### No. 14545 INTHE SUPREMECOURTOF THE STATE OF MONTANA 1979

WALTER HUME, Claimant and Appellant,

VS

# . ST. 

### REGIS PAPER COMPANY, Employer, Defendantand Respondent.

Appeal from: Workers' Compensation Court Honorable William E. Hunt,Judge presiding. Counsel of Record: ForAppellant: Moore, Lympus & 

### Doran,Kalispell,Montana James D. Moore argued, Kalispell,Montana For Respondent: Warden,Walterskirchen & 

### Christiansen, Kalispell,Montana Merritt Warden argued,Kalispell,Montana

-- 

### Submitted: December 11, 1979 Decided: 

### MAR

-

## 7 1$8_0 Filed:

# M" 

# ' :'i3@Mr. JusticeGene 

### B. Daly delivered the Opinion of the Court.

claimant,Walter Hume, filed a petition with the Workers' CompensationCourt, Flathead County, seeking compensation for injuries suffered during his employment with defendant, St. egis Paper Co. Claimant appeals the denial of his petition. On October 7, 1975,appellantwas pulling and stacking timber for his employer, St. Regis Paper Company,when he stretchedmuscles in his shoulder and lower neck. Appellant continued to work for tenmonths following this injury, during which time he received a second injury. He stopped working onAugust 6, 1976,after seeing two chiropractors and a Kalispell neurologist,Dr. Nelson. Respondent, St. Regis, paid total disabilitybenefits to appellant for this injury until May 25, 1977. Upon receiving the report from a Spokane neurologist,Dr. Lynch, that appellant's "chronic pain probably ismore psychogenic in origin, than due to tissue injury," respondent terminated benefits to claimant. Claimant filed a petition with the Workers' Compensation Court seeking temporary total disability or, in the alternative, a determination of the degree of his disability with

an award of permanentpartial disability and payment for benefits unreasonably terminated by respondent. A hearing on claimant'spetition took place on October 4, 1977. Three witnesses testified at the hearing: the claimant,his treating physician, Dr. Nelson, M.D., and defendant's onlywitness, Sidney 

### M. Brown, who was the insurance director for defendant. TheWorkers' Compensation Court took judicialnotice of the contents of the file from the Division of workers' Com-

### pensation and advised counsel that itwould grant leave to take the deposition of the author of any record or document in the file if counsel found the procedure objectionable. No objections weremade. The file included the reports of fourmedical doctors and two chiropractors. After the hearing had concluded and upon the respondent's request, the court ordered the appellant to submit to a medical examination by Dr. Richard C. Dewey,M.D. 

### The Workers' Compensation Court entered findingsof factand conclusions of law and judgmenton June 8, 1978. Its findings of fact stated the resultsof Dr. Dewey's examination and the report of a SpokaneV.A. Hospital,which respondent furnished to the court several months after the hearing concluded. The court's conclusions of law stated that the claimant failed to prove by a preponderance of the credibleevidence thathis present symptoms and complaintswere related to the accidentof October 7, 1975. The court's judgment denied all of appellant's requests for relief. Claimanthas appealed this judgment

# . Appellantpresents four issues to this Court for review: 1. Was the judgment of the Workers' Compensation Court supported by substantial evidence, or did the courterr in disregarding medical evidence establishing that appellant's work-related injury caused appellant's disability existing at 

### the time of the hearing? 2. 

### Did the court err in ordering appellant to submit to a physical examination after the hearing when no new relevant medical allegationswere raised during the hearing itself? 3. 

### Did the court err in considering amedical reportfrom the V.A. Hospital which was submitted to the court four months after the record had been closed? 4. Did the court err intaking judicial notice of the medical reports contained inthe filefrom theWorkers' Compensation Division? Walter Hume contends that thejudgment of theWorkers' Compensation Court isnot supported by substantialevidence and should be reversed. He argues thathe presented a prima faciecase through uncontroverted evidence thathe was entitled tocompensation benefits. He further argues that he proved by substantial evidence thathe was injured as a resultof his industrial accident, that hispresent condition ispainful and disabling, and that said condition is a resultof the accident. The defendant and theWorkers' Compensation Court recognized thatclaimantwas entitled to compensation and medical benefits untilMay 25, 1977, when benefits were terminated despite the absence of evidence of any intervening cause or any alternativeexplanation for claimant's present, undisputedly painful and disabling condition. Claimant-appellant argues further that theWorkers' Compensation Judge abused hisdiscretionby opening the record after the hearing on themerits, without requiring the defendant to show excuse orgood cause. This removed any incentive for the company orcarrier toprepare for trial and placed an additionalburden on the claimant. Claimant alleges thathe made a proper objection to any consideration of the additionalpost-hearing evidence. Finally, appellanturges thattheWorkers' Compensation Judge improperly took judicial notice of the entireworkers' Compensation Division file. Even though the court advisedcounsel that itwould grant leave to take the deposition of the author of any medical report or other document in the file if counsel found the procedure objectionable, this allegedly violated the rule in Hertv. J. J. Newberry Co.

(1978) I -Mont. 

### , 584 P.2d 656, 35 St.Rep. 1345, rehearing denied Mont. 

### - 

## , 587 P.2d 11, 35 St.Rep. 1353A,and thus deprived claimant of his right to cross-examine and interposeobjections. Respondent argues that the lower courtdid not commit

error in taking judicial notice of the medical reports contained in the Workers' Compensation Division file since Hert

was decided one year after the hearing in this case. Respondent argues further that Hert held that the right to crossexamine could be waived by any party, and appellant waived his right by failing to object. The firstmatter which must be addressed iswhether or not the lower court erred in ordering appellant to submit to another physical examination after the October 4, 1977 hearing, and in considering the results of that examination when no new relevant medical allegations were raised during the hearing itself. Respondent contends that his request for another physical examination of the claimant was made in open court and that no objection to this procedurewas raised by claimant's attorney at that time, although he objected when an appointmentwasmade for Dr. Dewey to examine the claimant. Therefore, respondent seeks to take advantage of the established rule that evidentiary matters must be objected to at the time of trial or they will not be considered on appeal. Hayesv. J.M.S. Construction (1978), Mont

# . , 579 P.2d 1225, 1227, 35 St.Rep. 722;Sikorski 

### - - v. Olin (1977), 

### -Mont. 

### - 

### , 568 P.2d 571, 574, 34 St.Rep.At the closeof the October 4, 1977hearing the following discussion took place: "MR. WARDEN: Well, wemay want to have thisman seenby some other practitioner, Your Honor. I think I'm a little bit alarmed atDr. Nelson's diagnosis here, and for theman's ownwelfare itmight be advisable to have itdoubly checked, althoughwe attempted to do that up to this point as you can tell from the file, but we didn't have the benefit of today's testimony until this time. "THE COURT: Very well, well, if that is determined necessary, if you and Mr. Moore cannot agree upon it, let me know and I'll make the necessary order and then we'll post it on our scheduleas December the 9th as the time for Findingsof Fact and Conclusions of Law. "And if there's nothing further, the Court is adjourned." Although claimant's counselmade no objection to the additional examination at this time, he did file a formal objection and a letter memorandum in support thereof a month later onNovember 4, 1977. Nevertheless, the December 20, 1977 examination and reportof Dr. Deweywere consideredby theWorkers' Compensation Judge in his findings of factnos. 21 and 22. To do so was not error, since claimant'sattorney, being fully apprised that the lower court intended to allow an additional examination, failed to make a timely objection. Hayes, supra. Walter Hume was examined at the Spokane Veterans Administration Hospital during July of 1977. Some months subsequent to the October 4, 1977hearing, copies of claimant's Veterans Administration medical recordswere obtained by the defendant and forwarded to JudgeHunt, who made reference to them in his finding of factno. 23. Claimanthad no opportunity to object to the Workers'Compensation Court's consideration of thesemedical records. 

### his Court need not considerwhether or not thatprocedure constituted error, however,because in his brief "[cllaimant would concede that theV.A. reports simply corroborated claimant's testimony, that the shrapnel injury was unrelated to the condition suffered by claimant from and after the October 1975 accident." If there was error in considering these reports, a question this Court need not decide, that error would admittedlybe harmless error not affecting the substantial rights of the claimant. Rule 61,M.R.Civ.P. The next issue iswhether or not the Workers' Compensation Judge improperly took judicial notice of the entire Workers' Compensation Division file, including themedical reports contained therein, at the outset of the hearing. Appellant contends that contrary to the rule set forthby this Court in Hert, this procedure deprived him of his rights to cross-examine the authors of those reports and to interpose objections. We find itunnecessary to decide this question because even if we assume,without deciding, that itwas proper to consider the medical reports contained in the Workers' Compensation Division file, there still would notbe substantial evidence to support the judgmentof the Workers' Compensation Court. The determinative issue iswhether or not the judgment of the Workers' Compensation Court was supported by substantial evidence insofar as that courtdetermined that there was no causal relationshipbetween appellant's industrial accident and his disability at the time of the hearing. The Courtmust look to all of the evidence which was properly before the Workers' Compensation Court in determining whether

or not therewas substantial evidence to support its conclu-sion of lawno. 4: "That the claimant has failed to prove by a preponderance of the credible evidence that his present symptoms and complaints are related to the accident of October 7, 1975." The standard of review to be applied to this case is well established: "Our function in reviewing a decision of the Workers' Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers' Compensation Court, this Court cannot overturn the decision." Steffes v. 93 Leasing Co., Inc. (1978), 

### -Mont. 

### , 580 P.2d 450, 452-453, 35 St.Rep. 816, 818. See also Dumontv. Wickens Bros. Const. Co. (1979), - Mont. - 

## , 598 P.2d 1099, 1106, 36 St.Rep. 1471; Robins v. Anaconda Aluminum Co. (1978), Mont. 

### - 

## , 575 P.2d 67, 35 St.Rep. 213; Bond v. St. Regis Paper Co. (1977), -Mont.



### , 571 P.2d 372, 34 St. Rep. 1237. The Workers' Compensation Courtmade a conclusion of law which is not contested here, conclusion no. 2: "Thatthe claimant,Walter Hume, sustained injuries to his neck and upper back in an industrial accident while employed by the defendant, St. Regis Paper Company, at Libby, Montana on October 7, 1975." It is not seriously disputed that at the time of the hearing appellantwas experiencing disabling pain and muscle spasms. Thus the issue is narrowed to the question of causation. As stated by respondent in itsbrief, "[tlhe real question facing the Workers' Compensation Court was whether the symptoms and complaints after his benefits were terminated in May 1977 were related to his industrial accident." A summary of the evidence includes claimant's testimonythat previous to the October 7, 1975 injury he experienced none of the burning pain sensation in the area of his lower neck and upper back which he has experienced to varying degrees since that time. Beginning on October 9, 1975 and continuing for about threeweeks thereafter, he was seen by

a Libby chiropractorand given heat treatments. Claimant testified that severalmonths later, in February or March, 1975,he was injured in a second work-related accident when

a load of lumber tipped over on him, hitting him on the shoulder. He testified that this accident aggravated the symptomsof burning pain in his neck and upper back which he had experienced in the October 7, 1975 injury. On June 12, 1976, claimantwas examined by a second Libby chiropractor who diagnosed a cervical sprain with radiculitis and paresthesia to both arms. This second chiropractor treated claimant with diathermy, ultrasound,hotpacks and manipulations, and referred him to Dr. Nelson, the Kalispell neurologist who became his treating physician. Dr. Nelson testified that he performed a neurological examination of claimant onAugust 3, 1976 and subsequently ordered a cervical myelogram to be performed. He diagnosed the injury as a cervical radiculitis,post traumatic. On August 12, 1976,Dr. Muller, a Kalispell radiologist, reported the resultsof his examination of the cervicalmyelogram. His report states that themyelogram revealed several small metallic foreignbodies in the soft tissues of the neck, but

an otherwise normal cervical spine. These metallic fragments

are the result of a shrapnel injury the claimant suffered in Vietnam. Dr. Nelson testified that on the basis of their size and location,he was of the opinion that they were not the cause of the claimant's causalgia. Dr. Nelson referredthe claimant to Dr. Vincent, a Spokane neurosurgeon for consultation. Dr. Vincent's report of January 19, 1977 to Dr. Nelson indicates that the "myelogrambasically is normal" and that "theproblem would seem to be primarily that of muscle tightnessand spasm." At the requestof defendant's insurance director, claimantwas examined by Dr. Lynch, a neurosurgeonpracticing in Spokane, who reported onMay 

### 4, 1977 that claimant has a chronic cervical syndrome. Dr. Lynch's letter to defendant's insurance director stated: "The entire neurological examination is normal at this time. He even shows some callousing of the hands indicating that he is keeping rather active. Themuscle tone is excellent, indicating also thathe is staying quite active. "Ican define no definite injury in this patient and feel that his chronicpain probably ismore psychogenic in origin, than due to tissue injury. Themuscle tone and callousing of the handswould bely the fact thathe is incapacitated. 

### "Ifeel the patient probably should try to reeducate himself outside this heavy work and 

### I feel there is absolutelyno therapy that is going to be of benefit to this patient and no further investigation is indicated." Dr. Nelson was the only medical witness to testify at the October 4, 1977hearing. In finding of factno. 17, the Workers' Compensation Courtmade reference to Dr. Nelson's testimony that "claimant's injury was consistentwith his present symptoms and disability" and to Dr. Nelson's testimony that in his opinion, the shrapnel fragments imbedded in claimant'sneck have nothing to do with his present condition. TheWorkers' Compensation Court finding of factno. 16 stated: "OnMay 26, 1977, - Dr. Nelson again examined claimant butwas unable --- to state a precise diasnosis. ~e found the claiman- impaired 

### --- butTid not relate 

### --- it to the industrial accident of -October 

### - 10, [sic] 1975." (Emphasis added.)Dr. Nelson's testimony contradicts finding of factno. 16. "Q. Your first diagnosis of causalgia and brachial plexitis, do you have an opinionwithin a reasonable medical certainty as to the cause of these conditions? "A. The brachial plexitis and causalgia,yes. Itwasmy opinion that these were related to stretch injury to his neck and shoulder girdle as related in his history given about injury occurring while atwork. "Q. How is it thatyou ruled out the shrapnel inmaking that finding? "A. As we said, these fragmentsare highly discrete,very small and not located in an area that could involve that many nerves." (Tr., p. 11:)



### "Q. NOW, the brachial plexitis,what is it? "A. Well, those nerves that come from between the vertebrae C-5, 6, 

### 7, 8 and T-1 are the nerve roots on both sides comprising the brachial plexus and they're called that because they supply the shoulder girdle and the arm and hand. "Q. And-- "A. And those nerves, the whole group of them, if they are involved in a process are called the brachial plexitis because we're involving ourselves nowwithmore than one nerve root on both sides of the neck, and that would take an extraordinary lesion in order to accomplish this. It iswhy I had felt the initial evaluation of the patient that thiswas the resultof yanking motion and itwas a stretch injurywhich we felt was going to be a long-term, difficult problem in terms of healing. "Q. NOW, Doctor,you observed on film the shrapnel? "A. Yes. 

### "Q. Where is the shrapnel located? "A. It's located in the paracervical muscle bundles, and the largestpiece of fragment if we reduced itback to size from the film is probably about two to threemillimeters in diameter, and it is about in relationship to half the size of a pea, let's say. It is not located, inmy estimation, in any regionwhich could affect the nerve root, it's too far away from the nerve root. (Tr.,p. 10.)

"Q. Did you have cause to perform any additional examinations or do any additional diagnosticwork with respect to Mr. Hume's condition?

### "A. Well, we did mostly therapy for some time. We had medication and we tried trigger point injection with Xylocaine and other medications into the pain sites to see if itwould relieve the pain. Itwas only temporarily effective during the time of treatment. We continued to have difficulty in controlling these symptoms and as time passed, itbecame more apparent to me that the patient was talking about a causalgic-like pain. And Ihave personally examined him on several occasions where he has a burning sensation. He talks about a--and if youwere to drape a towel around your neck, the zone of the neck and shoulder girdle would ache. 

### "Q. Is this something that you can actually visually see? "A. Yes. You see that it ishypersensitive to touch at that point in time, and it is increased in temperature, it's warm. We describe that as a causalgia which youwill see in my reports where I have a cervical radiculitis and causalgia--simply stretch or injury to the automatic nerve fibers that are within all of the nerves, and they create these kinds of unpleasant burning and irritative type feelings and are vexing and difficult to treat. Very few things in the way of medication or treatment are effective. (Tr., p. 8-9.) Dr. Nelson's reportof May 16, 1977,which ispart of the Workers' Compensation file, states the following: "IMPRESSION: Cervical radiculitis and/or causalgia secondary to trauma to the neck and shoulder girdle as previously described. "DISCUSSION: It is extremely difficult to pin down a precise diagnosis of neurologic disease since we have documentations of his having normalmyelography. I have a strong suspicion that this patientmay well have an inflammatory reaction going on systemically.

"It appears to me that this patient continues to have a very persistent,burning paresthesias of the cervical, thoracic,and upper shoulder girdle which defy any precise diagnosis evaluation in terms of herniated disc or demonstrable loss of muscle mass or power. 

# .."
On December 20, 1977, claimantwas examined by Dr. Dewey,

a Missoula neurosurgeon whose report stated: "There is no injury to thisman's nervous system other than that referable to the left ulnar nerve. The symptoms are certainlynotconsistentwith normalmyelography and normal neurologic exam." In summary, the lower court's crucial finding of fact

no. 16 is contradicted by the testimony of Dr. Nelson, which apparentlywas given littleor no weight. Contrary to the lower court's findings,Dr. Nelson's unrefuted testimony did relate Walter Hume's impairment to the industrial accident of October 10, 1975. An examination of the entire record reveals that the only credible sustantial evidence as it concerns causation and injury supports the claimantand therefore the findings, conclusions, and judgment of the Workers' Compensation Court

are not supported by the record. In particular, there is

no substantial evidence to support the lower court's conclusion of law no. 

### 4 that claimant failed to prove that his present symptoms and complaints are related to the industrial accident. In conclusion of law no. 2, the Workers' Compensation Court determined that "claimant,Walter Hume, sustained injuries to his neck and upper back in an industrial accident while employed by the defendant St. Regis Paper Company, at Libby,Montana on October 7, 1975." It is a rebuttable presumption "[tlhat a thing once proved to exist continues

as long as is usual with things of that nature." Section 26-1-602(32), MCA. Termination of benefits by the employer

onMay 25, 1977 was improper in the absence of any intervening

cause or any alternative explanation for claimant's present, undisputedly painful and disabling condition. The judgment is reversed and remanded to the Workers' Compensation Courtwith instructions to enter judgment for claimant in accordance with this opinion.1 Justice J We concur:

Chief Justice

Justices 

## 4

Mr. Chief JusticeFrank I. Haswell: I concur intheresult.

?LvVLd4%KI-pfl Chief Justice