                               No. 82-90
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1983



RALPH V. BELTON,
                                  Claimant and Respondent,

         vs.
CARLSON TRANSPORT, Bmnloyer,
         and
HARTFORD ACCIDENT AND INDEMNITY COMPANY,
                                  Defendant and Appellant,

         and
RICE TRUCK LINE, Employer,
         and
TRANSPORT INDEMNITY COMPANY,
                                  Co-Defendant and Respondent.


Appeal from:          Workers' Compensation Court
                      Honorable Tim Reardon, Judqe presiding.
Counsel. of Record :
     For Appellant:

           Crowley, Hauqhey, Hanson, Toole & Dietrich,
            Billings, Montana
           Randall Bishop argued, Billings, Montana
     For Respondents:
           Victor R. Halverson argued, Billings, Montana
           Garlington, Lohn and Robinson, Missoula, Montana
           Larry E. Riley argued, Missoula, Montana


                                    Submitted:      September 17, 1982
                                         Decided:   February 7, 1983
      &FE97    m


Filed:             1984

     -------
                                                Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.


     Hartford Accident and Indemnity Company (Hartford) appeals from
an order of the Workers' Compensation Court which held that Hartford
must pay permanent total disability benefits to claimant, Ralph
Belton. Claimant injured his back in two separate accidents--one in
1977, when Hartford was on risk--and one in 1979, when Transport
Indemnity was on risk.    The Workers' Compensation Court found that
cla.irr!antls1979 injury was an aggravation of the 1977 injury, and
because the 1977 injury had not "completely healed," Hartford,
rather than Transport Indemnity, must pay the compensation benefits.
We vacate the order and remand for further proceedings.
     The trial court based its decision on Little v Structural
                                                   .
Systems (1980),        Mont   .   , 614 p.2d   516, 37 St.Rep. 1187. We
held in Little that:
    "Where there have been two accidents, each occurring
    under a different insurer, and the second happens
    before the first injury is completely healed; &the
    second accident is incident to the first and the
    first insurer is required to pay all compensation."
    (Emphasis added.) 614 P.2d at 519.
We recognize that use of the term "completelv healed" was an
unfortunate choice of language and that a more meaningful term based
on medical fact and legal conclusj-on,would have been one such as
"maximum healing," "nedically stable condition," or one which
conveys the message that the claimant's condition had arrived at a
point where it would get no better even though the claimant would
still have symptoms of the injury whether it be an objective sign or
a subjective symptm such as pain.
    The claimant sustained a series of work-related injuries
between 1970 and 1979. Between September 1971 and mid-1977, he was
totally disabled, due in part to low back pain for which he was
rated 15 percent permanently partially impaired.           During this
period,      he received t o t a l disability benefits          from the Social

Security Administration.             Two of     the   accidents    involved    here

occurred a f t e r he went back t o work in 1977.             The f i r s t accident

occurred on November 7, 1977 and the second occurred on December 7,

L979.

        Claimant was a long-haul truck driver.             O November 7, 1977,
                                                            n

while employed w i t h Carlson Transport, and while Hartford Indemnity

was on risk, claimant slipped on a frost-covered t r a i l e r and f e l l .

H injured h i s buttocks on the edge of the t r a i l e r and slipped off
 e

the t r a i l e r onto the ground injuring h i s lower back.       The injury was

diagnosed a s a        " l a t e r a l extradural defect a t TJ4-5."      Hartford

Indemnity paid compensation benefits u n t i l March 31, 1978, when

claimant was released t o go back t o work.              H returned t o Carlson
                                                          e

Transport i n April 1978, but l a t e r worked for other trucking firms.

        On December 7,     1979, while working for Rice Truck Line, and

while Transport Indemnity was on risk, claimant slipped off a fuel

tank on which he had been standing.               H f e l l approximately three
                                                   e

f e e t and when he h i t the ground mst of h i s weight was on h i s l e f t

foot.     H inmediately f e l t pain and it increased over the next four
           e

hours.      H went to the doctor and he has not worked since.
             e                                                                 Both

insurers concede, and the t r i a l court found that claimant has been

t o t a l l y disabled since the December 1979 accident.               It is also

undisputed that the December 1979 accident aggravated the lower back

injury sustained i n November 1977.

        Claimant t e s t i f i e d , t h a t he was often i n pain a f t e r the 1977

lower back injury up t o the time of the 1979 accident.              H testified
                                                                      e

t h a t he was also limited i n some of the work he was required t o do.

H needed help i n putting up the end gage of the t r a i l e r ; he needed
 e

help in putting the tarp over the loads he carried; and he had t o

stop a t l e a s t once every 100 miles t o briefly rest h i s back, while
before he only had t o stop once every 200 miles.                     A co-worker

corroborated claimant's d i f f i c u l t i e s i n performing h i s job.

        At     trial,    Transport    Indemnity    relied     entirely      on   our

"completely healed" requirenent i n L i t t l e ,        and i n i t s appellate

brief Transport Indemnity has cited and discussed only the L i t t l e

case.        W have no doubt, furthermore, t h a t it was our unfortunate
              e

choice of language in Little which led t o the t r i a l court's ruling.

        The t r i a l court ruled t h a t Hartford Indemnity must prove t h a t

claimant sustained a "separate and d i s t i n c t injury from the November

7, 1-977 injury" and that "implicit i n t h i s burden is a requirement

of proof t h a t the claimant had completely healed f r m the f i r s t

injury       . . ."     (Ehphasis added. )   The court examined the evidence

and using the "completely healed" requirement a s the standard,

concluded t h a t :

        ". . .         the claimant had certainly reached m a x k
        healing for purposes of determining temporary t o t a l
        d i s a b i l i t y during the period beginning March of 1978
        throuqh December of 1979.             - - requirement of
                                              But the
                        is th -                   must have
        L i t t l e - -a t the claimant - - r e a c h 2
        complete healing.            - - - -of the doctors muld
                                     Here, none
        - e- a t the claimant was ccanpletely h e a w
        stat         th -                   -
         (Ehphasis added. )

Based on t h i s analysis of the evidence (which was correct) the t r i a l

court     held    that    Hartford   Indemnity must pay        the canpensation

benefits.        Because of our language i n L i t t l e , the t r i a l court had

l i t t l e choice but t o conclude that Hartford Indemnity must pay the

benefits.        Nevertheless, w hold t h a t the t r i a l court reached an
                                e

improper legal conc'usion based i n p a r t on our erroneous "completely

healed" standard.

        A cornpensable event does not require t h a t a             "separate and

d i s t i n c t injury" be proved.      I t has long been the law t h a t an

accident i s cornpensable i f the traumatic event o r unusual s t r a i n

aggravates a pre-existing injury.            The employer takes the employee

as he finds him.           Therefore, no basis exists t o conclude t h a t a
second accident is cornpensable as a separate event only i f it is

proved t h a t the       injury resulting        from the f i r s t accident had

"completely healed."         The f a c t s reveal without question t h a t two

accidents are involved.

     An    industrial      accident        is   defined   in     part   by     section

            ,
39-71-119 (1) MCA, a s "a tangible happening of a traumatic nature

. . ."    The s l i p and f a l l in 1977 and the s l i p and f a l l i n 1979 were

without question "a tangible happening of a traumatic nature                    . . ."
Further, the 1979 s l i p and f a l l indisputably aggravated the injuries

received i n the 1977 accident, and this 1979 accident is just a s

indisputably cornpensable.

     The "campletely healed" standard s e t forth i n L i t t l e is not an

appropriate standard by which t o determine whether the insurer on

r i s k during the f i r s t accident or the insurer on r i s k during the

second accident should pay the benefits.              W e have no d i f f i c u l t y i n

distinguishing the facts here from the facts i n L i t t l e , but the f a c t

remains t h a t w adopted the "ccmpletely healed" standard i n L i t t l e ,
                 e

and it is a standard w now expressly overrule.
                      e

     In    Little,    on    April     4,    1978,   while      U.S.F.&G.     was    the

compensation c a r r i e r for the employer, claimaint injured h i s knee.

However, he continued t o work and did not see a doctor.                   Two mnths
l a t e r , on June 6,     1978, claimant again injured h i s knee while

working for the same employer.              A t t h i s t k , however, Industrial

Indemnity was the compensation carrier for the employer.                     Claimant

reported this second accident and sought medical attention.                         The

question arose a s t o whether U.S.F.&G., the insurer W i n g the f i r s t

accident, o r Industrial Indemnity, the insurer during the second

accident, should pay the compensation benefits.                  Medical t e s t k n y

established that claimant was a stoic onc cam plainer who had knee

problems going back t o 1941.         Both the April 1978 and the June 1978

accidents aggravated this longstanding knee problem.
     The treating doctor t e s t i f i e d t h a t when claimant reinjured h i s

knee i n the June 1978 accident, h i s knee had not recovered £a the
                                                               rm
injury just two months before i n the April 1978 accident.              Although

neither the questions put t o the doctor nor the answers were f r m d

i n language of whether claimant had reached "maximum heal-ing," o r

had reached a "medically stable condition" a t the time of the second

accident, w have no doubt that t h i s i s what the doctor meant when
           e

he t e s t i f i e d t h a t claimant had not f u l l y recovered from the knee

injury sustained just two months k f o r e .      Based on t h i s testimony,

we held t h a t the insurer on r i s k a t the time of the f i r s t accident
must pay the canpensation benefits.
     Our adoption of the requiremnt "completely healed" i n L i t t l e

m y have been occasioned by our use of this term i n Newman v. Kamp

(1962), 140 Mont. 487, 374 P.2d 100, cited and quoted i n L i t t l e .        In

listing   the    irrrportant   facts   we   stated    in   N e m       that   the

(claimant's) injury caused by the f i r s t accident had not completely

healed a t the time of the second accident.           140 Mont. a t 494, 374

P.2d a t 102.   However, the issue was not the same i n Newman.           There,

the essence of our holding w s a rejection of the " l a s t injurious
                            a

exposure" rule and a holding t h a t instead the particular injury must

be the proximate cause of         the present condition for which the

claimant seeks cmpnsation.        140 Writ. a t 494, 374 P.2d a t 104.        We

now expressly r e j e c t t h i s term because it creates a dichotany

between medical f a c t and legal conclusion.

     Doctors    will   rarely,    if    ever,   say   that   an    injury     has

"campletely healed."      On the other hand, doctors can t e s t i f y a s t o

whether   a particular     injury has       reached   a point     of    "maximum

healing," o r a "medically stable condition."              So, a question of

whether a person has reached           "maximum healing" o r a "medically

stable condition," has meaning t o a doctor who must give an opinion

as t o whether a point has been reached t o constitute the end of a
healing period.       But even an affirmative answer t these questions
                                                      o
does not necessarily mean that the injured person is free of
symptoms, whether it be a subjective symptom such as pain or
objective signs which can be determined by an examination or tests.
    We also recognize that the Workers' Compensation statutes, for
the purpose of focusing on the transition from one stage of recovery
to another, or one stage of capnsati.on to another, do not require
"ccanpl-ete recovery."        Rather, the definitional statute, section
39-71-116, MCA, and particularly subsections (12), (13), and (19),
have as their focal point a state         j
                                          n   which the question turns on
whether the "injured worker is as far restored as the p e m e n t
character of his injuries will permit."
     This   Court      has    recognized these    statutory criteria   jn

determining the transition point from one point of recovery to
another or one stage of compensation to another. See, for example,
Anderson v. Carlsons Transport (19781, 178 Mont. 290, 583 P.2d 440;
Hendricks v. Anaconda Ccanpany (1977), 173 Mnt. 59, 566 P.2d 70; and
W e a r v Arthur G. McKee and C q a n y (1976), 171 Mont. 462, 558
         .
P.2d 1134. Although we used the word camplete in Anderson, it was
not meant there that a person must be symptamless before he has
reached a point where he is no longer temporarily totally disabled.
     Other jurisdictions have reached similar holdings when called
on to determine or define the healing period.           See, for example,
Armstrong Tire and Rubber Company v. Kubli (Iowa App. 1981), 312
N.W.2d 60, and               v State Department of Labor (N.H. 1977), 373
                              .
                 =-
                  f
A.2d 341. Particularly instructive is the Georgia case of Garner v.
Atlantic Guilding Systems Inc. (1977), 142 Ga.App. 517, 236 S.E.2d
183, because it dealt with the same problems of semantics we are

concerned with here. The Georgia court cautioned against the use of
the term "aggravation" when meant to express a condition where the
claimant's condition worsened after the injury because of the wear
and tear of performing his usual duties.         If the event occurs
&cause    of a new accident, the Court declared that the term
"aggravation" should be used; but if the event occurs when it does
not arise out of a new accident, the Court cautioned that the
terminology of "gradual worsening or deterioration, or recurrence,
as appropriate to the circumstances," should be used. 236 S.E.2d at
184.
       In a later case, this clarified rule was applied to make the
second carrier liable in a factual situation remarkably similar to
this case. Crown American Inc. v. West (1977), 143 Ga.App. 525, 239
S E 2d 208.
 ..              The Court found that the events leading to the
claimant's total disability were i aggravation of the pre-existing
                                 n
condition and therefore compensation was found to be payable at the
rates in effect at the time the canpensable aggravation resulted in
the worker's total disability.     From this, the Georgia court found
the second carrier was liable.     Crown American Inc. , 239 S E 2d at
                                                              ..
210.
       Based on what we consider the proper test to be for the healing
period, the claimant had reached that point of recovery from the
1977 injury, when he had the 1979 accident which resulted in an
aggravation of the 1977 injury. The trial court held not only that
this was a aggravation of a pre-existing injury, but - -
          n                                          also that
claimant had reached maximum healing for purposes of determining
temporary total disability--in effect that he had reached a
dically stable condition.
       Despite this state of the record, we do not feel a reversal is
warranted.    It would not be fair, to either side, to hold now that
"maximum healing" or "maximum recovery" or a "medically stable
condition" had been reached.       Both the claimant and Transport
Indemnity proceeded at hearing on the basis that Hartford Indemnity
had the burden t o prove t h a t claimant had "completely healed."           They

confined t h e i r proof t o the "campletely healed" standard s e t forth

in L i t t l e .    In addition, claimant has a special i n t e r e s t i n this

case because of the changed and decreased r a t e s of compensation.

Although it would not normally be the case, the canpensation r a t e s

i n e f f e c t a t the time of claimant's 1979 accident were l e s s than

those in e f f e c t during claimant's 1977 accident.        Justice requires,

therefore,         t h a t the parties have another evidentiary hearing t o

determine whether Hartford Indemnity o r Transport Indemnity should

pay the benefits t o claimant.

       Although not raised a s an issue, w also address the question
                                          e

of which insurer has the burden of proof t o establish that claimant

had reached a medically stable condition before the D e c a r 1979

accident.          In L i t t l e , we held that the burden was on the insurer

seeking t o avoid paying.          614 P.2d 520, 37 St.F&p. 1191.       However,

t h i s r e q u i r m t is of no help where,        a s here,   each insurance

company is disclaiming coverage.           Both insurance campanies contend

they have no duty t o pay compensation t o claimant--each               contends

t h a t it is the other insurance company's duty t o pay benefits.

       W e hold that the burden of proof is properly placed on the

insurance company which i s on r i s k a t the time of the accident i n

which a cornpensable injury is claimed.            This holding assures t h a t

claimant w i l l always know which insurer he can rely on t o pay the

benefits.          It i s the duty of the insurance campany on r i s k t o pay

the benefits u n t i l it proves, o r u n t i l another insurance company

agrees, t h a t it should pay the benefits.         I f it is l a t e r determined

t h a t the insurance company on r i s k a t the t k . of the accident

should not pay the benefits, t h i s insurance company, of course, has

a right t o seek indemnity from the insurance cmpany responsible for

the benefits already paid out t o the claimant.
     The order of the Workers' Cmpensa.tion Court is vacated and the

case remanded for further proceedings consistent with t h i s opinion.




W Concur:
 e
