No. 13698 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

THOMAS J. JOHNSTON,Claimant and Respondent,
-vsPACK TRAIL INN, INC., Employer, and NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Defendant and Appellant.

Appeal from: Workers' Compensation Court HonorableWilliam Hunt, Judge presiding. Counsel of Record: ForAppellant: Andrew J. Utick, Helena,Montana For Respondent: Moulton,Bellingham, Longo and Mather, Billings,

Montana

Submitted on briefs: February 25, 197f Decided:

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# 9mMr. Daniel 

### J. Shea delivered the Opinion of the Court.
The National Automobile and Casualty Insurance Company, insurer for the employer, appeals from a judgment of the Workers' Compensation Courtwhich in turn affirmed an award of benefits by theWorkers' Compensation Division to the claimant,Thomas A. Johnston. For purposes of identification ofparties we refer to the insurance company as the employer. Stripped to the essentials,the employer contends that the claimant neither sustained a new injury nor aggravated a preexlsting injury,and is therefore not entitled to benefits. Alternatively, the employer argues that it was entitled to a trial de novo before theWorkers' Compensation Court because of an alleged stipulation between counsel for the employer and counsel for the claimant. The facts giving rise to the claim for compensation are
as follows. On January 29, 1973, claimant sustained a broken leg when he accidentally shothimself with a handgun. Later, on July 29, 1973,while still on crutches as a result of surgery to repair the gunshot damage, claimantwas working
as a bartender when patrons were engaged in some horseplay inside the bar. He was knocked to the floor during the scuffle,and as a result allegedly sustained the injuries which resulted in his claim for compensation. Claimant underwent surgery to repair the same leg bone that had been broken as a result of the accidental shooting. Before the hearing started medical reports were filed with theWorkers' Compensation Division which indicated that the second surgerywas performed to unite claimant's leg bone which had not properly healed after the first surgery. No medical testimony was elicited at the hearing, and the claimant and hiswife were the only witnesses to testify, the claimant testified to the fracas in the bar which resulted in his fall, and also testified that he broke the same leg that had been previously broken. He testified however, that itwas broken -2-in a differentplace. The medical reports did not support his testimony thathis legbone was broken ina different place. The employer contends thatclaimant did not sustain a
new injury, and that the falldid not aggravate a preexisting injury, and therefore that he is not entitledtocompensation. The record before us clearly demonstrates that the employer did not preserve his righttocontend before us that the evidence is insufficient asa matter of law tojustify the award of benefits toclaimant. Nor canwe agree tothe employer's contention that the claimant had stipulatedtothe receipt of additional evidence before theWorkers' Compensation Court. By stipulationof theparties, thiscase was transferred from the District Court to theWorkers1Compensation Court afterthe effective date of legislation creating theWorkers' Compensation Court and eliminating theDistrict Court from its role inappeals from theWorkers' Compensation Division. The appeal had been pending inDistrict Court, ina dormant state, foralmost twoyears. Before deciding any of the issues on appeal, however, the Workers' Compensation Court assigned a hearings officer to conduct a pretrialhearing inBillings. During thehearing, theemployer contended that the scope of review before theWorkers' Compensation Court would be trialde novo, and therefore that theemployer had the right topresent evidence not previously submitted tothe Workers' Compensation Division. The claimant, on the other hand, asserted thatreview should be confined solelyto the record previouslymade before theWorkers1Compensation Division. a The record clearly reflects thatclaimant firstwanted/determination of the scope of review, and that additional evidence offered by the employer would be conditioned upon thatruling. .Obviously, if the court ruled that trialor reviewwas on therecord only,claimant would resist the employer's attempt to supplement the evidentiary record. The minutes of the hearings officer reflect that the employer persisted also in its contention that the evidence presented before the Workers' Compensation Division was insufficient as a matter of law to justify an award to the claimant. Thereafter, on November 30, 1976, a hearing was held in Helena, attended only by counsel for the employer and the Workers' Compensation judge. Claimant did have notice however, and raised no objections to the hearing. The employer's counsel was clearly aware that a ruling would be made sometime after the hearing, but the record is silent as to any indication that the employer wanted a ruling on the sufficiency of the evidence presented by the claimant at the hearing before the Workers' Compensation Division. The only issue discussed was whether the Workers' Compensation Court would permit the employer topresent additional evidence. After an extended discussion between the court and the employer's counsel, the court indicated that it was going to sign an order dismissing the appeal and affirming the award of compensation benefits. We note in this regard, that the insurerhad already paid the claimant's medical benefits. Accordingly, on December 7, 1976, the court entered its order dismissing the appeal and affirming the award of compensation to the claimant. In the order of dismissal the Workers' Compensation Court specifically noted that "at the hearing [betweenthe court and employer's counsel] the only issue before the Court to be decided was whether there should be a trial de novo." After noting that it had reviewed the file and the documents therein, the court concluded "that the trial de novo would serve no useful purpose,



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# .." As we previously noted, our own review of the file indicates that trial de novo was the only issue presented to the Workers' Compensation Court. At the December 7 hearing, the employer -4-at no time requested the court to review the sufficiency of the evidence to sustain claimant's award. For this reason, it is clear to us that the sufficiency of the evidence is not properly before this Court on appeal. As to the issue of trial de novo, the employer does not contend that the Workers' Compensation Court was compelled as
a matter of law to permit the employer to open its evidentiary record. Rather, the sole contention is that claimant's counsel had stipulated ioatrialde novo. As we have already indicated, however, the employer has sorely misconstrued the record made before the hearings officer at the pretrial conference. There is no such stipulation. We note,moreover, that the employer was not denied an opportunity before the Workers' Compensation ~ivision to have either the claimant or his presurgical and postsurgical x-rays examined by the employer's ownmedical experts, and to either submit testimony ormedical reports based upon such examination. Having failed to do so,we do not see how the employer is now in a position to complain. The decision of the Workers' Compensation Court is affirmed.

We Concur:



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# 3 -5- Mr. Chief Justice Frank 

### I. Haswell, deeming himself disqualified, did not participate in this case.