NO. 91-104 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

LAURIE L. SMITH, 

Claimant and Appellant, 

V. 

UNITED PARCEL SERVICE, 

Employer, 

and 

LIBERTY MUTUAL INSURANCE CO., 

Insurer and Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kenneth H. Grenfell argued, McChesney, 

Grenfell & Ogg, Missoula, Montana 

For Respondent: 

Larry W. Jones argued, Garlington, Lohn 

& Robinson, Missoula, Montana 

Submitted: May 28, 1992 

Decided: July 21, 1992 

Filed: 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Laurie L. Smith appeals the judgment of the Workers' 

compensation Court which held that her 1986 back injury, sustained 

in the course and scope of her employment at UPS, was not the 

proximate cause of her current permanent partial disability. The 

court held that appellant's current disability resulted from a 

separate injury occurring in July 1989, and denied her permanent 

partial disability benefits for her current disability under 

5 39-71-703, MCA (1985). 

We affirm. 

Appellant raises various issues for this Court to consider. 

However, we find the following issues to be dispositive: 

1. Did the Workers' Compensation Court err when it adopted 

respondent's proposed findings of fact and conclusions of law 

almost verbatim? 

2. Was there substantial credible evidence to support the 

Workers' Compensation Court's findings of fact that claimant's 

injury was not proximately caused by an industrial accident which 

occurred at UPS? 

Prior to her injury, appellant worked for UPS as a preloader 

and part-time driver. On March 24, 1986, she injured her back when 

lifting a package. On April 11, 1986, she returned to work in a 

light-duty capacity, and later in the month she worked again as a 

preloader. In July 1986, she left UPS because she continued to 

have back problems and decided to attend college at Portland State. 

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While at Portland State, appellant played women's basketball, 

worked 20 hours per week at a pizza parlor, and carried a full 

credit load of classes. Appellant testified that she continued to 

have back problems during this period. However, she never reported 

any back problems when undergoing a required physical examination 

for Portland State basketball players. She quit basketball because 

of either a hamstring pull or continued back problems. After 

ending her basketball career, appellant increased her work hours at 

the pizza parlor. 

Appellant returned to Missoula in July 1987. She continued 

her interests in athletics by playing soccer and running. Although 

appellant enjoyed these endeavors, she would occasionally have 

flair-ups of back pain which would result in the suspension of her 

activities until the pain subsided. 

She began working for Gallagher Ceder Products bundling cedar 

shakes in July 1987. On her application for employment, appellant 

stated that she did not have a physical disability which would 

restrict her ability to perform her job. Initially, she began 

performing light-duty work, but in August 1987 she started heavy 

cedar shake bundling. It was at this time that appellant began to 

experience increasing back pain. She then filed a workers' 

compensation claim through Gallagher Cedar Products. The State 

Fund awarded her temporary total disability benefits and medical 

benefits. 

Because appellant was concerned about reinjuring her back, she 

left Gallagher Cedar Products and became a manager at Torrey's Home 

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Cooking in Missoula. She also started to experience back pain 

while working in this position, which led her to forgo her athletic 

activities until the pain subsided. She then filed a workers' 

compensation claim relating to her reinjury at Torrey's restaurant 

and received ten weeks of temporary total disability benefits. 

At the time of trial, appellant had been working for Azimuth, 

Inc., a geotechnical service company, where she had done surveying 

and claim staking for approximately one and one-half years. Her 

duties include hiking on hilly terrain, digging holes for survey 

monuments, and carrying a pack frame that weighs about 25 to 30 

pounds. 

The location and type of symptoms the appellant now claims are 

disabling, are the same symptoms in the same body areas as those 

affected after her injury at Gallagher Cedar Products. Appellant 

asserts that because of her condition she can no longer play 

college basketball, work at a pizza parlor, or work at Torrey's 

Home Cooking or Gallagher Cedar Products. Appellant filed a 

workers' compensation claim against UPS alleging that her initial 

injury from her industrial accident at UPS was the proximate cause 

of her disabling condition. 

On May 8, 1990, trial was held. The record was left open for 

the taking of post-trial depositions. The Workers' Compensation 

Court ordered counsel, pursuant to stipulation by the parties, to 

simultaneously submit by mail proposed findings of fact and 

conclusions of law and supporting briefs on November 15, 1990. 

Defense counsel was granted a motion for an additional day to file. 

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The Workers' Compensation Court ordered the parties to serve reply 

briefs no later than November 30, 1990. The court granted 

respondent's motion to allow parties to file reply briefs no later 

than December 5, 1990. 

On February 11, 1991, the court issued its findings of fact 

and conclusions of law in favor of respondent. In the order, the 

court refusedto consider appellant's proposed findings of fact and 

conclusions of law and supporting brief because they were not 

timely filed. Appellant appeals the findings of the Workers' 

Compensation Court. 

I. 

Did the Workers' Compensation Court err when it adopted 

respondent's proposed findings of fact and conclusions of law 

almost verbatim? 

Appellant asserts that she was prejudiced when the Workers' 

Compensation Court adopted respondent's proposed findings of fact 

and conclusions of law verbatim because appellant did not timely 

file her proposed findings of fact and conclusions of law. 

The Workers' Compensation Court did adopt appellant's 

employment history almost verbatim from respondent's proposed 

findings of fact and conclusions of law. However, the Workers' 

Compensation Court independently adopted its own conclusions 

regarding the medical testimonies of Dr. Walter H. Peschel and Dr. 

Robert J. Seim, an orthopedic specialist. We hold that the 

Workers' Compensation Court did not abuse its discretion in not 

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considering appellant's untimely proposed findings of facts and 

conclusions of law. 

LL. 

Was there substantial credible evidence to support the 

Workers' Compensation Court's findings of fact that claimant's 

injury was not proximately caused by an industrial accident which 

occurred at UPS? 

We will uphold the Workers' Compensation Court's findings if 

they are supported by substantial credible evidence. Tenderholt v. 

Travel Lodge International (1983), 218 Mont. 523, 526, 709 P.2d 

1011, 1013. Even though conflicting evidence may exist in the 

record, it is the Workers' Compensation Court's, and not this 

Court's, duty to resolve such conflicts. Olson v. Westfork 

Properties, Inc. (1976), 171 Mont. 154, 157, 557 P.2d 821, 823. 

Dr. Seim, appellant's treating physician, testified that in 

his opinion, she would have had to have been asymptomatic for at 

least 12 months before he could conclude that her back problems 

resulted from the second employer. He also opined that she reached 

maximum medical improvement in the months after her first injury at 

UPS. In addition, appellant testified that she had no serious back 

problems while attending Portland State. She continued a full 

range of activities which included varsity basketball, a full 

college credit load, and working part-time. 

Appellant contends that there was no evidence that a second 

injury occurred at Gallagher Cedar Products. The record reflects 

that appellant signed a claim for compensation which stated that 

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she hurt her back when she picked up a bundle of cedar shakes to 

put on a stack of bundles. Because of this claim, she received 

temporary total disability and medical benefits from the State 

Fund. In response to a question on the application for employment 

form for Gallagher Cedar Products, appellant stated that she did 

not have any physical condition which would limit her ability to 

perform her job. We hold that there was substantial credible 

evidence to support the Workers' Compensation Court's conclusion 

that appellant's back injury was not proximately caused by her 

industrial accident at UPS. 

We affirm. 

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