                                No. 86-556
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1987


INTERMOUNTAIN INSURANCE CO.,




CHURCH MUTUAL INSURANCE COMPANY,
                  ~nsurer/Respondent,
          and
MARY JEAN MARRON,
              Claimant/Respondent.


APPEAL FROM:     The Workers' Compensation Court, The Honorable
                 Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
          For Appellant:
                 Mulroney, Delaney   &   Scott; P. Mars Scott, Missoula,
                 Montana
          For Respondent:
                 Keller, Reynolds, Drake, Sternhage & Johnson; William
                 Sternhagen, Helena, Montana
                 Milodragovich, Dale & Dye; Michael J. Milodragovich,
                 Missoula, Montana


                                     Submitted on Briefs: June 18, 1987
                                         Decided:   August 5, 1987
Filed :   AUG 5 - 1987


                                     Clerk
Mr. Justice R. C. McDonough delivered the opinion of the
Court.

     Intermountain Insurance Company appeals the November 13,
1986, judgment of the Workers' Compensation Court which found
Intermountain to be the insurer on risk for claimant Mary
Jean Marron's injury sustained on September 1, 1981.       We
affirm.
     Claimant Mary Jean Marron, hereinafter "claimant",
injured her back on December 24, 1980, attempting to prevent
a patient from falling at the Missoula Community Hospital
Rehabilitation Facility. The insurer on risk at the time of
claimant's December 24, 1980, injury was Church Mutual
Insurance Company.     Claimant received treatment for her
injury by Dr. Robert Seim on January 16, 1981.       Dr. Seim
determined that claimant had strained her back, prescribed
anti-inflammatory drugs for her condition and recommended
decreased activity.
     Church Mutual paid the medical bill submitted by Dr.
Seim for the January 16, 1981, visit. Claimant did not file
a claim for workers ' compensation benefits regarding the
December 24, 1980, injury and no benefits were paid.
Claimant did not miss any work due to her injury.
     On September 1, 1981, claimant again injured her back
attempting to prevent a patient from falling. Claimant was
treated for this injury by Dr. Susan Bertrand. Dr. Bertrand
prescribed pain pills and muscle relaxants and recommended
that claimant not return to work          for three weeks.
Intermountain Insurance Company (Intermountain) was the
insurer on risk at the time of claimant's second injury.
Initially, claimant did not file a claim for workers'
compensation benefits, but following a Workers' Compensation
Division order waiving claim period time, claimant filed a
claim in October, 1984, relative to her second injury.
     On July 9, 1982, claimant injured her back attempting to
move a patient. A third insurer, not a party to this action,
was on risk at the time of claimant's third injury. Claims
relating to claimant's third injury have been settled and are
not at issue.
     Intermountain has been paying claimant temporary total
benefits since July 12, 1982. Intermountain petitioned the
Workers' Compensation Court to transfer liability for
claimant's benefits to Church Mutual.           Intermountain
contended that claimant had not reached a medically stable
condition from her December 24, 1980, injury at the time of
her September 1, 1981, injury.
     The Workers' Compensation Court entered its findings of
fact, conclusions of law, and judgment on November 13, 1986.
The court found that Intermountain failed to meet its burden
of proof necessary to shift liability to Church Mutual.
Intermountain appeals from the decision of the Workers'
Compensation Court and raises the following issue: Whether
the Workers1 Compensation Court erred in finding that
claimant had reached maximum healing from her first injury
and that Intermountain failed to meet its burden of proof to
shift liability for claimant's second injury?
     A similar case was before this Court in Belton v.
Hartford Accident and Indemnity Co. (1983), 202 Mont. 384,
658 P.2d 405.      In Belton we addressed the appropriate
standard to determine whether the insurer on risk during the
first accident or the insurer on risk during the second
accident should pay the benefits where a dispute exists as to
the claimant's extent of recovery from the first accident.
The standard adopted was whether the claimant had reached a
point of "maximum healing" or a "medically stable condition"
at the time of the second accident. We further held that the
burden of proof lies with the insurer on risk at the time of
the accident to shift liability. Thus, in the present case
Intermountain bears the burden of proof to show by a
preponderance of the evidence that claimant had not reached
maximum healing at the time of her second accident. See also
Perry v. Tomahawk Transportation (Mont. 1987), 735 P.2d 308,
44 St.Rep. 686.
     Intermountain contends the evidence is clear and
convincing that claimant had not reached maximum healing at
the time of her second accident.     Intermountain cites Dr.
Seim's deposition testimony wherein he states his belief that
claimant never reached a medically stable condition following
her first injury. However, as noted by the court below, Dr.
Seim's testimony was very inconclusive. Dr. Seim went on to
say that his opinion of claimant's recovery from her first
injury would vary depending on the definition of "medically
stable." Dr. Seim stated that claimant's motor function was
stable yet she still experienced pain.    Dr. Seim discussed
back injuries as being insidious with recovery appearing to
be complete one day but not the next. The court below found
Dr. Seim's testimony to be contradictory but leaning towards
a finding that claimant had not reached maximum healing on
the date of her second injury.
     An orthopedic surgeon, Dr. Friedrick, examined claimant
on April 24, 1986. ~dditionally, Dr. Friedrick interviewed
claimant, reviewed claimant's medical history, Dr. Seim's
testimony, and claimant's answers to interrogatories. Based
upon the foregoing, Dr. Friedrick stated his opinion that
claimant had reached maximum recovery by the date of her
second injury.
     Claimant's    deposition  testimony  and answers     to
interrogatories   reflect claimant's belief that she     had
reached maximum recovery the date of her second injury.
     We agree with the Workers' Compensation Court that the
medical evidence is inconclusive on the question of maximum
recovery.   Claimant states that she was fully recovered at
the time of her second injury and Dr. Friedrick reached a
similar conclusion.     Although Dr. Seim appears to have
concluded claimant did not reach maximum healing, Dr. Seim
did not examine claimant between January, 1981 and July,
1982.
     The Workers' Compensation Court found that Intermountain
did not meet its burden of proof necessary to shift liability
to Church Mutual regarding claimant's second injury. Where
there is substantial evidence to support the findings of the
Workers' Compensation Court, this Court cannot overturn the
decision. Dumont v. Wickens Bros. Construction Co. (1979),
183 Mont. 190, 598 P.2d 1099. In this instance, we find that
the record supports the conclusions of the court below. The
Workers' Compensation Court is affirmed.




We concur:
  A
