Wheeler v. Carlson Transport

                                  10 84-479
                                   4.
               IN THE SUPREPIE COURT OF THE STATE OF MONTANA
                                          1985



LLOYD WHEELER,
               Claimant and Appellant,


CARLSON TRANSPORT, Employer,

    and
INSUFiANCE COMPANY OF NORTH
AMERICA,
               Defendant and Respondent.




APPEAL FROM:       Workers' Compensation Court, The Honorable Timothy
                   Reardon, Judge presiding.

COUNSEL OF RECORD:
      For Appellant:

               Lynaugh, Fitzgerald    &   Hingle; Thomas Lynaugh, Billings,
               Montana
      For Respondent:
               Steven Harman, Billings, Montana



                                   Submitted on Briefs:   May 9, 1985
                                                 Decided: August 5, 1985


Filed:      4; -   1985



                                   Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

         Claimant Lloyd Wheeler appeals from an order of the
Workers '   Compensation Court dismissing his petition                          for a

rehearing.        We affirm.
         Claimant appeals from his second hearing regarding his
occupational accident and injury.                     The injury occurred on
February 10, 1981.          Claimant suffered a crush injury to his
left foot while employed with Carlson Transport.                          Carl son ' s
carrier, the respondent, Insurance Company of North America

(INA) accepted           liability       and   began     paying      medical      and
compensation benefits.            On September 21, 1981, claimant filed
a petition with the Workers ' Compensation Court contending,
among other things, that he suffered a back injury due to his
foot     condition.         In    that    petition,      claimant        alleged    a
preexisting spinal stenosis condition which was aggravated by
his limp or "favoring" of the injured left foot.
       A hearing was held before the Workers' Compensation
Judge.       Evidence       was    admitted      both    as     to      the    causal
connection        between   claimant's         foot    injury     and     the    back
condition, and the level of claimant's disability.                       The court
entered its findings and conclusions on June 10, 1982.                           Most

significant to this case is the finding that claimant's back
instability        was   unrelated       to    the     foot   injury          claimant
suffered in his industrial accident.                     In this regard the
court stated :
             I1
                  ...
            " (2) Claimant contends that insurer is
            liable to claimant for benefits related
            to claimant's back instability or spinal
            stenosis. Claimant's theory here is that
            the foot injury aggravated claimant's
            unstable back through unnatural stress
            caused by claimant's gait necessitated by
            the foot injury.
                "The m e d i c a l e v i d e n c e d o e s n o t s u p p o r t
                the         causal         link   between       claimant's
                c r u s h e d f o o t i n j u r y and h i s s u b s e q u e n t
                back p r o b l e m s .          Dr.  Hull, claimant's
                t r e a t i n g physician, admitted r e l u c t a n t l y
                t h a t it was p o s s i b l e t h a t c l a i m a n t ' s back
                c o n d i t i o n was c a u s e d by t h e f o o t i n j u r y ,
                b u t he was               inclined against          such a
                c o n n e c t i o n b e i n g made.

                " T h e r e i s ample e v i d e n c e t o s u p p o r t D r .
                Hull's opinion i n t h e f a c t t h a t claimant
                d i d n o t complain a b o u t h i s b a c k p r o b l e m s
                u n t i l a f t e r f o u r months had e l a p s e d from
                the t i m e of the injury.                    Since section
                39-71-119(1),             MCA,   the injury statute,
                r e q u i r e s t h a t t h e r e must b e a c a u s a l
                connection            between       the        injury         and
                claimant's physical condition, claimant's
                contention regarding benefits f o r the
                s p i n a l s t e n o s i s must b e d e n i e d f o r l a c k
                of proof o f t h e c a u s a l connection, e i t h e r
                d i r e c t l y o r by a g g r a v a t i o n , r e q u i r e d by
                the i njury s t a t u t e . "

         Claimant's         permanent p a r t i a l       disability          l e v e l was s e t

at     five     percent        impairment,          and       INA   commenced          payments

thereupon.         S u b s e q u e n t l y , i n J u l y o f 1 9 8 3 , c l a i m a n t underwent

a n o p e r a t i o n t o remove a neuroma on t h e c r u s h e d f o o t .               After

that     operation         INA      reinstated        claimant's         temporary        total

benefits.         Dr.    H u l l i n d i c a t e d t o I N A t h a t c l a i m a n t would b e

a b l e t o r e t u r n t o work a p p r o x i m a t e l y s i x weeks from t h e d a t e

of surgery.          I N A w r o t e t o c l a i m a n t and h i s a t t o r n e y on August

16,     1983     indicating          to    them      that      based      on     Dr.     Hull's

p r o g n o s i s t h a t b e n e f i t s would b e d i s c o n t i n u e d    fourteen days

from t h e d a t e o f       t h e letter.          Apparently,         INA continued t o

pay    claimant temporary t o t a l              b e n e f i t s beyond        fourteen days

after     the     notice       letter.        These       benefits      w e r e paid     until

November 1 , 1983.             On November 22, 1983 I N A w r o t e t o c l a i m a n t

and h i s a t t o r n e y e n c l o s i n g f i n a l payment t o November 1, and

i n d i c a t i n g t h a t payments would be d i s c o n t i n u e d .

         O n December         19,    1983 c l a i m a n t ,    through a new a t t o r n e y

filed      a    second       petition         for     hearing.            He     claimed      an

aggravation         of   the     previous       injury;        that    new e v i d e n c e was
a v a i l a b l e i n d i c a t i n g t h a t c l a i m a n t ' s back i n j u r y was c a u s a l l y

related t o h i s foot injury;                   and f i n a l l y t h a t INA had f a i l e d

t o g i v e t h e required fourteen days n o t i c e .

          D e f e n d a n t f i l e d a m o t i o n and b r i e f o p p o s i n g c l a i m a n t ' s

petition        to    re-litigate          the     causal        connection         between        the

foot     i n j u r y and back         condition.            The Workers'           Compensation

Court       issued        an      opinion         on      this      issue.             The     court

specifically           reserved        its     ruling       on    defendant's          motion       to

dismiss claimant's p e t i t i o n ,              b u t set f o r t h t h e scope o f t h e

second h e a r i n g :

                "Thus, it a p p e a r s t h a t t h e c l a i m a n t h a s
                alleged s u f f i c i e n t f a c t s necessary t o
                sustain the petition filed in the instant
                case.          E v i d e n c e o f new m e d i c a l f i n d i n g s
                or       subsequent             events  must        first        be
                reviewed by t h i s C o u r t b e f o r e a d e c i s i o n
                on a m o t i o n t o d i s m i s s c a n b e made.                A
                d i s m i s s a l may b e i s s u e d , a f t e r a r e v i e w
                of       the      new         evidence,   under        section
                25-11-102,            MCA o n l y i f t h e new e v i d e n c e
                i s u n l i k e l y t o change t h e r e s u l t upon a
                new t r i a l ; it may be d i s m i s s e d u n d e r
                s e c t i o n 39-71-2909,            MCA o n l y i f t h e r e
                d o e s n o t a p p e a r t o be a new and more
                serious feature of the prior injury."

          Fol-lowing t h e          hearing,        the     court      made      the     following

findings :



                "12.       The C o u r t f i n d s no new e v i d e n c e was
                p r e s e n t e d which would l i k e l y c h a n g e t h e
                r e s u l t upon a new t r i a l .

                1 3 The C o u r t f i n d s t h e r e d o e s n o t
                a p p e a r t o b e a n e w and more s e r i o u s
                feature of the p r i o r injury."

Based      upon      these      findings,         the     court      dismissed         claimant's

petition.            Claimant a p p e a l s ,       raising the           following          issues:

          (1)     The      court      erred       in     failing        to    award       claimant

b e n e f i t s f o r h i s back i n j u r y .

          (2)     The c o u r t e r r e d i n f a i l i n g t o f i n d t h a t c l a i m a n t

i s e n t i t l e d t o f u r t h e r t e m p o r a r y t o t a l d i s a b i l i t y b e n e f i t s by

reason of h i s f o o t i n j u r y alone.
          (3)      Whether       the     defendant          failed       t o give t h e proper

f o u r t e e n day n o t i c e o f t e r m i n a t i o n o f b e n e f i t s .

          A determination              of     o c c u p a t i o n a l i n j u r y and award made

t h e r e o n by t h e Workers1 Compensation C o u r t maybe r e o p e n e d on

either       of      two      grounds.              First     by      authority      of        section

39-71-2909,          MCA which s t a t e s i n p a r t :

                  "Authority           to      review,         diminish,        or
                  increase awards--limitation.                         The judge
                  may, upon t h e p e t i t i o n o f t h e c l a i m a n t o r
                  an i n s u r e r t h a t t h e d i s a b i l i t y o f t h e
                  c l a i m a n t h a s changed, review, d i m i n i s h ,
                  o r i n c r e a s e i n a c c o r d a n c e w i t h t h e law on
                  b e n e f i t s a s s e t f o r t h i n c h a p t e r 71 o f
                  this        title,      any        benefits         previously
                  awarded by t h e j u d g e o r b e n e f i t s r e c e i v e d
                  by        a     claimant           through          settlement
                  agreements. "

Secondly,          section       25-11-102,            MCA,      provides         that     a    former

v e r d i c t o r d e c i s i o n may b e v a c a t e d and new t r i a l g r a n t e d upon

application i f the substantial r i g h t s of t h e applicant w e r e

materially           affected        by:      "    . . . newly         discovered          evidence

m a t e r i a l f o r t h e p a r t y making t h e a p p l i c a t i o n which h e c o u l d

not,    w i t h r e a s o n a b l e d i l i g e n c e h a v e d i s c o v e r e d and p r o d u c e d

at trial        ...      l1    Moen v .           Peter K i e w i t    and Sons Co.             (Mont.



         A t t h e h e a r i n g on c l a i m a n t ' s       petition,       the sole issue

was w h e t h e r     t h e evidence presented warranted,                          under e i t h e r

ground      s t a t e d above,       a r e o p e n i n g o f t h e 1981 o r d e r .             As to

t h e f o r m e r , F i n d i n g no.       13, t h a t " t h e c o u r t f i n d s t h a t t h e r e

d o e s n o t a p p e a r t o b e a n e w and more s e r i o u s f e a t u r e o f t h e

prior     i n j u r y " mandates t h e c o u r t ' s             conclusion        that        section

39-71-2909,          MCA,     did not warrant a                  reopening of            t h e order.

Claimant        argues        that      subsequent          to     the   prior      hearing,        it

became a p p a r e n t t h a t h i s back i n j u r y was c a u s a l l y r e l a t e d t o

t h e occupational foot injury.                         The c o u r t i n t h e p r i o r o r d e r

s p e c i f i c a l l y f o u n d , a s s t a t e d a b o v e , t h a t t h e r e was no c a u s a l
relation between the two.                Larson, in this treatise, states
the general rule:
            "At the administrative level, awards can
            be reopened by the compensation board for
            modification     to    meet     changes   in
            claimant's condition, such as increase,
            decrease or termination of disability.
                ...On   a    reopening     for   changed
            condition. no     other     issues   mav be
            relitigated , and the claimant ' s eviience
            must bear directly upon the comparison
            between    his      former    and    present
            disability.   A few jurisdictions afford
            their commission's broad power to reopen
            cases in the interest of justice or for
            anv aood reason. "
                 2
                 .       a
                                     Larson, Workmen's
            Compensation Law, Vol. 3, S81.00 (1983
            ed. ) (Emphasis added. )
The     first        question       presented    here   is     whether    section
39-71-2909 is a               change of condition statute or a             "broad
reopening" type of statute.                 We find that the language of the
statute    is        clear     in   that it requires that the Workers'
Compensation Division may only reopen an award if it finds

that "the disability of the claimant has changed."                          Thus,
claimant's reliance on O'Keeffe v. Aerojet-General Shipyards,
lnc.    (1971), 404 U.S. 254, 92 S.Ct. 405, 30 L.Ed.2d                    424, in
which     the    United         States      Supreme   Court    interpreted      the
Longshoremen's Act as being a broad reopening type of statute
(characterized by Larson as the "sweeping concept or' the
re-opening       power         under   the    Longshoremen ' s    Act"    Larson ,
Workmen's Compensation Law, Vol.                 3, §8l152B, (1983 ed.) is
inapposite.
        Under        a       "change   of    condition"       statute    such   as
39-71-2909, MCA the reopening proceeding may not be used to
retry issues originally settled.                 Again, Larson states:
            I1[T]he issue before the board is sharply
            restricted to the question of extent of
            improvement or worsening of the injury on
            which the original award was based.    If
            the original award held that there was no
            connection between the accident and
            claimant's permanent disability, there is
            nothing to reopen, and claimant cannot
            retry   the  issue  of work-connection
            through the device of a reopening
            petition." Larson, supra, S81.32A.
This result is supported by case law from other western
states.     In Deaton v. State Accident Insurance Fund (0r.App.
1978), 576 P.2d       35, the Oregon Court of Appeals held that
claimant's disability could not be relitigated in a reopening
petition.    The Oregon court in that case noted:
            "At the heart of claimant's position is
            his belief that his initia 1 determination
            was erroneous and that he should have
            been found permanently totally disabled.
            However   that may     be,   the   initial
            determination cannot be relitigated in an
            aggravation claim." Supra at 35.
The same observation applies to this proceeding.             In Judd v.
Industrial Commission      (Ariz.App. 1975) , 532 P.2d        196, the
Arizona     Supreme    Court    held    that,     absent   mistake    or
misrepresentation in a prior proceeding, any determination of
causal relation is res judicata.            Again, the Arizona Supreme
Court made an observation applicable here:
            "The    claimant    in   this   case  was
            represented by able counsel throughout
            the    numerous   hearings    before  the
            Commission;     the    issues    of   the
            relationship of claimant's back problem
            to his industrial injuries were fully
            1 itigated before the hearing officer
            Ellig; Hearing Officer Ellig in a formal
            award held there was no causal connection
            between claimant's back problem and his
            industrial injury; the claimant has never
            sought review of that award; following
            that award the claimant sought and was
            granted a change of hearing officers;
            claimant attempted before a new hearing
            officer and with new medical experts to
            relitigate the issue of the causal
            connection between his back problem and
            his industrial injury."
      Since the causation issue is res judicata, the only
issue presented to the Workers1 Compensation Court in this
second      proceeding    was     whether       claimant's     original
occupational    foot injury had        in    some way   changed.     The
Workers' Compensation Court found that it had not, and that
in    fact     his     c o n d i t i o n had    improved.              We    h a v e examined            the

r e c o r d i n t h i s r e g a r d and f i n d t h a t t h e c o u r t d i d n o t e r r i n

making t h i s f i n d i n g .         This Court has c o n s i s t e n t l y held t h a t

the     test     of     sufficiency            of    evidence          is    whether          there       is

s u b s t a n t i a l evidence t o support t h e c o u r t ' s findings of f a c t ;

and    we w i l l       not     substitute           our    judgment          for       the    Workers'

Compensation C o u r t i n d e t e r m i n i n g t h e w e i g h t and c r e d i b i l i t y

to    be     given      the     testimony.                Lamb    v.    Universal             Insurance

Company        (Mont.       1 9 8 4 ) , 684 P.2d          498,    4 1 St.Rep.            1414.          Here

t h e c l a i m a n t t e s t i f i e d t h a t h e was a b l e t o g e t a r o u n d b e t t e r

on    his      foot.           Subsequent            medical       treatment             continually

improved        his      foot.         Testimony           both    of       claimant's          medical

d o c t o r and a v o c a t i o n a l s p e c i a l i s t b o t h s u p p o r t e d d e f e n d a n t ' s

contentions            that     claimant            was    increasingly             able       to       gain

limited         employment.                 This          finding           was     supported             by

substantial           evidence        and      thus       it w i l l    not        be    overturned.

           The s e c o n d g r o u n d upon w h i c h a new t r i a l may b e g r a n t e d

i s t h a t contained            in    s e c t i o n 25-11-102,             MCA,    quoted       above.

I n Moen v .          Peter Kiewit           and      Sons Co.,         supra, we explained

this statute:

                 "This decade' s-old                 s t a n d a r d h a s been
                 f l e s h e d o u t by c a s e law e s t a b l i s h i n g t h a t
                 t h e d e c i s i o n t o g r a n t o r d e n y a new t r i a l
                 i s w i t h i n t h e sound d i s c r e t i o n o f t h e
                 trial          court,     ...      and       will     not       be
                 o v e r t u r n e d a b s e n t a showing o f a m a n i f e s t
                 abuse of t h a t d i s c r e t i o n        ...     To w a r r a n t
                 t h e g r a n t i n g o f a new t r i a l on t h e g r o u n d
                 o f n e w l y d i s c o v e r e d e v i d e n c e , it m u s t
                 appear t o t h e court t h a t t h e r e is a
                 reasonable            probability            that,     upon       a
                 retrial,            the      evidence         proposed      will
                 change t h e r e s u l t . " ( C i t a t i o n s omitted. )
                 s u p r a , 655 P.2d a t 487, 39 S t . R e p . a t
                 2215.

In    Finding         no.     12 t h e    court        found      " n o new e v i d e n c e         ...
presented        w h i c h would         l i k e l y change t h e           r e s u l t upon        a   new

trial."         Dr.     Hull,     claimant's t r e a t i n g physician,                       testified

t h a t h e c o u l d n o t s a y w i t h any d e g r e e o f medical c e r t a i n t y
t h a t c l a i m a n t ' s b a c k p r o b l e m was c a u s e d b y h i s f o o t i n j u r y .

He   further        stated      t h a t he     had    no o b j e c t i v e     findings a s to

claimant's          low    back      pain.           Dr.    Hull's       notes          of    various

examinations o f c l a i m a n t suggested t h a t c l a i m a n t ' s back p a i n

was c y c l i c a l     in nature.            This indicated to the doctor t h a t

t h e r e w a s n o t n e c e s s a r i l y a c a u s a l r e l a t i o n b e t w e e n t h e two

injuries.             Claimant       himself         testified        that        his        back     had

g o t t e n a l i t t l e b e t t e r i n t h e l a s t few y e a r s i n t h a t he s t i l l

had t h e same p a i n b u t n o t a s o f t e n .

           Claimant       argues      that     t h e Workers'          Compensation               Court

e r r e d i n s o f a r a s it s e t f o r t h " r e a s o n a b l e m e d i c a l c e r t a i n t y "

as   the     standard        c l a i m a n t was     required        t o meet.               He   cites

Strandberg v.           Reber Co.         ( 1 9 7 8 ) , 1 7 9 Mont.      1 7 3 , 587 P.2d             18,

and c o n t e n d s t h a t it s t a n d s f o r t h e r u l e t h a t a l l a c l a i m a n t

i s r e q u i r e d t o show i s t h a t it was " m e d i c a l l y p o s s i b l e "                  an

occupational i n j u r y aggravated a pre-existing                            condition.              The

pertinent        portion       of    Strandberg,           supra,      states as             fo1I.ows:

                "All        that     is necessary              is t h a t the
                accident aggravated o r accelerated t h e
                preexisting disease o r disability.                          Under
                such circumstances                  the      c l a i m a n t must
                'produce          sufficient         evidence,            direct,
                i n d i r e c t or c i r c u m s t a n t i a l t o cause i n
                t h e u n p r e j u d i c e d mind a c o n v i c t i o n t h a t
                s u c h was t h e f a c t . '        ...       Proof t h a t it
                was m e d i c a l l y p o s s i b l e f o r a n i n d u s t r i a l
                accident          to       aggravate         a      preexisting
                condition            is       acceptable             proof      of
                disability."              (Citations omitted.) Supra,
                1 7 9 Mont. a t 1 7 6 , 587 P.2d a t 20.

S e e a l s o Bykonen v. Montana Power C o .                    (Mont. 1 9 8 5 ) ,                   P.2d

       ,   (Cause N o .     84-506,       decided J u l y 30, 1985); Jones v. S t .

Regis Paper Co.            (Mont. 1 9 8 1 ) , 639 P.2d            1 1 4 0 , 38 S t . R e p .        2201.

           Strandberg        simply       provides         that      expert        testimony           on

medical      possibilities           i s competent evidence a d m i s s i b l e i n a

workers'        compensation             proceeding.            It     is     a     standard           of

e v i d e n c e and d o e s n o t a f f e c t t h e c l a i m a n t ' s       u l t i m a t e burden

to    prove       his     case      by    a    preponderance             of       the    evidence.
"Medical          possibility"                   is     to    be    weighed        just       as    any o t h e r

evidence;          if       supported by o t h e r ,                 i n d e p e n d e n t e v i d e n c e it i s

"acceptable"                 to        be        used        by     the      court       in     making        its

determination.                     Medical              possibility            evidence            by     itself ,

though,         d o e s n o t mandate a c o n c l u s i o n t h a t t h e c l a i m a n t h a s

m e t h i s burden of proof under t h e A c t .

           In      Strandberg                    the      Court        went       on      to       quote      the

unequivocal             testimony of                   two        expert witnesses             that       i t was

medically           possible                claimant's             pre-existing           condition           was

aggravated by h i s occupational i n j u r y .                                  T h e r e was a l s o o t h e r

independent                 evidence             supporting           the      claimant's               position.

Here,      t h e record            is not so clear.                        The o n l y m e d i c a l e x p e r t

was D r .       Hull,         and h i s           t e s t i m o n y was      equivocal.             The o t h e r

e v i d e n c e g o e s b o t h ways.                    Each p a r t y h a s b e e n a b l e t o c u l l

through         the         record      and        select t e s t i m o n y and o t h e r e v i d e n c e

that       supports           their          position.               Though        we    recognize           that

"cautious          medical             testimony''            should,        whenever          possible,       be

interpreted             in        favor          of     the       claimant,        see    Larson,           supra

580.32,          there            is        in     the        record        sufficient             substantial

credible          evidence              to         support          the      Workers'          Compensation

C o u r t ' s d e t e r m i n a t i o n a n d t h u s it m u s t s t a n d .

           Claimant's              s e c o n d and           third     allegations of               error are

similar         and         will       be        discussed          together.            In    the        second,

claimant         contends              t h e Workers'              Compensation          Court e r r e d       in

not    making           a     finding            on     whether       h e was       still       temporarily

t o t a l l y disabled.                 In        the third,          he     argues t h a t t h e court

made a s i m i l a r e r r o r i n n o t f i n d i n g t h a t c l a i m a n t ' s b e n e f i t s

w e r e discontinued without t h e r e q u i r e d f o u r t e e n day n o t i c e .

As    to    both,           claimant             requests          this     Court       to either enter

judgment i n h i s f a v o r o r remand t o t h e W o r k e r s ' C o m p e n s a t i o n

C o u r t f o r f i n d i n g s on t h e s e i s s u e s .
          As    to     the     above      two    issues      presented        in      claimant's

p e t i t i o n , t h e Workers' Compensation C o u r t i n t h e f i n d i n g s and

conclusions stated:

                 " F i n d i n g n o 1 4 . The C o u r t f i n d s t h a t t h e
                 d e f e n d a n t ' s motion t o d i s m i s s should b e
                 granted.



                 " C o n c l u s i o n no. 3 .   The e v i d e n c e d o e s n o t
                 e s t a b l i s h t h a t claimant is e n t i t l e d t o
                 f u r t h e r b e n e f i t s now [ s i c ] [ n o r ? ] t h a t
                 t h e claimant's b e n e f i t s were wrongfully
                 terminated.



                 "Conclusion          no.  6.  The d e f e n d a n t is
                 entitled            to    judgment      dismissing
                 claimant's          petition   with   prejudice."

          Under t h e r u l e       s e t f o r t h i n Mondakota            Gas Company v .

Becker         (1968),       1 5 1 Mont.      513,    445     P.2d     745,     the     FTorkers'

Compensation Co u rt o r d e r i s e f f e c t i v e t o d i s m i s s t h e s e c o u n t s

of claimant's petition.                    I n Mondakota t h i s C o u r t a d d r e s s e d a n

argument        similar        to    the     one     raised       in   the     case         at   bar:

whether        the     findings      of     fact     and    conclusions          of     law w e r e

s p e c i f i c e n o u g h t o comply w i t h R u l e 4 1 ( b ) M.R.Civ.P.                  There,

under t h e p a r t i c u l a r circumstances o f t h a t c a s e ,                   t h i s Court

u p h e l d t h e s u f f i c i e n c y o f t h e d i s t r i c t c o u r t f i n d i n g t h a t "no

cause of        a c t i o n e x i s t s o r h a s been        proven"        i n meeting t h e

f i n d i n g r e q u i r e m e n t o f R u l e 4 1 ( b ) , M.R.Civ.P.         Secondly, t h e

Mondakota         C o u r t uphel-d t h e s u f f i c i e n c y o f t h e l o w e r c o u r t ' s

conclusion o f           law t h a t ;     "it i s t h e r e f o r e o r d e r e d ,    adjudged

and     decreed        that     said       cause     be     and    the     same        is    hereby

dismissed        and     the plaintiff           take nothing thereby."                      Supra,

1 5 1 Mont. a t 5 1 7 , 445 P.2d             a t 748.

          I n Holloway v .          U n i v e r s i t y o f Montana      ( 1 9 7 8 ) , 1 7 8 Mont.

1 9 8 , 582 P . 2 d     1265, t h i s Court d i s c u s s e d what t y p e s o f f a c t s

a r e s u f f i c i e n t t o m e e t t h e f i n d i n g requirement o f Rule 4 1 ( b ) :
                 "Findings           should      be     limited          to    the
                 u l t i m a t e f a c t s and i f t h e y a s c e r t a i n
                 u l t i m a t e f a c t s , and s u f f i c i e n t l y conform
                 t o t h e p l e a d i n g s and t h e e v i d e n c e t o
                 support         the        judgment,       they        will    be
                 regarded a s s u f f i c i e n t , though n o t a s
                 f u l l and c o m p l e t e a s m i g h t b e d e s i r e d . "
                 S u p r a , 1 7 8 Mont. a t 2 0 3 , 582 P.2d a t
                 1268, c i t i n g Pearson v. Pearson                        (Utah
                 1 9 7 7 ) , 5 6 1 P.2d 1 0 8 0 .

Here       we         find           that   the      Workers'              Compensation          Court's

C o n c l u s i o n no.         3,    q u o t e d a b o v e meets t h e t e s t s e t f o r t h i n

Mondakota,            s u p r a and Holloway,                 supra,       f o r findings of        fact.

I t f a i r l y conforms t o and a d d r e s s e s t h e a l l e g a t i o n s c o n t a i n e d

i n claimant's              petition.           Although denominated a ''conclusion

o f law" t h e s t a t e m e n t made by t h e c o u r t i s more o f a f i n d i n g

of    fact.          The mere f a c t t h a t i t i s i m p r o p e r l y d e n o m i n a t e d i s

not     dispositive.                   Since       the    requirement            for    findings        and

c o n c l u s i o n s i n R u l e 4 1 ( b ) , M.R.Civ.P.,                  is primarily t o serve

a n o t i c e f u n c t i o n f o r t h e p u r p o s e s o f res j u d i c a t a , e s t o p p e l ,

and a p p e a l ,         t h e proper inquiry insofar a s t h e sufficiency of

the    lower c o u r t ' s            o r d e r i s t o determine whether w i t h i n                   the

body o f t h a t o r d e r t h e r e q u i s i t e e l e m e n t s a r e m e t .

          A t t h e h e a r i n g b o t h p a r t i e s p r e s e n t e d e v i d e n c e a n d made

arguments            on    these        issues.          The w h o l e o r d e r ,      f a i r l y read,

addresses            and     settles        those        issues.           It    is not    proper        to

require         an     administrative               tribunal          to    strictly      conform t o

technical            requirements             of     the       rules        of    practice.             The

Workers'        Compensation C o u r t d i d i t s job;                      it heard and f a i r l y

c o n s i d e r e d t h e i s s u e s r a i s e d and e v i d e n c e p r e s e n t e d ,        and d i d

n o t c l e a r l y avoid d e c i d i n g t h e former.

          The l o w e r c o u r t ' s C o n c l u s i o n no.              6 a s w e l l a s Finding

no.     14,     for        the       reasons       stated       above,       meet      t h e Mondakota

requirement               for    conclusions             of    law.         Finally,      we   note      an

order      dismissing                 an    action        "with        prejudice"         acts     as     a

judgment        on t h e m e r i t s .          K e l l y v.      Harris         (D.C.Mont.       1958),
1 5 8 F.Supp.      243.       Claimant does n o t a l l e g e an i n s u f f i c i e n c y

of   evidence i n t h i s         regard       and t h e r e f o r e w e    find t h a t the

Workers'      Compensation C o u r t ' s o r d e r i n t h i s c a s e a c t e d a s a

judgment       against       claimant       on    the    merits       of    his    petition.

         The o r d e r o f t h e W o r k e r s ' C o m p e n s a t i o n C o u r t i s h e r e b y

affirmed.




W e concur:             A



                                           -
Chi)jf J u s t i c e
A