Miller v. Frasure

NO. 93-253
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

LINDA NEWMAN MILLER
Petitioner and Appellant,
-v-

MAURINE FRASURE, d/b/a D'HAIRE
MOTOR INN RESTAURANT, Employer,
and WESTERN GUARANTY FUND SERVICES
Defendant and Respondent.

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

COUNSEL OF RECORD:
For Appellant:
William 0. Bronson, James, Gray & Mccafferty, Great
Falls, Montana
For Respondent:
K . Dale Schwanke, Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana

Submitted on Briefs: January 13, 1994
Decided: March 22, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal, and a cross-appeal, from a Workers'
Compensation Court, findings of fact, conclusions of law and order,

in which the court ruled that petitioner Linda Newman Miller

(Miller), was permanently partially disabled. We affirm in part,
reverse in part and remand for calculation of the permanent partial

disability rate.

We restate the issues on appeal and cross-appeal.
ISSUES ON APPEAL
1. Did the Workers' Compensation Court err in concluding that

Miller was not permanently totally disabled?
2. Did the Workers' Compensation Court err during its in

camera inspection of the insurer's claims file, and following

order, by failing to require disclosure of otherwise discoverable

facts?
3. Did the Workers' Compensation Court err in failing to

require the insurer's adjuster's deposition to take place in

Montana?

ISSUES ON CROSS-APPEAL

1. Did the Workers' Compensation Court err in concluding that

Miller met her burden of proof that a causal relationship existed
between her industrial accident and her disability?

2. Did the Workers' Compensation Court err in concluding that,

if Miller is permanently partially disabled, she can elect whether

she will seek benefits under § 39-71-703, MCA, or under 5 39-71-

705-708, MCA?

2
 3. Did the Workers' Compensation Court err in sustaining
Miller's objections to Frasure's deposition and the accompanying
exhibit?
4. Did the Workers' Compensation Court err in denying the
insurer's motion to reopen the trial?
Miller was 34 years old and working at the O'Haire Motor Inn
Restaurant when she suffered an injury while at work on July 10,
1984. She slipped while mopping a floor and struck her right knee
against the side of the bucket.
Since the accident, Miller has been to numerous physicians for
a diagnosis of her knee problem, as well as relief from knee pain
and swelling. These physicians have provided varying diagnoses for
her condition, from chondromalacia patella of the right knee to
reflex sympathetic dystrophy. It should be noted that Miller had
suffered from both knee and hip problems before the date of the
industrial accident.
Prior to the accident Miller was a high school graduate.
After the accident she obtained a business degree from the Great
Falls Vocational Technical Center, graduating in 1988. She has not
sought paid employment since that time although she does volunteer
at the YWCA as a receptionist/front desk clerk twice a week for a
total of six hours per week. Miller has not made any attempt to
obtain work, even on a part-time basis, since she started her
volunteer position.
In addition to being the single parent of two children, Miller
is a foster care parent for up to four children at a time. She

3
receives $360 per child per month for her work as a foster care
parent. Miller also receives $334 per month in social security as
well as $42.70 per child for her two children.
Miller's employer was enrolled under Compensation Plan # 2 of
the Montana Workers' Compensation Act and was insured by
InterMountain Insurance Company. InterMountain's obligations have
since been assumed by Western Guaranty Fund Services (Western),
based in Denver, Colorado.
The standard of review for findings of fact is whether there
is substantial credible evidence to support the Workers'
Compensation Court's findings of fact. Pepion v. Blackfeet Tribal
Industries (1993), 251 Mont. 485, 489, 850 P.2d 299, 302. The
standard of review for conclusions of law is whether the tribunal's
interpretation of the law is correct. Steer, Inc. v. Department of
Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The
standard of abuse of discretion applies to trial administration
issues. Steer, Inc., 803 P.2d at 603-04.
ISSUES ON APPEAL
1. PERMANENT TOTAL DISABILITY
Miller argues that the Workers' Compensation Court erred in
concluding that she was not permanently totally disabled. The
defendant/cross-appellant (Western) counter that there is
substantial credible evidence supporting the Workers' Compensation
Court's conclusion. Moreover, Western states that Miller did not
carry her burden to introduce evidence about her normal labor
market as required, but instead, provided evidence "related to jobs

4
she had held prior to her injury and vocational retraining - not to

the types of work she is qualified for now having graduated from
Vo-Tech."

Section 39-71-116(13), MCA (1983), states that:

"Permanent total disability" means a condition resulting
from injury as defined in this chapter that results in
the loss of actual earnings or earning capability that
exists after the injured worker is as far restored as the
permanent character of the injuries will permit and which
results in the worker having no reasonable prospect of
finding regular employment of any kind in the normal
labor market. Disability shall be supported by a
preponderance of medical evidence.

We have adopted the Workers' Compensation Court's approach to
establishing the burdens of production and proof for the nonmedical

elements of disability in establishing a permanent total

disability. Metzger v. Chemetron Corp. (1984), 212 Mont 351, 355,
687 P.2d 1033, 1035. Metzser provides:

To establish the existence of no reasonable prospect of
employment in the normal labor market, a claimant must
introduce substantial credible evidence of (1) what jobs
constitute his normal labor market, and (2) a complete
inability to perform the employment and duties associated
with those jobs because of his work-related injury.
(Citation omitted.)

Metzqer, 687 P.2d at 1035.

In the instant case, Miller did not present any vocational

evidence concerning her normal labor market. Miller relied on her

testimony that she could not perform any of the jobs she had in the

past because of her physical limitations. We have concluded that

that sort of testimony is sufficient to meet the claimant's burden

of proof to establish the existence of no reasonable prospect of

employment in the claimant's normal labor market. see, for

5
example, Varela v. Exxon, U.S.A., Billings Refinery (1989), 237
Mont. 300, 308-09, 773 P.2d 299, 304: Ness v. Anaconda Minerals Co.
(1993) I 257 Mont. 335, 339, 849 P.2d 1021, 1023-24. Once the
claimant has demonstrated that there is no reasonable prospect of
employment in his normal labor market, the burden then shifts to
the employer to show that suitable work is available. Metzoer, 687
P.2d at 1036.
Here, Western met its burden to establish that, by reason of
Miller's post-injury education and training, there were other jobs
for which she was suited by age, education, work experience and
physical condition. Gerry Loch (Loch), a private
' rehabilitative
counselor who worked with Miller in an attempt to facilitate her
return to the work force, testified for Western and presented
vocational evidence. She also developed job analyses after
discussing Miller's post-injury education and training with her and
after discussing Miller's medical condition with a physiatrist who
treated Miller. Loch also considered that with Miller's training
and education, she was in a better earning position post-injury
than she was in before she was injured and subsequently retrained,
if she could work on a full-time basis.
Western offered the deposition testimony of Dr. Hinde, the
physiatrist Loch interviewed, who stated that "[t]o my evaluation
and by her history, I would suspect that [Miller] would be able to
function successfully at a sedentary work level or very well
selected light work level." He also opined that "her sum total of
demonstrated function in terms of volunteer capacity, homemaking

6
activity, child care activity, would constitute an equivalent to

more hours than six hours per week of sedentary to well selected
light work. To work out of the home would require child care to be

arranged and perhaps someone else to assist with homemaking duties,

but it certainly doesn't preclude work at a level of much higher

than that." Dr. Hinde concluded that the job analyses compiled by

Loch were positions which were medically appropriate for Miller
although his recommendation was to gradually work Miller into full

time employment. Dr. Hinde's conclusions were also supported by
another physiatrist, Dr. Jackson, to whom Dr. Dietrich referred

Miller.

To counter Western's evidence, Miller, for the most part,
relied on her own testimony that she would not be able to perform

the job duties associated with the analyses provided by Loch. She

also offered the deposition testimony of Dr. Dietrich that unless

there was some improvement in her physical condition, he would not

approve of Miller working beyond the six hours per week she

volunteers at the YWCA. The sum total of the evidence provided by

Miller, coupled with her non-existent effort to obtain even part-

time employment, does not carry her burden to prove an inability to

find employment in her normal labor market. Metzoer, 687 P.2d at
1036. Western, however, did carry its burden to show that suitable

work was available for Miller, and that, therefore, she was not

permanently totally disabled.

Miller also poses the argument that she may be an "odd lot"

employee. However, Miller is not an "odd lot" employee due to her

7
sufficient training, education and experience and therefore, we
reject her "odd lot" employee argument. Metzoer 687 P.2d at 1036.
Moreover, Miller provided testimony about a variety of
household chores she has engaged in which indicate an ability to
work outside of the home in a paid position. In 1990, Miller
bought a new home, which she cleaned when she moved in, vacuuming
the carpets and "wash[ing] everything down." She also painted a
couple of bedrooms and the kitchen. Additionally, she seeded,
fertilized and watered the lawn as well as put in flower beds
around the house. Moreover, Miller testified that she does the
laundry and cooking for herself, her two biological children and up
to 4 foster children. These many and varied activities indicate
that Miller could be working outside of the home, at least on a
part-time basis.
We therefore, conclude that there was substantial credible
evidence to support the Workers ' Compensation Court's judgment that
Miller was not permanently totally disabled. "Even though
conflicting evidence may exist in the record, it is the duty of the
Workers' Compensation Court, and not this Court, to resolve such
conflicts." (Emphasis added.) Pepion, 850 P.2d at 302. The
Workers' Compensation Court had the opportunity to listen to the
witnesses, assess their credibility and testimony, and it correctly
concluded that substantial credible evidence supported a conclusion
that Miller was not permanently totally disabled.
2. IN CAMERA INSPECTION
Miller contends that the Workers' Compensation Court's order

8
on disclosure of the insurer's claims file does not indicate

whether certain documents not disclosed contained "factual

information otherwise discoverable." Western states that Miller

never asked the Workers' Compensation Court to indicate whether

documents not ordered to be disclosed contained factual information
otherwise discoverable so she should not be heard to complain at

this time.
Miller's argument cannot prevail because she did not seek to

have the insurer's claims file which was the subject of the

Workers' Compensation Court's protective order of February 19,

1992, filed with this Court as a part of the record on appeal. We

will not presume that the Workers' Compensation Court erred in the

"in camera" inspection: without the file, there is no way for this
Court to review the Workers' Compensation Court's decision to

exclude some documents in the file from discovery and produce other

documents. See Palmer by Diacon v. Farmers Ins. (1993), _ Mont.

____, 861 P.2d 895, 906. It remains the appellant's obligation to

insure the completeness and accuracy of the record on appeal and to

take appropriate action to have included in the record all

documents, discovery and evidence which relate to the errors

claimed. Appellant may not predicate error on an incomplete
record. In the instant case, it would have been appropriate to

request the Workers' Compensation Court to seal the non-

discoverable documents and to order those filed with the record on

appeal. See, for example, State v. Little (1993), Mont. -,

861 P.2d 154, 158.

9
 Under the circumstances, we must affirm the Workers'
Compensation Court's order prohibiting discovery of some documents
in the insurer's claims file and allowing discovery of other
documents from the file.
3.. DEPOSITION OF CLAIMS ADJUSTER
Finally, Miller complains that, pursuant to Rule 24.29.804,

Am, the claims adjuster in charge of Miller's case should have
been ordered to be deposed in Montana inasmuch as Western is the
insurer and inasmuch as Western does not maintain a resident
adjuster in Montana, a requirement under Rule 24.29.804, ARM.
The Workers' Compensation Court concluded that Western was
deemed an "insurer" within the meaning of § 33-10-105(1)(b), MCA,
and that Western, through 3 39-71-116(8), MCA, was subject to Rule
24.29.804, ARM. However, the court refused to compel the adjuster
in charge of Miller's case to be deposed in Montana under the
rationale that it could not enforce a subpoena across state lines,
and, in so ruling, left Miller to complain to the Department of
Labor if she felt the Rule was being violated. We agree that
Western is subject to the Rule; we disagree that the adjuster
cannot be compelled to attend his deposition in Montana.
Rule 24.29.804, ARM, provides:
ADJUSTERS IN MONTANA (1) Every insurer is required to
designate at least one adjuster, maintaining an office in
Montana, which shall pay compensation when due and which
shall have authority to settle claims
A logical extension of this rule is that the adjuster, by virtue of
his required presence in Montana, should then be available for a
deposition in this State. Western is admittedly in violation of
10
this Rule in not having a resident adjuster in Montana.

Under 5 39-71-203, MCA, the Workers' Compensation Court is

vested with the power, authority and jurisdiction necessary to the

exercise of its power to conduct proceedings and hearings and make

determinations concerning disputes under Chapter 71. Moreover,

Rule 24.5.326, ARM, provides the Workers' Compensation Court with

the authority to compel the claims adjuster to be deposed in

Montana by an order to compel responses. The statute and the rule

provide the Workers' Compensation Court with the authority to order

the insurer's claims adjuster to be deposed in Montana. The

court's concern over its ability to enforce an out-of-state

subpoena is not the issue. The adjuster represents a named party

over which the court has jurisdiction; Western is the insurer and

is obligated to conduct its business of insuring claimants and

adjusting claims in accordance with applicable State laws and

administrative regulations.

While it might be argued that this issue is moot because

Miller, on the basis of the court's order, went ahead and deposed

the adjuster in Colorado in preparation for trial, in view of the

potential for this issue to recur in this and other cases, we hold

that the statutes and rules aforementioned mandate that a non-

resident claims adjuster can be compelled by the Workers'

Compensation Court to be deposed in Montana, as a logical extension

of the insurer's obligation to designate a resident adjuster under

Rule 24.29.804, ARM. We reverse the decision of the Workers'

Compensation Court on this issue.

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 ISSUES ON CROSS-APPEAL
1. CAUSAL RELATIONSHIP BETWEEN ACCIDENT AND DISABILITY
Western contends that Miller did not prove a causal
relationship between the accident and the injury necessary to
establish a permanent partial disability. Western bases its
argument on two alleged errors by the Workers' Compensation Court.
A. Unsworn Medical Reports
Western argues that a finding of "permanent partial
disability" requires a determination that the disability result
from an injury. The Workers' Compensation Court's determination
that Miller was permanently partially disabled was based upon its
conclusion that Dr. Patterson and Dr. Popnoe relate Miller's
disability to the accident at O'Haire's Motor Inn. Western states
that Miller did not call either doctor to testify at trial or by
deposition, and therefore, their testimony by written medical
reports should be excluded. Miller argues that pursuant to Rule
24.5.317, ARM, the Workers' Compensation Court's reliance on the
written medical reports was proper.
We agree that the Workers' Compensation Court's reliance on
the written medical reports of Drs. Patterson and Popnoe was
proper. Western bases its argument that the medical reports were
improper on Hert 'v. J. J. Newberry Co. (1978), 178 Mont. 355, 584
P.2d 656 - Order on Petition for Rehearing (1978), 179 Mont. 160,
587 P.2d 11, wherein this Court determined that unsworn medical
reports which were not exchanged before trial and whose authors
were not available at trial, were not admissible in the proceeding.

12
The &a& Court based its decision primarily on its concern that the
author of the medical report was not available for cross-
examination. This concern was addressed and considered in 1990 by
the adoption of Rule 24.5.317, ARM. Rule 24.5.317, ARM, provides:
24.5.317 MEDICAL RECORDS (1) Prior to any scheduled
trial, the parties shall exchange all medical records
based upon examination of the claimant. Failure to
exchange any medical records, whether or not based on an
examination, by the exchange deadline shall preclude its
use at trial, except for good cause as set forth in
subsection (4).
(2) Medical records based on an examination of the
claimant and exchanged by the parties or their attorneys
by the exchange deadline are admissible without the
necessity of foundation testimony. A party may object to
those reports being admitted into evidence and the
objecting party will be allowed to depose or subpoena the
author of any such records for purposes of cross-
examination. An objecting party may subpoena the author
for trial, or deposition before or subsequent to the
trial as provided in ARM 24.5.322(l).
(3) Subsection (2) applies only to admissibility.
All other objections, such as relevance and materiality,
are preserved and may be raised as in any other
proceeding.
(4) Medical records exchanged after the exchange
deadline may be admitted into evidence only if stipulated
to by the parties, or by the laying of the proper
foundation by the proponent of the record. Upon proper
motion and for good cause shown, the court, in its
discretion may permit a post trial deposition under this
section.
Rule 24.5.31.7, ARM, states that medical records based on an
examination of the claimant and exchanged between the parties are
admissible without the necessity of foundation testimony.
Subsection 2 of the Rule affords the opposing party the onnortunitv
to depose or subpoena the author of medical records at issue for
the purposes of cross-examination if there is any objection to the
medical records. Thus, the rule acknowledges due process cross-
examination concerns by providing an opportunity for opposing
13
parties to depose or subpoena the author of medical records,
thereby addressing and disposing of our concern expressed in - -
Hert
The rule finds support in both Montana and federal case law.
For instance, in Stevens v. Glacier Gen. Assur. Co. (1978), 176
Mont. 61, 575 P.2d 1326, this Court allowed the admission of
unsworn medical reports, stating that "claimant had notice, well in
advance of the hearing, that defendants would rely on the reports
of claimant's treating physicians...[c]laimant had ample
opportunity to cross-examine the doctors by way of pre-hearing
deposition, or by calling them as witnesses at the hearing."
Stevens, 575 P.2d at 1330.
In a United States Supreme Court case, Richardson v. Perales

(1971) I 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842, the issue was
whether physicians' written medical reports of examinations of
claimant may be considered "substantial evidence" to support a
finding of non-disability in a social security hearing "when the
claimant objects to the admissibility of those reports and when the
only live testimony is presented by his side and is contrary to the
reports." Richardson, 402 U.S. at 390. The Court concluded that:
[A] written report by a licensed physician who has
examined the claimant and who sets forth in his report
his medical findings in his area of competence may be
received as evidence in a disability hearing and, despite
its hearsay character and an absence of cross-
examination, and despite the presence of opposing direct
medical testimony and testimony by the claimant himself,
may constitute substantial evidence supportive of a
finding by the hearing examiner adverse to the claimant,
when the claimant has not exercised his right to subpoena
the reporting physician and thereby provide himself with
the opportunity for cross-examination of the physician.
Richardson, 402 U.S. at 402. Some of the Court's reasons for
14
concluding that the evidence was admissible include the following:
1. The reports were prepared by practicing physicians who
had examined Perales.
2. Perales could have, but did not, take advantage of the
opportunity to cross-examine the reporting physicians
under 20 CFR 3 404.926.
3 . "Courts have recognized the reliability and probative
worth of written medical reports even in formal trials
and, while acknowledging their hearsay character, have
admitted them as an exception to the hearsay rule."
Richardson, 402 U.S. at 405.
4 . The probative value of these reports had been
recognized in social security disability hearings in the
past.
5. "[T]he cost of providing live medical testimony at
those hearings, where need has not been demonstrated by
a request for a subpoena, over and above the cost of the
examinations requested by hearing examiners, would be a
substantial drain on the trust fund and on the energy of
physicians already in short supply." Richardson, 402
U.S. at 406.
These same considerations are inherent in the adoption of the

Workers' Compensation Court's rule allowing for the admissibility

of medical reports. We hold that under Rule 24.5.317, ARM, the
written medical reports of Drs. Patterson and Popnoe were properly

relied upon by the Workers' Compensation Court judge in his

decision. Further, because of the adoption of Rule 24.5.317, ARM,

Hert is no longer authority for the admissibility of medical

records.
B. Written Statements as Sufficient to Find Disability

Western argues that even if the written medical statements

were admissible, they did not amount to a preponderance of the

evidence to establish a causal relationship between the accident

and the injury. Miller counters that case law supports the

Workers' Compensation Court's conclusion that Miller has a

permanent partial disability because her industrial accident

15
aggravated a preexisting condition. We agree.
The aggravation of a preexisting condition is compensable.
Rumsey v. Cardinal Petroleum (1975), 166 Mont. 17, 28, 530 P.2d
433, 439. Miller argues that l'proof that it was medically possible
for an industrial accident to aggravate a pre-existing condition is
acceptable proof of disability," citing Viets v. Sweet Grass County

(1978) r 178 Mont. 337, 340, 583 P.2d 1070, 1072; Strandberg v.
Reber Co. (1978), 179 Mont. 173, 176, 587 P.2d 18, 20. (Emphasis
added.) The Viets Court stated that while claimants must prove by
a preponderance of the evidence that the injury suffered arose out
of and in the course of their employment, "evidence of what is
medically possible is more reliable in proving aggravation of an
injury or disease [rather] than cause and effect." Viets, 583 P.2d
at 1072. Therefore, according to Miller, under the law applicable
at the time of injury, evidence of the possibilitv of an
aggravation of an injury is acceptable even though the nexus
between actual injury and disability must be proved by a
preponderance of the evidence.'
Western maintains that proof of medical possibility alone is
insufficient to meet the claimant's burden of proof, citing
Ferdinand v. Lodge #456, B.P.O.E., Lewistown (1986), 221Mont. 436,

' We are obligated to apply the substantive law in effect at
the time of the claimant's injury. Buckman v. Mont. Deaconess
Hosp. (1986), 224 Mont. 318, 730 P.2d 380. Under the law since
1987, proof that it was medically possible that a claimed injury
aggravated a preexisting condition is not sufficient to establish
liability. See Ch. 464, L. 1987, 5 39-71-407(2)(b)(1993), MCA,
Plainbull v. Transamerica Insurance Company, Cause No. 93-432; and
Prillaman v. Community Medical Center, Cause No. 93-283.
16
719 P.2d 775, and that there must be evidence offered in addition
to and supportive of the medical possibility of aggravation of the

preexisting condition.

As pointed out by Western, the Viets approach was modified by

other cases: proof that it was medically possible for an industrial

accident to aggravate a preexisting condition is acceptable proof

of a disability but it must be supported bv other independent

evidence. See Currey v. 10 Minute Lube (1987), 226 Mont. 445, 736
P.2d 113 (injury occurred in 1984). The Currev Court, citing

Wheeler v. Carlson Transport (1985), 217 Mont. 254, 261, 704 P.2d

49, 53-54, stated:
"Medical possibility" is to be weighed just as any other
evidence; if supported by other, independent evidence it
is "acceptable" to be used by the court in making its
determination. Medical possibility evidence by itself,
though, does not mandate the conclusion that the claimant
has met his burden of proof under the Act.
While the 1987 legislature statutorily modified claimants'

burden of proof for the occurrence of injury and aggravation of a

preexisting condition, we conclude that claimant's burden of proof

in this case is best explained by the approach suggested by Western

-- i.e. proof of medical possibility supported by other independent

evidence.

Miller provided a letter from Dr. Popnoe, stating that he saw

Miller on March 19, 1985, and after an examination diagnosed her

condition as "[clhondromalacia of the right patella secondary to

possibly (sic) injury as well as a result of patellar malalignment

in the past." Additionally, Dr. Patterson opined that "the

original injury to her knee and possibly to associated cutaneous

17
nerves is the source of her condition."
Miller also points out to the court that Dr. Losee t s
examination and his follow-up report add support to Drs.
Patterson's and Popnoe's opinions that the injury caused the
disability. Dr. Losee stated that it was his impression that she
irritated the infrapatellar branch of the saphenous nerve of the
right knee when she hit her knee against the bucket.
In addition, Dr. Avery testified to the following in his
deposition:
Q. I apologize if I wasn't clear. What I was referring
to principally was the fact that prior to this incident,
that she states occurred in July of 1984, she had some
problems with her knee, at an earlier period of time.
And these problems had had some type of surgical
procedure performed to resolve that problem?
A. Correct.
Q- I also understand it was your testimony that you felt
that the incident that she related, that occurred on July
10, 1984, had aggravated these pre-existing problems, is
that correct?
A. That's correct.
Under the modified Viets approach, we conclude that there was
sufficient evidence to prove that Miller had a preexisting medical
condition which was aggravated by her July 10, 1984 injury. The
letters from Drs. Popnoe and Patterson establish the possibility
that the injury aggravated the existing knee problems. This
evidence is supported by independent evidence of Drs. Losee and
Avery, which establishes, under the Currev standard, that Miller
has met her burden to prove her case by the preponderance of the
evidence. "[W]here the findings are based on conflicting evidence,

18
this Court's function on review is confined to determining whether
there is substantial evidence to support the findings and not to
determine whether there is sufficient evidence to support contrary

findings." Little v. Structural Systems (1980), 188 Mont. 482,

486, 614 P.2d 516, 519. Although the evidence here is not

overwhelming and is certainly conflicting, we conclude that

substantial evidence does support the Workers' Compensation Court's

determination. We hold that the Workers' Compensation Court did

not err in determining that Miller had a permanent partial

disability.
2. ELECTION OF REMEDIES

Western argues that Miller should have elected to claim

benefits under § 39-71-703, MCA, or by applying 55 39-71-705

through 708, MCA, but she did not make that election and did not
present evidence at trial from which the Workers' Compensation

Court judge could determine the amount of benefits to which she was

entitled. Miller counters that the argument that she was

permanently partially disabled was an alternative position and that

the determination of the level of benefits could properly be

postponed until a later date.
Pursuant to 5 39-71-2905, MCA, the Workers' Compensation Court

judge has exclusive jurisdiction to make determinations concerning

disputes and is required to fix and determine benefits due to
claimants who successfully prove a disability. In its findings of

fact, conclusions of law, and order, the Workers' Compensation

Court stated that it had some of the data necessary to determine

19
the appropriate award for Miller but that it was currently unable
to determine the actual rate. It further requested information
that would bring Miller's 1984 wages current to the time of the
trial.
The Workers' Compensation Court's authority to fix and
determine benefits extends to the authority to determine the time
and manner in which it shall determine those benefits. The court
has chosen a suitable process for determining Miller's benefits in
the present case. The determination of Miller's permanent partial
disability benefits is a strictly formulaic procedure which can be
easily and quickly accomplished with the admission of numerical
evidence. Because the Workers' Compensation Court does not have
all the necessary evidence to determine Miller's benefits at this
time, the appropriate recourse is to remand the case to the
Workers' Compensation Court for a determination of Miller's
permanent partial disability rate. We, therefore, remand this
issue to the Workers' Compensation Court for further proceedings.
3 . FRASURE DEPOSITION
Western argues that the Workers ' Compensation Court improperly
granted Miller's motion to strike Maurine Frasure's rebuttal
deposition. (Frasure is the former owner/operator of the O'Haire
Motor Inn, Miller's employer at the time of the accident.) Western
contends that the Voluntary Quit Statement filled out by Miller and
offered by Western as an exhibit to Frasure's deposition, was new
evidence the Workers' Compensation Court should have considered.
Moreover, argues Western, that exhibit was an exhibit counsel was

2 0
not even aware existed until the taking of the rebuttal deposition
on October 19, 1992. Miller contests Western's argument, stating
that the actual purpose of the Frasure rebuttal deposition was to
challenge testimony from Miller's case-in-chief.
During the taking of Frasure's deposition, Miller's attorney
objected to the majority of the testimony elicited on the grounds
that it properly should have been produced in Western's case-in-
chief. We agree. The testimony presented concerned Miller's
injury and her attempt to return to the work force. This
information could have been or should have been elicited during
Western's case-in-chief.
Rebuttal testimony is confined to matters which tend to
counteract new matters offered by the opposing party. Gustafson v.
Northern Pacific Railway Company (1960), 137 Mont. 154, 164, 351
P.2d 212, 217. The matters delved into here include the
relationship between the accident and Miller's physical condition,
her credibility, and her ability to work after Dr. Avery released
her back to the work force. These are some of the main issues
raised during the trial and should have been adequately explored
during Western's case-in-chief. See Massman v. City of Helena

(1989), 237 Mont. 234, 243, 773 P.2d 1206, 1211-12. Western was
given its chance to examine these issues during trial and should
have discovered this information during pretrial investigation and
preparation. The testimony and exhibits were not properly rebuttal
testimony and therefore, we hold that the Workers' Compensation
Court properly exercised its discretion in striking and excluding

21
the testimony and accompanying exhibit.
4. MOTION TO REOPEN THE TRIAL

Western asserts that the Workers' Compensation Court

improperly denied its motion to reopen the trial. to admit evidence

of the Voluntary Quit Statement offered as an exhibit to Maurine
Frasure's deposition. Miller counters that the motion was untimely

and the Workers' Compensation Court properly exercised its

discretion in refusing to grant the motion. We agree with Miller's

assessment and with that of the Workers' Compensation Court.
Frasure's rebuttal deposition was taken on October 19, 1992. The

motion to reopen the case, filed in order to present the Voluntary
Quit Statement, was not filed until December 18, 1992, almost two

months later.

The Workers' Compensation Court, in its denial of Western's

motion, commented that Western should have been in contact with

Frasure during its preparation for trial and the evidence at issue

should have come to light at that time. Even if Western did not

obtain evidence of the Voluntary Quit Statement until Frasure's

deposition on October 19, 1992, it should have made arrangements at

that point to obtain the full document from Frasure as soon as

possible.

Pursuant to Rule 24.5.316(4), ARM, the Workers' Compensation

Court has discretion to reopen a case and allow additional

evidence. In the instant case, the Workers ' Compensation Court had

sound reasons for refusing to allow additional evidence in the
case, and we do not find any abuse in the exercise of its

22
discretion. Western had ample opportunity to obtain the evidence
necessary to defend its case but it did not avail itself of the
opportunity in a timely manner. We conclude that the Workers'
Compensation Court correctly denied the motion to reopen the case
to admit the Voluntary Quit Statement.
Affirmed in part; reversed in part: and remanded for
calculation of the permanent partial disabiliturate. ,/,

23
 March 22, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:

William 0. Bronson, Esq.
James, Gray & McCafferty
P.O. Box 2885
Great Falls, MT 59403-2885

K. Dale Schwanke
Jardine, Stephenson, Blewett & Weaver
P.O. Box 2269
Great Falls, MT 59403

ED SMITH
CLERK OF THE SUPREME COURT
STATE