NO. 94-605

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

AETNA CASUALTY & SURETY COMPANY,

Petitioner and Respondent,

and

STATE COMPENSATION INSURANCE FUND,

Defendant, Respondent

and Cross-Appellant,

v.

IN RE: MARLA SMITH,

Claimant and Appellant.

APPEAL FROM: Workers' Compensation Court, State of Montana,

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Darrell S. Worm; Ogle & Worm, Kalispell, Montana

For Respondents:

Charles E. McNeil; Garlington, Lohn & Robinson,

Missoula, Montana

Charles G. Adams, Legal Counsel, State Compensation

Insurance Fund, Helena, Montana

Filed:

Submitted on Briefs: June 29, 1995

Decided: August 4, 1995

Clerk f
Justice W. William Leaphart delivered the Opinion of the Court.

Marla Smith (Smith) appeals from an order of the Workers'

Compensation Court, finding that she had not reached maximum

medical improvement before she suffered a second injury and

concluding that she should be compensated based on her first injury

not her second injury. We affirm.

Facts

On February 28, 1989, Smith injured her back in the course of

her work for Crop Hail Management (Crop Hail). Crop Hail was

insured by the State Compensation Insurance Fund (State Fund),

which accepted liability and paid medical and disability benefits.

Smith underwent surgery and physical therapy. The exact nature of

her injury is not material to our decision but her back pain

persisted and gradually worsened.

On April 22, 1992, Smith again injured her back in the course

of her work. This injury exacerbated her existing back pain and

symptoms. She again received surgical and physical therapy

treatments. Her condition worsened to the point that, in August

1992, she permanently left her job. At the time of Smith's April

1992 injury, Crop Hail was insured by Aetna Casualty and Surety

Company (Aetna). State Fund denied her claim but Aetna paid

medical and disability benefits under a reservation of rights to

seek indemnification. Smith's 1989 compensation rate was $114.20

per week. Her 1992 compensation rate was $200.80. Smith argued

that the April 1992 injury was new and therefore she should be
compensated at the 1992 rate.

The Workers' Compensation Court concluded, based on testimony

from two of the three doctors who treated Smith, that Smith had not

reached maximum healing prior to her April 1992 injury and that the

February 1989 injury was degenerative and would have required

further treatment regardless of the April 1992 injury. The court

concluded that (1) State Fund was liable for Smith's low back

condition at the LS-Sl vertebral level, and (2) Aetna was,

therefore, entitled to indemnity from State Fund for medical

expenses paid by Aetna and for disability benefits paid by Aetna at

the 1989 rate of $114.20 per week. Aetna did not file a crossappeal with regard to the disability benefits it paid in excess of

the 1989 rate. It is from this decision that Smith appeals.

Standard of Review

When we review a Workers' Compensation Court's

decision, we determine whether it is supported by

substantial credible evidence. Plainbullv. Transamerica

Insurance (1994), [264 Mont. 120, 126-27,l 870 P.2d 76,

80. . . . Where conflicting evidence has been presented,

we examine whether substantial evidence will support the

decision of the Workers' Compensation Court -- not

whether the evidence might have supported contrary

findings. Smith-Carter v. Amoco Oil (1991), 248 Mont.

505, 510, 813 P.2d 405, 408.

Buckentin v. State Compensation Insurance Fund (19941, 265 Mont.

518, 520, 878 P.2d 262, 263.

Discussion

Smith was treated and/or examined by three doctors. The

Workers' Compensation Court based its decision on the conclusions

of these three doctors. Doctors Mahnke and Martini concluded that

Smith had not reached maximum medical healing prior to her April

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1992 injury. Dr. Hilleboe testified that Smith had reached maximum

medical healing prior to April 1992, but the Workers' Compensation

Court noted that l'[Dr. Hilleboel defined maximum medical healing as

meaning that he would not do anything different therapy-wise within

a year." The Workers' Compensation Court further noted that all

three doctors agreed that the condition resulting from Smith's

February 1989 injury was a degenerative one.

The Workers' Compensation Court's decision is supported by

substantial credible evidence in the record. See Buckentin, 878

P.2d at 263. Dr. Hilleboe's conclusions conflicted with those of

Drs. Mahnke and Martini. Drs. Mahnke and Martini's testimony,

however, supplied the requisite substantial evidence necessary to

support the decision of the Workers' Compensation Court: We do not

review the record to consider whether the evidence might have

supported contrary findings.

Affirmed.

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 Supreme Court and by a report of its result

to Montana Law Week, State Reporter, and West Publishing Company.

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