140. 84-479 

IN THE SUPREPIE COURT OF THE STATE OF MONTANA 

1985 

LLOYD WHEELER, 

Claimant and Appellant, 

CARLSON TRANSPORT, Employer, 

and 

INSUFiANCE COMPANY OF NORTH 

AMERICA, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lynaugh, Fitzgerald & Hingle; Thomas Lynaugh, Billings, 

Montana 

For Respondent: 

Steven Harman, Billings, Montana 

Submitted on Briefs: May 9, 1985 

Decided: August 5, 1985 

Filed: 4; - 1985 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Claimant Lloyd Wheeler appeals from an order of the 

Workers ' Compensation Court dismissing his petition for a 

rehearing. We affirm. 

Claimant appeals from his second hearing regarding his 

occupational accident and injury. The injury occurred on 

February 10, 1981. Claimant suffered a crush injury to his 

left foot while employed with Carlson Transport. Carl son ' s 

carrier, the respondent, Insurance Company of North America 

(INA) accepted liability and began paying medical and 

compensation benefits. On September 21, 1981, claimant filed 

a petition with the Workers ' Compensation Court contending, 

among other things, that he suffered a back injury due to his 

foot condition. In that petition, claimant alleged a 

preexisting spinal stenosis condition which was aggravated by 

his limp or "favoring" of the injured left foot. 

A hearing was held before the Workers' Compensation 

Judge. Evidence was admitted both as to the causal 

connection between claimant's foot injury and the back 

condition, and the level of claimant's disability. The court 

entered its findings and conclusions on June 10, 1982. Most 

significant to this case is the finding that claimant's back 

instability was unrelated to the foot injury claimant 

suffered in his industrial accident. In this regard the 

court stated : 

I1 ... 

" (2) Claimant contends that insurer is 

liable to claimant for benefits related 

to claimant's back instability or spinal 

stenosis. Claimant's theory here is that 

the foot injury aggravated claimant's 

unstable back through unnatural stress 

caused by claimant's gait necessitated by 

the foot injury. 
"The medical evidence does not support 

the causal link between claimant's 

crushed foot injury and his subsequent 

back problems. Dr. Hull, claimant's 

treating physician, admitted reluctantly 

that it was possible that claimant's back 

condition was caused by the foot injury, 

but he was inclined against such a 

connection being made. 

"There is ample evidence to support Dr. 

Hull's opinion in the fact that claimant 

did not complain about his back problems 

until after four months had elapsed from 

the time of the injury. Since section 

39-71-119(1), MCA, the injury statute, 

requires that there must be a causal 

connection between the injury and 

claimant's physical condition, claimant's 

contention regarding benefits for the 

spinal stenosis must be denied for lack 

of proof of the causal connection, either 

directly or by aggravation, required by 

the in jury statute. " 

Claimant's permanent partial disability level was set 

at five percent impairment, and INA commenced payments 

thereupon. Subsequently, in July of 1983, claimant underwent 

an operation to remove a neuroma on the crushed foot. After 

that operation INA reinstated claimant's temporary total 

benefits. Dr. Hull indicated to INA that claimant would be 

able to return to work approximately six weeks from the date 

of surgery. INA wrote to claimant and his attorney on August 

16, 1983 indicating to them that based on Dr. Hull's 

prognosis that benefits would be discontinued fourteen days 

from the date of the letter. Apparently, INA continued to 

pay claimant temporary total benefits beyond fourteen days 

after the notice letter. These benefits were paid until 

November 1, 1983. On November 22, 1983 INA wrote to claimant 

and his attorney enclosing final payment to November 1, and 

indicating that payments would be discontinued. 

On December 19, 1983 claimant, through a new attorney 

filed a second petition for hearing. He claimed an 

aggravation of the previous injury; that new evidence was 
available indicating that claimant's back injury was causally 

related to his foot injury; and finally that INA had failed 

to give the required fourteen days notice. 

Defendant filed a motion and brief opposing claimant's 

petition to re-litigate the causal connection between the 

foot injury and back condition. The Workers' Compensation 

Court issued an opinion on this issue. The court 

specifically reserved its ruling on defendant's motion to 

dismiss claimant's petition, but set forth the scope of the 

second hearing: 

"Thus, it appears that the claimant has 

alleged sufficient facts necessary to 

sustain the petition filed in the instant 

case. Evidence of new medical findings 

or subsequent events must first be 

reviewed by this Court before a decision 

on a motion to dismiss can be made. A 

dismissal may be issued, after a review 

of the new evidence, under section 

25-11-102, MCA only if the new evidence 

is unlikely to change the result upon a 

new trial; it may be dismissed under 

section 39-71-2909, MCA only if there 

does not appear to be a new and more 

serious feature of the prior injury." 

Fol-lowing the hearing, the court made the following 

findings : 

"12. The Court finds no new evidence was 

presented which would likely change the 

result upon a new trial. 

13 The Court finds there does not 

appear to be a new and more serious 

feature of the prior injury." 

Based upon these findings, the court dismissed claimant's 

petition. Claimant appeals, raising the following issues: 

(1) The court erred in failing to award claimant 

benefits for his back injury. 

(2) The court erred in failing to find that claimant 

is entitled to further temporary total disability benefits by 

reason of his foot injury alone. 
(3) Whether the defendant failed to give the proper 

fourteen day notice of termination of benefits. 

A determination of occupational injury and award made 

thereon by the Workers1 Compensation Court maybe reopened on 

either of two grounds. First by authority of section 

39-71-2909, MCA which states in part: 

"Authority to review, diminish, or 

increase awards--limitation. The judge 

may, upon the petition of the claimant or 

an insurer that the disability of the 

claimant has changed, review, diminish, 

or increase in accordance with the law on 

benefits as set forth in chapter 71 of 

this title, any benefits previously 

awarded by the judge or benefits received 

by a claimant through settlement 

agreements. " 

Secondly, section 25-11-102, MCA, provides that a former 

verdict or decision may be vacated and new trial granted upon 

application if the substantial rights of the applicant were 

materially affected by: " . . . newly discovered evidence 

material for the party making the application which he could 

not, with reasonable diligence have discovered and produced 

at trial . . . l1 Moen v. Peter Kiewit and Sons Co. (Mont. 

At the hearing on claimant's petition, the sole issue 

was whether the evidence presented warranted, under either 

ground stated above, a reopening of the 1981 order. As to 

the former, Finding no. 13, that "the court finds that there 

does not appear to be a new and more serious feature of the 

prior injury" mandates the court's conclusion that section 

39-71-2909, MCA, did not warrant a reopening of the order. 

Claimant argues that subsequent to the prior hearing, it 

became apparent that his back injury was causally related to 

the occupational foot injury. The court in the prior order 

specifically found, as stated above, that there was no causal 
relation between the two. Larson, in this treatise, states 

the general rule: 

"At the administrative level, awards can 

be reopened by the compensation board for 

modification to meet changes in 

claimant's condition, such as increase, 

decrease or termination of disability. . . . On a reopening for changed 

condition. no other issues mav be 

relitiga ted , and the claimant ' s eviience 

must bear directly upon the comparison 

between his former and present 

disability. A few jurisdictions afford 

their commission's broad power to reopen 

cases in the interest of justice or for 

anv aood reason. 2. a " Larson, Workmen's 

Compensation Law, Vol. 3, S81.00 (1983 

ed. ) (Emphasis added. ) 

The first question presented here is whether section 

39-71-2909 is a change of condition statute or a "broad 

reopening" type of statute. We find that the language of the 

statute is clear in that it requires that the Workers' 

Compensation Division may only reopen an award if it finds 

that "the disability of the claimant has changed." Thus, 

claimant's reliance on O'Keeffe v. Aerojet-General Shipyards, 

lnc. (1971), 404 U.S. 254, 92 S.Ct. 405, 30 L.Ed.2d 424, in 

which the United States Supreme Court interpreted the 

Longshoremen's Act as being a broad reopening type of statute 

(characterized by Larson as the "sweeping concept or' the 

re-opening power under the Longshoremen ' s Act" Larson , 

Workmen's Compensation Law, Vol. 3, §8l152B, (1983 ed.) is 

inapposite. 

Under a "change of condition" statute such as 

39-71-2909, MCA the reopening proceeding may not be used to 

retry issues originally settled. Again, Larson states: 

I1[T]he issue before the board is sharply 

restricted to the question of extent of 

improvement or worsening of the injury on 

which the original award was based. If 

the original award held that there was no 

connection between the accident and 

claimant's permanent disability, there is 

nothing to reopen, and claimant cannot 
retry the issue of work-connection 

through the device of a reopening 

petition." Larson, supra, S81.32A. 

This result is supported by case law from other western 

states. In Deaton v. State Accident Insurance Fund (0r.App. 

1978), 576 P.2d 35, the Oregon Court of Appeals held that 

claimant's disability could not be relitigated in a reopening 

petition. The Oregon court in that case noted: 

"At the heart of claimant's position is 

his belief that his initia 1 determination 

was erroneous and that he should have 

been found permanently totally disabled. 

However that may be, the initial 

determination cannot be relitigated in an 

aggravation claim." Supra at 35. 

The same observation applies to this proceeding. In Judd v. 

Industrial Commission (Ariz.App. 1975) , 532 P.2d 196, the 

Arizona Supreme Court held that, absent mistake or 

misrepresentation in a prior proceeding, any determination of 

causal relation is res judicata. Again, the Arizona Supreme 

Court made an observation applicable here: 

"The claimant in this case was 

represented by able counsel throughout 

the numerous hearings before the 

Commission; the issues of the 

relationship of claimant's back problem 

to his industrial injuries were fully 

1 itigated before the hearing officer 

Ellig; Hearing Officer Ellig in a formal 

award held there was no causal connection 

between claimant's back problem and his 

industrial injury; the claimant has never 

sought review of that award; following 

that award the claimant sought and was 

granted a change of hearing officers; 

claimant attempted before a new hearing 

officer and with new medical experts to 

relitigate the issue of the causal 

connection between his back problem and 

his industrial injury." 

Since the causation issue is res judicata, the only 

issue presented to the Workers1 Compensation Court in this 

second proceeding was whether claimant's original 

occupational foot injury had in some way changed. The 

Workers' Compensation Court found that it had not, and that 
in fact his condition had improved. We have examined the 

record in this regard and find that the court did not err in 

making this finding. This Court has consistently held that 

the test of sufficiency of evidence is whether there is 

substantial evidence to support the court's findings of fact; 

and we will not substitute our judgment for the Workers' 

Compensation Court in determining the weight and credibility 

to be given the testimony. Lamb v. Universal Insurance 

Company (Mont. 1984), 684 P.2d 498, 41 St.Rep. 1414. Here 

the claimant testified that he was able to get around better 

on his foot. Subsequent medical treatment continually 

improved his foot. Testimony both of claimant's medical 

doctor and a vocational specialist both supported defendant's 

contentions that claimant was increasingly able to gain 

limited employment. This finding was supported by 

substantial evidence and thus it will not be overturned. 

The second ground upon which a new trial may be granted 

is that contained in section 25-11-102, MCA, quoted above. 

In Moen v. Peter Kiewit and Sons Co., supra, we explained 

this statute: 

" T h i s d e c a d e ' s - o l d standard has been 

fleshed out by case law establishing that 

the decision to grant or deny a new trial 

is within the sound discretion of the 

trial court, . . . and will not be 

overturned absent a showing of a manifest 

abuse of that discretion . . . To warrant 

the granting of a new trial on the ground 

of newly discovered evidence, it must 

appear to the court that there is a 

reasonable probability that, upon a 

retrial, the evidence proposed will 

change the result. " (Citations omitted. ) 

supra, 655 P.2d at 487, 39 St.Rep. at 

2215. 

In Finding no. 12 the court found "no new evidence . . . 

presented which would likely change the result upon a new 

trial." Dr. Hull, claimant's treating physician, testified 

that he could not say with any degree of medical certainty 
that claimant's back problem was caused by his foot injury. 

He further stated that he had no objective findings as to 

claimant's low back pain. Dr. Hull's notes of various 

examinations of claimant suggested that claimant's back pain 

was cyclical in nature. This indicated to the doctor that 

there was not necessarily a causal relation between the two 

injuries. Claimant himself testified that his back had 

gotten a little better in the last few years in that he still 

had the same pain but not as often. 

Claimant argues that the Workers' Compensation Court 

erred insofar as it set forth "reasonable medical certainty" 

as the standard claimant was required to meet. He cites 

Strandberg v. Reber Co. (1978), 179 Mont. 173, 587 P.2d 18, 

and contends that it stands for the rule that all a claimant 

is required to show is that it was "medically possible" an 

occupational injury aggravated a pre-existing condition. The 

pertinent portion of Strandberg, supra, states as fo1I.ows: 

"All that is necessary is that the 

accident aggravated or accelerated the 

preexisting disease or disability. Under 

such circumstances the claimant must 

'produce sufficient evidence, direct, 

indirect or circumstantial to cause in 

the unprejudiced mind a conviction that 

such was the fact.' . . . Proof that it 

was medically possible for an industrial 

accident to aggravate a preexisting 

condition is acceptable proof of 

disability." (Citations omitted.) Supra, 

179 Mont. at 176, 587 P.2d at 20. 

See also Bykonen v. Montana Power Co. (Mont. 1985), P.2d 

, (Cause No. 84-506, decided July 30, 1985); Jones v. St. 

Regis Paper Co. (Mont. 1981), 639 P.2d 1140, 38 St.Rep. 2201. 

Strandberg simply provides that expert testimony on 

medical possibilities is competent evidence admissible in a 

workers' compensation proceeding. It is a standard of 

evidence and does not affect the claimant's ultimate burden 

to prove his case by a preponderance of the evidence. 
"Medical possibility" is to be weighed just as any other 

evidence; if supported by other, independent evidence it is 

"acceptable" to be used by the court in making its 

determination. Medical possibility evidence by itsel f, 

though, does not mandate a conclusion that the claimant has 

met his burden of proof under the Act. 

In Strandberg the Court went on to quote the 

unequivocal testimony of two expert witnesses that it was 

medically possible claimant's pre-existing condition was 

aggravated by his occupational injury. There was also other 

independent evidence supporting the claimant's position. 

Here, the record is not so clear. The only medical expert 

was Dr. Hull, and his testimony was equivocal. The other 

evidence goes both ways. Each party has been able to cull 

through the record and select testimony and other evidence 

that supports their position. Though we recognize that 

"cautious medical testimony'' should, whenever possible, be 

interpreted in favor of the claimant, see Larson, supra 

580.32, there is in the record sufficient substantial 

credible evidence to support the Workers' Compensation 

Court's determination and thus it must stand. 

Claimant's second and third allegations of error are 

similar and will be discussed together. In the second, 

claimant contends the Workers' Compensation Court erred in 

not making a finding on whether he was still temporarily 

totally disabled. In the third, he argues that the court 

made a similar error in not finding that claimant's benefits 

were discontinued without the required fourteen day notice. 

As to both, claimant requests this Court to either enter 

judgment in his favor or remand to the Workers' Compensation 

Court for findings on these issues. 
As to the above two issues presented in claimant's 

petition, the Workers' Compensation Court in the findings and 

conclusions stated: 

"Finding no 14. The Court finds that the 

defendant's motion to dismiss should be 

granted. 

"Conclusion no. 3. The evidence does not 

establish that claimant is entitled to 

further benefits now [sic] [nor?] that 

the claimant's benefits were wrongfully 

terminated. 

"Conclusion no. 6. The defendant is 

entitled to judgment dismissing 

claimant's petition with prejudice." 

Under the rule set forth in Mondakota Gas Company v. 

Becker (1968), 151 Mont. 513, 445 P.2d 745, the FTorkers' 

Compensation Court order is effective to dismiss these counts 

of claimant's petition. In Mondakota this Court addressed an 

argument similar to the one raised in the case at bar: 

whether the findings of fact and conclusions of law were 

specific enough to comply with Rule 41 (b) M.R.Civ.P. There, 

under the particular circumstances of that case, this Court 

upheld the sufficiency of the district court finding that "no 

cause of action exists or has been proven" in meeting the 

finding requirement of Rule 41 (b) , M.R.Civ.P. Secondly, the 

Mondakota Court uphel-d the sufficiency of the lower court's 

conclusion of law that; "it is therefore ordered, adjudged 

and decreed that said cause be and the same is hereby 

dismissed and the plaintiff take nothing thereby." Supra, 

151 Mont. at 517, 445 P.2d at 748. 

In Holloway v. University of Montana (1978), 178 Mont. 

198, 582 P.2d 1265, this Court discussed what types of facts 

are sufficient to meet the finding requirement of Rule 41(b): 
"Findings should be limited to the 

ultimate facts and if they ascertain 

ultimate facts, and sufficiently conform 

to the pleadings and the evidence to 

support the judgment, they will be 

regarded as sufficient, though not as 

full and complete as might be desired." 

Supra, 178 Mont. at 203, 582 P.2d at 

1268, citing Pearson v. Pearson (Utah 

1977), 561 P.2d 1080. 

Here we find that the Workers' Compensation Court's 

Conclusion no. 3, quoted above meets the test set forth in 

Mondakota, supra and Holloway, supra, for findings of fact. 

It fairly conforms to and addresses the allegations contained 

in claimant's petition. Although denominated a ''conclusion 

of law" the statement made by the court is more of a finding 

of fact. The mere fact that it is improperly denominated is 

not dispositive. Since the requirement for findings and 

conclusions in Rule 41 (b) , M.R.Civ.P., is primarily to serve 

a notice function for the purposes of res judicata, estoppel, 

and appeal, the proper inquiry insofar as the sufficiency of 

the lower court's order is to determine whether within the 

body of that order the requisite elements are met. 

At the hearing both parties presented evidence and made 

arguments on these issues. The whole order, fairly read, 

addresses and settles those issues. It is not proper to 

require an administrative tribunal to strictly conform to 

technical requirements of the rules of practice. The 

Workers' Compensation Court did its job; it heard and fairly 

considered the issues raised and evidence presented, and did 

not clearly avoid deciding the former. 

The lower court's Conclusion no. 6 as well as Finding 

no. 14, for the reasons stated above, meet the Mondakota 

requirement for conclusions of law. Finally, we note an 

order dismissing an action "with prejudice" acts as a 

judgment on the merits. Kelly v. Harris (D.C.Mont. 1958), 
158 F.Supp. 243. Claimant does not allege an insufficiency 

of evidence in this regard and therefore we find that the 

Workers' Compensation Court's order in this case acted as a 

judgment against claimant on the merits of his petition. 

The order of the Workers' Compensation Court is hereby 

affirmed. 

We concur: A 

- 

Chi)jf Justice A