No. 83-98
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1983
VALENTINE WALTER,
C l a i m a n t and R e s p o n d e n t ,
-vs-
EVANS PRODUCTS COMPANY, Employer,
and
EVANS PRODUCTS COMPANY,
Defendant and A p p e l l a n t .
APPEAL FROM: W o r k e r s ' Compensation C o u r t , The H o n o r a b l e Timothy
Reardon, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Apsellant:
Andrew J . U t i c k , H e l e n a , Montana
For Respondent:
J o h n D o s t a l ; P a t t e r s o n , M a r s i l l o , Tornabene &
S c h u l y l e r , M i s s o u l a , Montana
-
S u b m i t t e d on B r i e f s ; August 2 5 , 1 9 8 3
~ e c i d e d : November 2 3 , 1 9 8 3
Filed: NOV 2 3 1983
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The Workers' Compensation Court on December 22, 1982,
awarded to Valentine Walter on his Workers' Compensation
claim temporary disability benefits from May 20, 1980, until
he reaches maximum healing, medica.1 benefits for his
injuries, and ordered a lump sum to be paid to the claimant
for his temporary total disability benefits from May 20, 1980
to the date of the judgment in the Workers' Compensation
Court. Walter was also awarded reasonable costs and
attorneys fees. No penalty was applied by the Workers'
Compensation Court. Evans Products Company has appealed from
the judgment and decision of the Workers' Compensation Court.
We affirm the decision of the Workers' Compensation
Court.
On or prior to August 1, 1977, Valentine Walter was
employed by Evans Products Company at its plant in Missoula.
It is uncontested that on August 1, 1977, in the course and
scope of his employment, Walter injured his right knee.
Medical benefits were paid by Evans Products Company as a
result of that injury. Walter filed a claim for compensation
benefits on June 6, 1980, and such claim was denied.
The Workers' Compensation Court found that the claimant
did not lose any wages because of his work-related injury on
August 1, 1977 and so did not file his claim for disability
benefits. When he did file his claim on June 6, 1980, he did
so at the suggestion of George Wood, the manager of
Compensation Adjusters, Inc. , which does Workers '
Compensation adjustments for Evans Products Company.
However, Wood denied the claimant's initial claim for
compensation because it was filed more than a year after
August 1, 1977. Claimant then appealed to the Administrator
of the Division of Workers' Compensation for a waiver of the
one year filing requirement which request was by the Division
denied.
The Workers' Compensation Court found further that on
Ma-y 16, 1980, while the claimant was workinq for Evans as a
green chain off-bearer, Walter slipped off a catwalk while
stacking a piece of lumber, and struck his right knee below
the kneecap on the concrete edge of a recessed floor beneath.
He immediately experienced severe pain which forced him to
stop work and rest before he could resume stacking lumber.
The Workers' Compensation Court also found that one-half hour
thereafter claimant notified Roy Newton, ~vans'
supervisor on
the job. Newton allowed the claimant to leave work before
his shift ended and observed claimant limping on May 16,
1980. Newton authored an undated accident report
acknowledging that the claimant was unable to work on the
green chain because his knee was bothering him so much. In
his accident report, Newton reported to Evans that the
claimant's knee problem was the result of his August 1977
accident, even though the claimant had asked Newton to report
his accident of May 16, 1980. Newton did not report the May
16 incident as the date of claimant's accident because Newton
believed "no sudden traumatic incident" had caused the knee
pain of which Walter complained.
Walter returned to work on May 17, 1980, and worked
until May 20, 1980, at which time he ceased working because
of the pain.
The medical evidence adopted by the Workers'
Compensation Court indicated that he suffered an industrial
accident on August 1, 1977 with an injury to his right knee,
and that in the intervening years his injured condition has
continued so that the accident of May 16, 1-980 aggravated the
pre-existing condition. The injury is now diagnosed as
chrondromalacia patellae which will totally disable him until
such time as surgery can be performed to relieve the kneecap
problem.
On appeal, the Workers' Compensation Court has stayed
the payment of the lump sum judgment.
Evans raises two issues on appeal: (1) that the
Workers' Compensation Court should have reopened the case to
permit Evans to introduce additional evidence that would show
I
that the claimants alleged industrial injury of May 16, 1980
could not have happened as claimant testified and (2) that
there is not substantial evidence to support the grant to the
claimant of temporary total disability retroactive to May 20,
1980.
The post-trial additional evidence offered by Evans
would consist of testimony of its industrial relations
manager, Lee Mentzer, who would lay the foundation for
introduction into evidence of company timesheets covering the
claimanqs employment by Evans during 1980. Employer contends
that after proper foundation, the timesheets would show that
on May 16, 1980, Walter was not working on the green chain
when he slipped and struck his knee, rather on a planer,
which was in a different part of the plant, involving an
entirely different type of job. It further contends that on
May 16, 1980, Roy Newton was not the claimant's supervisor.
Moreover, the records would show that on May 16, 1980, Walter
worked a full eight hour day and was paid for the same. The
Workers' Compensation Court denied the motion to allow
additional evidence.
In its petition for rehearing, Evans alleged that
reasonable attempts had been made prior to the original trial
to retrieve the subject time records. Evans contended that
in the first part of 1980, defendant closed its mill in
Missoula and that as part of the closure of the Missoula mill,
the records and files in connection with the Missoula plant
were physically transferred to Portland, Oregon. Prior to
trial, Evans contended, it attempted to locate all the
records and files concerning Walters employment, including
the timesheets, but that in spite of efforts to locate the
same, they were unable to find them until after the trial in
this case had occurred. The Workers' Compensation Court
denied defendant's petition for rehearing stating that with
respect to the offered time records "[tlhe defendant has
failed to show that it could not, with reasonable diligence,"
have discovered or produced the documentary evidence at the
time of trial.
We note that in its conclusions, the Workers'
Compensation Court had determined that the confusion in the
case over the date of Walter's industrial accident resulted
from Roy Newton's on-the-job evaluation of what kind of an
event would warrant liability for Workers' Compensation
benefits and that if Newton had reported the accident as
claimant had requested him, it is unlikely that confusion
over what happened to the claimant and when it happened would
have arisen.
The standard for determining whether newly discovered
evidence is sufficient reason for a new trial is governed by
the statute, section 25-11-102 (4), MCA, which provides that
the newly - discovered evidence must be that which the
applicant could not with reasonable diligence have discovered
and produced at the trial-. Whether to grant or deny a new
trial is within the sound discretion of the trial. court.
Fredericksen v. Fredericksen (Mont. 19801, 605 P.2d 1135,
1137, 37 St.Rep. 191, 193, and will not be overturned absent
a showing of manifest abuse of that discretion. Giles v.
Flint Valley Forest Products (1979), 179 Mont. 382, 588 P.2d
535, 538. Every presumption is indulged that the movant for
a new trial on the ground of newly-discovered evidence could
have secured the testimony for the former trial, and the
movant must negative any negligence on his part. In Re
Colbert's Estate (1904), 31 Mont. 461, 80 P. 248. The movant
must show that such evidence came to his knowledge since the
trial and that even through diligence it was not discovered
earlier; it must also appear that its materiality will
probably produce a different result on trial and it is not
merely cumulative or only tending to impeach. State v. Estep
(1936), 103 Mont. 78, 61 P.2d 830. In Kartes v. Kartes
(1977), 175 Mont. 210, 573 P.2d 3.91, we upheld the denial of
a new trial on the ground of new evidence because the new
evidence was at all times in the exclusive possession of the
movant .
Here the evidence sought to be introduced as
newly-discovered evidence was at all times in the possession
of Evans Products Company, and the purpose of the newly-
discovered evidence is to impeach the testimony of the
claimant Walter, and Evans' supervisor, Roy Newton. In that
situation, Evans has not presented grounds sufficient for a
new trial on newly-discovered evidence.
In support of the second contention, the sufficiency of
the evidence, Evans contends there is no evidence that
claimant's lack of formal education (claimant can neither
read nor write) makes him susceptible to suggestions of
others; that there is no probative credible evidence that he
sustained an injury on the green chain on May 16, 1980; that
there is no probative credible evidence that he told Roy
Newton how the alleged May 16, 1980 accident occurred; that
there is no probative credible evidence that he returned to
work on May 17 and worked until May 20, 1980, as found by the
lower court; that there is no probative credible evidence
that claimant had to cease working because of the pain in his
right knee. Evans contends that defendant was laid off
because of reduction in force as part of the plant closure,
that his severance benefits were explained to him, that he
signed a form, after it had been read and explained to him,
acknowledging receipt of his severance pay, that he had drawn
unemployment compensation insurance, and that his doctor
thought that the particular knee injury did not indicate a
total disability.
On deciding the same grounds of obiections, the Workers'
Compensation Court, in its decision against rehearing, stated
that the contentions on the evidence amounted to a
disagreement with the Workers ' Compensation Court regarding
the relevance and weight of the evidence introduced at the
trial and by deposition, and that those grounds are not
sufficient to warrant a new trial under 5 2.52.222 A.R.M. and
sections 25-11-102, and -103, MCA.
The function of the trial court is to find the facts.
Absent a manifest abuse of discretion, or a situation where
the findings are clearly erroneous (Rule 52 (a), M. R.Civ.P. ) ,
the decision of the trial court on the facts will not he
disturbed by this Court.
We affirm the decision of the Workers ' Compensation
Court.
4%-
Justice
We Concur: