                              No.    91-490

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1992


ADELINE GARCIA,
            Claimant and Appellant,
     -vs-
STATE COMPENSATION MUTUAL INSURANCE FUND and
MONTANA DEPARTMENT OF LABOR AND INDUSTRY,
            Defendants and Respondents.




APPEAL FROM     Workers' Compensation Court
                The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Don Edgar     Burris, Attorney      at   Law,   Billings,
                Montana.
            For Respondent:
                Michael P. Heringer, Attorney at Law, Billings,
                Montana.


                              Submitted on Briefs:       February 6, 1992
      MAY' 2 119%;                            Decided: May 21, 1992
Justice R. C. McDonough delivered the Opinion of the Court.

    ~deline Garcia appeals from a judgment of the Workers'
Compensation Court which held        that she was not entitled to
compensation beyond the amount paid.
     Although several issues are submitted on appeal, we find only
one necessary for our review:
     Whether substantial credible evidence supports the Workers'
Compensation Court's determination that Garcia was not entitled to
compensation beyond the amount paid.
        On July 18,    1988,   Garcia was injured while filing some
documents in the bottom drawer of a filing cabinet while employed
by the Department of Labor and Industry. On August 16, 1988, Dr.
Lovitt performed a lumbosacral fusion at the LS-S1 level of
Garcia's spine.       Garcia has not returned to work since July 18,
1988.     It is undisputed that Garcia has a long history of back
problems. The State Fund first refused butthen accepted Garcia's
claim and made payments under the reservation of rights in     § 39-71-

608, MCA.    After an investigation was completed, it terminated the
claimant's benefits.
        Garcia filed a petition with the Workers' Compensation Court
contesting the termination of benefits. A trial was held on March
4, 1991.     The hearing examiner executed a proposed judgment on
August 8, 1991.        The Workers' Compensation Judge adopted the
proposed findings of fact and conclusions of law and proposed
judgment of the hearing examiner.      This appeal followed.
     Our    standard   for reviewing a decision of the Workers'
compensation Court is to determine if there is substantial evidence
to support the findings and conclusions of that court. Where there
is substantial evidence to support the Workerst Compensation Court,
this Court cannot overturn the decision.     Coles v . Seven Eleven
Stores (l985), 217 Mont. 343, 347, 704 P.2d 1048, 1050; Wood v.
Consolidated Freightways (1991), 248 Mont. 26, 28, 808 P.2d 502,




     The Workers' Compensation Court found that Garcia began
suffering from low back pain in the mid-1970 s. She was eventually
diagnosed with degenerative disk disease, which is a wear and tear
process that occurs with aging. On June 10, 1986, ~ a r c i a
                                                            was seen
by Dr. Teal for a gradual increase in pain over the past decade.
She was treated with medication, physical therapy and exercise. On
October 26, 1987, she began seeing Dr. Lovitt.    On June 17, 1988,
Garcia and Dr. Lovitt discussed the possibility of surgery.       On
July 18, 1988, the day of the injury, Garcia saw Dr. Lovitt. They
again discussed the possibility of surgery. Dr. Lovitt considered
Garcia's July 18, 1988 visit as a flare-up in her continuing
symptoms.    As noted above, Garcia underwent surgery on August 16,
1988.

     The Workersv Compensation Court, in its conclusions of law,
found that Garcia was within the course and scope of her employment
on July 18, 1988, when she suffered an injury as defined in   §   39-
71-119, MCA (1987). This statute provides in part:
          39-71-119.     Injury and a c c i d e n t d e f i n e d . (1)
    "Injuryu or "injuredw means:
           (a) internal or external physical harm to the
    body ;...
           (2) An injury is caused by an accident. An accident
    is:
           (a) an unexpected traumatic incident or unusual
    strain;
           (b) identifiable by time and place of occurrence;
           (c) identifiable by member or part of the body
    affected; and
           (d) caused by a specific event on a single day or
    during a single work shift...
The Workers' Compensation Court concluded the definition of injury
retains the pre-1987 requirement of ' a unexpected traumatic
                                     In
accident" or "unusual strain."        Gaumer v. State Compensation Fund
(1990), 243 Mont. 414, 795 P.2d 77. The court also found that the
fact that an employee         is suffering from       or afflicted with
preexisting disease or disability does not preclude compensation if
the disease or disability is aggravated or accelerated by an
industrial accident. Birnie v. U.S. Gypsum, Co. (1958), 134 Mont.
39, 328 P.2d 133; Rumsey v. Cardinal Petroleum (1975), 166 Mont.
17, 530 P.2d 433; Shepard v. Midland Foods, Inc. (1983), 205 Mont.


     However,     the     Workersf    Compensation    Court     found     that
"compensable    injury"      and     "disability"    were     two   separate
considerations.    Hall v. Cigna Insurance Co., (1991), 248 Mont.
484, 812 P.2d     1262.     In   u,
                                  the       claimant sustained several
separate injuries over a period of years while employed with
different employers and while doing separate activities.                  Hall
alleged right knee, left ankle, and back pain were attributable to
injuries sustained while working for ARCO.      Hall at 488, 812 P.2d
at 1264. We held that Hall did not demonstrate by a preponderance
of the evidence that his current medical condition was attributable
to his employment with ARCO.    Hall at 489, 812 P.2d at 1265.
      The Workers' Compensation Court concluded that the entitlement
to disability benefits must be supported by a preponderance of the
medical evidence. The burden of proof is on the claimant to prove
the   work-related   incident   as    a   contributory   cause   to   her
disability. Gierke v. Associated Indemnity Corporation (1986), 224
Mont. 446, 454, 730 P.2d 1143, 1148.        The Workers' Compensation
Court found, and the medical record bears out, that Garcia and Dr.
Lovitt discussed surgery prior to July 18, 1988. On July 18, 1988,
Dr. Lovitt noted the same continuing symptoms.       The plaintiff did
not present any evidence to support her position that her surgery
or disability was causally related to the July 18, 1988 injury.
                                     II

      Garcia argues that the Workers' Compensation Court violated
her right to due process and equal protection of the law.             The
basis of the argument is that, in holding Garcia was not entitled
to any benefits beyond the amount paid, the court exceeded the
issue of whether or not Garcia was injured. Therefore, Garcia was
deprived of her right to notice and opportunity to be heard.
      One of the issues presented by the parties to the hearing
examiner was whether Garcia suffered a compensable industrial
injury arising out of and/in the course of her employment.     The
Workers' Compensation Court found in Garcia's favor on that issue.
In Garcia's complaint and in her contention number one of the
pretrial order, Garcia claimed she was entitled to continued
temporary total disability payments from the insurer.    Thus, the
Workers' Compensation Court did not exceed the scope of the issues
in concluding Garcia was not entitled to benefits beyond the amount
paid.
     Garcia argues that the Workers' Compensation Court, in holding
she was not entitled to any benefits beyond the amount paid, denied
her due process.     The essence of her argument is that she was
without notice that the disability issue would be tried. However,
as stated above, Garcia's first contention in the pretrial order
was that of whether or not she was entitled to temporary total
disability payments.    Evidence that Garcia's disability was not
related to her injury was presented by the depositions of Dr.
Lovitt and Garcia approximately one month before the hearing. The
Workers' Compensation Court made a finding on this issue.
        The dissent argues that the Workers' Compensation Court
exceeded its jurisdiction by deciding issues not raised by the
parties. The hearings examiner approved a pretrial order which was
signed by the parties.    He noted at the hearing that the order
would govern the proceedings.      ARM 24.5.318   governs pretrial
practice before the Workers' Compensation Court and provides for
the pretrial conference and order.      The order set forth the
uncontested facts, the issues to be determined, and both parties'
contentions. The relevant portions are as follows:
     E.   Statement of Issues to be Determined by the Court.
     1. Whether Petitioner suffered a compensable industrial
     injury arising out of/and in the course of her employment
     on or about July 18, 1988  ...
     F.   Petitioner's Contentions:
     1. Petitioner has been, and continues to be, temporarily
     totally disabled as a result of the incident of July 18,
     1988  ...
     G.   Defendant's Contentions:
     2. Claimant has a long history of back problems. Her
     surgery and back problems are related to her history of
     back problems not to anything that occurred on or about
     July 18, 1988. Likewise, the medical records reflect
     that claimant decided to have surgery on her back prior
     to the time of her alleged injury.
Further, the depositions of Dr. Lovitt and Garcia were submitted to
the hearings examiner.
     One of the purposes of the pretrial order is to specify the
legal theories and contentions of fact upon which the parties are
proceeding. A pretrial conference is held to promote organization
and management of the case. We must balance here the integrity of
the order and the adaptability of the proceedings.   Case v. Abrams
(10th Cir. 1965), 352 F.2d 193.
          Unlike pleadings, usually based on information and
     belief, the pre-trial order defining the issues is the
     result of discovery in which, as this order recites   ..
     .  both parties know the testimony of the other's
     witnesses. The pre-trial order supersedes the pleadings
     and becomes the governing pattern of the lawsuit.
    The question before us is whether the pretrial order can be
construed to include the issue of whether Garcia was entitled to
compensation beyond the amount paid.    The trial court has wide
discretion in matters of pretrial practice.   See Moore v. Sylvania
Electronic Products, Inc. (3rd Cir. 1972), 454 F.2d 81, Ely v.
Reading Co. (3rd Cir. 1970), 424 F.2d 758, and Davis v. Duplantis
(5th Cir. 1971), 448 F.2d 918.
     As stated by the Eighth Circuit:
          We are satisfied that the trial court properly
     interpreted the issues raised by the pleadings. In any
     event the appellant by the pre-trial order was fully
     advised of the presence in the case of the oral contract
     of insurance issue, and is in no position to claim that
     it was misled as to the issues to be tried.
American Surety Company of New York v. Williford (8th Cir. 1957),
243 F.2d 494, 497. We find that Garcia was advised by the pretrial
order of the presence of the disability issue, and cannot claim
surprise.
                                 I11

     In its findings of fact, the Workers' Compensation Court found
that Dr. Lovitt had not been requested to prepare an impairment
rating and could not state a date that Garcia could have reached
maximum healing following surgery. Garcia contends that the issue
of maximum healing and a subsequent impairment evaluation was not
before the court and should not have been decided.
     Even though Garcia contests the court's finding on Dr.
Lovitt's testimony regarding the impairment rating and maximum
healing, she argues that she was deprived of the right to a
determination on the issue of maximum healing and an impairment
rating,   denying   her   due   process.   Garcia   argues   that   a
determination of maximum healing is mandatory.      Garcia relies on
Wood v. Consolidated Freightways (1991), 248 Mont. 26, 808 P.2d 502
for the proposition that a determination of maximum healing is
mandatory.     However, Wood involved the question of whether the
claimant was permanently partially disabled or totally disabled
after receiving a work related injury. Not whether he was disabled
from a work-related injury. We conclude under these facts such a
determination was not necessary.
     Forthe reasons stated above, we conclude substantial credible
evidence existed to support the findings and conclusions of the
Worker's compensation Court.
     Affirmed.

We Concur:




             Justices

                                   9
Justice William E. Hunt, Sr., dissenting.
     I dissent.         The majority's       opinion    denies Garcia         the
opportunity to present evidence relating to the extent of her
disability.       The   Workers'     Compensation      Court    exceeded      its
jurisdiction by deciding issues not raised by the parties.                    The
issue before the Workers8 Compensation Court was whether Garcia
suffered a compensable industrial injury arising out of her scope
of employment on July 18, 1988.            ?'he court properly ruled that
Garcia    met   the   requirements    of    an   "injury"      as   defined    in
5 39-71-119, MCA (1987). The Workers' Compensation Court, however,
went one step further and ruled that her injury on July 18, 1988,
did not result in any disability which entitled her to compensation
beyond the amount paid.
     Garcia did not receive any notice or have any opportunity to
present   evidence relating to the extent of her                    disability.
Garcia's attorney only presented a case on whether she suffered a
compensable industrial injury. The fact that the issue was phrased
in terms of "compensable injury" did not notify Garcia that the
extent of compensation was an issue.             As a result, there was no
evidence relating to Garcia's "maximum healingr'which is necessary
for her to continue receiving temporary total disability 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, an impairment rating cannot
be obtained until Garcia reaches "maximum healing."                 The Workers'
                                     10
Compensation Court decided the issue without any evidence presented
by Garcia relating to her physical 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 Garcia to present evidence relating to the extent of her
disability.



                                         Justice

Justice Terry N. Trieweiler concurs in the foregoing dissent of
Justice Hunt.
