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Brown v. Ament3/18/1988
nsation Court to judge the weight to be given such record testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witness on the stand.' Shupert v. Anaconda Aluminum Company (Mont. 1985), [215 Mont. 182, ] 696 P.2d 436, 439, 42 St.Rep. 277, 281-282 citing Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 360, 584 P.2d 656, 659."
Currey, 736 P.2d at 115, 44 St.Rep. at 792. This rule remains unchanged.
Following a careful review of the medical testimony submitted by deposition plus the remaining evidence submitted, we find that the Workers' Compensation Court correctly concluded that there was insufficient evidence to establish a causal link between claimant's two injuries. The medical evidence is inconclusive and, at best, establishes only a possibility of a causal link. As noted by the Workers' Compensation Court, this is a difficult case to chart and "too much time has passed without explanation and without a tracing of the injury through that time." Following December 1, 1978, claimant did not seek any medical attention for his back for approximately three and one-half years. The evidence presented fails to sufficiently demonstrate that treatment rendered after that period was a direct result of the injury received in 1978; and the decision of the Workers' Compensation Court is affirmed.
2. Evidence.
Claimant contends the Workers' Compensation Judge improperly denied the admission of five exhibits into evidence. Exhibits 1 and 2 consist of correspondence between claimant's attorney and a claims examiner for the insurer. Exhibit 3 is a letter from Dr. Smith's medical secretary to the Workers' Compensation Division notifying the Division of claimant's injury . Exhibit 4 is a "memorandum to file" by Julie McGee noting that claimant requested "that the medical [file] on his July 78 accident be re-opened." Finally, exhibit 10 was denied admission and consisted of a letter from claims examiner Smith to claimant's attorney, accompanied with a "File Routing/Tracking Form" indicating that the Division might have to assume responsibility for the latter injury. Claimant asserts all of these exhibits should have been admitted and relies on statutes governing the Rules of Evidence, including statutes regarding hearsay and its exceptions and limitations.
According to the statutory law in effect at the time of the hearing, the Workers' Compensation Court was not bound by the rules of evidence. Section 39-71-2903, MCA (1985). Although it has no effect on this case, we note this statute has been amended so as to apply the rules of evidence to proceedings in the Workers' Compensation Court. Section 39-71-2903, MCA (1987). Claimant's arguments based on statutes contained within the rules of evidence do not control in this case.
We have stated that it is within the discretion of the Workers' Compensation Judge to accept or reject "hearsay" testimony. Tocco v. City of Great Falls (Mont. 1986), [220 Mont. 221,] 714 P.2d 160, 166, 43 St.Rep. 310, 318 (citing, Krause v. Sears Roebuck (1982), 197 Mont. 102, 641 P.2d 458). Even if the exhibits had been admitted, claimant would not have sufficiently established a causal connection as discussed in part one of this opinion. We find no abuse of discretion by the Workers' Compensation Court.
For the foregoing reasons, we affirm the decision of the Workers' Compensation Court.
MR. JUSTICES SHEEHY, WEBER, HUNT and GULBRANDSON concur.
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