                                No. 8 9 - 1 3 8

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1990



ROBERT D. RICHTER,
                 Claimant and Respondent,
         -vs-
SIMMONS DRILLING, INC., Employer,
       and
INDUSTRIAL INDEMNITY COMPANY,
                 Defendant and Appellant.




APPEAL FROM:     Workers' Compensation Court, The Honorable Timothy
                 Reardon, Judge presiding.
COUNSEL OF RECORD:

         For Appellant:
                 David A. Hopkins; Marra, Wenz, Johnson c Hopkins,
                 Great Falls, Montana
         For Respondent:
                 Tom L. Lewis; Regnier, Lewis      &   Roland, Great Falls,
                 Montana



                                     Submitted on Briefs:       Sept. 7, 1 9 8 9
                                        Decided:       March 2, 1990

Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the
Court


      Simmons Drilling   and   Industrial   Indemnity   Company,
defendants and appellants, appeal from an order of the
Workerst Compensation Court, which found that Industrial
Indemnity is liable for Workerst Compensation benefits and
must indemnify the State Compensation Insurance Fund for
work related injuries sustained by Robert Richter, claimant
and   respondent.    Industrial   Indemnity   also   appealed   a
subsequent order of the Workerst compensation Court denying
modification of record on appeal.     These appeals have been
consolidated.
      We affirm the Workers1 Compensation Court.
      The following issues are raised on appeal:
      1.   Whether the Workers1 Compensation Court erred when
it denied Industrial Indemnity's motion to modify the record
under Rule 9 (f), M.R.App.P.
      2.   Whether the Workers1 Compensation Court properly
found that Industrial Indemnity was the insurer on risk at
the time of claimant s second injury thereby subjecting
Industrial Indemnity to liability for Workers1 Compensation
benefits and, if so, whether              Industrial Indemnity must
indemnify the State Fund for benefits paid to claimant since
that time.
       On July 5, 1984, Richter was involved in an accident
while employed by Generals Wells Service.                 Specifically, he
was hit by a high pressure power hose, which resulted in a
compound     fracture   of   his       left   leg   for    which   he   was
hospitalized five days.            Richter also sustained a back
injury that became apparent May 8, 1985.                    General Wells
Service was insured for Workers' Compensation by the State
Fund   at   the time of the accident and                  the   State Fund
commenced paying benefits and has continued to pay benefits
to Richter since that date.
       Richter ' s injury was treated by various physicians,
including Dr. Lovitt, whom he first saw on January 7, 1985.
Dr. Lovitt treated Richter's leg injury and on March 20,
1985, released Richter to work without restrictions because
he believed Richter's condition to be medically stable.
       On May 20, 1985, a scan of Richter's back depicted a
small disc herniation.          While Dr. Lovitt diagnosed Richter
as being 50 percent partially disabled, he again released
Richter     to   work   based     on    Richter's    medically      stable
                                  - 3 -
condition.     On June 6, 1985, Dr. Lovitt wrote Richter a
letter cautioning him that while the injury was rather
small, it would be best to Itsit back and wait, and have you
assume as high [an] inactivity level as possible and observe
your symptoms.l1
     On June 26, 1985, Richter began employment with Simmons
Drilling as an oil field worker.         Simmons Drilling was
insured for Workers1 Compensation by Industrial Indemnity at
that time.      On June 27, 1985, Richter injured his back
lifting a pipe that weighed approximately 250 to 300 pounds.
Richter finished his shift but the next day was bedridden.
On June 28, 1985, Richter was treated by Dr. Lovitt for the
back injury.
     On August 19, 1985, Richter filed a claim for Workers1
Compensation with Industrial Indemnity based on his June 27,
1985, injury.      Industrial Indemnity moved to join the State
Fund as an additional defendant but the motion was denied.
The parties agreed to forego a hearing and submitted the
matter on briefs.      The testimony of Richter and Dr. Lovitt
was presented to the Workers' Compensation Hearings Examiner
by deposition.
     On March      1, 1989, the hearings         examiner filed his
findings    of    fact    and   conclusions of    law     and    proposed
judgment with the Workers          Compensation Court.          That same
day, the court issued an order adopting the findings of fact
and conclusions of law of the hearings examiner and entered
judgment, which provided that Industrial Indemnity was the
insurer on risk when Richter's June 27, 1985, accident
occurred   and     that    Industrial     Indemnity was    liable     for
temporary total disability benefits of $286 per week.                 The
court also       found    that the State Fund was          entitled   to
indemnification from Industrial Indemnity for benefits that
the State Fund had paid Richter after the June 27, 1985,
injury .
     The judgment was deemed final on March 1, 1989, and
notice of appeal to this Court was filed on March 21, 1989.
On July 27, 1989, Industrial Indemnity filed a motion to
modify the record on appeal with the Workersv Compensation
Court.     The motion was denied on October 24, 1989.                 On

November 17, 1989, Industrial Indemnity filed notice of
appeal from the Workersv Compensation Court order denying
modification of the record and, on November 28, 1989, filed
a motion to consolidate the modification appeal with its
                                  - 5 -
March    20,   1989    appeal.      This Court granted            Industrial
Indemnity's motion to consolidate the appeals on December
29, 1989.
        The first issue to be discussed on appeal is whether
the     Workers'     Compensation    Court    erred   when    it     denied
Industrial Indemnity's motion to modify the record under
Rule 9 (f), M.R.App.P.
      The Workers' Compensation Court, in its order denying
Industrial Indemnity's motion to modify record on appeal,
stated that, "Defendant has not presented good cause for
reopening the record and adding additional evidence at this
stage of the litigation.''       We agree.
        Industrial Indemnity contends that the original record
on appeal was void of certain medical records because it had
not been provided with the records in its request for
production of documents nor had it discovered the records
prior    to    the    determination    of    the   issue     in    Workers1
compensation Court.         Richter, however, contends through
counsells affidavit,         that     he     did   provide    Industrial
Indemnity the medical records in his possession at the time
of the request but that the records in question were not in
the possession of the claimant or his counsel nor were they
                                 - 6 -
in existence at the time of Richter's response to request
for production and, therefore, were impossible to produce at
the time requested.
        Industrial Indemnity relies on Rule 9(f), M.R.App.P.,
in making its motion.        Rule 9(f), M.R.App.P.,     provides:
     If any difference arises as to whether      record
     G u l v discloses what occurred in the district
     court, the difference shall be submitted to and
     settled by that court and the record made to
     conform to the truth.    If anything material to
     either party is omitted from the record by error
     or accident or is misstated therein, the parties
     by stipulation, or the district court, either
     before or after the record is transmitted to the
     supreme court, on proper suggestion or of its own
     initiative, may direct that the omission or
     misstatement be corrected, and if necessary that a
     supplemental record be certified and transmitted.
     All other questions as to the form and content of
     the record shall be presented to the supreme
     court. (Emphasis added.)
     To prevail      under      a Rule   9(f),    M.R.App.P.,   motion,
appellant must show that the record does not truly disclose
what occurred in the court below.                The record appellant
seeks to introduce here was not a part of the proceedings
below    at   the   time   of    those   proceedings.      Rule   9(f),
M.R.App.P., is not applicable under these circumstances.            We
affirm the Workers1 Compensation Court on this issue.
     The    second    issue    raised on     appeal      is whether    the
Workers1 Compensation Court properly found that Industrial
Indemnity was the insurer on risk at the time of Richter's
second     injury    thereby    subjecting    it    to     liability   for
Workers'     Compensation       benefits     and,     if    so,   whether
Industrial Indemnity must          indemnify the State Fund            for
benefits paid to Richter since that time.
     Here, two accidents were involved--one on July 5, 1984,
when Richter was employed by General Wells Service, insured
by the State Fund, and one on June 27, 1985, when Richter
was employed by Simmons Drilling, insured by                   Industrial
Indemnity.      In this case, a subsequent event caused an
aggravation of a pre-existing injury.               Thus, in order for
Richter to receive compensation from Industrial Indemnity
for the second injury, the evidence must show that Richter
reached a medically stable condition before the occurrence
of the second injury.          Belton v. Carlson Transport (1983),
202 Mont. 384, 658 P.2d 405.
     In Belton, 658 P.2d          at 409-10, we stated that the
burden is on the insurance company that was l1on risk1'at the
time of the accident.      The insurer seeking to avoid payment,
in this case Industrial Indemnity, has the burden of proving
                                  - 8 -
that claimant's present condition was caused by an accident
that occurred when another insurer was on risk.         Little v.
Structural Systems (1980), 188 Mont. 482, 614 P.2d 516,
(overruled on other grounds in Belton, 658 P.2d at 408).
The   burden    of    disproving   Richter's   medically    stable
condition is on Industrial Indemnity since it is seeking to
avoid payment    of Workers1 Compensation benefits          for an
accident that occurred while Richter was employed by Simmons
Drilling, its insured.        The Workers1 Compensation Court
found that Industrial Indemnity did not meet the burden in
proving that Richter was medically        stable prior to his
subsequent employment.
      On March 20, 1985, Dr. Lovitt released Richter to work
without restrictions because he felt Richter's condition was
medically   stable.      On May    20, 1985, after    Dr.   Lovitt
examined Richter for his back problems, Dr. Lovitt advised
Richter that he could return to work.      Although Richter was
found to be "partially disabled, probably 50 percent,I1 Dr.
Lovitt felt that Richter's condition was medically stable.
While Dr. Lovitt did write Richter a letter on June 6, 1985,
and advised him to "sit back," Dr. Lovitt never stated that
Richter's condition was not medically stable.        In fact, Dr.
                              - 9 -
Lovitt    reiterated   in    his   deposition   that   Richter   was
medically stable at the time of his second injury.
     ~ndustrialIndemnity argues that the fact that Richter
injured his back on the second day he was employed by
Simmons Drilling was indicative of his medical condition.
Nevertheless,   the mere     fact that Richter was     injured   the

second day he worked for Simmons Drilling is not, in and of
itself, proof that he had not reached a medically stable
condition.
     Industrial Indemnity has failed to persuade this Court,
as it failed to persuade the Workers' Compensation Court,
that Richter had not reached a medically stable condition
when his second injury occurred because it did not meet its
burden of proof and, thus, is liable, as the insurer of
Simmons    Drilling,   for    Richter's   Workers'     Compensation
benefits in the amount of $286 per week.          Because we hold
Industrial Indemnity liable for benefits due as the insurer
on risk when the June 27, 1985, accident occurred, we also
hold that it must indemnify the State Fund for benefits the
State Fund paid Richter since that date.
    Affirmed.
W e Concur:         /

4K *    Chief J u s t i c e
