NO. 13612
IN THE SUPREME COURT OF THC STATE OF MONTANA
1978
EVA STEVENS,
Claimant and Appellant,
-vs-
4-B'S RESTAURANT, INC., Employer,
and
GLACIER GENERAL ASSURANCE COMPANY,
Insurer and Respondent.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Goldman and McChesney, Missoula, Montana
1%. L.McChesney argued, Missoula, Montana
For Respondent :
Norman C. Robb argued and ArchieRobb argued, Missoula,
Montana
Submitted: January 27, 1978
Decided: 1. 0 18T6
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Claimant Eva Stevens appeals from an order of the
Workers' Compensation Court denying her petition for rehearing
from findings of fact, conclusions of law, and judgment entered
in favor of respondents.
Claimant was employed by 4B's Restaurant, Inc. as a pantry-
salad girl in Missoula, Montana. On November 5, 1975, she slipped
on some water on the floor and injured her back, shoulder and
knee. The day of the accident she went to see Dr. Elmer Gray,
a chiropractor, who treated her by chiropractic manipulation.
Claimant underwent a series of such treatments by Dr. Gray, and
continued working without any loss of wages until December 1,
1975. She has not worked since that date.
On December 17, 1975, claimant filed a claim with the
Workers' Compensation Division. 4B's Restaurant is covered under
Plan I1 of the Montana Workers' Compensation Act and its carrier
is Glacier General Assurance Company. Glacier paid claimant's
medical expenses, and commenced paying compensation at the rate
of $76 per week, effective December 1, 1975.
Upon the recommendation of Glacier, claimant was examined
by Dr. Robins, an orthopedic specialist, on January 20, 1976.
Dr. Robins, by his written report dated January 26, 1976, stated:
" * * * I can document no evidence at this time
why she should not be able to return to her
usual occupation."
Claimant then saw another orthopedic specialist, Dr.
on
James Burton, on January 27, 1976. Dr. ~urton/~ebruary 1976
2,
reported "minimal degenerative arthritic changes in all areas"
and recommended an injection, which claimant refused. Dr. Burton
found "very little evidence to strongly substantiate any severe
or significant injury."
Claimant next requested to see Dr. J. S. Benson, a
chiropractor in Hamilton, Montana. This was approved by the
carrier. Dr. Benson reported the fall probably aggravated a
pre-existing back condition. He gave her chiropractic and
physiotherapy treatments from January 31 to February 28, 1976.
Dr. Benson reported there was improvement, but that claimant
later complained of a recurrence of symptoms.
On April 20, 1976, claimant returned to Dr. Burton, who
recommended an internist, Dr. Adams. Dr. Adams found claimant
"appeared to overact to painful stimuli." He recommended medica-
tion and physical therapy treatments. Claimant underwent a series
of such treatments, except for the neck treatment, ending April
On May 4, 1976, claimant returned to Dr. Burton. Dr.
Burton reported to the carrier on May 11, 1976:
"On the basis of Dr. Adans1 examination as well
as Dr. Robins1, I can see no reason why you should
not terminate her disability period and consider
her again employable."
Glacier General terminated claimant's compensation effec-
tive May 22, 1976.
On May 26, 1976, claimant petitioned the Workers1 Com-
pensation Court for a hearing concerning further entitlement to
benefits. The same day, she petitioned the Division to order pay-
ment of temporary total disability benefits. The Division denied
the request on June 7, 1976.
A hearing was held July 13, 1976, before the Workers1
Compensation Court. At the hearing, claimant was the sole
witness. Glacier General elected to stand on the record contain-
ing the various medical reports of the treating physicians. Claim-
ant objected to the court's consideration of the reports and also
moved the court (1) to have claimant examined at a Seattle pain
clinic at the expense of the carrier, and (2) to order the taking
of the depositions of Drs. Burton and Robins at the expense of
the carrier.
On September 13, 1976, the court issued its findings
and conclusions denying the claim for further benefits and
denying the above mentioned motions.
Claimant petitioned for a rehearing on September 28,
1976. The petition was denied on October 18, and final judgment
entered October 27.
Claimant raises three issues on appeal:
(1) Did the court err in considering, over objection, the
written medical reports not admitted into evidence?
(2) Did the court err in refusing to order the taking of
the doctors' depositions at the expense of defendant carrier?
( 3 ) Did the court abuse its discretion in refusing to
grant a rehearing?
Issue 1. Claimant argues the unsworn medical reports
referred to above are hearsay, and their use by the court in
reaching its decision deprived her of her fundamental right to
cross-examination.
The medical reports in question undeniably manifest cer-
tain attributes of "hearsay." The classic definition of hearsay
was stated by this Court in State v. Newman, (1973), 162 Mont. 450,
"'Hearsay' is testimony or evidence of some-
one's words or conduct outside the court, when
offered in court to prove the truth of the thing
being asserted, and thus resting for its value
upon the credibility of the out-of-court asserter."
See also: Rule 801(c), Montana Rules of Evidence
(1977).
The fact that the medical reports in this and like cases
are not actually offered into evidence is of little import if
they are utilized in the court's decision making process. There-
fore, the medical reports must be considered hearsay.
However, a hearing before the Workers1 Compensation
Court is an administrative proceeding. Section 92-852, R.C.M.
As such, the rules of evidence applicable thereto are more
relaxed than in a court of law. Bond v. St. Regis Paper Co.,
(1977), Mont. , 571 P.2d 372, 34 St.Rep. 1237; Bergan v.
Gallatin Valley Milling Co., (1960), 138 Mont. 27, 353 P.2d
320; Ross v. Industrial Accident Bd., (1938), 106 Mont. 486,
80 P.2d 362. The Workers' Compensation Court is not bound by
common law and statutory rules of evidence. Section 92-852,
R.C.M. 1947.
The Montana Workers' Compensation Act provides, in the
case of a dispute as to the physical condition o f the claimant,
for the claimant's submission to physical examination by phys-
icians having substantial experience in the field of medicine
related to the disputed condition. Section 92-814.1, R.C.M.
1947. Section 92-814.1 also provides:
" * * * The physician making the examination
shall file a written report of his findings
with the division for its use in the deter-
mination of the controversy involved. * * *"
Thus, there exists express statutory authority for use of the
medical reports in the resolution of a disputed compensation
claim, despite their hearsay character.
It is well settled that it is not an abuse of discretion
for the Workers' Compensation Court to consider the contents
of medical reports contained in the case file before the court.
Bond v. St. Regis Paper Co., supra; Brurud v. Judge Moving &
Storage Co., Inc., (1977), Pdont . , 563 P.2d 558, 34
St.Rep. 260.
Here, as in Brurud, the medical reports were unsworn
and not offered into evidence. Claimant was well aware of the
existence of the reports and their contents, as well as the
fact that the employer and carrier would rely on them at the
impending hearing. Claimant therefore had every opportunity
to present rebutting medical evidence at the hearing, but failed
to do so. We conclude the Workers' Compensation Court did not
err in considering the medical reports in this case.
The issue remains whether the manner in which the
reports were considered constitutes a deprival of claimant's
fundamental right to cross-examination. Claimant, in this re-
gard, relies on Rumsey v. Cardinal Petroleum, (1975), 166 Mont.
17, 24, 530 P.2d 433. In the Division heard conflicting
medical testimony on the issue of whether an accident was the
cause of the claimant's injured condition. Following the hearing,
the hearings officer forwarded portions of the file to an inde-
pendent physician for his opinion. The physician returned a
report supporting the position of defendants. Counsel for claim-
ant objected to consideration of such report by the hearings
officer. This Court held:
"The Division erred in basing its decision upon an
independent medical report made by a physician
appointed by the Division, accompanied by denial
of the right to cross-examine and rebut." 166
Mont. 24.
There is a vast difference, however, between reports
compiled and submitted following a hearing, leaving no oppor-
tunity to make further inquiry or otherwise rebut, and reports
filed prior to the hearing, of which the parties have notice
and the opportunity to rebut, if adverse to their respective
positions. The distinction is recognized, at least impliedly,
in recent decisions of this Court. Bond v. St. Regis Paper Co.,
supra; Brurud v. Judge Moving & Storage Co., Inc., supra.
In the instant case, claimant had notice, well in ad-
vance of the hearing, that defendants would rely on the reports
of claimant's treating physicians, particularly those of Drs.
Burton and Robins, to the effect that claimant's disability had
been terminated, and she was able to return to her usual employ-
ment. Claimant had ample opportunity to cross-examine the doctors
by way of pre-hearing deposition, or by calling them as witnesses
at the hearing. See: Rule 11, Workers' Compensation Court
Procedural Rules; section 82-4220, R.C.M. 1947. his claimant
failed to do. Rather, the record suggests claimant attempted
to rebut the essential findings of the doctors by way of her
own testimony at the hearing. We hold the hearing did not de-
prive claimant of her right to cross-examination.
Issue 2. Following the hearing, claimant moved the
court for an order permitting her to take the depositions of Drs.
Burton and Robins at the expense of defendant carrier. The motion
was denied. Claimant alleges the denial of the motion was error.
Claimant's argument is premised upon her first argument, offered
as an alternative, to insure her right to cross-examination.
While the Workers' Compensation Court may approve a party's
motion for the taking of depositions subsequent to a hearing,
there exists no authority for imposing the costs thereof upon
the adverse party. Rather, Rule 11 of the Workers' compensation
Court Rules clearly states:
"The cost of the deposition shall be borne by
the party requesting the deposition."
Therefore, the court did not err in denying claimant's
motion to depose the named doctors at the expense of the carrier
in this case.
Issue 3. Claimant argues the court erred in refusing
to grant claimant a rehearing in the light of newly discovered
evidence. The hearing was held July 13, 1976, and the court
took the matter under advisement. On August 17, claimant was
treated by another chiropractor, Dr. D. J. McMannis. Dr.
McMannis reported claimant's layoff would be "indefinite" and
that permanent disability was "undetermined". The report was
received by the court and placed in its file on August 31. The
court entered its findings and conclusions on September 13,
without apparent reference to the McMannis report.
At this time, the parties were evidently unaware of
the report. Claimant's counsel, however, in petitioning for
rehearing on September 28, stated he had been informed by
claimant that another doctor had examined her and would state
under oath that she would be unable to return to work. On
October 18, the court entered its order denying a rehearing,
indicating "no evidence to the contrary" had been shown.
Whether a rehearing should be granted is within the
discretion of the Workers' Compensation judge. Rule 19,
Workers' Compensation Court Procedural Rules.
Rule 10 of the Workers' Compensation Court Procedural
Rules mandates free exchange of medical reports between the
parties. Here, as of the time of the final order and judgment
disposing of the case, defendants had yet to receive notice of
the contents of the McMannis report. As defendants were, by
claimant's actions, unable to respond to or otherwise prepare
rebuttal for the substance of the McMannis report, it was not
an abuse of discretion for the Workers' Compensation Court to
fail to consider it in reviewing the petition for rehearing.
Further, we find, despite the Mcllannis report, there is
substantial evidence to support the findings and conclusions
of the Workers' Compensation Court. McAlear v. Arthur G. McKee
& Company, (1976), Mont . , 558 P.2d 1134, 33 St.Rep. 1337;
Skrukrud v. Gallatin Valley Laundry Co., Inc., (19761, Mont.
, 557 P.2d 278, 33 St.Rep. 1101. Here, we find the over-
whelming weight of medical evidence supports the conclusion that
claimant's disability had terminated and she was not entitled
to further compensation or medical benefits therefor.
The order and judgment of the Workers' Compensation
Court, denying additional c benefits, and a rehear-
ing, are affirmed.
We concur: