No. 83-98 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

VALENTINE WALTER, 

Claimant and Respondent, 

-vsEVANS PRODUCTS COMPANY, Employer, 

and 

EVANS PRODUCTS COMPANY, 

Defendant and Appellant. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Apsellant: 

Andrew J. Utick, Helena, Montana 

For Respondent: 

John Dostal; Patterson, Marsillo, Tornabene & 

Schulyler, Missoula, Montana 

Filed: 

- 

Submitted on Briefs; August 25, 1983 

~ecided: November 23, 1983 

NOV 2 3 1983 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The Workers' Compensation Court on December 22, 1982, 

awarded to Valentine Walter on his Workers' Compensation 

claim temporary disability benefits from May 20, 1980, until 

he reaches maximum healing, medica.1 benefits for his 

injuries, and ordered a lump sum to be paid to the claimant 

for his temporary total disability benefits from May 20, 1980 

to the date of the judgment in the Workers' Compensation 

Court. Walter was also awarded reasonable costs and 

attorneys fees. No penalty was applied by the Workers' 

Compensation Court. Evans Products Company has appealed from 

the judgment and decision of the Workers' Compensation Court. 

We affirm the decision of the Workers' Compensation 

Court. 

On or prior to August 1, 1977, Valentine Walter was 

employed by Evans Products Company at its plant in Missoula. 

It is uncontested that on August 1, 1977, in the course and 

scope of his employment, Walter injured his right knee. 

Medical benefits were paid by Evans Products Company as a 

result of that injury. Walter filed a claim for compensation 

benefits on June 6, 1980, and such claim was denied. 

The Workers' Compensation Court found that the claimant 

did not lose any wages because of his work-related injury on 

August 1, 1977 and so did not file his claim for disability 

benefits. When he did file his claim on June 6, 1980, he did 

so at the suggestion of George Wood, the manager of 

Compensation Adjusters, Inc. , which does Workers ' 

Compensation adjustments for Evans Products Company. 

However, Wood denied the claimant's initial claim for 
compensation because it was filed more than a year after 

August 1, 1977. Claimant then appealed to the Administrator 

of the Division of Workers' Compensation for a waiver of the 

one year filing requirement which request was by the Division 

denied. 

The Workers' Compensation Court found further that on 

Ma-y 16, 1980, while the claimant was workinq for Evans as a 

green chain off-bearer, Walter slipped off a catwalk while 

stacking a piece of lumber, and struck his right knee below 

the kneecap on the concrete edge of a recessed floor beneath. 

He immediately experienced severe pain which forced him to 

stop work and rest before he could resume stacking lumber. 

The Workers' Compensation Court also found that one-half hour 

thereafter claimant notified Roy Newton, ~vans' supervisor on 

the job. Newton allowed the claimant to leave work before 

his shift ended and observed claimant limping on May 16, 

1980. Newton authored an undated accident report 

acknowledging that the claimant was unable to work on the 

green chain because his knee was bothering him so much. In 

his accident report, Newton reported to Evans that the 

claimant's knee problem was the result of his August 1977 

accident, even though the claimant had asked Newton to report 

his accident of May 16, 1980. Newton did not report the May 

16 incident as the date of claimant's accident because Newton 

believed "no sudden traumatic incident" had caused the knee 

pain of which Walter complained. 

Walter returned to work on May 17, 1980, and worked 

until May 20, 1980, at which time he ceased working because 

of the pain. 

The medical evidence adopted by the Workers' 

Compensation Court indicated that he suffered an industrial 
accident on August 1, 1977 with an injury to his right knee, 

and that in the intervening years his injured condition has 

continued so that the accident of May 16, 1-980 aggravated the 

pre-existing condition. The injury is now diagnosed as 

chrondromalacia patellae which will totally disable him until 

such time as surgery can be performed to relieve the kneecap 

problem. 

On appeal, the Workers' Compensation Court has stayed 

the payment of the lump sum judgment. 

Evans raises two issues on appeal: (1) that the 

Workers' Compensation Court should have reopened the case to 

permit Evans to introduce additional evidence that would show 

I that the claimants alleged industrial injury of May 16, 1980 

could not have happened as claimant testified and (2) that 

there is not substantial evidence to support the grant to the 

claimant of temporary total disability retroactive to May 20, 

1980. 

The post-trial additional evidence offered by Evans 

would consist of testimony of its industrial relations 

manager, Lee Mentzer, who would lay the foundation for 

introduction into evidence of company timesheets covering the 

claimanqs employment by Evans during 1980. Employer contends 

that after proper foundation, the timesheets would show that 

on May 16, 1980, Walter was not working on the green chain 

when he slipped and struck his knee, rather on a planer, 

which was in a different part of the plant, involving an 

entirely different type of job. It further contends that on 

May 16, 1980, Roy Newton was not the claimant's supervisor. 

Moreover, the records would show that on May 16, 1980, Walter 

worked a full eight hour day and was paid for the same. The 
Workers' Compensation Court denied the motion to allow 

additional evidence. 

In its petition for rehearing, Evans alleged that 

reasonable attempts had been made prior to the original trial 

to retrieve the subject time records. Evans contended that 

in the first part of 1980, defendant closed its mill in 

Missoula and that as part of the closure of the Missoula mill, 

the records and files in connection with the Missoula plant 

were physically transferred to Portland, Oregon. Prior to 

trial, Evans contended, it attempted to locate all the 

records and files concerning Walters employment, including 

the timesheets, but that in spite of efforts to locate the 

same, they were unable to find them until after the trial in 

this case had occurred. The Workers' Compensation Court 

denied defendant's petition for rehearing stating that with 

respect to the offered time records "[tlhe defendant has 

failed to show that it could not, with reasonable diligence," 

have discovered or produced the documentary evidence at the 

time of trial. 

We note that in its conclusions, the Workers' 

Compensation Court had determined that the confusion in the 

case over the date of Walter's industrial accident resulted 

from Roy Newton's on-the-job evaluation of what kind of an 

event would warrant liability for Workers' Compensation 

benefits and that if Newton had reported the accident as 

claimant had requested him, it is unlikely that confusion 

over what happened to the claimant and when it happened would 

have arisen. 

The standard for determining whether newly discovered 

evidence is sufficient reason for a new trial is governed by 

the statute, section 25-11-102 (4) , MCA, which provides that 
the newly - discovered evidence must be that which the 

applicant could not with reasonable diligence have discovered 

and produced at the trial-. Whether to grant or deny a new 

trial is within the sound discretion of the trial. court. 

Fredericksen v. Fredericksen (Mont. 19801, 605 P.2d 1135, 

1137, 37 St.Rep. 191, 193, and will not be overturned absent 

a showing of manifest abuse of that discretion. Giles v. 

Flint Valley Forest Products (1979), 179 Mont. 382, 588 P.2d 

535, 538. Every presumption is indulged that the movant for 

a new trial on the ground of newly-discovered evidence could 

have secured the testimony for the former trial, and the 

movant must negative any negligence on his part. In Re 

Colbert's Estate (1904), 31 Mont. 461, 80 P. 248. The movant 

must show that such evidence came to his knowledge since the 

trial and that even through diligence it was not discovered 

earlier; it must also appear that its materiality will 

probably produce a different result on trial and it is not 

merely cumulative or only tending to impeach. State v. Estep 

(1936), 103 Mont. 78, 61 P.2d 830. In Kartes v. Kartes 

(1977), 175 Mont. 210, 573 P.2d 3.91, we upheld the denial of 

a new trial on the ground of new evidence because the new 

evidence was at all times in the exclusive possession of the 

movant . 

Here the evidence sought to be introduced as 

newly-discovered evidence was at all times in the possession 

of Evans Products Company, and the purpose of the newlydiscovered evidence is to impeach the testimony of the 

claimant Walter, and Evans' supervisor, Roy Newton. In that 

situation, Evans has not presented grounds sufficient for a 

new trial on newly-discovered evidence. 
In support of the second contention, the sufficiency of 

the evidence, Evans contends there is no evidence that 

claimant's lack of formal education (claimant can neither 

read nor write) makes him susceptible to suggestions of 

others; that there is no probative credible evidence that he 

sustained an injury on the green chain on May 16, 1980; that 

there is no probative credible evidence that he told Roy 

Newton how the alleged May 16, 1980 accident occurred; that 

there is no probative credible evidence that he returned to 

work on May 17 and worked until May 20, 1980, as found by the 

lower court; that there is no probative credible evidence 

that claimant had to cease working because of the pain in his 

right knee. Evans contends that defendant was laid off 

because of reduction in force as part of the plant closure, 

that his severance benefits were explained to him, that he 

signed a form, after it had been read and explained to him, 

acknowledging receipt of his severance pay, that he had drawn 

unemployment compensation insurance, and that his doctor 

thought that the particular knee injury did not indicate a 

total disability. 

On deciding the same grounds of obiections, the Workers' 

Compensation Court, in its decision against rehearing, stated 

that the contentions on the evidence amounted to a 

disagreement with the Workers ' Compensation Court regarding 

the relevance and weight of the evidence introduced at the 

trial and by deposition, and that those grounds are not 

sufficient to warrant a new trial under 5 2.52.222 A.R.M. and 

sections 25-11-102, and -103, MCA. 

The function of the trial court is to find the facts. 

Absent a manifest abuse of discretion, or a situation where 

the findings are clearly erroneous (Rule 52 (a) , M. R.Civ.P. ) , 
the decision of the trial court on the facts will not he 

disturbed by this Court. 

We affirm the decision of the Workers ' Compensation 

Court. 

We Concur: 

4%- 

Justice