                                   NO.     91-539

            I N THE SUPREME COURT OF THE STATE OF MONTANA

                                          1992



GLENN E, WELCH,
                  Claimant and Respondent,
     -vs-
AMERICAN MINE SERVICES, INC.,
and OLD REPUBLIC INSURANCE COMPANY,
                  Employer, Defendant and Appellant.


APPEAL FROM:      T h e Workers' Compensation Court,
                  The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                  Neil S. Keefer; Keefer, Roybal, Stacey                 &   Walen,
                  Billings, Montana
            For Respondent:
                  Michael P. Sand, Attorney at Law, Bozeman, Montana



                                                  on Briefs:   January 16, 1992
                                                    Decided:   April 3 0 , 1 9 9 2
                             r    ",



                                 1 J$
                                  ,

                                        ' Clerk
Justice Karla M. Gray delivered the Opinion of the Court.


     Old Republic Insurance Company appeals from the judgment of
the Workers1 Compensation Court that Glenn E. Welch suffered a
compensable injury arising out of the course and scope of his
employment on April 27, 1989.   We affirm.
     The sole issue is whether the Workers1 Compensation Court
erred in concluding that claimant sustained a compensable injury
pursuant to 5 39-71-119, MCA (1987).
     Glenn E. Welch (Welch) was employed as a driller by American
Mine Services, Inc. at a mine near Nye, Montana.   His job required
using heavy power drills to bore holes for mining purposes and,
during some shifts, extensive walking and standing.
     State and federal regulations require mine employees such as
Welch to wear either steel-toed or metatarsal safety boots.      A
steel-toed safety boot has a steel or fiberglass cap which covers
just the toes.   A metatarsal boot has a steel or fiberglass toe
covering which extends over the top of the foot and leather uppers
which cover the ankles.
     Sometime before April 27, 1989, Welch requested a new pair of
steel-toed safety boots from American Mine Services, which provides
free boots to its mine workers. The boots which arrived April 27,
1989, were the metatarsal type. Welch wore them to work that day.
He states that the boots were a snug fit, but he expected them to
loosen up with wear.      Throughout his twenty-five year career
working in the mines, Welch had broken in many new boots, finding
that normally they loosened up within a few hours.
     Toward the end of an active shift on April 27, 1989, Welch
noticed that his feet were beginning to get sore and his new boots
were still a snug fit.   Upon removing his boots at the end of the
shift, Welch noticed red sores the size of a thumbnail on both the
third and fourth toes of his right foot. The sores were open and
draining.
     Welch had difficulty sleeping the night of April 27 because of
burning and pain in his foot. He treated the sores numerous times
with alcohol and later with Neosporine, an antifungal antibiotic.
They continued to drain throughout the night.
     Welch again attempted to wear the new boots to work the next
day, but his foot was extremely sore so he wore his old work boots
which were looser and roomier and did not irritate his toes. Welch
worked an entire shift on April 28, and thereafter was laid off due
to a reduction in force.
     Welch sought medical attention for his foot on May 1, 1989
when he called his family physician, Dr. Robert Flaherty.       Dr.
Flaherty was unable to see him until May 5, at which time Welch
explained that he had worn new boots a week previously that rubbed
his toes.
     During this visit, Welch informed Dr. Flaherty that he had
been soaking his foot and trying to reduce the amount of time he
spent on his feet.   Dr. Flaherty asked Welch if he had diabetes.
After Welch replied in the negative, Dr. Flaherty diagnosed Welch's
condition as an "abscess and cellulitis of the right fourth toe."
The doctor then prescribed further soakings and an antibiotic. In
his deposition, Dr. Flaherty opined that Welch's toe became
infected after the new boots rubbed the skin off his toes.
      Dr. Flaherty examined and treated Welch on May 8, 10, and 12,
1989; on May 15, 1989, Welch was admitted to Bozeman Deaconess
Hospital. At this time, Dr. Flaherty referred Welch to Dr. Lowell
Anderson, an orthopedic surgeon, because he thought the bone of
Welch's right foot might be affected.      During Welch's stay at
Deaconess, his right fourth toe was amputated.      Dr. Anderson's
post-surgery diagnosis was deep foot infection probably complicated
by diabetes.    Welch was released, but was hospitalized again in
March of 1990 because of abscess and infection to the foot. Welch
was     hospitalized subsequently in October of 1990 and March of
1991.
      Old Republic, American Mine Services' workers1 compensation
carrier, accepted Welch's claim under the Montana Occupational
Disease Act and paid him disability benefits thereunder.     On May
14, 1991, the Workers' Compensation Court considered Welch's claim
that his injury arose out of the course and scope of his employment
with American Mine Services, Inc. and was not an occupational
disease.     In its Findings of Fact and Conclusions of Law and
Judgment dated August 21, 1991, the court found Welch's condition
to be compensable under the Workers' Compensation Act of 1987. Old
Republic Insurance and American Mine Services appealed.
      The sole issue on appeal is whether the Workers' Compensation
Court erred in concluding that claimant sustained a compensable
injury pursuant to 9 39-71-119, MCA (1987).      Because this case
involves an issue of law, we will review the decision of the
Workers1 Compensation Court to see if it is legally correct.
Stuker v. State Comp. Mutual Ins. Fund (Mont. lggl), 822 P.2d 105,
48 St.Rep. 1071; Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 803 P.2d 601.
      Section 39-71-119, MCA (1987), is the statute at issue:
            (1) "Injuryv or p1injuredt8means:
            (a) internal or external physical harm to the body;
            (b) damage to prosthetic devices or appliances,
      except for damage to eyeglasses, contact lenses,
      dentures, or hearing aids; or
            (c) death.
            (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.
            (3) "Injury" or "injured" does not mean a physical
      or mental condition arising from:
            (a) emotional or mental stress; or
            (b) a nonphysical stimulus or activity.
            (4) "Injury" or ~vinjured~~   does not include a
      disease that is not caused by an accident.
            (5) A cardiovascular, pulmonary, respiratory, or
      other disease, cerebrovascular accident, or myocardial
      infarction suffered by a worker is an injury only if the
      accident is the primary cause of the physical harm in
      relation to other factors contributing to the physical
      harm.
A   compensable injury must meet all three definitional requirements
contained in 9 39-71-119, MCA (1987): there must be an "injuryt1
                                                               and
an ttaccident,lg the injury must be "caused bytfthe accident.
              and
Old Republic contends that these requirements are not met,
asserting primarily that Welch's deep foot infection took nineteen
days to develop, was not unexpected, and was the end result of a
number of factors including his diabetes. Old Republic's approach,
focusing as it does on Welch's diabetes rather than on the initial
incident which led to the deep foot infection, is misplaced.
     The well-established rule in Montana is that an employer takes
an employee subject to the employee's physical condition at the
time of employment.     Shepaxd v. Midland Foods, Inc. (1983), 205
Mont. 146, 666 P.2d 758; Schumacher v. Empire Steel Manufacturing
Co. and Employers Mutual Liability Insurance Co. (1977), 175 Mont.
411, 574 P.2d 987.     With this principle as a starting premise,
8 39-71-119, MCA      (1987), can be   considered   in a   clear and
straightforward manner.
     The parties agree that physical h a m occurred to Welch's foot.
Old Republic contends, however, that Welch's physical condition
arose from the "nonphysical stimulus11 his diabetes; therefore,
                                     of
according to the appellant, 5 39-71-119 (3) (b), MCA (1987), prevents
the condition from constituting an injury.    This argument ignores
the fact, undisputed on the record before us, that the sores on
Welch's foot initially arose from the physical stimulus of ill-
fitting boots. The requirement for an injury under   §   39-71-119(1),
MCA (1987), is met.
     Section 39-71-119, MCA (1987), also requires that an accident
occur.   Old Republic contends that three of the four statutory
requirements for an accident are not met in this case.
     Section 39-71-119 (2) (b), MCA (l987), requires that an accident
be identifiable by time and place of occurrence.         Old Republic
argues that Welch's condition does not meet this requirement
because it took nineteen days for the infection to develop to a
point requiring hospitalization. The record reveals, however, that
Dr. Flaherty and Old Republic's expert witness agree that the
infection which developed in Welch's foot initially was caused by
Welch's new boots rubbing sores during his work shift of April 27,
1989. We conclude that the initial incident which ultimately led
to Welch's severe infection occurred during an identifiable time,
the April 27, 1989 shift, and at an identifiable place, the
underground mine near Nye, Montana.     Thus, 5 39-71-119(2)(b), MCA
(1987), is satisfied.
      Similarly, Old Republic next contends that Welch's condition
was the culmination of such factors as his diabetes, vascular
calcification and diabetic neuropathy. Arguing that the condition
is similar to those of claimants in Wear v. Buttrey Foods, Inc.
(1988), 234 Mont. 477, 764 P.2d       139; McMahon   v. Anaconda Co.
(1984), 208 Mont. 482, 678 P.2d 661; and Whittington v. Ramsey
Construction Co. and Fabrication (19871, 229 Mont. 115, 744 P.2d
1251, Old Republic asserts that the time definiteness required by
§   39-71-119 (2)(d) , MCA (l987), is not met.
       The physical conditions in the cases relied on by Old Republic
were brought about by many years of repetitious activity or
exposure to pollutants; as a result, we held that they lacked the
time definiteness required. The facts before us are not analogous.
Here, an initial and identifiable incident of physical harm
occurred on April 27, 1989, when Welch's ill-fitting boots rubbed
sores on his foot.    As discussed previously, Old Republic's focus
on complications subsequent to that initial incident is misplaced.
The initial incident was a "specific event     . . . during   a single
work shift1'as required by S 39-71-119(2)(d),      MCA (1987).
     Finally, 5 39-71-119 (2)(a), MCA      (l987), requires that an
accident be an unexpected and traumatic incident or unusual strain.
Old Republic argues that Welch's deep foot infection was to be
expected because he was a diabetic.
     The   common    meaning   of   "unexpected"   is   "unlooked   for,
unforeseen, surprising." Websterrs Third International Dictionarv
(1971).    We note that the 1987 amendments to 5 39-71-119, MCA,
retain the word '*unexpectedN from the pre-1987 definition of
injury. In Bremer v. Buerkle (1986), 223 Mont. 495, 727 P.2d 529,
we affirmed the Workers' Compensation Court's decision that a
worker's allergic contact dermatitis constituted an injury because
it met the "unexpectedg*
                       requirement of the statute. In Bremer, the
claimant had been working with the same chemicals for nine years
without sustaining any allergic reaction.          We concluded that,
despite this ongoing contact, the chemical contact which occurred
on one day unexpectedly stimulated his immune system and led to an
allergic reaction. In a similar fashion, Welch had experienced no
problems in breaking in new safety boots during his many years of
working in mines.     Despite this twenty-five year history, the new
boots he wore on April 27, 1989, rubbed sores on his foot which
became infected.     We conclude that the incident was unexpected
under S 39-7l-ll9(2) (a), MCA (1987).
     Old   Republic   also   contends that the use    of   the word
~~traumaticv~
          necessitates the presence of force or violence, neither
of which is present under the facts of this case. Webster's Third
International Dictionarv (1971) defines "trauma" as "an injury or
wound to a living body caused by the application of external force
or violence."   Old Republic's expert witness, Dr. Robert Nielson,
when asked during his deposition whether Welch's blisters could be
considered a trauma, responded:    "Sure." Dr. Nielsen continued to
refer to the rubbing of Welch's toes as a trauma to the foot.    We
conclude that the rubbing of the ill-fitting boots was a traumatic
incident under 5 39-71-119(2)(a), MCA (1987).
     Welch sustained an injury and an accident under 5 39-71-119(1)
and ( Z ) , MCA (1987).   The only remaining question is whether the
accident 8tcaused*1 injury, as also required by 5 39-71-119, MCA
                 the
(1987).
     Arguing against this causal link, Old Republic asserts that
under 5 39-71-119(4), MCA (1987), Welch's diabetes is a disease
that is not caused by an accident.        Old Republic is correct;
however, Welch's diabetes is not at issue here.        The diabetes
predated the injury to Welch's foot on April 27, 1989.     While the
diabetes apparently resulted in more severe complications from the
initial incident than would have been experienced by a nondiabetic,
the initial incident constitutes an injury under 5 39-71-119, MCA
(1987).
     Similarly, Old       Republic presents a   somewhat convoluted
argument that Welch's diabetes is an "other disease8'under 5 39-71-
119(5), MCA (1987), which does not constitute an injury.          Old
Republic asserts that the initial abrasions were not the primary
cause of Welch's physical harm in relation to other factors which
produced the deep foot infection.    We considered the meaning of
"primary cause" under     39-71-119(5), MCA (1987), in Gaumer v.
State Compensation Insurance Fund (1990), 243 Mont. 414, 795 P.2d
77.   In Gaumer, the claimant had a history of respiratory ailments
prior to her work-related accident involving toxins in the work
place.   We found that claimant's condition was compensable under
the Workerst Compensation Act:
      [Tlhe drastic change in the claimant's medical condition
      was primarily caused by the accident in the work place
      where she was exposed to chemical toxins or allergens, it
      was not merely the progressive result of her pre-existing
      respiratory ailments.
Gaumer, 243 Mont. at 420, 795 P.2d at 80-81.         Likewise, the
significant change in Welch's physical condition was primarily
caused by the injury and accident which occurred when his ill-
fitting safety boots rubbed abrasions on his foot.        While the
diabetes may have exacerbatedthe ultimate severity of the original
injury, Welch's medical condition was not merely the progressive
result of his pre-existing diabetes.
      Old Republic makes a final argument, without supporting
authority, that the 1987 amendments to the Workers' Compensation
Act were intended to substantially restrict the definitions of
"injury" and "accident.     Because the plain meaning of the words
used in the statute is determinative in this case, consideration of
the legislative history is inappropriate. State ex rel. Roberts v.
PSC (1990), 242 Mont. 242, 790 P.2d 489.
    We conclude that the rubbing of sores on Welch's toes meets
the statutory requirements for an injury and an accident, and that
the accident caused the injury.      We hold that the Workerst
Compensation Court did not err in concluding that claimant
sustained a compensable injury pursuant to   §   39-71-119, MCA (1987).

     Affirmed.




We concur:
