No. 91-490 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

ADELINE GARCIA, 

Claimant and Appellant, 

-vsSTATE COMPENSATION MUTUAL INSURANCE FUND and 

MONTANA DEPARTMENT OF LABOR AND INDUSTRY, 

Defendants and Respondents. 

APPEAL FROM Workers' Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don Edgar Burris, Attorney at Law, Billings, 

Montana. 

For Respondent: 

Michael P. Heringer, Attorney at Law, Billings, 

Montana. 

Submitted on Briefs: February 6, 1992 

MAY' 2 119%; Decided: May 21, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

~deline Garcia appeals from a judgment of the Workers' 

Compensation Court which held that she was not entitled to 

compensation beyond the amount paid. 

Although several issues are submitted on appeal, we find only 

one necessary for our review: 

Whether substantial credible evidence supports the Workers' 

Compensation Court's determination that Garcia was not entitled to 

compensation beyond the amount paid. 

On July 18, 1988, Garcia was injured while filing some 

documents in the bottom drawer of a filing cabinet while employed 

by the Department of Labor and Industry. On August 16, 1988, Dr. 

Lovitt performed a lumbosacral fusion at the LS-S1 level of 

Garcia's spine. Garcia has not returned to work since July 18, 

1988. It is undisputed that Garcia has a long history of back 

problems. The State Fund first refused butthen accepted Garcia's 

claim and made payments under the reservation of rights in § 39-71- 

608, MCA. After an investigation was completed, it terminated the 

claimant's benefits. 

Garcia filed a petition with the Workers' Compensation Court 

contesting the termination of benefits. A trial was held on March 

4, 1991. The hearing examiner executed a proposed judgment on 

August 8, 1991. The Workers' Compensation Judge adopted the 

proposed findings of fact and conclusions of law and proposed 

judgment of the hearing examiner. This appeal followed. 
Our standard for reviewing a decision of the Workers' 

compensation Court is to determine if there is substantial evidence 

to support the findings and conclusions of that court. Where there 

is substantial evidence to support the Workerst Compensation Court, 

this Court cannot overturn the decision. Coles v. Seven Eleven 

Stores (l985), 217 Mont. 343, 347, 704 P.2d 1048, 1050; Wood v. 

Consolidated Freightways (1991) , 248 Mont. 26, 28, 808 P. 2d 502, 

The Workers' Compensation Court found that Garcia began 

suffering from low back pain in the mid-1970 s. She was eventually 

diagnosed with degenerative disk disease, which is a wear and tear 

process that occurs with aging. On June 10, 1986, ~arcia was seen 

by Dr. Teal for a gradual increase in pain over the past decade. 

She was treated with medication, physical therapy and exercise. On 

October 26, 1987, she began seeing Dr. Lovitt. On June 17, 1988, 

Garcia and Dr. Lovitt discussed the possibility of surgery. On 

July 18, 1988, the day of the injury, Garcia saw Dr. Lovitt. They 

again discussed the possibility of surgery. Dr. Lovitt considered 

Garcia's July 18, 1988 visit as a flare-up in her continuing 

symptoms. As noted above, Garcia underwent surgery on August 16, 

1988. 

The Workersv Compensation Court, in its conclusions of law, 

found that Garcia was within the course and scope of her employment 

on July 18, 1988, when she suffered an injury as defined in § 39- 
71-119, MCA (1987). This statute provides in part: 

39-71-119. Injury and accident defined. (1) 

"Injuryu or "injuredw means: 

(a) internal or external physical harm to the 

body ; . . . 

(2) An injury is caused by an accident. An accident 

is: 

(a) an unexpected traumatic incident or unusual 

strain; 

(b) identifiable by time and place of occurrence; 

(c) identifiable by member or part of the body 

affected; and 

(d) caused by a specific event on a single day or 

during a single work shift... 

The Workers' Compensation Court concluded the definition of injury 

retains the pre-1987 requirement of 'Ian unexpected traumatic 

accident" or "unusual strain." Gaumer v. State Compensation Fund 

(1990), 243 Mont. 414, 795 P.2d 77. The court also found that the 

fact that an employee is suffering from or afflicted with 

preexisting disease or disability does not preclude compensation if 

the disease or disability is aggravated or accelerated by an 

industrial accident. Birnie v. U.S. Gypsum, Co. (1958), 134 Mont. 

39, 328 P.2d 133; Rumsey v. Cardinal Petroleum (1975), 166 Mont. 

17, 530 P.2d 433; Shepard v. Midland Foods, Inc. (1983), 205 Mont. 

However, the Workersf Compensation Court found that 

"compensable injury" and "disability" were two separate 

considerations. Hall v. Cigna Insurance Co., (1991) , 248 Mont. 

484, 812 P.2d 1262. In u, the claimant sustained several 

separate injuries over a period of years while employed with 

different employers and while doing separate activities. Hall 
alleged right knee, left ankle, and back pain were attributable to 

injuries sustained while working for ARCO. Hall at 488, 812 P.2d 

at 1264. We held that Hall did not demonstrate by a preponderance 

of the evidence that his current medical condition was attributable 

to his employment with ARCO. Hall at 489, 812 P.2d at 1265. 

The Workers' Compensation Court concluded that the entitlement 

to disability benefits must be supported by a preponderance of the 

medical evidence. The burden of proof is on the claimant to prove 

the work-related incident as a contributory cause to her 

disability. Gierke v. Associated Indemnity Corporation (1986), 224 

Mont. 446, 454, 730 P.2d 1143, 1148. The Workers' Compensation 

Court found, and the medical record bears out, that Garcia and Dr. 

Lovitt discussed surgery prior to July 18, 1988. On July 18, 1988, 

Dr. Lovitt noted the same continuing symptoms. The plaintiff did 

not present any evidence to support her position that her surgery 

or disability was causally related to the July 18, 1988 injury. 

I I 

Garcia argues that the Workers' Compensation Court violated 

her right to due process and equal protection of the law. The 

basis of the argument is that, in holding Garcia was not entitled 

to any benefits beyond the amount paid, the court exceeded the 

issue of whether or not Garcia was injured. Therefore, Garcia was 

deprived of her right to notice and opportunity to be heard. 

One of the issues presented by the parties to the hearing 

examiner was whether Garcia suffered a compensable industrial 
injury arising out of and/in the course of her employment. The 

Workers' Compensation Court found in Garcia's favor on that issue. 

In Garcia's complaint and in her contention number one of the 

pretrial order, Garcia claimed she was entitled to continued 

temporary total disability payments from the insurer. Thus, the 

Workers' Compensation Court did not exceed the scope of the issues 

in concluding Garcia was not entitled to benefits beyond the amount 

paid. 

Garcia argues that the Workers' Compensation Court, in holding 

she was not entitled to any benefits beyond the amount paid, denied 

her due process. The essence of her argument is that she was 

without notice that the disability issue would be tried. However, 

as stated above, Garcia's first contention in the pretrial order 

was that of whether or not she was entitled to temporary total 

disability payments. Evidence that Garcia's disability was not 

related to her injury was presented by the depositions of Dr. 

Lovitt and Garcia approximately one month before the hearing. The 

Workers' Compensation Court made a finding on this issue. 

The dissent argues that the Workers' Compensation Court 

exceeded its jurisdiction by deciding issues not raised by the 

parties. The hearings examiner approved a pretrial order which was 

signed by the parties. He noted at the hearing that the order 

would govern the proceedings. ARM 24.5.318 governs pretrial 

practice before the Workers' Compensation Court and provides for 

the pretrial conference and order. The order set forth the 
uncontested facts, the issues to be determined, and both parties' 

contentions. The relevant portions are as follows: 

E. Statement of Issues to be Determined by the Court. 

1. Whether Petitioner suffered a compensable industrial 

injury arising out of/and in the course of her employment 

on or about July 18, 1988 . . . 

F. Petitioner's Contentions: 

1. Petitioner has been, and continues to be, temporarily 

totally disabled as a result of the incident of July 18, 

1988 . . . 

G. Defendant's Contentions: 

2. Claimant has a long history of back problems. Her 

surgery and back problems are related to her history of 

back problems not to anything that occurred on or about 

July 18, 1988. Likewise, the medical records reflect 

that claimant decided to have surgery on her back prior 

to the time of her alleged injury. 

Further, the depositions of Dr. Lovitt and Garcia were submitted to 

the hearings examiner. 

One of the purposes of the pretrial order is to specify the 

legal theories and contentions of fact upon which the parties are 

proceeding. A pretrial conference is held to promote organization 

and management of the case. We must balance here the integrity of 

the order and the adaptability of the proceedings. Case v. Abrams 

(10th Cir. 1965), 352 F.2d 193. 

Unlike pleadings, usually based on information and 

belief, the pre-trial order defining the issues is the 

result of discovery in which, as this order recites . . . both parties know the testimony of the other's 

witnesses. The pre-trial order supersedes the pleadings 

and becomes the governing pattern of the lawsuit. 
The question before us is whether the pretrial order can be 

construed to include the issue of whether Garcia was entitled to 

compensation beyond the amount paid. The trial court has wide 

discretion in matters of pretrial practice. See Moore v. Sylvania 

Electronic Products, Inc. (3rd Cir. 1972), 454 F.2d 81, Ely v. 

Reading Co. (3rd Cir. 1970), 424 F.2d 758, and Davis v. Duplantis 

(5th Cir. 1971), 448 F.2d 918. 

As stated by the Eighth Circuit: 

We are satisfied that the trial court properly 

interpreted the issues raised by the pleadings. In any 

event the appellant by the pre-trial order was fully 

advised of the presence in the case of the oral contract 

of insurance issue, and is in no position to claim that 

it was misled as to the issues to be tried. 

American Surety Company of New York v. Williford (8th Cir. 1957), 

243 F.2d 494, 497. We find that Garcia was advised by the pretrial 

order of the presence of the disability issue, and cannot claim 

surprise. 

I11 

In its f indings of fact, the Workers' Compensation Court found 

that Dr. Lovitt had not been requested to prepare an impairment 

rating and could not state a date that Garcia could have reached 

maximum healing following surgery. Garcia contends that the issue 

of maximum healing and a subsequent impairment evaluation was not 

before the court and should not have been decided. 

Even though Garcia contests the court's finding on Dr. 

Lovitt's testimony regarding the impairment rating and maximum 

healing, she argues that she was deprived of the right to a 
determination on the issue of maximum healing and an impairment 

rating, denying her due process. Garcia argues that a 

determination of maximum healing is mandatory. Garcia relies on 

Wood v. Consolidated Freightways (1991), 248 Mont. 26, 808 P.2d 502 

for the proposition that a determination of maximum healing is 

mandatory. However, Wood involved the question of whether the 

claimant was permanently partially disabled or totally disabled 

after receiving a work related injury. Not whether he was disabled 

from a work-related injury. We conclude under these facts such a 

determination was not necessary. 

Forthe reasons stated above, we conclude substantial credible 

evidence existed to support the findings and conclusions of the 

Worker's compensation Court. 

Affirmed. 

We Concur: 

Justices 

9 
Justice William E. Hunt, Sr., dissenting. 

I dissent. The majority's opinion denies Garcia the 

opportunity to present evidence relating to the extent of her 

disability. The Workers' Compensation Court exceeded its 

jurisdiction by deciding issues not raised by the parties. The 

issue before the Workers8 Compensation Court was whether Garcia 

suffered a compensable industrial injury arising out of her scope 

of employment on July 18, 1988. ?'he court properly ruled that 

Garcia met the requirements of an "injury" as defined in 

5 39-71-119, MCA (1987). The Workers' Compensation Court, however, 

went one step further and ruled that her injury on July 18, 1988, 

did not result in any disability which entitled her to compensation 

beyond the amount paid. 

Garcia did not receive any notice or have any opportunity to 

present evidence relating to the extent of her disability. 

Garcia's attorney only presented a case on whether she suffered a 

compensable industrial injury. The fact that the issue was phrased 

in terms of "compensable injury" did not notify Garcia that the 

extent of compensation was an issue. As a result, there was no 

evidence relating to Garcia's "maximum healingr' which is necessary 

for her to continue receiving temporary total disability benefits. 

Section 39-71-701(4), MCA. The State Fund was allowed to stop 

paying Garcia benefits without a determination that she had 

achieved "maximum healing." Moreover, an impairment rating cannot 

be obtained until Garcia reaches "maximum healing." The Workers' 

10 
Compensation Court decided the issue without any evidence presented 

by Garcia relating to her physical impairment, or its affect on her 

earning capacity, because she did not have notice that the issue 

would be decided. 

I would reverse and remand to the Workers' Compensation Court 

to allow Garcia to present evidence relating to the extent of her 

disability. 

Justice 

Justice Terry N. Trieweiler concurs in the foregoing dissent of 

Justice Hunt.