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 

Honorable William Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Andrew J. Utick, Helena, Montana 

For Respondent: 

Moulton, Bellingham, Longo and Mather, Billings, 

Montana 

Submitted on briefs: 

February 25, 197f 

Decided: mt 2 q 1914 u b 

Filed: ZT 2 5 9m 
Mr. 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 Court which in turn affirmed an award 

of benefits by the Workers' Compensation Division to the 

claimant, Thomas A. Johnston. For purposes of identification 

of parties 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 the Workers' 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 shot himself with a handgun. 

Later, on July 29, 1973, while still on crutches as a result 

of surgery to repair the gunshot damage, claimant was 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 the Workers' Compensation Division which indicated that 

the second surgery was 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 his wife 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 it was broken 

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in a different place. The medical reports did not support 

his testimony that his leg bone was broken in a different 

place. The employer contends that claimant did not sustain a 

new injury, and that the fall did not aggravate a preexisting 

injury, and therefore that he is not entitled to compensation. 

The record before us clearly demonstrates that the 

employer did not preserve his right to contend before us that 

the evidence is insufficient as a matter of law to justify 

the award of benefits to claimant. Nor can we agree to the 

employer's contention that the claimant had stipulated to the 

receipt of additional evidence before the Workers' Compensation 

Court. 

By stipulation of the parties, this case was transferred 

from the District Court to the Workers1 Compensation Court 

after the effective date of legislation creating the Workers' 

Compensation Court and eliminating the District Court from 

its role in appeals from the Workers' Compensation Division. 

The appeal had been pending in District Court, in a dormant 

state, for almost two years. 

Before deciding any of the issues on appeal, however, 

the Workers' Compensation Court assigned a hearings officer 

to conduct a pretrial hearing in Billings. 

During the hearing, the employer contended that the 

scope of review before the Workers' Compensation Court would 

be trial de novo, and therefore that the employer had the 

right to present evidence not previously submitted to the 

Workers' Compensation Division. The claimant, on the other 

hand, asserted that review should be confined solely to the 

record previously made before the Workers1 Compensation Division. 

a 

The record clearly reflects that claimant first wanted/determination 

of the scope of review, and that additional evidence offered 

by the employer would be conditioned upon that ruling. .Obviously, 

if the court ruled that trial or review was on the record 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 to present 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 insurer had 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 [between the 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, 

. . ." 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 

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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 ioatrial de 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 own medical experts, and to either 

submit testimony or medical 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: 

....................... Chief Justice 

!a,lL*.- c ),LJ ..................... - 

J Justices 3 

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Mr. Chief Justice Frank I. Haswell, deeming himself disqualified, did not participate in this case.