                                 NO.     93-283
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1994

REBECCA L. PRILLAMAN,
           Claimant and Appellant,
     -v-
COMMUNITY MEDICAL CENTER,
           Employer,     and
                                                         MAR 1 1 1994
MONTANA HOSPITAL   ASSOCIATION,
WC TRUST.                                                e/L!    s&i             :
                                                    CLERK OF SUPREME coul?ry
           Defendant and Respondent.




APPEAL FROM:    Workers' Compensation Court,
                State of Montana,
                The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:

           For Appellant:

                Morgan Modine, Modine & Thompson, Missoula, Montana

           For Respondent:

                Robert E. Sheridan, Garlington, Lohn & Robinson,
                Missoula, Montana

           For Amicus:

                John J.        Richardson,      Beck Law Offices,              Bozeman,
                Montana


                                Submitted on Briefs:          November 18, 1993
                                                  Decided:     March 11, 1994
Filed:




                                       Cle~rk
Justice Fred J. Weber delivered the Opinion of the Court.

     Rebecca Prillaman appeals from a Workers' Compensation Court
decision denying her compensation for her injury.          We reverse and
remand.
     We consider the following issue on appeal:
     Did the Workers'     Compensation Court err in concluding that
medical opinion evidence was required to meet claimant's burden
that it was "more probable than not " that an accident occurred at
work and that it caused the claimant's condition?
     Rebecca Prillaman (claimant) is a nurse at Community Medical
Center in the outpatient surgery department.            She suffered two
lumbar vertebrae fractures and contends that the injuries occurred
while at work on March 4,     1992,       following her attempt to lift a
patient.   The patient was in recovery from surgery but was not
responding as expected.    In an attempt to help the patient come out
of anesthesia more quickly, claimant lifted patient from a prone
position to a sitting position without assistance from the patient.
     Claimant testified that she felt the pain in her back
immediately but that she was determined to finish her shift because
there was no other nurse on duty.         She was in great pain throughout
the evening and remained in pain throughout the night. Because she
was the only nurse scheduled for the next day's 2:00 p.m. shift,
claimant went to work, but she testified that within an hour she
was forced to call her supervisor because the pain was unbearable.
     Claimant went to the medical center emergency room for back x-
rays which revealed compression fractures in two vertebrae.            She
                                      2
first sought medical help from Dr. Lennard Wilson, a neurologist.

Dr.    Wilson determined that this type of fracture was "extremely

remarkable for this type of activity" and referred her to an

orthopedic surgeon.         Claimant then went to see Dr. James Burton, an

orthopedic surgeon. Dr. Burton stated that, although her back

injury was unusual given the activity that spawned it, he had no
reason to doubt that her injury was caused by the incident of March

4,    1992.


        Did the Workers'      Compensation     Court       err    in   concluding   that
medical       opinion   evidence   was   required    to    meet    claimant's   burden

that it was "more probable than not" that an accident occurred at

work and that it caused the claimant's condition?

        This    case    involves the determination of when liability

attaches to the insurer for purposes of workers' compensation. We

are concerned with the statutory interpretation of 5 39-71-407(2),

MCA, and the interplay between this statute and § 39-71-119, MCA,

to which subsection (a) refers and to the interplay between

subsection (a) and (b) of 5 39-71-407               (2),   MCA, which provides:


        (2)(a) An insurer is liable for an injury as defined in
        39-71-119, [MCA] if the claimant establishes it is m
        probable than not that:
                   a claimed injury occurred; or
              I&     a claimed injury aggravated a preexisting
        condition.
              (b) Proof that it was medicallv possible that
             a claimed injury occurred or that such claimed
              injury aggravated a preexisting condition is
             not    sufficient to    establish   liability.
              (Emphasis added.)

        The Workers' Compensation Court interpreted this statute to

                                           3
mean that the "more probable than not 'I burden of proof required of
 claimant must be based on "medical opinion."                     Our review of a

 Workers' Compensation Court's legal interpretation is plenary. See

 St. John's Lutheran Church v. State Compensation Ins. Fund (1992),

 252 Mont. 516, 830 P.2d 1271.
       Subsection    (a)    of   the   above   mentioned   statute    specifically

 attaches the burden of proof "more probable than not" to § 39-71-
 119, MCA, which provides:

       Injury and accident defined. (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 sinole work shift.   (Emphasis supplied.)

 We have interpreted the current version of 5 39-71-119, MCA, in

 Welch v. American Mine Services, Inc. (1992), 253 Mont. 76, 831

 P.2d 580:
       A compensable injury must meet all three definitional
       requirements contained in § 39-71-119, MCA (1987): there
       must be an "injury" and an "accident," and the injury
       must be "caused by" the accident.

 Welch, 253 Mont. at 81, 831 P.2d at 584.             Therefore, by reference,

  §   39-71-407,     MCA,    dictates     that     "accident,"       "injury"    and

  "causation" must be proven by the claimant with the "more probable

 than not" burden of proof.

       Respondents argue that because the word "medical" is used in

 subsection   (b),     of    5   39-71-407(2),     MCA,    that    claimant     must

 establish this burden by          "medical      opinion   evidence."     Claimant

 contends that subsection (a) of               § 39-71-407(2),     MCA, does not

 contain the word 'lmedicalV'           when defining her burden of proof.

                                          4
Therefore, claimant contends that, although she must prove that her
injury occurred at work, and that it caused her current condition,

she does not have to prove this through medical testimony.

       A plain reading of subsection (a) shows that claimant is not

required to prove occurrence pursuant to § 39-71-407(2) and by

reference, causation as called for by § 39-71-119, MCA, by use of

"medical opinion evidence."             Although our function as a reviewing

court is to ascertain what the legislature meant by writing a

statute a particular way,           we are bound by law to ascertain that
meaning if possible from the words in the statute.                     Gaub v. Milbank

Ins. Co. (1986), 220 Mont. 424, 715 P.2d 443.                    Subsection (a) does

not contain the words "medical opinion evidence."

       Subsection (a) is separate from subsection (b) because the
legislature used a period to separate the two subsections: thus, we

have   two    separate      thoughts.     &, N. Singer,              2A Sutherland on

Statutes and Statutorv Construction (5th ed.) 5 47.01, p, 136
(1992);   see also Regents of the University of Michigan v. Washtenaw

County Coalition Against Apartheid (Mich. 1980), 296 N.W.2d 94, 98.

This brings us ,to the observation that unless the context of

subsection          (a)   specifically        refers    to     it,   subsection     (b)'s

reference      to    "medically   possible" proof cannot be inserted into

subsection (a).           Section l-2-101, MCA.

       In the present case,             six       individual    witnesses   testified.

These witnesses included claimant, the claimant's roommate (also a

nurse),      the    claimant's    chiropractor,        claimant's     co-workers,     and

claimant's         supervisor.      These six witnesses testified as to


                                              5
 claimant's pain and other factors which were significant in
 determining if the accident occurred at work and whether it had any
 connection or nexus to the claimant's present injury.
         Here, where no eyewitness exists to the accident, testimony
 such as that of claimant's chiropractor, James Scott Garr, becomes
 important as to whether the alleged accident caused the injury of
 which    claimant    complains.    Dr. Garr saw claimant in Missoula and
stated before the Workers' Compensation Court that, given Rebecca's
 abnormal formation of certain vertebrae and her osteoporosis,
 attempting to lift the dead weight of a patient could very easily
 have caused the damage (injury).
         The court also ignored the testimony of other witnesses who
 gave "before and after"            the     occurrence   testimony.   Claimant's
 house-mate, Jane Dubbe,      testified that claimant had not shown any
 signs of abnormal back pain before she went to work on the day of
 the accident, March 4, or as late as 4:30 p.m. that same day when
 Dubbe left her shift as RN at the same medical center.                Dubbe also
 stated that when claimant came home at about midnight on March 4,
 she told Dubbe about the incident in which she attempted to lift
 the woman and that she had been in severe pain since that time.
         Claimant's     immediate         supervisor,    Carol   Matthews,      also
 testified that when claimant arrived at work the day after, on
 March 5, she told her supervisor what had happened and that she was
 in great pain.       Matthews sent claimant to the emergency room where
 x-rays revealed that she had two compression fractures.                 Matthews
 also testified that claimant was an excellent employee.                     Another

                                             6
fellow employee, Patrice Moffitt, testified that claimant was fine
late in the afternoon of March 4th. but that the next day when she
saw her she complained of severe back pain.            Moffitt also saw
claimant after her visit to the emergency room on March 5.       Moffitt
testified that claimant said that she was going home because she
was in so much pain.       Moffitt also characterizes claimant as an
honest person.
      The two treating physicians testified by way of deposition.
The   Workers'    Compensation Court considered only the doctor's
testimony which revolved around whether such an occurrence could
have possibly caused claimant's permanent back injury.       It is clear
from the Workers' Compensation Court opinion that it intertwined
the ideas of "occurrence" and "causation."        Yet, as we stated in a
similar case,       Plainbull v.    Transamerica Ins. Co. (No. 93-432,
decided March 10, 1994):         "while the occurrence of the injury may
be susceptible of proof without medical evidence, the causation of
the claimant's condition may very well require medical evidence if
the claimant is to meet his burden of proof, especially in the face
of contrary medical evidence presented by the carrier."        The facts
of each case must dictate the degree to which medical evidence is
needed,    if at all.      Here,     where both facts surrounding the
"occurrence"      and conflicting views as      to medical opinion of
"causation"      are at issue,     it is essential that all testimony,
including the medical, be considered by the Workers' Compensation
Court.    Yet neither "occurrencel'    of an accident nor the connection
between the accident and the injury (cause) statutorily require

                                       7
medical opinion evidence.
     On remand, the Workers' Compensation Court must consider and
weigh all testimony, whether "medical opinion evidence" or not. We
do not mean to say that the Workers ' Compensation Court should cast
aside the depositions of the doctors,      but the wording of the
applicable    statutes make   it clear that such evidence,      while
potentially   valuable, is not the only source from which claimant
can prove that an accident caused her injury.    We conclude that the
Workers' Compensation Court erred when it stated that:

     Despite admirable efforts by claimant's counsel, neither
     Drs. Wilson nor Burton would waiver from their positions
     that while claimant's fractures might possibly have
     occurred as she described, they could not say it was more
     probable than not that the injury occurred in that
     fashion. . . . Claimant has failed to sustain her burden
     of proof that it is more probable than not that her
     compression fractures in her lower back were caused by
     and arose from her employment....."More probable than
     not" is a burden of proof requiring a medical opinion.
     [Emphasis added.]
Because of its conclusion, the court considered only the doctors'
medical opinions as to occurrence and "cause."   We finally conclude
that the requirement of 5 39-71-407(2)(a), MCA, that the claimant
establish that it is "more probable than not" that a claimed injury
occurred at work and that it caused the current condition do not
require "medical opinion evidence".
     We hold that the Workers'        Compensation   Court   erred in
concluding    that "medical opinion evidence" was required to meet
claimant's burden that it was "more probable than not" that an
accident occurred at work and that it caused the claimant's
condition.
                                  8
     Reversed and remanded for further proceedings consistent with

this opinion.



We Concur:
                                         March 11, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Morgan Modme
MODINE & THOMPSON
315 West Pine Street
Missoula, MT 59801

ROBERT E. SHERIDAN
GARLINGTON, LOHN, & ROBINSON
P.O. Box 7909
Missoula, MT 59807

John J. Richardson, Esq.
BECK LAW OFFICES
1700 W. Koch, Suite 2
Bozeman, MT 59715

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
