## Facts

- Delilah V. Hert worked for J.J. Newberry Co., insured for workers’ compensation by Lumberman Mutual Casualty Company.
- Hert began working for Newberry on November 6, 1967.
- On July 16, 1971, Hert caught her foot on a torn rug at the top of a stairway at work, fell down the stairs, and developed neck, shoulder, and left arm complaints along with headaches, nausea, and vomiting.
- Hert had a history of back problems, including a lumbar fusion before the 1971 accident, and had been treated by Dr. Perry Berg.
- After the 1971 fall, Hert received treatment from multiple medical providers; Dr. E. W. Haaby, a chiropractor, began treating her on August 1, 1971, documenting muscle spasm and continuing symptoms.
- Hert sought workers’ compensation benefits and received payments through August 6, 1971; she then returned to work but continued to experience chronic pain and related symptoms while obtaining ongoing treatment.
- On January 28, 1974, Hert fell a second time at work after slipping on a waxed floor; evidence indicated this incident aggravated her condition for a time, after which she returned to the same chronic symptom pattern that existed before the second fall.
- Hert quit her job on October 11, 1974, stating she could not tolerate the amount of medication needed to keep working.
- Hert filed a petition in the Montana Workers’ Compensation Court seeking compensation for disability she claimed resulted from the July 16, 1971 industrial accident.
- At the start of the hearing, the Workers’ Compensation Court stated it would take judicial notice of the Workers’ Compensation Division file and admitted over objection copies of medical reports from that file that had not been provided to Hert’s attorney in advance.
- Dr. Haaby testified in person; otherwise, the medical proof was largely submitted by written, unsworn letter-reports, including a report that the court used in evaluating causation and disability.
- The Workers’ Compensation Court denied benefits, finding Hert failed to prove a causal relationship between her current condition and the July 1971 accident and further finding the medical evidence showed no present disability.
- Hert appealed to the Montana Supreme Court.

## Issues

1. Whether substantial evidence supported the Workers’ Compensation Court’s findings that Hert’s current condition was not causally related to the July 16, 1971 industrial accident and that she had no present disability.
2. Whether the Workers’ Compensation Court erred in admitting and relying on unsworn, ex parte medical reports from the Division file—received through judicial notice and not disclosed to claimant’s counsel before the hearing—without a fair opportunity to test that medical evidence.

## Decision

- The Montana Supreme Court reversed the judgment denying benefits.
- The Court held the clear preponderance of the evidence established that Hert’s condition at the time of trial was causally connected to the July 16, 1971 industrial accident and had become permanently disabling.
- The Court concluded the Workers’ Compensation Court’s contrary findings on causation and present disability could not stand because the weight of the evidence was against them.
- The Court criticized the Workers’ Compensation Court’s use of unsworn medical letter-reports (including material drawn from the Division file through judicial notice), particularly where such reports were treated as competent proof on contested medical questions and were weighed against live testimony and other consistent evidence.
- The case was remanded for entry of an appropriate award consistent with the Supreme Court’s determination of compensable, permanently disabling injury connected to the 1971 accident.

## Legal Principles

- Findings of the Workers’ Compensation Court are generally upheld if supported by substantial evidence, but they may be reversed when the clear preponderance of the evidence is against those findings, even when the record is viewed in the light most favorable to the prevailing party below.
- A claimant may recover where an industrial accident causes or aggravates a condition that results in disability, even if the claimant had preexisting medical problems.
- Although workers’ compensation proceedings are not bound by technical rules of evidence, fundamental fairness includes the right to test adverse evidence through cross-examination when a tribunal relies on medical opinions to decide disputed issues.
- Unsworn, ex parte medical reports—especially when introduced from an administrative file by judicial notice and not provided to opposing counsel before the hearing—should not be treated as a substitute for testimony subject to cross-examination on contested questions of causation and disability.
- When the tribunal does not observe medical witnesses and bases key findings on written reports, the reviewing court may more readily examine whether the record actually supports the result reached.

## Conclusion

The Montana Supreme Court reversed the Workers’ Compensation Court’s denial of benefits because the record’s clear weight showed Hert’s ongoing condition was caused by her 1971 work fall and had become permanently disabling, and because the lower court’s approach to unsworn medical reports from the Division file did not provide a reliable basis for rejecting that showing; the case was remanded for entry of an appropriate award.


Hert v. J.J. Newberry Co., 584 P.2d 656, 178 Mont. 355 (1978)