Judicial Review: Additional Evidence

Polk v. Planet Ins. Co. [5/7/98] 1998 MTWCC 37 After the Montana Supreme Court reversed and remanded the WCC's decision affirming a DOL hearing officer in an occupational disease case, the WCC in turn remanded to the DOL. Appellant then asked the WCC to reconsider the remand, urging the WCC to hold its own evidentiary hearing and resolve the claims or, in the alternative, remand to the DOL with certain orders and instructions. Request denied because the WCC's jurisdiction in this matter is appellate jurisdiction, meaning it cannot substitute its original determinations for those of the Department. Under both section 2-4-703, MCA and ARM 24.5.350(5), any additional evidence must be taken by the agency. Appellant's arguments should be directed to the Department on remand.

ERD/UEF v. Total Mechanical Heating [11/17/00] 2000 MTWCC 71 A request to present additional evidence must be presented no later than the time set for the last brief on appeal or the day before oral argument if argument is requested. Rule 24.5.350(5). Untimely requests will not be considered. See also 32-4-703, MCA. WCC Decision affirmed in Total Mechanical Heating & Air Condition, et al. v. ERD/UEF , 2002 MT 55.

Standard Fire Ins. Co. v. Victoria Austin [12/10/99] 1999 MTWCC 80 On appeal from decision of DOL hearing officer in occupational disease case, insurer argued hearing officer erred by denying its motion to reopen the case to submit additional evidence. WCC agreed with hearing officer that insurer had sufficient information pre-hearing to lead it to the evidence it sought to introduce post-hearing.
McKay, Sr. v. City of Choteau [1/4/99] 1999 MTWCC 1 Under section 2-4-703, MCA, once a hearing has been held on an OD claim in the DOL, new evidence is allowed on appeal only if it is material and there were good reasons for failure to present it before the agency. Upon such a showing, the remedy is remand to the agency for receipt of the evidence and reconsideration of the decision. Here, record shows claimant knew about and presented evidence on the issue of repair of the patrol car he drove as a police officer, omissions from which were the subject of his OD claim. Motion denied where claimant did not show that the proffered witness was unavailable at the hearing or that he was prevented from obtaining and presenting the information at the hearing.
Partin v. State Fund [1/13/97] 1997 MTWCC 3 Under section 2-4-703, MCA, to prevail on a motion to present new evidence in the WCC on appeal of a DOL hearing officer decision, claimant must demonstrate two things: (1) that the proffered testimony is "material"; and (2) that "there were good reasons for his failure to present it in the proceeding before the agency. He has not shown "good reasons" where the proposed witnesses were co-workers, whose identities were known to him before trial, and no excuse for failing to present the evidence earlier was offered. As to the witness not timely disclosed, appellant cannot use this motion procedure to circumvent the hearing officer's decision to exclude. That issue is part of the appeal and should be handled in that fashion.