                               No. 94-374
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


SHARON McCOLLEY,
          Claimant and Appellant,
     v.
STATE COMPENSATION    MUTUAL
INSURANCE FUND,                                        RR 23 1995
          Respondent and Insurer for
                                                 CLERK OF 5lJPROME. COURT
OMO CONSTRUCTION, INC.,                             SPATE OF MONTANA

          Employer.



APPEAL FROM:   The Workers' Compensation Court,
               The Honorable Mike McCarter, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Don Edgar Burris,     Billings, Montana
          For Respondent:
               Thomas E. Martello, State      Compensation    Insurance
               Fund, Helena, Montana


                               Submitted on Briefs:    January 19, 1995
                                            Decided:   February 23, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
        Sharon   McColley      (McColley)       appeals    the decision of          the
Workers'     Compensation       Court    denying her         claim   for     workers'

compensation      benefits.     We affirm.

        We find the following issue dispositive:

        Did McColley suffer a compensable workers' compensation injury

during the course and scope of her employment on September 28,

1992?

        In December 1983 McColley suffered a work-related injury to

her back and neck.            Her   employer's     insurer,    State       Compensation

Mutual Insurance Fund (State Fund) accepted liability.                        McColley

received a        variety of        medical,     compensatory        and    retraining

benefits.        She   ultimately settled her claim for 500 weeks of

permanent partial disability benefits.                      McColley       experienced

continuing pain in her back and neck and was classified as having

a 3 percent impairment rating.

        McColley returned to work as a laborer in July 1990.                     After

approximately one week on the job, McColley suffered another work-

related     injury.     Her    employer's       insurer,   Industrial       Indemnity,

accepted     liability.       McColley received disability benefits and

ultimately       settled her claim in March 1992                for 465 weeks of

permanent partial disability benefits.               Her impairment rating was

increased to 7 percent.              McColley     again    experienced      continuing

physical impairment in her neck, back and extremities due to the

injury.
        In September 1992 McColley again returned to work, this time

as a "flagger" on a road construction crew for Omo Construction,

Inc.     She worked one twelve-hour day, consisting of long periods of

continual standing holding a traffic control sign.          She did not

return to work after the first day
        McColley claims that she suffered another work-related injury

as     a result of gravel trucks "speeding" by her,        creating   air

currents which buffeted her about.        McColley's   claim of speeding

trucks was not corroborated but rather was contradicted by various

witnesses present at the job site on the day in question.        Despite

frequent contact with her supervisor, McColley did not report the

speeding trucks.     Omo's insurer, State Fund, denied liability.

                                  Issue

        Did McColley suffer a compensable workers' compensation injury

during the course and scope of her employment on September 28,

1992?
        Section 39-71-119, MCA (lYYl), in relevant part, states:

        Injury and accident defined.      (1) "Injury" or "injured"
        means:
               (a)  internal or external physical harm to the body;
               (b)  damage to prosthetic devices or appliances,
        except for damage to eyeglasses, contact lenses, den-
        tures, 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;
              Cc)  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. [Emphasis added.1

                                     3
Pursuant to the terms of this section, a compensable injury must be

caused by an unexpected traumatic incident or unusual strain

        The    Workers'      Compensation Court did not               find McColley's
testimony concerning the purported speeding trucks credible.                      The
court stated:

        After personally observing the claimant, and considering
        the substance of her t e s t i m o n y , the circumstances
        surrounding her claim, the demeanor and testimony of
        other witnesses appearing at trial, and the exhibits, the
        Court has reached a firm conviction that claimant is not
        credible and her description of what occurred is not
        believable.    I am persuaded that the trucks going by
        claimant on September 28 were traveling at 20 to 25 miles
        per hour and that no significant wind currents or
        buffeting occurred.

We will not reweigh the evidence presented at trial and will uphold

the findings of             the   Workers'     Compensation Court if they are

supported by substantial credible evidence.                     Nelson v. Semi-Tool,

Inc.      (1992),     252 Mont.      286,     829 P.2d 1;        Buckentin v.   State

Compensation Insurance Fund (1994),                 265 Mont. 518, 878 P.2d 262.

We review the conclusions of the Workers' Compensation Court to

determine if          the    court's    interpretation          of law is correct.

Stordalen v. Ricci's Food Farm (1993), 261Mont.                   256, 862 P.2d 393.
        After a thorough review of the record, we conclude that the

findings       of the Workers'         Compensation Court were supported by

substantial credible evidence and that its interpretation of § 39-

71-119,       MCA (19911,     was   correct.        State   Fund presented evidence

from   individuals working at the construction site on September 28,

1992.         Omo's   traffic       control       supervisor    and   another flagger

testified that the gravel trucks were not traveling at a high rate

                                              4
of speed through the construction zone.     Witnesses   also    testified
that the road's general state of disrepair and the operation of

various other pieces of heavy machinery in the vicinity prohibited

the gravel trucks from speeding.     Various   supervisors     who   would
have been notified of dangerous activities such as speeding trucks

testified that they received no complaints concerning the operation

of the gravel trucks on the day in question.
     State Fund's witnesses provided substantial credible evidence

that the gravel trucks were not operating at a high rate of speed

through the construction zone on September 28, 1992.           Therefore,

there was no unexpected traumatic incident or unusual strain as
required by § 39-71-119, MCA (1991).      Based on our holding as to

this issue, we need not address the other issues raised on appeal.

We affirm the decision of the Workers' Compensation Court.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Montana Supreme Court and by a report of its

result to the State Reporter and West Publishing Company.




                                 5
we concur:




             6
                                        February 23, 1995

                                  CERTIFICATE OF SERVICE

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


Don Edgar Burris, Esq.
P.O. Box 2344
Billings, MT 59103-2344


Thomas E. Martello, Legal Counsel
State Compensation Ins. Fund
P.O. Box 4759
Helena, MT 59604-4759

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
