No. 14545 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

WALTER HUME, 

Claimant and Appellant, 

VS . 

ST. REGIS PAPER COMPANY, Employer, 

Defendant and Respondent. 

Appeal from: Workers' Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

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. Justice Gene B. Daly delivered the Opinion of the Court. 

claimant, Walter Hume, filed a petition with the Workers' 

Compensation Court, 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, appellant was pulling and stacking 

timber for his employer, St. Regis Paper Company, when he 

stretched muscles in his shoulder and lower neck. Appellant 

continued to work for ten months following this injury, 

during which time he received a second injury. He stopped 

working on August 6, 1976, after seeing two chiropractors 

and a Kalispell neurologist, Dr. Nelson. Respondent, St. 

Regis, paid total disability benefits 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 is more 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 permanent partial disability and payment for 

benefits unreasonably terminated by respondent. 

A hearing on claimant's petition took place on October 

4, 1977. Three witnesses testified at the hearing: the 

claimant, his treating physician, Dr. Nelson, M.D., and 

defendant's only witness, Sidney M. Brown, who was the 

insurance director for defendant. 

The Workers' Compensation Court took judicial notice of 

the contents of the file from the Division of workers' Com- 
pensation and advised counsel that it would 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 were made. The file included the reports of 

four medical 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 findings of fact and 

conclusions of law and judgment on June 8, 1978. Its findings of fact stated the results of Dr. Dewey's examination 

and the report of a Spokane V.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 credible evidence 

that his present symptoms and complaints were related to the 

accident of October 7, 1975. The court's judgment denied 

all of appellant's requests for relief. Claimant has appealed 

this judgment . 

Appellant presents four issues to this Court for review: 

1. Was the judgment of the Workers' Compensation Court 

supported by substantial evidence, or did the court err 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 allegations were raised during the hearing 

itself? 

3. Did the court err in considering a medical report 
from the V.A. Hospital which was submitted to the court four 

months after the record had been closed? 

4. Did the court err in taking judicial notice of the 

medical reports contained in the file from the Workers' Compensation Division? 

Walter Hume contends that the judgment of the Workers' 

Compensation Court is not supported by substantial evidence 

and should be reversed. He argues that he presented a prima 

facie case through uncontroverted evidence that he was 

entitled to compensation benefits. He further argues that 

he proved by substantial evidence that he was injured as a 

result of his industrial accident, that his present condition 

is painful and disabling, and that said condition is a 

result of the accident. The defendant and the Workers' 

Compensation Court recognized that claimant was entitled to 

compensation and medical benefits until May 25, 1977, when 

benefits were terminated despite the absence of evidence of 

any intervening cause or any alternative explanation for 

claimant's present, undisputedly painful and disabling 

condition. 

Claimant-appellant argues further that the Workers' 

Compensation Judge abused his discretion by opening the 

record after the hearing on the merits, without requiring 

the defendant to show excuse or good cause. This removed 

any incentive for the company or carrier to prepare for 

trial and placed an additional burden on the claimant. 

Claimant alleges that he made a proper objection to any 

consideration of the additional post-hearing evidence. 

Finally, appellant urges that the Workers' Compensation 

Judge improperly took judicial notice of the entire workers' 

Compensation Division file. Even though the court advised 
counsel that it would 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 Hert v. 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 

interpose objections. 

Respondent argues that the lower court did 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 first matter which must be addressed is whether 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 procedure was 

raised by claimant's attorney at that time, although he 

objected when an appointment was made 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. Hayes v. 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 close of the October 4, 1977 hearing the following 

discussion took place: 

"MR. WARDEN: Well, we may want to have 

this man seen by some other practitioner, 

Your Honor. I think I'm a little bit 

alarmed at Dr. Nelson's diagnosis here, 

and for the man's own welfare it might 

be advisable to have it doubly checked, 

although we 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 schedule as December the 9th as 

the time for Findings of Fact and Conclusions 

of Law. 

"And if there's nothing further, the Court 

is adjourned." 

Although claimant's counsel made 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 on November 4, 1977. Nevertheless, the December 20, 

1977 examination and report of Dr. Dewey were considered by 

the Workers' Compensation Judge in his findings of fact nos. 

21 and 22. To do so was not error, since claimant's attorney, 

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, 1977 hearing, copies of claimant's 

Veterans Administration medical records were obtained by the 

defendant and forwarded to Judge Hunt, who made reference to 

them in his finding of fact no. 23. 

Claimant had no opportunity to object to the Workers' 
Compensation Court's consideration of these medical records. 

 his Court need not consider whether or not that procedure 

constituted error, however, because in his brief "[cllaimant 

would concede that the V.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 admittedly be harmless error not affecting the 

substantial rights of the claimant. Rule 61, M.R.Civ.P. 

The next issue is whether or not the Workers' Compensation Judge improperly took judicial notice of the entire 

Workers' Compensation Division file, including the medical 

reports contained therein, at the outset of the hearing. 

Appellant contends that contrary to the rule set forth by 

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 it unnecessary to decide this 

question because even if we assume, without deciding, that 

it was proper to consider the medical reports contained in 

the Workers' Compensation Division file, there still would 

not be substantial evidence to support the judgment of the 

Workers' Compensation Court. 

The determinative issue is whether or not the judgment 

of the Workers' Compensation Court was supported by substantial evidence insofar as that court determined that 

there was no causal relationship between appellant's industrial accident and his disability at the time of the hearing. 

The Court must look to all of the evidence which was properly 

before the Workers' Compensation Court in determining whether 

or not there was substantial evidence to support its conclu- 
sion of law no. 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 Dumont v. 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 Court made a conclusion of law which is not contested 

here, conclusion no. 2: 

"That the 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 

appellant was experiencing disabling pain and muscle spasms. 

Thus the issue is narrowed to the question of causation. As 

stated by respondent in its brief, "[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 testimony 
that 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 three weeks thereafter, he was seen by 

a Libby chiropractor and given heat treatments. Claimant 

testified that several months 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 

symptoms of burning pain in his neck and upper back which he 

had experienced in the October 7, 1975 injury. On June 12, 

1976, claimant was 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 on August 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 results of his examination of the cervical myelogram. 

His report states that the myelogram revealed several small 

metallic foreign bodies 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 referred 
the claimant to Dr. Vincent, a Spokane neurosurgeon for 

consultation. Dr. Vincent's report of January 19, 1977 to 

Dr. Nelson indicates that the "myelogram basically is normal" 

and that "the problem would seem to be primarily that of 

muscle tightness and spasm." At the request of defendant's 

insurance director, claimant was examined by Dr. Lynch, a 

neurosurgeon practicing in Spokane, who reported on May 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. The muscle tone is excellent, indicating 

also that he is staying quite active. 

"I can define no definite injury in this patient 

and feel that his chronic pain probably is more 

psychogenic in origin, than due to tissue injury. 

The muscle tone and callousing of the hands would 

bely the fact that he is incapacitated. 

"I feel the patient probably should try to reeducate himself outside this heavy work and I 

feel there is absolutely no 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, 1977 hearing. In finding of fact no. 17, the 

Workers' Compensation Court made reference to Dr. Nelson's 

testimony that "claimant's injury was consistent with his 

present symptoms and disability" and to Dr. Nelson's testimony that in his opinion, the shrapnel fragments imbedded in 

claimant's neck have nothing to do with his present condition. 

The Workers' Compensation Court finding of fact no. 16 

stated: 

"On May 26, 1977, - Dr. Nelson again examined 

claimant but was 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 fact no. 16. 

"Q. Your first diagnosis of causalgia and 

brachial plexitis, do you have an opinion within 

a reasonable medical certainty as to the cause 

of these conditions? 

"A. The brachial plexitis and causalgia, yes. 

It was my opinion that these were related to 

stretch injury to his neck and shoulder girdle 

as related in his history given about injury 

occurring while at work. 

"Q. How is it that you ruled out the shrapnel 

in making that finding? 

"A. As we said, these fragments are 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 now with more than one nerve root on 

both sides of the neck, and that would take an 

extraordinary lesion in order to accomplish this. 

It is why I had felt the initial evaluation of 

the patient that this was the result of yanking 

motion and it was a stretch injury which 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 largest piece of fragment 

if we reduced it back to size from the film 

is probably about two to three millimeters in 

diameter, and it is about in relationship to 

half the size of a pea, let's say. It is not 

located, in my estimation, in any region which 

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 diagnostic work 

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 it would relieve 

the pain. It was only temporarily effective during the time of treatment. We continued to have 

difficulty in controlling these symptoms and as 

time passed, it became more apparent to me that 

the patient was talking about a causalgic-like 

pain. And I have personally examined him on 

several occasions where he has a burning sensation. He talks about a--and if you were 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 is hypersensitive to 

touch at that point in time, and it is increased 

in temperature, it's warm. We describe that as 

a causalgia which you will 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 report of May 16, 1977, which is part 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 normal myelography. 

I have a strong suspicion that this patient may 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, claimant was examined by Dr. Dewey, 

a Missoula neurosurgeon whose report stated: 

"There is no injury to this man's nervous 

system other than that referable to the left 

ulnar nerve. The symptoms are certainly not 
consistent with normal myelography 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 

apparently was given little or 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 claimant and 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 

on May 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 Court with instructions to enter judgment for 

claimant in accordance with this opinion. 
1 

Justice J 

We concur: 

Chief Justice 

Justices 4 

Mr. Chief Justice Frank I. Haswell: 

I concur in the result. 

?LvVLd4%KI-pfl 

Chief Justice