                                  NO.     94-523
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1995


CARL LARSON,
             Petitioner and Appellant,
     -vs -
CIGNA INSURANCE COMPANY,
             Respondent/Insurer     and
                  Respondent,
YELLOWSTONE FORD TRUCK SALES,
             Employer.



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


COUNSEL OF RECORD:
             For Appellant:
                  James G. Edmiston, III, Attorney at Law,
                  Billings, Montana

             For Respondent:
                  Sara R. Sexe; Marra, Wenz, Johnson & Hopkins,
                  Great Falls, Montana



                                    Submitted on Briefs:                    March 16, 1995
                                                           Decided:         May 4, 1995
Filed:                                         .~ , ; _ ~~,.:.~,. .-: :.,
Justice W.   William   Leaphart delivered the Opinion of the Court.

     This    is    an    appeal     from the          judgment of   the     Workers'
Compensation Court holding that appellant Carl Larson could not
receive permanent total disability benefits for his work-related
hernia condition due to the fact that he first became totally
disabled by a pre-existing, non work-related and independent heart
condition.     We reverse the decision of the Workers' Compensation
Court and remand for further proceedings.


Factual    Backsround
     Until December 15,           1981,   the last day of his employment,
Larson worked in the truck parts business for approximately thirty
years.     From 1978 through December 15, 1981, Larson was parts
manager for Yellowstone Ford Truck Sales in Billings, Montana.
     On August 20, 1980, Larson suffered a heart attack and was off
work for several months.          On October 13, 1980, he underwent a heart
catheterization.         On October 16, 1980,           he underwent open heart
surgery which involved a resection of a left ventricular aneurism.
In April, 1981, he had a second heart catheterization.                    Larson was
unsure as to precisely when he returned to work, but he agreed that
he probably went back to work full time sometime during the spring
of 1981.     When he returned to work, Larson assigned the heavier
tasks to the other employees.                 Then,    on July 15, 1981, Larson
suffered a left inguinal hernia when he lifted a 150-pound                        truck
spring.     This injury occurred in the course and scope of Larson's
employment with Yellowstone Ford Truck Sales.                 At the      time   of the
                                          2
hernia injury, Yellowstone Ford was insured by Cigna.
     Cigna accepted liability for Larson's hernia injury and paid
medical benefits and temporary total disability benefits. On
September 14, 1981, Larson had hernia repair surgery.            He returned
to work in October, 1981, at which time his doctor considered his
hernia one hundred percent healed.
     Following his heart attack in August of 1980 and his hernia in

July of 1981,      Larson had difficulty performing his normal job
duties of heavy lifting and running up and down stairs. On
December 15, 1981, Larson was laid off work due to his inability to
perform his job.       As of December 15,       1981,   Larson    considered
himself unable to work and, therefore, retired.
     Larson was awarded Social Security Disability benefits as a
result of his heart condition.      Those benefits became effective in
February,   1981 and continued through March 16, 1988, when Larson
turned 65 and became eligible            for Social Security retirement
benefits.
     Despite his physician's determination that the hernia was one
hundred percent healed, in May, 1982, Larson's left inguinal hernia
symptoms flared up.      On June 17, 1982,     a recurrence of the left
inguinal hernia was medically diagnosed.        However, Larson received
no further treatment for his hernia symptoms until December, 1984.
The left inguinal hernia was surgically repaired in 1985, 1986, and
finally in 1987.     There has been no recurrence of his left inguinal
hernia since 1987.        Larson,   however,    continues to experience
localized pain in his left groin.            Medical bills for Larson's

                                     3
hernia     repairs were      submitted        to Cigna     and   were paid.       In
September,     1992,       Larson   submitted a           claim for additional
compensation benefits respecting his hernia.
     Dr. Shaw gave Larson an impairment rating of twenty-five
percent of the whole person based on the inguinal hernia.                        The
Workers'     Compensation Court found that,                based on Dr.       Shawls
testimony,    Cigna had paid Larson eight months of temporary total
disability     benefits.      At the time of trial,              Cigna's     counsel
indicated that Cigna had agreed to pay an additional six months of
temporary total disability benefits for purposes of retraining and
500 weeks of permanent partial disability benefits,                        including
amounts due for the impairment rating.                 Larson's post-trial briefs
indicate that payment was made shortly after trial.
     The Workers'       Compensation     Court    denied     Larson's   application
for permanent total disability benefits under 5 39-71-116(13), MCA
(1979)
     The     Workers'      Compensation        court     held that      Larson   was
ineligible to receive permanent total disability benefits for his
work-related    hernia, due to the fact that he first became totally
disabled by a preexisting, non work-related and independent heart
condition. The Workers' Compensation Court held, in its conclusion
of law No. 4, as follows:
     4.   Claimant has failed to carry his burden of proof.
     A preponderance of credible evidence establishes that as
     of December 15, 1981, claimant was permanently totally
     disabled by a preexisting heart condition that was not
     work-related.   The heart condition preceded claimant's
     industrial injury and the permanent disability was the
     result of a natural progression of that condition. It
     does not appear that claimant ever returned to full
                                          4
       duties after his August 1980 heart attack.    During the
       short periods he did return to work he had difficulty
       performing his job. Ultimately, he could not perform his
       job at all, even though he had successfully recovered
       from his hernia operation.       While claimant's left
       inguinal hernia subsequently occurred, he was already
       permanently disabled.
            The Court is also not persuaded that the hernia
       would have recurred absent the totally disabling heart
       condition.  The heart condition, and the inactivity it
       caused, increased claimant's risk of recurrence.
            As a result of his heart attack claimant sustained
       a "total loss of wages" and had no "reasonable prospect
       of employment of any kind in the normal market." Thus,
       claimant had nothing else to lose on account of his
       industrial accident. He does not meet the criteria for
       permanent total disability and is therefore not entitled
       to permanent total disability benefits.


Discussion
       This case presents an issue of first impression in the State
of Montana.   This Court has not had occasion to address a situation
involving independent, disabling conditions, one work-related and
the other not.       Although this Court has not been presented with
this    particular     fact   situation   before,   courts    from   other
jurisdictions have dealt with the issue presented.
       In 1974, the Court of Appeals of Washington decided Shea v.
Department of Labor and Industry (Wash. Ct. App. 1974),          529 P.2d
1131. The Shea case involved facts very similar to those presently
before this Court.       As early as 1961,    Mr. Shea first began to
suffer the effects of a non work-related degenerative vascular
disease and resultant hypertension,          which were      treated with
medication permitting him to continue his work. Mr. Shea then
injured his right shoulder in a work-related accident in 1964.
                                     5
However, by November of 1965, Mr. Shea could not have worked at any
occupation on a reasonably continuous basis since he was totally
disabled due to the progressively degenerative, non work-related
vascular condition.        Mr. Shea did not work subsequent to November,
1965.     His shoulder condition continued to worsen and, in 1971,
after the shoulder claim was reopened and brought to hearing, Mr.
Shea argued that he was permanently totally disabled by the 1964
shoulder injury.
        The Washington court characterized the situation as follows:
        Thus, viewing the evidence in a light most favorable to
        the workman (which we must), we visualize him as
        suffering from two totally independent conditions, each
        of which is progressively causing increasingly serious
        disabilities.     On the one hand, disregarding his
        industrial injury and the effects thereof, he was
        effectively removed from the labor market as early as
        November, 1965, by reason of a condition which preexisted
        and was not affected by the industrial injury, but which,
        nevertheless became seriously disabling after the 1964
        injury. On the other hand, disregarding the preexisting
        condition and the subsequent effects thereof, he was also
        effectively removed from the labor market on or about
        August, 1971, by reason of the disability attributable to
        the 1964 injury.

-I 529 P.2d at 1133.
Shea                             In concluding that the subsequent work-
related      disability   was   compensable,   the    Washington   court   relied
upon     a    number of     well-established         principles of     workers'
compensation law:
        We start with the obvious--and oft-repeated--concepts
        that the workmen's compensation act was designed to
        provide benefits not only to workmen with no prior
        physical or mental impediments, but also to workmen who
        may be afflicted with preexisting physical or mental
        infirmities or disabilities [citation omitted1 and that
        the remedial and beneficial purposes of the act should be
        liberally construed in favor of workmen and beneficiaries
         [citations omitted].   It is a fundamental principle of
        workmen's compensation acts that if the injury complained
                                        6
       of is a proximate cause of the disability for which
       compensation is sought, the previous physical condition
       of the workman is immaterial and recovery may be had for
       the full disability independent of any preexisting
       weakness . . . .

-r 529 P.2d at 1133.
Shea
       The principles enunciated and relied upon by the Washington
court are equally applicable to the case presently before us.         The
workers'    compensation statutes in effect on the        date of the
original injury must be applied in determining benefits.        Buckman
v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380.
Larson originally suffered his hernia injury in 1981.           At that
point in time, workers' compensation claims were governed by the
following    principles:   the   Workers'   Compensation Act was to be
liberally construed in favor of the injured worker pursuant to
5 39-71-104, MCA; Stokes v. Delaney & Sons, Inc. (1964), 143 Mont.
516,   519-20,   391 P.2d 698,      700.     (The liberal construction
provision was     deleted by the 1987 amendments to the Montana
Workers'    Compensation   Act.)      Further, it   was (and   is)   well
established in Montana that an employer takes his employee subject
to the employee's physical condition at the time of the employment,
Bond v. St. Regis Paper Co. (19771, 174 Mont. 417, 420, 571 P.2d
372, 374; compensation laws are not made solely for the protection
of employees in normal physical condition, but for those who are
not super physical specimens.        Peitz v. Industrial Accident Board

(1953),    127 Mont. 316, 322-23, 264 P.2d 709, 712.
       The Washington court acknowledged that, since Mr. Shea was
described as permanently totally disabled in 1965 due to a non-

                                      7
industrial injury, it appeared inconsistent to then declare that he
was again rendered permanently totally disabled in 1971 from an
industrial injury.    Concluding that this was a superficial rather
than a "genuine inconsistency," the court stated:
      When the character and quantum of that evidence indicate
      the workman's inability to perform reasonably obtainable
      work suitable to his qualifications and training, he is
      said to be totally disabled.       When a significantly
      contributing cause of that inability is an industrial
      injury or disease, the workman is entitled to receive
      total    disability   benefits   under   the   workmen's
      compensation act, regardless of the fact that other
      circumstances and conditions may also be considered
      contributing causes of that inability.

- I 529 P.2d at 1134.
Shea
      The Supreme Court of Alaska relied upon the Shea rationale in
deciding Estate of Ensley v. Anglo Alaska Const. (Alaska 1989), 773
P.2d 955.   In the Alaska case, Ensley suffered a back strain injury
in December of 1984 but then, while off work with the back strain,
was diagnosed with terminal cancer in February of 1985.    The Alaska
Workers' Compensation Board initially found that 'I [tlhe cancer was
a   supervening   cause   analogous to death which terminated the
employee's economic life," and that therefore no temporary total
disability benefits were payable for the back injury after the
cancer was diagnosed.     Ensley's estate appealed the Board's finding
to the Alaska Supreme Court.
      The Alaska court concluded that Ensley's situation was unique
because the worker suffered from two independent conditions, one
work-related and one non work-related, either of which would have
prevented him from working.     Relying extensively on the Washington
decision in - I the Alaska court found, "[tlo construe the Act so
            Shea
                                    8
as to deny coverage would create a windfall to employers simply
because of the employee's misfortune in developing an independent
medical problem."     Enslev, 773 P.2d at 959.       The Alaska court held
that Ensley's estate was entitled to recover the temporary total
disability benefits which should have been paid during the period
in which Ensley's back injury            would have prevented him from
returning to work regardless of the fact that he was undergoing
cancer treatment.
     We agree with the rationale set forth by the Washington court
in Shea and the Alaska court in Enslev.           In the present case, if
the evidence     shows that Larson's inguinal hernia produced a
permanent    total   disability,   he is     entitled to       receive total
disability benefits under the Workers' Compensation Act regardless
of the fact that his preexisting, non work-related heart condition
may also be considered a cause of that permanent total disability.
Having concluded that Larson was permanently and totally disabled
as a result of his preexisting            heart   condition,    the   Workers'
Compensation Court did not make a finding as to whether the
subsequent work-related hernia injury was also permanently totally
disabling.     Accordingly,   we reverse the decision of the Workers'
Compensation Court and remand for further proceedings consistent
with this opinion; in particular, specific findings and conclusions
as to whether Larson's subsequent, inguinal hernia constitutes an
independent,    totally disabling work-related condition.
     Reversed and remanded.



                                     9
we concur.


        Chief Justice




             Justices




                        10
Justice Karla M. Gray, specially concurring.


        I specially concur in the Court's opinion.
        I do not disagree with the adoption of the legal principles

from Shea and Ensley.       I am less convinced than the Court, however,

that the Workers' Compensation Court actually erred as a matter of

law, even applying those principles to the case now before us. The

most that can be said, perhaps, is that we cannot be certain that

the court applied the principles we have now adopted; it is for

that reason alone that I join the Court in reversing and remanding

for the entry of findings and conclusions.

        It is important, in my view,        to further clarify what this

Court is and is not actually directing the Workers' Compensation

Court to do on remand.       My understanding is that the Court is not

attempting, in any way, to "direct a verdict" on the facts of this

case.      The   Workers'   Compensation Court is to reconsider the

evidence before it and enter findings and conclusions relating to

whether the claimant's May 1982 (and later) hernia problems meet
the definition of       "permanent total disability" under 5 39-71-

116(13),    MCA (1979); in doing so, it is to consider and apply the

Shea and Enslev principles.         That,    as I understand it,   is the

Workers'    Compensation Court's role on remand as stated by this

Court.

        In that regard, the court must determine initially whether the

claimant has established by a preponderance of the evidence that

his May 1982 (and later) hernia problems resulted from the work-

related injury on July 15, 1981, which first caused the hernia.
                                     11
See 5 39-71-116(13), MCA (1979).     If not, the inquiry will end. If

so, then the court also must determine under the statute whether
the claimant's work-related injury resulted in his loss of actual

earnings   or earning capability; this portion of the analysis

necessarily will entail application of the Shea and Enslev legal

principles.

     On this basis,   I   join the Court in reversing and remanding to

the Workers' Compensation Court.




                                    12
Justice Fred J. Weber dissents as follows:


        Under differing facts, I could agree that it is appropriate to
adopt    the   Shea   rationale    from    the   state   of   Washington.   My

particular problem here is            that   the   findings of      fact    and
conclusions of law of the Workers' Compensation Court require that

we affirm rather than remand for reconsideration.

        I believe the following findings of fact and conclusions of

law are necessary for consideration of the issues before us:
        FF #17: At trial claimant testified he did not specify his

hernia as contributing to his disability because of the paperwork

that would have entailed.         The court then stated:

        A preponderance of credible evidence persuades me that
        when claimant was laid off and he pursued social security
        disability benefits, he believed he was disabled solely
        on account of his heart condition. His hernia was not a
        factor in his decision to oursue benefits nor in his
        belief that he was unable to work.   (Emphasis supplied.)

        18. As of December 15, 1981, claimant considered himself
        unable to work and therefore retired he presented
        no evidence indicating that he ever made a subsequent
        effort to find employment of any sort and a review of
        claimant's medical records concerning his heart condition
        provide convincing evidence that after December 15, 1981,
        claimant was in fact permanently totally disabled and
        unable to perform any sort of employment because of his
        heart condition.   According to claimant, he was at one
        time considered a candidate       for heart transplant.
        (Emphasis supplied.)

        Paragraph 19 mentions the award of social security disability

benefits and No. 20 how claimant had surgery for another aneurysm

to replace a mitral valve.

        21.   In Mav 1982, some of the claimant's left inguinal
        hernia symptoms reoccurred . . On June 17, 1982, a
        reoccurrence of the left inguinal hernia was diagnosed.
        However, claimant received no further treatment for his
                                      13
hernia   symptoms   until    December   1984.       (Emphasis
supplied.)

22. The left inguinal hernia was surgically re-repaired
in 1985, 1986 and, finally in 1987.

.   .

25. The claimant did not submit a claim for additional
compensation   benefits  respecting   his   hernia  until
September 1992, almost 11 vears after he returned to
work. . . .     In all his correspondence with Cigna,
claimant never asked Cigna about compensation benefits .
. . claimant also never told Cigna that he was off work
because of his hernia condition.    (Emphasis supplied.)

26.   However medical bills for claimant's subsequent
hernia repairs were submitted to Cigna and paid.

27.   On account of his heart condition, as of December
15, 1981, the claimant was no longer available for work
in the open labor market.    Thus, claimant's total wage
loss and loss of earning capability was due to a prior,
totally disabling condition and was not attributable to
his hernia.   (Emphasis supplied.)

28. Claimant has also failed to persuade the court that,
absent his heart condition and termination of emplovment,
his inquinal hernia would have recurred.         Dr. Elmer
Kobold, a surgeon who treated claimant for his hernias,
testified   that   decreased   physical   activity   and a
weakening of      muscles    increases an      individual's
susceptibility to developing hernias. When specifically
asked   about   the   increased   susceptibility of      'I an
individual who has recently stopped working and had been
in a physically declining state because of that," Dr.
Kobold responded, "Yes.      I am sure with his cardiac
surgery he was severely physically limited for months,
and that would give him more of a chance for muscle
weakness and reoccurrence."     (Emphasis supplied.)

30. . . . Cigna agreed to pay claimant 8 months of
temporary total disability benefits. .

31.  Dr. Shaw gave claimant an impairment ratins of 25%
of the whole person based on the inquinal hernia.
(Emphasis supplied.)

CL #5. . . Even if claimant is deemed not_ to have
reached maximum healing following his initial hernia, he
most certainly reached maximum healing within 3 months
after his final surgery in 1987.         While claimant

                              14
     continues to suffer pain in the left inguinal area, he
     has suffered no reoccurrence of a hernia. His condition
     has been static in the last 7 years.         Dr. Shaw's
     testimony that maximum healinq should have been achieved
     within 3 months followinq that surgery was unrebutted.
     . . (Emphasis supplied.)

     I conclude there is clearly substantial evidence to support

the conclusion of the Workers'      Compensation    Court   that     claimant

here failed to prove total disability as a result of his hernia.

Under that circumstance, there is no basis for a remand.

     I   therefore   strongly   disagree   with    the   statement    at   the

conclusion of the opinion that if the evidence shows that Larson's
inguinal hernia produced a permanent total disability, he is

entitled to receive total disability benefits.              He had that
opportunity and failed to ~present such evidence.            At most, he

presented evidence unrebutted that he had an impairment rating of

twenty-five percent of the whole person based on the inguinal

hernia as determined by Dr. Shaw.

     The important point here       is that Larson did not meet his

burden to present evidence that his hernia produced permanent total

disability.    It is not up to this Court to provide claimant a

second chance to do what he previously failed to do.         The Workers'

Compensation Court correctly determined that claimant had not met

his burden of proof.

     I would affirm.




Chief Justice J.A. Turnage concurs in the


                                                    Chief Justice
                                           May 4, 1995

                                  CERTIFICATE OF SERVICE

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


James G. Edmiston, III
Attorney at Law
P.O. Box 7187
Billings, MT 59103-7187


         Nenz. Johnson & Hookins. P.C.
                           _
 .“.   uvn Id&J

 ireat Falls, MT 59403-1525

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
