of the medical reports con-
tained in the Workers' Compensation Division file since Hert
was decided one year after the hearing in this case. Respon-
dent argues further that Hert held that the right to cross-
examine could be waived by any party, and appellant waived
his right by failing to object.
The first matter which must be addressed is whether or
not the lower court erred in ordering appellant to submit to
another physical examination after the October 4, 1977
hearing, and in considering the results of that examination
when no new relevant medical allegations were raised during
the hearing itself. Respondent contends that his request
for another physical examination of the claimant was made in
open court and that no objection to this procedure was
raised by claimant's attorney at that time, although he
objected when an appointment was made for Dr. Dewey to
examine the claimant. Therefore, respondent seeks to take
advantage of the established rule that evidentiary matters
must be objected to at the time of trial or they will not be
considered on appeal. Hayes v. J.M.S. Construction (1978),
- Mont . - 579 P.2d 1225, 1227, 35 St.Rep. 722; Sikorski
,
,
v. Olin (1977), - Mont. - 568 P.2d 571, 574, 34 St.Rep.
At the close of the October 4, 1977 hearing the following
discussion took place:
"MR. WARDEN: Well, we may want to have
this man seen by some other practitioner,
Your Honor. I think I'm a little bit
alarmed at Dr. Nelson's diagnosis here,
and for the man's own welfare it might
be advisable to have it doubly checked,
although we attempted to do that up to
this point as you can tell from the file,
but we didn't have the benefit of today's
testimony until this time.
"THE COURT: Very well, well, if that is
determined necessary, if you and Mr. Moore
cannot agree upon it, let me know and I'll
make the necessary order and then we'll post
it on our schedule as December the 9th as
the time for Findings of Fact and Conclusions
of Law.
"And if there's nothing further, the Court
is adjourned."
Although claimant's counsel made no objection to the
additional examination at this time, he did file a formal
objection and a letter memorandum in support thereof a month
later on November 4, 1977. Nevertheless, the December 20,
1977 examination and report of Dr. Dewey were considered by
the Workers' Compensation Judge in his findings of fact nos.
21 and 22. To do so was not error, since claimant's attorney,
being fully apprised that the lower court intended to allow
an additional examination, failed to make a timely objection.
Hayes, supra.
Walter Hume was examined at the Spokane Veterans Admin-
istration Hospital during July of 1977. Some months subse-
quent to the October 4, 1977 hearing, copies of claimant's
Veterans Administration medical records were obtained by the
defendant and forwarded to Judge Hunt, who made reference to
them in his finding of fact no. 23.
Claimant had no opportunity to object to the Workers'
Compensation Court's consideration of these medical records.
his Court need not consider whether or not that procedure
constituted error, however, because in his brief "[cllaimant
would concede that the V.A. reports simply corroborated
claimant's testimony, that the shrapnel injury was unrelated
to the condition suffered by claimant from and after the
October 1975 accident." If there was error in considering
these reports, a question this Court need not decide, that
error would admittedly be harmless error not affecting the
substantial rights of the claimant. Rule 61, M.R.Civ.P.
The next issue is whether or not the Workers' Compen-
sation Judge improperly took judicial notice of the entire
Workers' Compensation Division file, including the medical
reports contained therein, at the outset of the hearing.
Appellant contends that contrary to the rule set forth by
this Court in Hert, this procedure deprived him of his
rights to cross-examine the authors of those reports and to
interpose objections. We find it unnecessary to decide this
question because even if we assume, without deciding, that
it was proper to consider the medical reports contained in
the Workers' Compensation Division file, there still would
not be substantial evidence to support the judgment of the
Workers' Compensation Court.
The determinative issue is whether or not the judgment
of the Workers' Compensation Court was supported by sub-
stantial evidence insofar as that court determined that
there was no causal relationship between appellant's indus-
trial accident and his disability at the time of the hearing.
The Court must look to all of the evidence which was properly
before the Workers' Compensation Court in determining whether
or not there was substantial evidence to support its conclu-
sion of law no. 4:
"That the claimant has failed to prove by
a preponderance of the credible evidence
that his present symptoms and complaints
are related to the accident of October 7,
1975."
The standard of review to be applied to this case is well
established:
"Our function in reviewing a decision of the
Workers' Compensation Court is to determine
whether there is substantial evidence to sup-
port the findings and conclusions of that
court. We cannot substitute our judgment for
that of the trial court as to the weight of the
evidence on questions of fact. Where there is
substantial evidence to support the findings
of the Workers' Compensation Court, this Court
cannot overturn the decision." Steffes v. 93
Leasing Co., Inc. (1978), - Mont. , 580
P.2d 450, 452-453, 35 St.Rep. 816, 818.
See also Dumont v. Wickens Bros. Const. Co. (1979), -
,
Mont. - 598 P.2d 1099, 1106, 36 St.Rep. 1471; Robins v.
Anaconda Aluminum Co. (1978), ,
Mont. - 575 P.2d 67, 35
St.Rep. 213; Bond v. St. Regis Paper Co. (1977), - Mont.
, 571 P.2d 372, 34 St. Rep. 1237. The Workers' Compensa-
tion Court made a conclusion of law which is not contested
here, conclusion no. 2:
"That the claimant, Walter Hume, sustained
injuries to his neck and upper back in an
industrial accident while employed by the
defendant, St. Regis Paper Company, at Libby,
Montana on October 7, 1975."
It is not seriously disputed that at the time of the hearing
appellant was experiencing disabling pain and muscle spasms.
Thus the issue is narrowed to the question of causation. As
stated by respondent in its brief, "[tlhe real question
facing the Workers' Compensation Court was whether the
symptoms and complaints after his benefits were terminated
in May 1977 were related to his industrial accident."
A summary of the evidence includes claimant's testimony
that previous to the October 7, 1975 injury he experienced
none of the burning pain sensation in the area of his lower
neck and upper back which he has experienced to varying
degrees since that time. Beginning on October 9, 1975 and
continuing for about three weeks thereafter, he was seen by
a Libby chiropractor and given heat treatments. Claimant
testified that several months later, in February or March,
1975, he was injured in a second work-related accident when
a load of lumber tipped over on him, hitting him on the
shoulder. He testified that this accident aggravated the
symptoms of burning pain in his neck and upper back which he
had experienced in the October 7, 1975 injury. On June 12,
1976, claimant was examined by a second Libby chiropractor
who diagnosed a cervical sprain with radiculitis and pares-
thesia to both arms. This second chiropractor treated
claimant with diathermy, ultrasound, hotpacks and manipula-
tions, and referred him to Dr. Nelson, the Kalispell neurologist
who became his treating physician.
Dr. Nelson testified that he performed a neurological
examination of claimant on August 3, 1976 and subsequently
ordered a cervical myelogram to be performed. He diagnosed
the injury as a cervical radiculitis, post traumatic. On
August 12, 1976, Dr. Muller, a Kalispell radiologist, reported
the results of his examination of the cervical myelogram.
His report states that the myelogram revealed several small
metallic foreign bodies in the soft tissues of the neck, but
an otherwise normal cervical spine. These metallic fragments
are the result of a shrapnel injury the claimant suffered in
Vietnam. Dr. Nelson testified that on the basis of their
size and location, he was of the opinion that they were not
the cause of the claimant's causalgia. Dr. Nelson referred
the claimant to Dr. Vincent, a Spokane neurosurgeon for
consultation. Dr. Vincent's report of January 19, 1977 to
Dr. Nelson indicates that the "myelogram basically is normal"
and that "the problem would seem to be primarily that of
muscle tightness and spasm." At the request of defendant's
insurance director, claimant was examined by Dr. Lynch, a
neurosurgeon practicing in Spokane, who reported on May 4,
1977 that claimant has a chronic cervical syndrome. Dr.
Lynch's letter to defendant's insurance director stated:
"The entire neurological examination is normal
at this time. He even shows some callousing of
the hands indicating that he is keeping rather
active. The muscle tone is excellent, indicating
also that he is staying quite active.
"I can define no definite injury in this patient
and feel that his chronic pain probably is more
psychogenic in origin, than due to tissue injury.
The muscle tone and callousing of the hands would
bely the fact that he is incapacitated.
"I feel the patient probably should try to re-
educate himself outside this heavy work and I
feel there is absolutely no therapy that is going
to be of benefit to this patient and no further
investigation is indicated."
Dr. Nelson was the only medical witness to testify at
the October 4, 1977 hearing. In finding of fact no. 17, the
Workers' Compensation Court made reference to Dr. Nelson's
testimony that "claimant's injury was consistent with his
present symptoms and disability" and to Dr. Nelson's testi-
mony that in his opinion, the shrapnel fragments imbedded in
claimant's neck have nothing to do with his present condition.
The Workers' Compensation Court finding of fact no. 16
stated:
"On May 26, 1977, - Nelson again examined
Dr.
claimant but was unable - - -
to state a precise
diasnosis. ~e found the claiman -
impaired - - - relate - - - industrial
butTid not it to the
accident - October - [sic] 1975." (Emphasis
of 10,
added. )
Dr. Nelson's testimony contradicts finding of fact no. 16.
"Q. Your first diagnosis of causalgia and
brachial plexitis, do you have an opinion within
a reasonable medical certainty as to the cause
of these conditions?
"A. The brachial plexitis and causalgia, yes.
It was my opinion that these were related to
stretch injury to his neck and shoulder girdle
as related in his history given about injury
occurring while at work.
"Q. How is it that you ruled out the shrapnel
in making that finding?
"A. As we said, these fragments are highly
discrete, very small and not located in an area
that could involve that many nerves." (Tr.,
p. 11:)
"Q. NOW, the brachial plexitis, what is it?
"A. Well, those nerves that come from between
the vertebrae C-5, 6, 7, 8 and T-1 are the
nerve roots on both sides comprising the brachial
plexus and they're called that because they
supply the shoulder girdle and the arm and hand.
"Q. And--
"A. And those nerves, the whole group of them,
if they are involved in a process are called the
brachial plexitis because we're involving our-
selves now with more than one nerve root on
both sides of the neck, and that would take an
extraordinary lesion in order to accomplish this.
It is why I had felt the initial evaluation of
the patient that this was the result of yanking
motion and it was a stretch injury which we felt
was going to be a long-term, difficult problem
in terms of healing.
"Q. NOW, Doctor, you observed on film the shrapnel?
"A. Yes.
"Q. Where is the shrapnel located?
"A. It's located in the paracervical muscle
bundles, and the largest piece of fragment
if we reduced it back to size from the film
is probably about two to three millimeters in
diameter, and it is about in relationship to
half the size of a pea, let's say. It is not
located, in my estimation, in any region which
could affect the nerve root, it's too far away
from the nerve root. (Tr., p. 10.)
"Q. Did you have cause to perform any additional
examinations or do any additional diagnostic work
with respect to Mr. Hume's condition?
"A. Well, we did mostly therapy for some time.
We had medication and we tried trigger point
injection with Xylocaine and other medications
into the pain sites to see if it would relieve
the pain. It was only temporarily effective dur-
ing the time of treatment. We continued to have
difficulty in controlling these symptoms and as
time passed, it became more apparent to me that
the patient was talking about a causalgic-like
pain. And I have personally examined him on
several occasions where he has a burning sensa-
tion. He talks about a--and if you were to drape
a towel around your neck, the zone of the neck
and shoulder girdle would ache.
"Q. Is this something that you can actually
visually see?
"A. Yes. You see that it is hypersensitive to
touch at that point in time, and it is increased
in temperature, it's warm. We describe that as
a causalgia which you will see in my reports
where I have a cervical radiculitis and causal-
gia--simply stretch or injury to the automatic
nerve fibers that are within all of the nerves,
and they create these kinds of unpleasant burning
and irritative type feelings and are vexing and
difficult to treat. Very few things in the way
of medication or treatment are effective. (Tr.,
p. 8-9.)
Dr. Nelson's report of May 16, 1977, which is part of
the Workers' Compensation file, states the following:
"IMPRESSION: Cervical radiculitis and/or causalgia
secondary to trauma to the neck and shoulder girdle
as previously described.
"DISCUSSION: It is extremely difficult to pin down
a precise diagnosis of neurologic disease since we
have documentations of his having normal myelography.
I have a strong suspicion that this patient may well
have an inflammatory reaction going on systemically.
"It appears to me that this patient continues to
have a very persistent, burning paresthesias of
the cervical, thoracic, and upper shoulder girdle
which defy any precise diagnosis evaluation in
terms of herniated disc or demonstrable loss of
muscle mass or power. . ."
On December 20, 1977, claimant was examined by Dr. Dewey,
a Missoula neurosurgeon whose report stated:
"There is no injury to this man's nervous
system other than that referable to the left
ulnar nerve. The symptoms are certainly not
consistent with normal myelography and normal
neurologic exam."
In summary, the lower court's crucial finding of fact
no. 16 is contradicted by the testimony of Dr. Nelson, which
apparently was given little or no weight. Contrary to the
lower court's findings, Dr. Nelson's unrefuted testimony did
relate Walter Hume's impairment to the industrial accident
of October 10, 1975.
An examination of the entire record reveals that the
only credible sustantial evidence as it concerns causation
and injury supports the claimant and therefore the findings,
conclusions, and judgment of the Workers' Compensation Court
are not supported by the record. In particular, there is
no substantial evidence to support the lower court's conclu-
sion of law no. 4 that claimant failed to prove that his
present symptoms and complaints are related to the industrial
accident.
In conclusion of law no. 2, the Workers' Compensation
Court determined that "claimant, Walter Hume, sustained
injuries to his neck and upper back in an industrial accident
while employed by the defendant St. Regis Paper Company, at
Libby, Montana on October 7, 1975." It is a rebuttable
presumption "[tlhat a thing once proved to exist continues
as long as is usual with things of that nature." Section
26-1-602(32), MCA. Termination of benefits by the employer
on May 25, 1977 was improper in the absence of any intervening
cause or any alternative explanation for claimant's present,
undisputedly painful and disabling condition.
The judgment is reversed and remanded to the Workers'
Compensation Court with instructions to enter judgment for
claimant in accordance with this opinion.
1
Justice J
W e concur:
Chief J u s t i c e
Justices 4
Mr. C h i e f J u s t i c e Frank I. H a s w e l l :
I concur i n t h e r e s u l t .
?LvVLd4%KI-pfl
Chief J u s t i c e