### 140. 84-479 

### INTHE SUPREPIE COURT OF THE STATEOF MONTANA 1985

LLOYD WHEELER, Claimantand Appellant,

CARLSON TRANSPORT, Employer, and INSUFiANCECOMPANYOF NORTH AMERICA, Defendantand Respondent.

APPEAL FROM: Workers' Compensation Court,The Honorable Timothy Reardon, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Lynaugh,Fitzgerald & 

### Hingle; Thomas Lynaugh, Billings, Montana For Respondent: StevenHarman,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. Carlson

## 's carrier, the respondent, Insurance Company of North America

(INA) accepted liability and began paying medical and compensationbenefits. On September 21, 1981,claimant filed

a petition with the Workers

## ' Compensation Court contending, among other things, thathe suffered aback injurydue to his foot condition. In that petition, claimant alleged a preexisting spinal stenosisconditionwhichwas 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'sgait 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 thatclaimant'sback condition was caused by the foot injury, but he was inclined against such a connectionbeingmade. "There 

### is ample evidence to support Dr. Hull's opinion in the fact that claimant did not complain about hisback 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 thecausal 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, inJuly of 1983, claimantunderwent

an operation toremove 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 towork approximately sixweeks from the date of surgery. INAwrote toclaimant and hisattorney 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 INAwrote toclaimant and his attorney enclosing final payment toNovember 1, and indicatingthatpayments 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 wasavailable indicatingthatclaimant's back injurywas causally related tohis foot injury; and finally that 

### INA had failed togivetherequired 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 sustainthe 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 findsno new evidencewas presented which would likely change the resultupon a new trial. 13The Court finds there does not appear to be a new and more serious featureof theprior 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 forhisback injury. (2) The court erred in failing to find that claimant 

### isentitledtofurthertemporary total disabilitybenefits by

reason of hisfoot injuryalone.(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 statesinpart: "Authority to review, diminish, or increase awards--limitation. The judge may, upon thepetition of theclaimant or an insurer that the disability of the claimant has changed, review, diminish, orincrease inaccordancewith the law on benefits as 

### set forth in chapter 71 of this 

### title, any benefits previously awarded by thejudge orbenefits received by 

### a claimant through settlement agreements. " Secondly, section 25-11-102, MCA, provides that a former verdict ordecisionmay be vacated and new trialgranted upon application if the substantial rights of the applicant 

### were materially affected by: "

# . . .newly discovered evidence material for the partymaking the applicationwhich he could not, with reasonable diligence have discovered and produced at trial

# . . . l1 Moen v. Peter Kiewit and Sons Co. (Mont.

Atthe 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 tobe 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 hisback injurywas causally related to the occupational foot injury. The court in the prior order specifically found, asstatedabove, thattherewas no causal

### relation between the two. Larson, in this treatise, states the general rule: "At the administrative level, awards can be reopened by the compensationboard 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 relitigated

### , 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.

### " Larson, Workmen's 2. a 

### Compensation Law, Vol. 3, 

### S81.00 (1983 ed.) 

### (Emphasisadded.) 

### 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'sAct asbeing 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]heissue before the board is sharply restricted to the question of extent of improvement orworsening of the injury on which the original award was based. If the original award held that therewas 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 InsuranceFund (0r.App. 1978), 576 P.2d 35, the Oregon Court of Appeals held that claimant'sdisability could notbe relitigated in a reopening petition. The Oregon court in that casenoted: "At the heart of claimant's position is 

### his belief that his initia1determination was erroneous and that he should have been found permanently totally disabled. However that may be, the initial determination cannotbe relitigated in an aggravation claim." Supra at 35. The same observation applies to thisproceeding. In Judd 

### v. Industrial Commission (Ariz.App. 1975)

### , 532 P.2d 196, the Arizona Supreme Court held that, absent mistake or misrepresentation in aprior proceeding,any determinationof causal relation is res judicata. Again, theArizona Supreme Court made an observationapplicable 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 therewas no causal connection between claimant's back problem and his industrial injury; the claimanthas 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 thatin fact his condition had improved. We have examined the record in thisregard and find thatthe court did not err in making this finding. This Court has consistently held that the 

### test of sufficiency of evidence 

### is whether there 

### is substantialevidence tosupport thecourt's findings of fact; and 

### we will not substitute our judgment for the Workers' Compensation Court in determining theweight 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 thathe was abletoget around better

on his foot. Subsequent medical treatment continually improved his foot. Testimony both of claimant's medical doctor and a vocational specialistboth 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 trialmay be granted 

### is that contained in section 25-11-102, MCA, quoted above. In Moen v. Peter Kiewit and Sons Co., supra, 

### we explained thisstatute: " T h i s d e c a d e ' s - o l d standard has been fleshed outby case law establishingthat thedecisiontograntordeny a new trial 

### is within the sound discretion of the trial court,

# ... and 

### will not be overturned absenta showing of a manifest abuse of thatdiscretion

# . . .To warrant thegrantingof a new trialon theground 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 treatingphysician, testified that he could not say with any degree of medical certaintythat 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 littlebetterinthe lastfewyears inthathe still had the same pain but not asoften. 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 forthe rule that alla 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 diseaseordisability. 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." (Citationsomitted.) Supra, 179Mont. at176, 587 P.2d at20. See alsoBykonen 

### v. Montana Power Co. (Mont. 1985), P.2d



### , (CauseNo. 84-506, decided July 30, 1985); Jonesv. 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 itself, though, does not mandate a conclusion that the claimant has 

### methisburden of proof under theAct. 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 alsoother 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 

### itmust 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 thatclaimant's benefits



### were discontinued without the required fourteen day notice. As to both, claimant requests this Court 

### to either enter judgment inhis favor orremand totheWorkers' Compensation Court forfindings on these issues.As to the above two issues presented in claimant's petition, theWorkers' Compensation Court inthe findings and conclusions stated: "Finding no 14. The Court findsthatthe 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 

### iseffective

### todismissthese counts of claimant's petition. InMondakota thisCourt 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 thedistrictcourt 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; 

### "itis therefore ordered, adjudged and decreed that said cause 

### be and the same is hereby dismissed and the plaintiff take nothing thereby." Supra, 151Mont. at517, 445 P.2d at748. In Holloway v. University of Montana (1978), 178Mont. 198, 582 P.2d 1265, thisCourt discussed what types of facts

are sufficientto

### meetthe 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),561P.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 fairlyconforms toand addresses theallegationscontained in claimant's petition. Although denominated a ''conclusion of law" the statementmade by the court 

### ismore of a finding of fact. The mere factthat 

### it 

### is improperly denominated 

### is not dispositive. Since the requirement for findings and conclusions in Rule 41(b)

## , M.R.Civ.P., 

### isprimarily toserve

a notice function forthepurposes of 

### res judicata, estoppel, and appeal, the proper inquiry insofar asthe sufficiencyof the lower court's order 

### is to determine whether within the body of thatorder the requisiteelements are

### met. Atthehearingboth partiespresented 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 

### itsjob; 

### it heard and fairly considered the issues raised and evidence presented, and did not clearlyavoid decidingthe former. The lower court's Conclusion no. 6 aswell asFinding

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 

### ishereby affirmed.

We concur: A



### - Chi)jf Justice A