                                     No. 88-476

               IN THE SlJPREME COURT OF THE STATE OF MONTANA
                                        1989




VICKI BLACK BALLARD ,
                 Claimant and Appellant,
       -vs-
CLARK FORK VALLEY HOSPITAL,
              Employer,
       and
STATE COMPENSATION INSURANCE FIJND,
                 Defendant and Respondent.




APPEAL FROM:     The Workers' Compensation Court, The Honorable Timothy
                 Reardon, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:

                 Milodrago~r_i.ch,
                                 Dale     &   Dye; Kristine T,.   Foot, Missoula,
                 Montana
       For Respondent :
                 Rebecca    T,.   Smith, Agency Legal Services, Helena,
                 Montana.



                                         Submitted on Briefs:      Dec. 9 ,
                                          Decided!      January 26, 1989
Mr. Justice R.   C. McDonough delivered the Opinion of the
Court.

     Appellant Ballard appeals the judgment of the Workers'
Compensation Court.     The lower court held that Ballard
suffered a compensable injury, but that Ballard' s injury
reached maximum healing a short time from the date it
occurred.   The lower court also held that no entitlement
existed after Ballard reached maximum healing.       Rallard
appeals this decision.
     Respondent, the State Compensation Insurance Fund
(Fund), cross appeals contending that the lower court erred
in finding the existence of a work injury. We affirm the
lower court on both the appeal and the cross appeal.
     The Clark Fork Valley Hospital in Plains, Montana,
employed Ball.ard as a nurses aid.     On January 12, 1981,
Ballard injured her back catching and lifting a patient who
was falling to the floor. At the time of the injury she knew
that she had hurt her back, but she continued to work her
regular hours through January 20, 1981.
     On January 20, 1981, Ballard aggravated the back injury
bending over to pick up an article of clothing while
shopping.   The severe pain from the aggravated injury led
Ballard to consult Dr. Albertson. Dr. Albertson suspected a
disk herniation, and prescribed six weeks bed rest.
Approximately two weeks later Ballard told Albertson her back
had improved and that she could return to work. Albertson
released her to work, and noted that he may have been
mistaken on his earlier diagnosis of disk herniation because
Ballard had improved so quickly.
     Ballard returned in early February with reduced hours.
The record is unclear on whether Ballard or the Hospital
requested the reduction in work time.    Ballard contends on
appeal that the injury forced her to accept fewer hours on
the job.
     Ballard testified that at that time she returned to work
the injury was improved but not completely healed. She also
testified that the press of financial needs forced her back
to work even though performance of her job duties caused
pain.    She continued her employment at the Hospital until
1984 when she quit in anticipation of the birth of her third
child.
      After the birth of her third child Ballard found
employment at Benji's Restaurant, and at Dairy Queen.
Ballard also gave birth to two other children prior to 1987.
Ballard testified that her pregnancies never aggravated her
allegedly continuing back problems.
     On September 29, 1986, Ballard saw Dr. Wielenga
complaining of severe back pain.     Dr. Wielenga suspected
Ballard suffered from nerve compression syndrome resulting
from a herniated disk.     The parties agree that available
tests could confirm or refute the presence of a herniated
disk, but that these tests have not been performed.
     Resolution of Ballard's appeal hinges on conflictinq
evidence on the presence of a disabling condition from a work
injury. Rallard's testimony supports a conclusion that the
source of her 1986 back problems may be traced to the injury
in 1981. Ballard testified that the injury never healed and
that the pain never completely subsided, but that she endured
the presence of her injury for lack of funds to seek a
medical solution.
     However,   the   Fund  effectively   argues   that   the
circumstances and passage of time surrounding Ballard's
injury and her return to work fail to support Ballard's
version of events. For example, Ballard failed to seek any
medical treatment for her back hetween 1981 and 1986. She
had two children in the interim, and continued her employment
at the hospital. The Fund also pointed out that in January
of 1981 Ballard fil-ed a report on another back injury at
work.    When questioned on this incident, Ballard testified
that she could not remember filing the injury report. The
report conflicted with Ballard's testimony that the single
injury to her back occurred in January of 1981.
      The Fund also contends that the medical evidence
supports the decision of the lower court. For example, Dr.
Albertson testified on whether it was possible to connect the
prior injury to Ballard's current condition as follows:
         Sometimes I think that is possible to do. In
    this case I don't think it is because we didn't see
    her enough to really document exactly what was
    wrong with her and where it was because she got
    well so quickly. So no x-rays were taken and she
    had   no   negative   neurologic--or  no   positive
    neurologic findings or anything else to localize
    the disk area.    If we had known she had hurt the
    L4-5 disk in the original area and we knew that she
    hurt the L4-5 disk later, you could probably make a
    correlation, but there's no way to know that in
    this case.
The judgment of the lower court summarized the medical and
other evidence as follows:

         Since leaving Clark Fork Regional hospital in
    1983, she     [Ballard] has worked     at Benji's
    [Restaurant] and Dairy Queen.   She has also given
    birth to three children prior to her complaint of
    back pain to Dr. Wielenga on September 29, 1986.
    Because there were no x-rays taken or neurological
    tests performed in 1981, Dr. Albertson could not
    make a correlation between her 1986 condition and
    her 1981 injury.     Because the claimant has the
    burden of proving her claim by a preponderance of
    the credible evidence, the Court finds that the
    claimant did not carry that burden and failed to
    relate any future wage loss after she returned to
    work February 4, 1981.
     Ballard contends the finding that she failed to carry
the burden in showing a causal connection ignores other
medical testimony.   For example, Ballard contends that Dr.
Wielenga's diagnosis provided the necessary evidence of
causation. Wielenga concluded that:

      [Ilt is a reasonable possibility that her acute
     back problems of five years ago, which are similar
     to those she is now experiencing, could have
     resulted from the lifting of the patient at the
     hospital. It is, indeed, possible that the lifting
     of the patient with the associated tingling into
     her leg may have caused a weakening of her disk.
     This may have resulted, a few days later [while
     shopping], in a more complete herniation with
     minimal stress placed on the back and the resulting
     acute symptoms of nerve compression that were seen
     on her exam of January 21, 1981.

     Ballard contends that Dr. Wielenga's statement and
Albertson's 1981 diagnosis provide evidence sufficient to
demonstrate that her 1981 injury more probably than not set
in motion a continuous and progressively deteriorating
condition leading to her disability in 1986. We disagree.
     Dr. Wielenga qualified his opinion on the possibility of
a connection between the conditions as follows:

     This is a reasonable medical possibility, although
     I cannot make a definite statement as to whether
     this actually occurred in Vicki's case since I was
     not at all a part of her initial evaluation.

And   Albertson,  the physician    conducting the    initial
examination, hol-ds the opinion that it is impossible to
connect Ballard's condition in 1986 with her injury in 1981.
Given the fact that Albertson participated in the initial
evaluation and Wielenqa did not, the lower court was
justified in finding Albertson's opinion more probative than
Wielenga's opinion.
     Ballard also argues that the Fund failed to carry the
burden of showing that an intervening cause resulted in
Ballard's 1986 impairment citing Gaffney v. Industrial
Accident Board (1955), 129 Mont. 394, 404, 287 P.2d 256, 261.
However, in Gaffney, the only "sworn testimony before the
Board, from which a rational finding can be made, is that the
injury received by claimant was a contributing cause of his
present total and permanent disability."    Gaffney, 287 P.2d
at 261.   Here, the medical evidence and the lapse of time
during which Ballard continued her employment at the hospital
provide evidence to make a rational finding that the injury
did not contribute to her condition in 1986.
     We also agree with the Fund that the facts and law in
Brown v. Arnent (Mont. 1988), 752 P.2d 171, 45 St.Rep. 508,
and Currey v. 10 Minute Lube (Mont. 1987), 736 P.2d 113, 44
St.Rep. 790, more closely control this case than Gaffney. In
Brown the claimant failed to carry the burden of showing a
causal connection because:

     The medical evidence is inconclusive and, at best,
     establishes only a possibility of a causal link.
     As noted by the Workers' Compensation Court, this
     is a difficult case to chart and "too much time has
     passed without explanation and without a tracing of
     the injury through that time." Following December
     1, 1978, claimant did not seek any medical
     attention for his back for approximately three and
     one-half years.   The evidence presented fails to
     sufficiently demonstrate that treatment rendered
     after that period was a direct result of the injury
     received in 1978 . . .

Brown, 752 P.2d at 175.   In Currey this Court stated:
     "Medical possibility" is to be weighed just as any
     other evidence; if supported by other independent
     evidence it is "acceptable" to be used by the court
     in making its determination. Medical possibility
     evidence by itself, though, does not mandate the
     conclusion that the claimant has met his burden of
     proof under the Act.
Currey, 736 P.2d at 116 (quoting Wheeler v. Carlson Transport
(Mont. 1985), 704 P.2d 49, 53-54, 42 St.Rep. 1177, 1183).
Ballard fails to distinguish Currey and Brown.
     Ballard argues further that the lower court erred in
relying on Stangler v. Anderson Meyers Drilling Co. (Mont.
1987), 746 P.2d 99, 44 St.Rep. 1944. In Stangler evidence
that the claimant had returned to strenuous labor supported a
finding that the injury had reached maximum healing.
Stangler, 746 P.2d at 102. According to Ballard, the lower
court misinterpreted Stangler by holding that the work
release given by Albertson to Ballard established the end of
the healing period. We agree that situations exist where the
Workers1 Compensation Court properly finds that claimants
have returned to work prior to maximum healing of their
injury. Tenderholt v. Travel Lodge Intll. (Mont. 1985), 709
P.2d 1011, 42 St.Rep. 1792. And that Stangler should not be
interpreted to mean that a work release settles the maximum
healing issue.      However, here the lower court focused on
evidence in addition to the release.
     Finally, Ballard argues that equity prevents a finding
that she failed to prove her case.      According to Ballard,
because of the Fund's initial denial of her claim she lacked
medical benefits to make affordable the necessary testing to
confirm the presence of a herniated disk. Her brief states,
"Vicki should not he required to satisfy her burden of proof
bv presenting medical evidence of equal weight to the tests
the defendant d e n i ~ dher."
     The claimant bears the initial liability for medical
expenses. Section 39-71-704, MCA; ARM S 24.29.1401. Section
39-71-2907, MCA, authorizes assessment of penalties on
insurers who unreasonably deny benefits.    Thus, under the
Montana Workers' Compensation Act no issue exists on the
failure of the Fund to provide tests to diagnose Rallard's
condition.

    The   Fund's   position   on   cross   appeal   concedes   that
medical testimony demonstrates a possibility that a work
injury occurred. However, the Fund contends that the lower
court erred in holding that Ballard carried her burden of
demonstrating an entitlement to temporary total disability
benefits from January 21, 1981, to February 4, 1981.
     The record amply supports the lower court's decision on
this issue.    Ballard testified that the back strain she
suffered at work caused her to consult Dr. Albertson. Dr.
Alhertson prescribed six weeks bed rest. Ballard missed work
during the period the lower court found entitled her to
temporary total disability benefits.       This  evidence
sufficiently supports the lower court's decision that an
injury occurred. AFFIRMED.

                                              Justice
