No. 87-271 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

MARK GIACOLETTO, 

Claimant and Respondent, 

-vsSILVER BOW PIZZA PARLOR, 

Employer, 

and 

INDUSTRIAL INDEMNITY COMPANY, 

Defendant and Appellant, 

APPEAL FROM: The Workers Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Garlington, Lohn & Robinson; Larry W. Jones, 

Missoula, Montana 

For Respondent: 

Earl Genzberger, Butte, Montana 

Submitted on Briefs: March 3, 1988 

Decided: March 22, 1988 

Filed: 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant Industrial Indemnity Company (Indemnity) 

appeals the June 2, 1987, decision of the Workers' Compensation Court. The court concluded that Giacoletto, while 

employed by Silver Bow Pizza Parlor (Pizza), bumped his lower 

back thereby causing an abscess. We affirm. 

Indemnity raises four issues for our review: 

1. Did the Workers' Compensation Court abuse its 

discretion in denying Indemnity's motions to compel and 

vacate? 

2. Did the Workers' Compensation Court abuse its 

discretion in denying Indemnity's motion to strike? 

3. Does substantial evidence support the decision of 

the Workers' Compensation Court? 

4. Did claimant intentionally fail to follow medical 

treatment and thus prolong his disability? 

Claimant Giacoletto, then age seventeen, began working 

part-time as a dishwasher for Pizza in October 1983. On July 

1, 1984, Giacoletto bent over to lift a bucket of cheese in 

Pizza's supply area. He testified that he felt a "pulling 

sensation" in his lower back and then stumbled backwards. 

Claimant finished his shift. He worked the next shift on 

July 2 and was scheduled off on July 3 and 4, 1984. On July 

5, 1984, claimant went to the emergency room of the local 

hospital because of back pain. 

Dr. Paulo Giacomini treated the claimant in the emergency room. Dr. Giacomini is a general practitioner and the 

Giacoletto family physician. Claimant told Dr. Giacomini 

about lifting the bucket but made no mention of falling 

against anything. Upon examination, Dr. Giacomini detected a 

bump on the groove between claimant's buttocks. Dr. 

Giacomini suspected a pilonidal abscess, which is an 
infection caused by ingrown hair. Claimant was then admitted 

to the hospital. 

Dr. Giacomini asked Dr. George Poore, a surgeon, to 

examine claimant in the hospital. On July 7, 1984, Dr. Poore 

diagnosed an abscess located next to the anus. Dr. Poore 

specifically asked claimant about any trauma to the area, but 

claimant made no mention of hitting or bumping the area of 

the infection. Dr. Poore performed surgery on the abscess in 

July and again in September of 1984. Dr. Poore testified 

that claimant failed to regularly bathe and pack the area in 

accordance with the treatment plan, resulting in chronic 

infection. Claimant has subsequently had several more surgeries for the same condition. 

On August 3, 1984, Giacoletto filed a claim for compensation, alleging that he was injured in the scope and course 

of his employment. Pizza was enrolled under Plan I1 of the 

Montana Workers' Compensation Act, and Indemnity was Pizza's 

compensation carrier. Indemnity paid some benefits to claimant under a reservation of rights and without assuming 

liability. 

After a hearing on October 8, 1986, the court entered 

its decision on June 2, 1987. The court concluded that 

claimant had suffered an injury in the course of his employment with Pizza and that Indemnity was liable for the payment 

of compensation benefits. The court acknowledged that claimant's evidence was not overwhelming: 

Admittedly, the evidence in this case is 

a close call. . . . Some time after his 

original treatment, the claimant reported that in addition to straining his 

back when he lifted the cheese, he also 

struck his low back on the edge of a 

beer keg. 

There is no question that the defendant 

had legitimate reasons to question the 
claimant's credibility. As recently as 

the day of trial, during his deposition, 

the claimant did not relate having 

struck his back on the beer keg when 

questioned by defense counsel . . . Such inconsistencies standing alone 

would put serious doubt in the Court's 

mind as to claimant's veracity. 

However, the court then stated that it based its conclusion primarily on the medical depositions, which tended to 

support claimant's testimony. 

Issue 1. Motions to compel and vacate. 

On August 4, 1986, Indemnity served its interrogatories 

on claimant. Under the rules, claimant then had twenty days 

to serve his answers. However, claimant did not serve his 

answers until September 26, 1986. In the meantime, Indemnity 

had filed motions to compel discovery and to vacate the 

hearing date on October 8, 1986. Indemnity argued that its 

discovery rights were prejudiced because claimant failed to 

comply with discovery rules in a timely manner. 

The Workers' Compensation Court denied Indemnity's 

motion. The denial was discretionary. The court tolerated 

claimant's failure to answer interrogatories within the 

twenty-day limit, noting that "neither party can claim 'clean 

hands' in this case." The claimant was eventually deposed, 

which mitigated any prejudice to Indemnity caused by claimant's late answers. The hearing then proceeded as scheduled. 

We find no abuse of discretion in the court's decision. 

Issue 2. Motion to strike. 

During his deposition on the morning of October 8, 

1986, Giacoletto made no mention of striking his back when he 

lifted the bucket of cheese. His case was tried that afternoon. At the hearing, claimant stated that he struck his 
"lower back" on a beer keg when he stumbled backwards. On 

cross-examination, claimant testified that he erred in his 

deposition because defense counsel made him nervous. Seven 

months after his deposition, claimant amended his deposition 

testimony by filing a correction sheet in which he stated he 

struck his "tailbone." 

Indemnity contends that claimant amended his version of 

the incident to conform with the mechanism of injury in the 

medical testimony. Indemnity argues that the Workers' Compensation Court abused its discretion when it allowed claimant 

to "tailor his testimony." 

In reviewing this issue, we note that the Workers' 

Compensation Court may be guided by the Montana Rules of 

Civil Procedure. Moen v. Peter Kiewit & Sons Co. (1982), 201 

Mont. 425, 434, 655 P.2d 482, 486. Under Rule 12 (f) , 

M.R.Civ.P., the court may strike inappropriate material. 

In denying Indemnity's motion to strike, the Workers' 

Compensation Court noted the substantial discrepancy between 

the deposition and the correction sheet. However, the court 

found that claimant's trial testimony about the trauma was 

substantially the same as his correction sheet. The court 

also noted that Indemnity cross-examined claimant during 

trial about the discrepancies between his deposition and his 

trial testimony. The court concluded that the correction 

need not be stricken because "the weight given to the changes 

in the correction sheet will be - de minimus." The court 

properly placed the greatest weight on claimant's trial 

testimony. We find no error in the court's discretionary 

decision. 

Issue 3. Substantial evidence. 

Indemnity contends that the evidence does not support 

the court's conclusion. Indemnity argues that the incident 
with the cheese bucket was not the mechanism of the injury, 

and that claimant's testimony about striking his lower back 

lacks credibility. Indemnity also argues that if claimant 

struck anything, it was not the area of the abscess. Indemnity asserts that a pilonidal cyst encasing ingrown hair ruptured spontaneously. 

When reviewing a decision of the Workers' Compensation 

Court, we will not substitute our judgment for that of the 

trier of fact unless the decision was clearly erroneous. 

Nelson v. ASARCO, Inc. (Mont. 1987), 739 P.2d 943, 945, 44 

St.Rep. 1074, 1077. The Workers' Compensation Court had the 

opportunity to observe the demeanor and assess the credibility of witnesses. Although conflicts may exist in the evidence presented, the trial judge has the duty and function to 

resolve such conflicts. Tenderholt v. Royal Ins. Co. (Mont. 

1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1795. 

In the instant case, the chain of evidence is tenuous. 

Both doctors testified that the abscess "could" have been 

caused by trauma to the area. Regarding the proximity of 

trauma necessary to trigger the infection, Dr. Poore testified that the blow would have to be to the exact area of the 

cyst. Dr. Poore later elaborated: "Indeed, if the blow was 

directly to the area and indeed there was a blow, I doubt 

that it would have caused the initial cyst but it could have 

caused a subsequent infection." 

Claimant gave conflicting testimony of where and if the 

trauma occurred, progessively defining the area as "back," 

"lower back," "below the belt line," and "tailbone." However, the court gave credence to claimant's testimony. The 

court also viewed the doctors' trauma speculation as supportive of claimant's testimony. Under the standard of 

Tenderholt, 709 P.2d at 1013, 42 St.Rep. at 1795, we cannot 

try this case "de novo." Accordingly, v7e defer to the lower 
court as the trier of fact and find that the evidence sufficiently supports its conclusion. 

Issue 4. Misconduct. 

Indemnity contends that claimant failed to follow his 

medical treatment, which prescribed applying topical antibiotics every four hours and bathing the wound several times a 

day. Indemnity argues that claimant's conduct has prolonged 

the period of his disability. 

On review of this issue, we note that the degree of 

claimant's misconduct required to break the chain of causation must be "intentional conduct which is clearly unreasonable." Larson, Workman's Compensation Law, Vol. 1, S 13.22 

at 3-425. 

At the hearing, claimant's mother and father testified 

that claimant followed the medical treatment. Claimant's 

condition was best summarized by Dr. Giacomini in his 

deposition: 

But you see, the problem is not just 

physical. We have to look at the subject as a whole. . . . You know this kid 

has to go around with diapers, let's put 

it that way. . . . It has interfered in 

his social relation with girls, it has 

interfered socially with his job availability. It has put a lot of strain in 

the family, in the household, to have a 

kid that's just loitering around, sitting in the bathtub all the time. 

Dr. Giacomini further testified that claimant has become 

emotionally disturbed over the continuing condition. 

The evidence is conflicting on the degree of claimant's 

cooperation. However, the Workers' Compensation Court reasonably assumed that claimant did not intentionally endure 

two years of pain, embarrassment, and multiple surgeries. In 

light of all the evidence and in deference to the lower 
court, we find that claimant's actions did not rise to the 

level of intentional misconduct. We hold that claimant's 

conduct did not break the causal connection to his original 

injury. 

Affirmed. 

LbL+L&+g ChTef Justice . . 

We concur: 

Justices 
Mr. Justice John Conway Harrison, dissenting. 

I find that the significant, substantial and 

inappropriate changes in the deposition testimony of 

Giacoletto made over some 29 weeks after the hearing should 

have been stricken from the record. Here the decision of the 

Workers' Compensation Court should be reversed for a lack of 

substantial credible evidence and an order issued directing 

the Workers' Compensation Court to find the Industrial 

Indemnity Company not liable to the respondent for the 

payment of any workers' compensation benefits. 

In addition, I would find that the respondent's refusal 

to follow prescribed medical treatment constituted a 

superseding, intervening cause that broke any chain of 

causation from his alleged injury to the disability for which 

he complains. 

Mr. Justice L. C. Gulbrand joins inlhe foregoing 

dissent of Justice John C. Harrison.