                                    No. 87-208
                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        1987


DELORES E. GUILD,
                     Claimant and Appellant,
           -vs-
BIGFORK CONVALESCENT CENTER, and
NORTHWEST HORIZONS, Employers,
       and
ROCKWOOD INSURANCE COMPANY, and
EMPLOYEE BENEFITS INSURANCE CO.,
                     Defendants and Respondents.


APPEAL FROM:         The Workers' Compensation Court, The Honorable
                     Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
           For Appellant:
                     Bothe & Lauridsen; David W. Lauridsen, Columbia Falls,
                     Montana
           For Respondent :
                     Garlington, Lohn & Robinson; E. Craig Daue, Missoula,
                     Montana
                     Keller, Reynolds, Drake, Sternhagen & Johnson; William
                     G. Sternhagen, Helena, Montana


                                       Submitted on Briefs:   Nov. 24, 1987

         !F E
         :
           .L
                -
                                         Decided: December 22, 1987

Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


     Claimant Mrs. Guild appeals the decision of the Workersq
Compensation Court on her claim for temporary total disabili-
ty benefits.    Employee Benefits Insurance Co. (EBI) also
appeals. We reverse and remand.
     The issues raised by Mrs. Guild are:
     1. Did the Workers' Compensation Court err in failing
to award Mrs. Guild temporary total disability benefits from
Rockwood Insurance Company after August 16, 1985?
     2. Did the court err in failing to find that Mrs. Guild
had sustained a compensable hip injury on July 1, 1985?
     3.   Is Mrs. Guild entitled to an increase in her award
for unreasonable delay or refusal to pay benefits, and is she
entitled to costs and attorney fees?
     EBI raises the issues of whether Rockwood Insurance
Company is liable to EBI for 1) benefits paid by EBI during
the pendency of this action, and 2) EBI's attorney fees and
costs.
     In August 1983, Mrs. Guild suffered a back injury aris-
ing out of and in the course of her employment as a nurses'
aide at Bigfork Convalescent Home.    The insurer, Rockwood
Insurance Company (Rockwood), accepted liability and paid
Mrs. Guild temporary total disability benefits for about ten
days.   Mrs. Guild then returned to work.   She remained em-
ployed at Bigfork Convalescent Home until October 1984, when
she found employment elsewhere.
      On July 1, 1985, while lifting a patient in the course
of her employment at Northwest Horizons, Inc., Mrs. Guild
suffered a second industrial accident. EBI was the insurance
carrier. Mrs. Guild continued working her regular schedule
until July 26, when she was unable t.o return to work.   Her
physician diagnosed her problem as abdominal muscular strain.
On August 12, Mrs. Guild's physician released her to return
to work on August 20.   In the meantime, on August 16, Mrs.
Guild injured her back while sliding into her small car after
watching a parade.    She remained unable to work at the time
of trial. Her condition has been diagnosed as the effect of
a calcified bulging disk upon a nerve root. In the opinions
of two physicians who have examined Mrs. Guild, the calcified
bulging disk is a result of the 1983 industrial accident.
      Beginning August 21, 1985, EBI paid Mrs. Guild temporary
total disability benefits retroactive to the date of her
abdominal muscular injury and until October 1986. On October
17, 1986, the Workers' Compensation hearing examiner ordered
that Rockwood assume responsibility for temporary total
disability benefits until this matter was finally adjudicat-
ed.    The hearing examiner ruled that in the event EBI were
eventually determined to be the insurer on risk, Rockwood
would be reimbursed.
     After the hearing, the Workers' Compensation Court
concluded that Mrs. Guild was entitled to temporary total
disability benefits from EBI for the period from July 1,
1985, to August 16, 1985. It ruled that Mrs. Guild was not
entitled to disability benefits from either defendant for her
August 16, 1985, parade injury, but instructed Mrs. Guild and
Rockwood to reach a settlement on the question of whether
Mrs. Guild is entitled to permanent partial disability bene-
fits.    It ordered that the temporary total disability bene-
fits paid by Rockwood to Mrs. Guild during the pendency of
this action be credited toward those permanent partial bene-
fits, if any. It denied Mrs. Guild an increase in award for
unreasonable delay or refusal to pay benefits, and denied her
claim for costs and attorney fees.
                              I
     Did the Workers1 Compensation Court err in failing to
award Mrs. Guild temporary total disability benefits from
Rockwood Insurance Company after August 16, 1985?
     Mrs. Guild argues that her present disability is a
result of aggravation of her pre-existing injury from her
first industrial accident.    She asserts that this entitles
her to benefits from Rockwood from the date of the parade
incident until she reaches maximum healing.
      Mrs. Guild cites Rightnour v. Kare-Mor, Inc. (Mont.
1987), 732 P.2d 829, 44 St.Rep. 141.          The claimant in
Rightnour had suffered an industrial injury to her 3-ower
back. A settlement was negotiated, with the claimant reserv-
ing medical benefits.     Claimant subsequently reinjured her
back, not in the course of her employment. Notwithstanding
the fact that the reinjury occurred outside claimant's em-
ployment, the Workers' Compensation Court ordered claimant's
med'ical expenses paid from the medical benefits reserved from
the compensable injury. We affirmed.
      Rockwood states that this case is governed by Belton v.
Carlson Transport (Mont. 1983), 658 P.2d 405, 40 St.Rep. 158.
In that case, we held that a traumatic event or unusual
strain which aggravates a pre-existing compensable injury may
be a compensable injury. We also held that the carrier at
risk at the time of the first compensable injury is liable
for benefits up to the point of maximum healing.    Rockwood
says that in this case there was maximum healing from both
the first and second injuries, so that Rockwood is no longer
liable for total disability benefits.
     The Workers' Compensation Court found that Mrs. Guild's
first industrial injury confined her to bed for a week with
"excruciating" pain in her back. It found that Rockwood paid
temporary total disability benefits for this injury.     The
court found that Mrs. Guild returned to work fulltime, and it
is undisputed that she resumed her normal work activities.
The court found that Mrs. Guild's subsequent abdominal muscu-
lar injury did not create any change in her back condition.
The court further found that Mrs. Guild testified that in the
parade incident, "a pain shot through her lower back similar
to the 1983 pain."    It then found that Mrs. Guild's doctor
testified that Mrs. Guild's 1983 low back injury was aggra-
vated by the August 16, 1985, parade incident.       The last
medical evidence submitted, the court found, was that Mrs.
Guild had not yet reached maximum healing from the parade
incident.   It also found that one physician testified Mrs.
Guild will not be able to return to work as a nurses1 aide
because she will never be able to lift. These findings would
support a conclusion that Mrs. Guild is entitled to temporary
total disability benefits from Rockwood following the parade
incident.
     However, the Workers' Compensation Court concluded that

     the medical evidence supports the conclusion that
     the claimant reached maximum healing when she
     successfully returned to work at the Bigfork Conva-
     lescent Home and defendant Rockwood Insurance
     Company is not liable for temporary total disabili-
     ty benefits after August 22, 1983.
In this unusual case, the parade incident was not a separate
injury, but a triggering event relating back to Mrs. Guild's
1983 injury. The court's conclusion is inconsistent with its
findings listed above. We hold that under the law of Mon-
tana, the fact that a claimant has reached maximum healing
does not eliminate the employer's future liability for tempo-
rary total disability benefits where, as here, a subsequent
non-employment related event causes aggravation of the first
injury. Such a case is not comparable to a case where there
is a second industrial injury covered by workers' compensa-
tion.   We remand to the Workers' Compensation Court for
reconsideration consistent with this opinion.

     Did the court err in failing to find that Mrs. Guild had
sustained a compensable hip injury on July 1, 1985?
     Mrs. Guild testified that she had hip and radiating leg
pain following her July 1, 1985, industrial injury but before
the August 16, 1.985, parade incident. She argues that EBI is
responsible for benefits for that injury.
     The medical testimony relied upon by Mrs. Guild is Dr.
Stephen's deposition testimony, which was based on a hypo-
thetical question.   His testimony was that the presence of
such pain would "make me feel it was probable" that she
aggravated the lower back condition on July 1, 1985. He also
stated, though, that the date on which she started having hip
problems would make a difference:

     If it was, you know, within a few days of the
     7/1/85, I would think that like I said it would be
     probable. If it was several weeks later, we would
     be back to the possible range again.
Mrs. Guild did not complain to her doctor of hip and leg pain
until July 26, almost four weeks after her compensable
injury.
     The Workers' Compensation Court did not enter a finding
or conclusion on Mrs. Guild's hip pain. We conclude that the
evidence that this hip pain was related to her compensable
abdominal muscular injury is not sufficient to put the lower
court in error.

     Is Mrs. Guild entitled to an increase in her award for
unreasonable delay or refusal to pay benefits, and is she
entitled to costs and attorney fees?
     The first of these claims is based on Rockwood's failure
to promptly forward to EBI a letter it received from Mrs.
Guild's physician.   Mrs. Guild indicates that she has been
needlessly forced to prosecute a claim against both insurers
because of this failure. She claims an entitlement to a 20%
penalty under 5 39-71-2907, MCA.
     We have reviewed the letter at issue, and conclude that
it does not constitute the type of evidence which could serve
as a basis for a finding of unreasonable delay or refusal to
pay justifying a penalty under 5 39-71-2907, MCA. The letter
does not set forth a medical opinion or diagnosis, but merely
relays Mrs. Guild's belief that her back problem is related
to her 1983 industrial injury.
     Mrs. Guild also argues that she is entitled to costs and
attorney fees under 5 39-71-612, MCA.    The claim for costs
and attorney fees is based on the erroneous proposition that
"[tlhe Court has found that Rockwood is liable for Claimant's
temporary total disability benefits after August 16, 1985. "
This was not true, as stated above. However, the lower court
is directed to reconsider this issue on remand.
                             IV
     Is Rockwood Insurance Company liable to EBI for 1)
benefits paid during the pendency of this action, and 2 )
EBI's attorney fees and costs?
     EBI claims that this Court's opinion in Belton v.
Carlson Transport (Mont. 1983), 658 P.2d 405, 40 St.Rep. 158,
entitles EBI to indemnity from Rockwood for benefits paid by
EBI after the second injury reached maximum healing.      The
claimant in Belton was injured twice, with each accident
occuring under a different insurer for purposes of workers'
compensation. We held in Belton that it was the duty of the
insurance company at risk at the time of the accident to pay
benefits until liability was resolved.     Belton, 658 P.2d at
410.

       If it is later determined that the insurance compa-
       ny on risk at the time of the accident should not
       pay the benefits, this insurance company, of
       course, has a right to seek indemnity from the
       insurance company responsible for the benefits
       already paid out to the claimant.
Belton, 658 P.2d at 410.
     If on remand the Workers' Compensation Court rules that
Rockwood is responsible for temporary total or permanent
partial benefits for Mrs. Guild, it appears that Rockwood is
liable to EBI for benefits paid during this action and for
EBI1s attorney fees. We conclude that this must be consid-
ered on remand.
     We reverse the decision of the Workers1 Compensation
Court, and remand for further proceedings in accordance with
this opinion.

               \

We Concur:


           Chief Justice




 n



   -
       ,
       I   -

                   Justices
