DAVID R. HOLCOMB Appellant
MONTANA MUNICIPAL INSURANCE AUTHORITY & SUBSEQUENT INJURY FUND Respondents.
Submitted: April 28, 1997
ORDER DENYING MOTION TO PRESENT ADDITIONAL
an appeal from a decision of the Department of Labor and
Industry (Department) denying appellant's request for
wage supplement benefits under section 39-71-703, MCA (1987).
At the time appellant was injured, he had been certified as
vocationally handicapped under the terms and conditions of
the Subsequent Injury Fund. Thus, the Department, rather than
the Workers' Compensation Court, had jurisdiction to
determine what, if any, wage supplement benefits are due him.
§ 39-71-910, MCA. The jurisdiction of this Court is
appellate jurisdiction. § 39-71-204, MCA.
18, 1996, a hearing officer of the Department held a hearing
concerning appellant's request for benefits. A month and
a half later, on July 31, 1996, the appellant submitted a
motion to the hearing officer requesting that he be permitted
to submit, post-hearing, an additional medical report from
claimant's treating physician, Dr. Mark Rotar, and three
written prescriptions of Dr. Thomas G. Hildner, one for the
drug Elavil, one for physical therapy, and one directing that
claimant be off work until further notice. (Motion to
Authorize Submission of Additional Post-hearing Medical
Reports.) Dr. Rotar's report was prepared and dated July
11, 1996, approximately 3 weeks after the hearing.
(Id.; attachment.) Dr. Hildner's notes were
dated July 29, 1996. (Id.; attachments.) Appellant
argued that the information used by vocational experts who
testified at hearing "was inconsistent of [sic] Dr.
Rotar, as expressed in his previous reports, and as verified
by his more recent examinations and treatment."
(Id.) The hearing officer denied the motion on
August 14, 1996, and thereafter, on December 9, 1996, issued
his Findings of Fact, Conclusions of Law and Order. This
appeal, appellant renews his request that he be permitted to
introduce the additional medical information. In his opening
brief he argues that he should be permitted to introduce Dr.
Hildner's reports and prescriptions because they were not
received until after the hearing and because such
introduction would be "in the interests of
justice." (Motion for Leave to Present Additional
Evidence and Brief at 2.) He cites no legal authority or
other facts relating to the tendered evidence. In his reply
brief, he does cite case law. (Reply Brief in Support of
Motion for Leave to Present Additional Evidence at 2.) As to
his failure to proffer the evidence at hearing, he says:
The reason why this medical evidence was not presented at the
hearing is that until the hearing, there existed no report
indicating Appellant's lifting restrictions were any
different than what Dr. Rotar had in his medical record and
what the therapist, Vince Buzzas, stated in his Functional
Capacities Assessment. It wasn't necessary to have Dr.
Rotar's report until Ms. Blackman testified Appellant had
a 60 pound lifting restriction. However, Ms. Blackman never
spoke with Dr. Rotar, never spoke with the examining
physician, Dr. Coward, who testified on behalf of Appellant,
and never once spoke with Appellant, much less consulted him.
Ms. Blackman failed to even consult one medical person before
testifying. Prior to the hearing, Appellant was not notified
that Ms. Blackman was going to testify Appellant's
lifting restriction was 60 pounds. Therefore, it wasn't
necessary to have clarification from the treating physician,
Dr. Rotar. Based on the forgoing reasons and the materiality
of the evidence, Appellant should be allowed to submit the
(Id. at 2.)
unpersuaded by appellant's arguments. The authority of
this Court to order the admission of additional evidence is
governed by section 2-4-703, MCA, which provides:
2-4-703. Receipt of additional evidence. If,
before the date set for hearing, application is made to the
court for leave to present additional evidence and it is
shown to the satisfaction of the court that the additional
evidence is material and that there were good reasons
for failure to present it in the proceeding before the
agency, the court may order that the additional
evidence be taken before the agency upon conditions
determined by the court. The agency may modify its findings
and decision by reason of the additional evidence and shall
file that evidence and any modifications, new findings, or
decisions with the reviewing court. [Emphasis added.]
has not provided "good reasons" for his failure to
present the evidence at hearing. The issue at the hearing
below was whether claimant is entitled to wage loss benefits
based on the difference between what he was earning prior to
his injury and what he is qualified to earn post-injury.
§ 39-71-703, MCA (1987). His physical ability to perform
particular jobs was plainly at issue. Appellant was free to
call Drs. Rotar and Hildner to testify at hearing but chose
to rely on Dr. Rotar's medical records, which were
introduced as exhibits. That the hearing did not go as he may