NO. 13612 

IN THE SUPREME COURT OF THC STATE OF MONTANA 

1978 

EVA STEVENS, 

Claimant and Appellant, 

-vs4-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 

Filed: 

Submitted: January 27, 1978 

Decided: 1. 0 18T6 
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 pantrysalad 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 2, 1976 

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 medication 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 effective May 22, 1976. 

On May 26, 1976, claimant petitioned the Workers1 Compensation Court for a hearing concerning further entitlement to 

benefits. The same day, she petitioned the Division to order payment 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 containing the various medical reports of the treating physicians. Claimant 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 certain 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 someone'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. Therefore, 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 of the claimant, 

for the claimant's submission to physical examination by physicians 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 determination 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), Pdon t . , 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 regard, 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 independent physician for his opinion. The physician returned a 

report supporting the position of defendants. Counsel for claimant 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 opportunity 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 advance 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 employment. 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 deprive 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 overwhelming 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 rehearing, are affirmed. 
We concur: