                            No. 13698
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1979


THOMAS J. JOHNSTON,
                      Claimant and Respondent,
           -vs-
PACK TRAIL INN, INC.,     Employer,
           and
NATIONAL AUTOMOBILE AND CASUALTY
INSURANCE COMPANY,
                        Defendant and Appellant.



Appeal from:     Workers' Compensation Court
                 Honorable William Hunt, Judge presiding.
Counsel of Record:
      For Appellant:
           Andrew J. Utick, Helena, Montana
      For Respondent:
           Moulton, Bellingham, Longo and Mather, Billings,
            Montana



                                  Submitted on briefs:
                                   February 25, 197f
                                  Decided:   mt 2   q
                                                    u
                                                        1914
                                                          b




Filed:   Z T25    9
                  m
Mr. Daniel J. Shea delivered the Opinion of the Court.

     The National Automobile and Casualty Insurance Company,
insurer for the employer, appeals from a judgment of the
Workers' Compensation Court which in turn affirmed an award
of benefits by the Workers' Compensation Division to the
claimant, Thomas A. Johnston.   For purposes of identification
of parties we refer to the insurance company as the employer.
     Stripped to the essentials, the employer contends that
the claimant neither sustained a new injury nor aggravated a
preexlsting injury, and is therefore not entitled to benefits.
Alternatively, the employer argues that it was entitled to a
trial de novo before the Workers' Compensation Court because
of an alleged stipulation between counsel for the employer
and counsel for the claimant.
     The facts giving rise to the claim for compensation are
as follows.   On January 29, 1973, claimant sustained a
broken leg when he accidentally shot himself with a handgun.
Later, on July 29, 1973, while still on crutches as a result
of surgery to repair the gunshot damage, claimant was working
as a bartender when patrons were engaged in some horseplay
inside the bar.   He was knocked to the floor during the
scuffle, and as a result allegedly sustained the injuries
which resulted in his claim for compensation.    Claimant
underwent surgery to repair the same leg bone that had been
broken as a result of the accidental shooting.
     Before the hearing started medical reports were filed
with the Workers' Compensation Division which indicated that
the second surgery was performed to unite claimant's leg bone
which had not properly healed after the first surgery.      No
medical testimony was elicited at the hearing, and the
claimant and his wife were the only witnesses to testify,
the claimant testified to the fracas in the bar which resulted in
his fall, and also testified that he broke the same leg that had
been previously broken.   He testified however, that it was broken
                              -2-
i n a d i f f e r e n t place.           The m e d i c a l r e p o r t s d i d n o t s u p p o r t
h i s t e s t i m o n y t h a t h i s l e g b o n e was b r o k e n i n a d i f f e r e n t

place.        The e m p l o y e r c o n t e n d s t h a t c l a i m a n t d i d n o t s u s t a i n a
new i n j u r y , a n d t h a t t h e f a l l d i d n o t a g g r a v a t e a p r e e x i s t i n g

i n j u r y , and t h e r e f o r e t h a t h e is n o t e n t i t l e d t o compensation.
         The r e c o r d b e f o r e u s c l e a r l y d e m o n s t r a t e s t h a t t h e

employer d i d n o t p r e s e r v e h i s r i g h t t o contend b e f o r e u s t h a t
t h e e v i d e n c e is i n s u f f i c i e n t a s a m a t t e r o f l a w t o j u s t i f y

t h e award o f b e n e f i t s t o c l a i m a n t .          Nor c a n w e a g r e e t o t h e
e m p l o y e r ' s c o n t e n t i o n t h a t t h e c l a i m a n t had s t i p u l a t e d t o t h e

r e c e i p t of a d d i t i o n a l e v i d e n c e b e f o r e t h e Workers' Compensation
Court.
         By s t i p u l a t i o n o f t h e p a r t i e s , t h i s c a s e was t r a n s f e r r e d
from t h e D i s t r i c t C o u r t t o t h e Workers1 Compensation C o u r t

a f t e r t h e e f f e c t i v e d a t e of l e g i s l a t i o n c r e a t i n g t h e Workers'
Compensation C o u r t and e l i m i n a t i n g t h e D i s t r i c t C o u r t f r o m

its role i n a p p e a l s from t h e Workers' Compensation D i v i s i o n .

The a p p e a l had b e e n p e n d i n g i n D i s t r i c t C o u r t , i n a d o r m a n t
state, f o r almost t w o years.
        B e f o r e d e c i d i n g a n y o f t h e i s s u e s on a p p e a l , however,

t h e Workers' Compensation C o u r t a s s i g n e d a h e a r i n g s o f f i c e r
to conduct a p r e t r i a l hearing i n Billings.
         During t h e h e a r i n g , t h e employer contended t h a t t h e

s c o p e o f r e v i e w b e f o r e t h e W o r k e r s ' C o m p e n s a t i o n C o u r t would
b e t r i a l d e n o v o , a n d t h e r e f o r e t h a t t h e e m p l o y e r had t h e

r i g h t to present evidence not previously submitted to t h e

Workers' Compensation D i v i s i o n .                   The c l a i m a n t , o n t h e o t h e r
hand, a s s e r t e d t h a t review s h o u l d be c o n f i n e d s o l e l y t o t h e
r e c o r d p r e v i o u s l y made b e f o r e t h e W o r k e r s 1 C o m p e n s a t i o n D i v i s i o n .
                                                                                              a
The r e c o r d c l e a r l y r e f l e c t s t h a t c l a i m a n t f i r s t w a n t e d / d e t e r m i n a t i o n
o f t h e s c o p e o f r e v i e w , and t h a t a d d i t i o n a l e v i d e n c e o f f e r e d

by t h e e m p l o y e r would b e c o n d i t i o n e d upon t h a t r u l i n g .              .Obviously,
i f t h e c o u r t r u l e d t h a t t r i a l o r r e v i e w was o n t h e r e c o r d o n l y ,
claimant would resist the employer's attempt to supplement
the evidentiary record.   The minutes of the hearings officer
reflect that the employer persisted also in its contention
that the evidence presented before the Workers' Compensation
Division was insufficient as a matter of law to justify an
award to the claimant.
     Thereafter, on November 30, 1976, a hearing was held in
Helena, attended only by counsel for the employer and the
Workers' Compensation judge.   Claimant did have notice however,
and raised no objections to the hearing.       The employer's
counsel was clearly aware that a ruling would be made sometime
after the hearing, but the record is silent as to any indication
that the employer wanted a ruling on the sufficiency of the
evidence presented by the claimant at the hearing before the
Workers' Compensation Division.       The only issue discussed was
whether the Workers' Compensation Court would permit the
employer to present additional evidence.      After an extended
discussion between the court and the employer's counsel, the
court indicated that it was going to sign an order dismissing
the appeal and affirming the award of compensation benefits.
We note in this regard, that the insurer had already paid the
claimant's medical benefits.   Accordingly, on December 7, 1976,
the court entered its order dismissing the appeal and affirming
the award of compensation to the claimant.
     In the order of dismissal the Workers' Compensation Court
specifically noted that "at the hearing [between the court and
employer's counsel] the only issue before the Court to be decided
was whether there should be a trial de novo."      After noting
that it had reviewed the file and the documents therein, the court
concluded "that the trial de novo would serve no useful purpose,
. . ."   As we previously noted, our own review of the file
indicates that trial de novo was the only issue presented to the
Workers' Compensation Court.   At the December 7 hearing, the employer
                                -4-
    at no time requested the court to review the sufficiency of
    the evidence to sustain claimant's award.      For this reason,
    it is clear to us that the sufficiency of the evidence is
    not properly before this Court on appeal.
         As to the issue of trial de novo, the employer does not
    contend that the Workers' Compensation Court was compelled as
    a matter of law to permit the employer to open its evidentiary
    record.   Rather, the sole contention is that claimant's
    counsel had stipulated ioatrial de novo.       As we have already
    indicated, however, the employer has sorely misconstrued the
    record made before the hearings officer at the pretrial
    conference.    There is no such stipulation.
         We note, moreover, that the employer was not denied an
    opportunity before the Workers' Compensation ~ivisionto have
    either the claimant or his presurgical and postsurgical x-rays
    examined by the employer's own medical experts, and to either
    submit testimony or medical reports based upon such examination.
    Having failed to do so, we do not see how the employer is now
    in a position to complain.
         The decision of the Workers' Compensation Court is affirmed.




    We Concur:


    .......................
         Chief Justice




       !a,lL*.- c    ),LJ -
    .....................
     J        Justices        3   -5-
    Mr. Chief Justice Frank I. Haswell, deeming himself disqualified,
did not participate in this case.
