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