                                   NO.    95-218
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


PAULA MOORE,
              Petitioner    and Respondent,
        v.
STATE COMPENSATIONINSURANCE FUND,
              Respondent    and Appellant,
              and Insurer
        for
DAVIS MAINTENANCE COMPANY,
              Employer.



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


COUNSEL OF RECORD:
              For Appellant:
                    Charles G. Adams, Legal Counsel,
                    State Compensation Insurance Fund,
                    Helena, Montana
              For Respondent:
                    Thomas A. Budewitz,         Attorney   at Law,
                    Helena, Montana




Filed
Justice           Terry            N. Trieweiler                         delivered                  the     opinion            of        the      Court.

           Pursuant                to   Section                I,        Paragraph                  3(c),         Montana            Supreme               Court

1995 Internal                    Operating                 Rules,               the      following                decision               shall            not     be

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

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

result           to        State        Reporter                    Publishing                 Company              and       West             Publishing

Company.

           Paula             Moore           filed          a petition                        for         hearing             in         the     Workers'

Compensation                    Court          for         the           State          of     Montana              in    which                she      sought

payment            of        medical            benefits                   by     the         State           Compensation                      Insurance

Fund       for        an injury                 which            she        claimed                 was work             related.                    After            a

hearing,                the        Workers'                Compensation                        Court              held        that             Moore            was

entitled                to      medical              benefits                    for         her       injury.                 The         State               Fund

appeals               from           this            determination.                                  We       affirm               the          findings,

conclusions,                    and judgment                        of     the         Workers'             Compensation                       Court.

           The issue                 on appeal                 is:

           Did        the       Workers'                  Compensation                       Court          err      when           it         found           that

Moore's            back          injury              is     work            related                 and       concluded                  that          she        is

entitled              to       continued              medical               benefits                  for      the       treatment                   of        that

injury?
                                                           FACTUAL BACKGROUND

           On January                   8,      1993,            Paula            Moore             injured          her           lower         back           and

neck       while             throwing          bags         of garbage                    into         a garbage              bin         at work.                At

the      time           of     the       accident,                       Moore          was        employed              as        a janitor                   with

Lonnie       Davis             Maintenance                  Company                (Davis).                 Davis        was insured                      by the


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State      Fund, which accepted                       liability              and paid wage loss                 benefits        to
Moore from February                     3, 1993 through                      July    20, 1993.
          Moore was initially                        treated          for     her    injuries            by Dr.       William
Batey,          who diagnosed                her     condition              as lumbar          strain         and cervical
strain.          Dr.        Batey prescribed                Relafen            (an anti-inflammatory                       drug),
physical         therapy,           and no work for                   one week.           When her condition                   did
not improve             by February            1993, however,                   Dr. Batey           referred         Moore to
Dr.    Allen       Weinert,           a physiatrist,                   for     a further            evaluation.
          Dr.     Weinert            first          examined            Moore       on      April        9,     1993.           He
recommended continued                        physical        therapy,           and prescribed                Naprosyn         (an
anti-inflammatory                   drug)          and Flexeril               (a muscle relaxant).                     He also
approved          her return            to work in a "modified                            janitorial           position."
          Moore arranged                 a modified               position          with       Davis       in       which      she
could       slowly           increase          her        time     at        work    to      five       hours       per      day.
Before          she     could        return          to     work,           however,         Moore       experienced                a
flare-up          of        her     condition.                    On April            13,       1993,         Dr.     Weinert
determined            that        Moore's      return            to work should              be postponed              for     one
week.       He also           concluded             that     a job as bartender,                        which       Moore had
performed             as     a     second          job     before            her     injury,           was within              her
capabilities.
          Dr.     Weinert          examined           Moore again               on May 11, 1993,                    and noted
that      her symptoms were essentially                                 unchanged.             Dr. Weinert            renewed
Moore's         prescriptions                and encouraged                 her to participate                  in physical
therapy.              Dr.     Weinert         noted        that       Davis         had "decided              not     to     take
[Moore]          back,"          and released               her       to     work    as a waitress                   for     four


                                                                  3
hours    per   day.          As of May 13, 1993,                    Dr Weinert           did     not    feel      that
Moore had reached              maximum medical               improvement.
        In May, Moore returned                     to her       job     as a waitress,                  where        she
worked four      to six hours per week.                       At trial,            she reported           that       she
continued       to      suffer         back       pain       during         that        time.           Moore        was
terminated      from her             employment          in May or June 1993.                      She has not
been employed           since.
        Moore next           saw Dr. Weinert             on July       26, 1993.               She reported           at
that    time   that         her back pain was much improved,                            although        she still
experienced       some occasional                 low back pain.               Dr.       Weinert        concluded
that    Moore had reached                 maximum medical              improvement              and that         there
was no basis          for     a permanent          impairment          rating.           He released             Moore
to return      to her former               jobs    as janitor           and bartender.
        On August            26,      1993,       Moore       returned             to   Dr.      Weinert          with
complaints      of      increased          low back pain,              and pain           and stiffness               in
the neck region.              Dr. Weinert          renewed her prescription                       for    Relafen,
and     recommended                physical        therapy            and      lumbar            stabilization
exercises.
        Moore returned               to Dr.       Weinert       on September               20,     1993,       for       a
follow-up      appointment.                   She reported             an acute            flare-up         in       her
condition      following            a day spent          cleaning       a trailer              home before           she
moved into      it.          Dr.    Weinert       diagnosed           "chronic          musculoligamentous
low     back    pain."               He    refilled           her      Relafen           prescription                and
emphasized      the importance                of completing             her physical              therapy.




                                                         4
         Dr.    Weinert         wrote      to   the State                 Fund on September                   20,     1993.
Responding            to questions          raised       by the State                 Fund,         he said:
         Ms. Moore re-exacerbated       her musculoligamentous     low back
         pain in early August.       . . . I do feel that her condition
         is temporary,    however, she has not received the treatment
         that was recommended at this time and has re-aggravated
         her back one week ago when moving into                her trailer.
         Prognostically     I feel      Ms. Moore's      condition    should
         resolve with appropriate       treatment,   although she will be
         predisposed    to recurrent     injury.
         The State           Fund refused          to pay further                    benefits          to Moore for
treatment         on and after            August      26, 1993.                  The State          Fund maintained
that     Moore's        condition         in August          1993 was related                       to a subsequent
nonwork-related               injury.
         At trial,           Moore testified           that          she was never                  completely         free
of pain        between        July      26 and August              26.          She stated           that     there     had
been occasional               flare-ups         throughout                that     time.            Moore testified
that     such activities                as doing       the dishes,                 taking           long     car    rides,
and going         on walks           worsened        her     condition.                 On the         day that         her
symptoms          reoccurred            while    cleaning                 her     trailer,           she     was      "just
trying        to clean        the cupboards,           vacuum,              dust."
         In     his      deposition,            Dr.         Weinert              testified            that         Moore's
condition         on August          26, 1993,        was "consistent                        with     a flare-up          of
her condition"               and acknowledged              that      it     was related             to her original
injury        which     occurred         at work.
         The Workers'            Compensation              Court          concluded           that     Moore's         pain
did not arise            from any new trauma,                     specific           event,         or injury.          The
court      held       that     the      State      Fund had failed                     to      prove        that      Moore
suffered        a nonwork-related               injury            after         reaching        maximum healing,
as provided            in 5 39-71-407(5),                 MCA.      It        further        held     that     Moore is
entitled           to continued           medical        benefits             for        her back condition.
                                                  DISCUSSION
           The sole       issue        on appeal         is whether            the Workers'            Compensation
Court        erred     when it         found     that     Moore's         continuing            symptoms are due
to a work-related                    injury      and concluded                that        Moore is      entitled      to
continued            medical      benefits         for     the treatment                   of that     injury.
           We employ          two standards              of review            for        workers'      compensation
court        decisions:              We review          the findings                of fact      to determine         if
they are supported                   by substantial,             credible            evidence,         and we review
conclusions            of law to determine                  if     they        are correct.              Turjan Y. Valley

ViewEstates          (Mont.     1995),         901 P.2d          76, 79,            52 St.     Rep.     740,     741-42

( citing          Caekaert Y. State Compensation Mutual Ins. Fund                    ( 19 94 ) , 2 6 8 Mont . 10 5 ,

111,       885 P.2d 495,             498).
           The State          Fund maintains              that     Moore suffered                    a new "injury"
while        cleaning          her     trailer          and that         it         is     thereby      relieved      of
liability            pursuant        to 5 39-71-407(5),                  MCA, which provides:
                If  a claimant  who has reached maximum healing
        suffers    a subsequent nonwork-related    iniurv     to the same
        part of the body, the workers'        compensation      insurer     is
        not liable     for  any compensation     or medical        benefits
        caused by the subsequent nonwork-related         injury.
(Emphasis            added.)
           Section       39-71-119,           MCA (1993),          provides:

            (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,
        dentures,      or hearing aids; or

                                                            6
                        Cc)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.

             Moore       initially                   has     the     burden           of        proving          that         her     prior

work-related                   injury          was the             cause        of    her       later      disability.                      Lee v.

Group     WCableTCIofMontann                          (1990),         245 Mont.                292,       295,      800       P.2d          702,

705.           Once       she        has       established                 a causal              connection             between              her

current          condition               and her           January          1993 accident,                  the     burden           shifts

to     the      State         Fund.           Lee,     800    P.2d         at    705.          The State           Fund must                then

demonstrate                   that        a     subsequent             accident                 caused        Moore's               current

condition.
          The          Workers'               Compensation                  Court           found         that          the         medical

evidence             supported                Moore's         contention                that       her     current            condition

was causally                  related           to     the    January            1993 injury.                We conclude                    that

this         finding           was supported                  by     substantial                 evidence.              Dr.         Weinert

testified               with         a     reasonable                degree           of        medical           certainty                 that

Moore's          condition                was a "flare-up"                       of     her       preexisting             condition.

He described                   her       condition            in     August           1993        as     "nearly         synonymous"

with      her     earlier            compensable                work-related                   injury.           When asked            if      he

considered              Moore's            condition               to be a new injury,                      he testified                    that

it     was not.




                                                                       7
           The State         Fund contends           that        the events         which        occurred            while
Moore cleaned               her trailer         satisfy         the requirement             that        there        be an
"accident"           which         causes     an "injury,"               as defined         in     5 39-71-119,
MCA.        The State         Fund asserts           that        although      Moore was not               involved
in one isolated,                discrete        event       while        cleaning       her trailer,                 it     is
sufficient           that     all     activities          which      produced        additional            symptoms
occurred        on one day and that                   the physical             result       was unexpected.
According           to the State          Fund, because the events                     occurred          on one day
at     a    single        location,         and because             Moore      suffered            "harm        to         the
body,"       as required            by 5 39-71-119(l)             (a),    MCA, Moore's             condition               was
most likely           the result          of a new "injury."                 The State           Fund relies                on
Welch v.AmericanMineServices,               Inc. (1992),         253 Mont.          76,   831 P.2d 580,                     to

support       its     position.             We hold       that      Welch is      inapposite.

           An injury         must meet all              three       requirements            of     § 39-71-119,
MCA:        there     must be an "injury"                   and an "accident,"                  and the          injury
must be caused by the accident.                                 Welch, 831 P.2d at               584.      The 1987

amendments to the Workers'                          Compensation            Act     specifically            require
that       an accident         be "identifiable                 by time      and place           of occurrence"
and be "caused                by a specific             event       on a single             day or         during            a
single       work shift."             Section       39-71-119(2)           (b) and (d),           MCA (emphasis
added).              In     Welch,     we held          that        an     infection         caused             by         the

claimant's           new boots         rubbing       sores       on his      feet      during       a single               day
of work constituted                   a "specific           event         . . . during           a single                 work
shift,"         and         thus      met     the     accidental              injury        requirement                     of
5 39-71-119,              MCA. Welch, 831 P.2d at 584-85.                           Our holding           was based

                                                            8
on      the     fact       that      there          was a single,                identifiable                 event--the
rubbing         of the boots--which                   caused the claimant's                       injury.
          In this       case,       the State         Fund has failed                to identify              a specific
incident         during      Moore's          day of cleaning              (i.e.,      vacuuming              or lifting
a box) that            caused Moore's               back pain.            Moore testified                   that     she had
been performing                 normal        household        cleaning          duties      when her symptoms
reoccurred.              Unlike          the claimant              in   Welch, who could                 point        to his

tight         boots    as the        cause of his              pain,       Moore could                not     identify            a
specific         cause of her back pain.                           While Moore's            condition              may have
arisen         as a consequence                of a single              day of cleaning,                    her pain        was
not attributable                  to a "specific              event"      at an identifiable                       time,       as
required         by § 39-71-119(2)                  (a),     MCA.
         The State           Fund further              contends          that       although           Moore did            not
suffer         an      "unexpected             traumatic            incident,"            she         did      suffer          an
"unusual         strain,"          as required              by § 39-71-119(2)                (a),        MCA, because
the      symptoms she experienced                          following        her activity                 on that           date
were       unexpected.               However,              according        to      the      testimony               of     her
treating            physician,           it     was not            unexpected             that        following             her
original          injury          she would          experience            flare-ups             of     her        symptoms
based on normal                 activities.                In fact,        Dr.      Weinert           testified            that
based on her original                    injury,           a flare-up       could occur               from something
as trivial            as rolling          over       in bed.
         We conclude              that        the    Workers'           Compensation             Court's             finding
that     Moore did not sustain                      a new injury           while       cleaning              her trailer
is      supported          by     substantial               evidence,           and therefore,                     that     the


                                                               9
Workers'     Compensation         Court    correctly          concluded      that   the   State      Fund
is   not   relieved      of    liability         for    her    continued        medical     expenses

pursuant     to    § 39-71-407(5),          MCA.

       We affirm      the     judgment      of    the   Workers'          Compensation      Court.




We concur:




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