*1 GARCIA, ADELINE Appellant, Claimant MUTUAL STATE COMPENSATION FUND and INSURANCE DEPARTMENT OF MONTANA INDUSTRY, LABOR AND Respondents. Defendants No. 91-490. Feb. Submitted on briefs May Decided St.Rep. 440. 196. 832 P.2d 770. *2 Burris, Appellant: Edgar

For Claimant and Don Billings. For Respondents: Heringer, Billings. Defendants and Michael P. JUSTICE Opinion McDONOUGH delivered the the Court. appeals judgment Compen- Adeline Garcia a from sation Court which held that she was not entitled paid. the amount

Although only several issues on we one appeal, are submitted find for necessary our review: supports

Whether substantial Workers’ Com- credible not entitled pensation Court’s determination that Garcia was compensation beyond 18,1988, filing injured

On Garcia was while some documents by the filing employed cabinet while in the bottom drawer of Industry. August Dr. Lovitt Department Labor spine. level of Garcia’s performed a lumbosacral fusion at LS-S1 July 18,1988. undisputed It is has not returned to work since Fund first long history problems. ofback State Garcia has claim and made under accepted payments refused but then 39-71-608, rights investigation After an the reservation of MCA. § completed, it terminated claimant’s benefits. petition Garcia filed a with the Workers’ A on March contesting the termination of benefits. trial was held August hearing proposed judgment examiner executed a adopted proposed Compensation Judge 1991. The Workers’ judgment findings proposed of fact and conclusions of law appeal examiner. This followed. hearing reviewing Compen for decision of the Workers’ Our standard if evidence to Court is to determine there is substantial sation conclusions ofthat court. Where there substantial *3 and Court, Compensation Court this (1985),217 v. Seven Eleven Stores cannot overturn the decision. Coles 343, 347, 1048, 1050; v. Consolidated 704 P.2d Wood Mont. 502, 28, (1991), 26, 248 808 P.2d 504. Freightways Mont. I began found that Garcia suffer- Workers’ eventually diag- pain in the mid-1970’s. She was ing from low back disease, and tear disk which is a wear degenerative nosed with On June Garcia was seen aging. that occurs with process decade. She pain past for over by gradual Dr. Teal a increase On medication, therapy and exercise. physical with was treated 1988, 17, 26, Dr. On June 1987, began seeing Lovitt. October 18, July surgery. possibility and Dr. Lovitt discussed the They again 1988, Garcia saw Dr. Lovitt. day injury, of the surgery. Lovitt considered Garcia’s possibility discussed continuing symptoms. As noted 18,1988 flare-up a visit as 16, August 1988. surgery on Garcia underwent law, Court, in found its conclusions The the course and that was within 199 July 18, 1988, 39-71-119, injury when she suffered an as defined in § (1987). provides part: MCA This statute (1) and or “in- Injury “Injury’

39-71-119. accident defined. jured” means:

(a) internal to the physical body;... or external harm (2) injury by An is caused an accident. An accident is:

(a) strain; unexpected traumatic incident or unusual (b) by place occurrence; time identifiable and (c) affected; by part body identifiable member (d) by specific day during caused a single single event on a work shift... Court concluded the definition pre-1987 requirement

retains the unexpected of “an traumatic accident” or “unusual strain.” Gaumer v. State Fund (1990), 414, 243 Mont. 795 P.2d 77. The court also found that the fact an employee is suffering from or afflicted with preexisting disability disease or not preclude compensation does if the disease or disability aggravated or accelerated an industrial accident. Gypsum, (1958), Birnie v. 39, 133; U.S. Co. 134 P.2d Mont. 328 Rumsey (1975), 17, v. Cardinal 433; Petroleum 166 Mont. P.2d Foods, Shepard (1983), 146, v. Midland Inc. 205 Mont. P.2d 758. However, the Workers’ Compensation “compen Court found that injury’ “disability’ sable separate were two considerations. Hall Cigna Co., 484, 812 Hall, Insurance 1262. the claimant separate injuries period sustained several over a years employed while with different employers doing and while separate alleged knee, ankle, activities. Hall back pain left injuries were attributable to working sustained while for ARCO.Hall at 812 P.2d at held that Hall did not demonstrate preponderance ofthe evidence that his current medical condition was to his employment attributable with ARCO. Hall at P.2d at The Workers’ Compensation Court concluded that the entitlement by preponderance benefits must be supported medical proof prove evidence. The burden of is on the claimant *4 a contributory disability. work-related incident as her Gierke cause to Indemnity Corporation Associated found, Compensation 1148. The Workers’ Court and the out, medical record bears that Dr. discussed Garcia and Lovitt surgery prior July 18,1988. July 18,1988, to noted the Lovitt continuing symptoms. plaintiff any same did present The not surgery disability her was position evidence to her that causally related to the

II violated her argues Compensation Garcia that the Workers’ Court the right process protection due of the law. The basis of equal to argument that, any benefits holding Garcia was not entitled beyond whether or paid, the amount the court exceeded the issue of injured. Therefore, deprived not Garcia was Garcia was opportunity to notice and to be heard. presented by parties hearing the the examiner

One of issues the injury arising was industrial compensable whether Garcia suffered Compensa- and/in course her The Workers’ employment. the complaint tion Court found in Garcia’s favor on that issue. Garcia’s order, pretrial and in her Garcia contention number one disability temporary claimed she to continued total was entitled payments Thus, from the the Workers’ insurer. concluding not

did Garcia was not exceed the beyond entitled to benefits amount Court, holding argues that paid, denied entitled benefits argument The is that she was without process. due essence her However, as stated disability notice that the issue would be tried. pretrial in the order was that Garcia’s first contention pay- temporary disability total whether not she was entitled to to her that was not related ments. Evidence ap- presented by depositions of Dr. Lovitt and hearing. proximately Compensa- month The Workers’ one before the tion finding Court made a on this issue. Court ex- argues

The dissent parties. jurisdiction issues not raised by deciding ceeded its signed which was hearings pretrial examiner order approved govern hearing He that the order would parties. noted at before the pretrial practice proceedings. governs ARM 24.5.318 con- pretrial for the provides Court and facts, the issues the uncontested ference and order. The order set forth portions determined, relevant parties’ to be contentions. both are as follows: by the Court. to be Determined

E. Statement Issues in- industrial compensable suffered Whether Petitioner

201 in jury arising the course of of/and 18, ... July about 1988

F. Petitioner’s Contentions: been, be,

1. Petitioner and temporarily has continues totally July 18, disabled a result of the ... as incident 1988 G. Defendant’s Contentions: long history problems. surgery

2. Claimant has a of back Her problems history and back are related to her problems back 18, to anything that occurred on about Likewise, the medical records reflect that claimant decided to surgery back prior have on her to the time of her alleged Further, depositions the Lovitt and were submitted hearings the examiner.

One of the of the purposes pretrial specify legal order is to and fact upon parties theories contentions of which the proceed are ing. pretrial A promote organization conference is held to and management of the We must integrity case. balance here the of the (10th adaptability order and the of the proceedings. Case v. Abrams 1965), Cir. 352 F.2d 193. pleadings, usually belief,

Unlike based on information and pre-trial order defining discovery the issues is the result of which, as testimony this order recites ... both parties know the pre-trial the other’s supersedes witnesses. order pleadings governing pattern and becomes of the lawsuit.

Case, at 195. question pretrial us is before whether the order can be construed to include the issue of whether was entitled to trial paid. The court has wide pretrial practice. Sylvania discretion matters of See Moore v. (3rd Products, 1972), 81, Cir. F.2d Ely Reading Electronic Inc. v. (3rd (5th 1970), Co. Cir. 424 F.2d Cir. Duplantis and Davis 1971), 448 F.2d 918. by

As Circuit: Eighth stated are satisfied that the trial court properly interpreted We by raised pleadings. appellant event the order pre-trial fully presence was advised of the the case of issue, position oral in no contract insurance to claim it misled as issues to to the be tried. (8th 1957), Surety Company

American New York v. Cir. Williford find that Garcia advised the pretrial F.2d issue, and cannot claim presence order of the surprise.

Ill fact, Court found In its requested impairment had prepare that Dr. Lovitt not been have not state a date that Garcia could reached rating could issue healing following surgery. maximum Garcia contends that the healing subsequent impairment evaluation was of maximum not before the court and should not have been decided. *6 finding though Garcia contests court’s on Lovitt’s

Even healing, maximum impairment rating testimony regarding the deprived on argues that she was to determination impairment rating, denying healing of maximum an issue argues a determination of maximum process. her due mandatory. on Consolidated healing is Garcia relies Wood v. proposition for the Freightways However, maximum healing mandatory. that a determination of is question permanently ofwhether the claimant was Woodinvolved totally receiving a work related disabled after partially disabled injury. from a injury. Not whether he was disabled work-related necessary. facts such a determination was not conclude under these credible the reasons stated we conclude substantial For conclusions of the existed to evidence Compensation Court. Worker’s

Affirmed. HARRISON, GRAY

CHIEF TURNAGE and JUSTICE JUSTICE and WEBER concur. dissenting. HUNT

JUSTICE majority’s opportunity I The denies Garcia the opinion dissent. disability. her relating to the extent of Workers’ present evidence not jurisdiction by deciding its Court exceeded The issue before Workers’ parties. raised injury compensable industrial Court was whether Garcia suffered on 1988. The court arising “injury” as of an requirements that Garcia met properly ruled (1987). 39-71-119, MCA § defined that her Court, however, further and ruled step went one any disability which entitled July 18, 1988, did result beyond the amount compensation any

Garcia did not receive any notice or have opportunity present relating disability. to the extent of her attorney only presented a case on whether she compen- suffered a sable industrial The fact phrased that the issue terms “compensable injury” did not notify Garcia that the extent of an result, issue. As a there was no evidence relating to Garcia’s “maximum healing” which necessary for her to receiving continue temporary total 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, impairment rating cannot be obtained until Garcia reaches “maximum healing.” The Court decided the issue without evidence presented by Garcia relating physical to her 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 present Garcia to evidence relating to the extent of her disability.

JUSTICE TRIEWEILER concurs in foregoing dissent.