IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

1995 MTWCC 58

WCC No. 9506-7336

Appellant

vs.

CHAMPION INTERNATIONAL

Respondent.

ORDER DENYING MOTION TO PRESENT ADDITIONAL EVIDENCE

Petitioner/claimant appeals from a determination of the Department of Labor and Industry concerning his claim that he suffers from an occupational disease. In conjunction with his appeal he requests that he be permitted to present additional medical evidence.

The ground for claimant's request is that he appeared pro sé in the proceedings below. On appeal he is represented by counsel, who have apparently marshalled additional medical evidence to support his claim. However, an unrebutted affidavit of counsel for respondent shows that on numerous occasions the claimant was made aware of his right to retain counsel to assist him in the proceedings below and that he indicated that he was at least in "contact with counsel." Affidavit of Bradley J. Luck. Moreover, petitioner informed respondent's counsel prior to hearing that he had contacted his present counsel, but at the hearing he nonetheless chose to go forward without counsel. Id. To compound matters, petitioner notified respondent on February 27, 1995, more than three months prior to the Department decision, that he had retained current counsel. Id.

Section 2-4-703, MCA, permits the Court to order that additional evidence be taken. However, the section requires a finding that "there were good reasons for failure to present" the evidence at the original hearing. This Court's own rule on additional evidence mirrors that requirement. ARM 24.5.350(4) provides in relevant part that the Court may permit additional evidence if "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 proceedings before the department." (Emphasis added.)

Petitioner has demonstrated that the additional evidence is material but has failed to persuade me that there were good reasons for his failure to present the evidence at the hearing below. He chose to proceed pro sé. He was aware of his right to representation by counsel and had indeed discussed his case with counsel. He could have requested a continuance so he could retain counsel. If his self-representation is ground for presenting additional evidence then every party could proceed pro sé, then if dissatisfied he could find counsel and secure a new hearing. The request is denied.

Dated in Helena, Montana, this 26th day of July, 1995.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. J. David Slovak
Mr. Bradley J. Luck