No. 90-279 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

JON E. LEE, 

Claimant and Appellant, 

GROUP W CABLE TCI OF MONTANA, 

Employer, 

and 

PACIFIC EMPLOYERS INSURANCE CO., 

Insurer and Respondent. 

APPEAL FROM: The Workerst Compensation Court of the 

State of Montana, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Martin, Esq., Alexander, Baucus & 

Linnell, Great Falls, Montana 

For Respondent: 

William 0. Bronson, Esq., James, Gray & 

McCafferty, Great Falls, Montana 

Submitted on Briefs: October 19, 1990 

Decided: November 8, 1990 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Jon E. Lee appeals the judgment of the Montana Workers1 

Compensation Court, which held that Lee's 1986 back injury, 

sustained in the course and scope of his employment, was not the 

proximate cause of his current permanent partial disability. 

Rather, the court held that Leels current disability resulted from 

a separate injury occurring on January 25, 1989, and denied Lee 

indemnity benefits for his current disability under 55 39-71-703 

to -709, MCA (1985). We affirm. 

Lee raises the following issues on appeal: 

1. Did Pacific Employers Insurance Company sustain its burden 

of proof that a subsequent injury caused Lee's disability? 

2. Did Lee's subsequent 1989 injury extinguish a permanent 

partial disability entitlement from his previous 1986 injury? 

Jon E. Lee has been employed by a cable television company in 

Great Falls, Montana, since 1973. Lee was originally hired as an 

installer, later promoted to a service technician, and for the past 

fourteen years, has served as a system technician. All of these 

employment positions involve physical, outdoor duties. 

Lee reported back injuries on three different occasions while 

in the course and scope of his employment. First, on June 14, 

1984, Lee injured his back while replacing defective cable located 

under a driveway at a Great Falls residence. Lee filed a claim for 

compensation with the Montana Division of Workers1 Compensation on 

December 20, 1984. Lee's treating medical physician, Dr. John 

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Molloy, diagnosed Leels injury as muscle tension and prescribed 

muscle relaxants for his condition. According to his claim for 

compensation, Lee missed eleven days of work from this injury. 

Second, on August 15, 1986, Lee injured his back while 

replacing cable in a four-foot-deep trench. Lee filed a claim for 

compensation with the Montana Division of Workers' Compensation 

around August 29, 1986. Lee obtained the services of Dr. William 

Pardis, and later Dr. Jim Pardis, both chiropractors. Dr. William 

Pardis initially diagnosed Lee's injury as lumbar radiculitis, and 

prescribed manipulation treatments. Dr. Jim Pardis concurred in 

this diagnosis. Lee received 232 chiropractic treatments from the 

chiropractors over a period of about three years, these treatments 

being labeled primarily as maintenance treatments. Lee returned 

to work on the day following this injury according to his filed 

claim for compensation. 

Third, on January 25, 1989, Lee injured his back on the job 

while unloading a thirty-eight-pound piece of equipment known as 

a sweeper from his truck. Lee filed a claim for compensation 

following this incident. Dr. Jim Pardis stated that this injury 

was both an exacerbation of the 1986 injury and a new injury 

because it was in the same location in the back but more extensive. 

Unlike the two previous injuries, Lee missed approximately three 

months of work following this 1989 injury. 

An independent medical examination was conducted by Dr. Robert 

Chambers, an orthopedic surgeon, on March 9, 1989. Dr. Chambers 

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diagnosed Lee to have chronic lumbar strain syndrome. When asked 

if he thought Lee's disability was caused by a recurrence of the 

same condition or an aggravation or increase of a condition, Dr. 

Chambers responded: 

I think to analyze Mr. Lee's case from my 

standpoint, I would say that he was treated in 

the so-called conservative or standard way by 

Dr. Molloy back in the early 19801s, and yet 

he was not rehabilitated or treated with the 

view of prevention and correcting the underlying deficits, which I think in most cases, as 

I said, are relative weakness of the trunk 

muscles and a lack of knowledge of proper body 

mechanics and work skills related to that. 

And I would look at it that way, rather than 

saying this is an injury that he had for six 

or seven years. An injury is an incident, to 

my mind, and an injured part heals itself. 

Underwriters Adjusting Company was the carrier at risk for the 

1984 injury, which is not the subject of this litigation. Pacific 

Employers Insurance Company (Pacific) is the insurer for Lee's 1986 

and 1989 injuries. Medical benefits have been paid by Pacific on 

both injuries. 

On July 17, 1989, Lee petitioned the court for trial stating 

that his 1986 injury resulted in a permanent partial impairment and 

that he was entitled to indemnity benefits under 55 39-71-703 to 

-709, MCA (1985), statutes amended or repealed by the 1987 Montana 

Legislature. At Lee's trial, Dan Schara, a certified rehabilitation counselor, testified regarding Lee's vocational assessment. 

Schara, who was unaware of Lee's 1989 injury when he made his 

report, opined that due to Lee's current disability, Lee would be 
unable to continue working at his present job, and his pre-injury 

labor market was reduced by 67percent. 

On May 15, 1990, the court found that Lee's ''current disability, is related to his January, 1989 injury" and thereby, any 

laws in effect in 1986 were inapplicable to Lee's current disability. From this decision, Lee appeals. 

1. Did Pacific Employers Insurance Company sustain its burden 

of proof that a subsequent injury caused Lee's disability? 

The underlying question in both issues presented on appeal is 

whether Lee's 1986 injury or his 1989 injury proximately caused his 

current permanent partial disability. If it were held that Lee's 

1986 injury proximately caused his current disability, Lee would 

be entitled to either receive, 1) benefits based on his actual loss 

of earning capacity or, 2) indemnity benefits based on his 

prospective loss of earning capacity under the 1985 Workers' 

Compensation Act; these provisions were amended by the 1987 Montana 

Legislature. Thus, Lee would receive more benefits if it were held 

that his 1986 injury proximately caused his current disability. 

Lee first argues that Pacific failed to prove that Lee's 

disability was caused by his 1989 injury. Pacific disagrees with 

how Lee framed this issue. Pacific argues that in order for the 

burden of proof to shift to Pacific, Lee must first prove that his 

1986 injury was the cause of his current disability entitling him 

to indemnity benefits under 8s 39-71-703 to -709, MCA (1985). 

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Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 483-84, 512 

P.2d 1304, 1312-13. Pacific further argues that Lee failed to meet 

this burden of proof. We agree. 

In reviewing a decision of the Workers1 Compensation Court, 

the standard of review is whether substantial credible evidence 

exists to support the court's findings of fact and conclusions of 

law. OfBrien v. Guaranty Fund Services (Mont. 1990), 47 St-Rep. 

251, 254 (citations omitted). Clearly, the evidence in this case 

does not support the premise that Lee's 1986 injury was the 

proximate cause of his current disability. Rather, the evidence 

establishes a direct link between Lee's 1989 injury and his current 

disability. Lee returned to work the day following his 1986 injury 

and worked steadily until the 1989 injury, nearly two and one-half 

years later. Following his 1989 injury, Lee missed approximately 

three months of work, this evidence indicating the significance of 

his 1989 injury in relation to his current disability. Medical 

testimony by Dr. Pardis and Dr. Chambers indicate that Lee suffered 

two back injuries. Dr. Pardis stated that Lee's 1989 injury was 

both an exacerbation of the 1986 injury a new injury. Dr. 

Chambers stated that Lee suffered two injuries and that "[aln 

injury is an incident, to my mind, and an injured part heals 

itself. " 

Lee further argues that his 1989 injury was a Mrecurrencell of 

his 1986 injury as opposed to being a separate event. Lee's 

argument has no merit in light of Belton v. Hartford Accident & 

6 
Indemnity Co. (1983), 202 Mont. 384, 387-89, 658 P.2d 405, 408- 

09, where we held that liability for ultimate disability would rest 

upon the injury which had not reached a state of "maximum healing." 

In Belton, the claimant suffered two back injuries while in 

the scope and course of his employment, each injury covered by a 

different insurer. The claimant suffered a permanent total 

disability following the second back injury. The two insurance 

companies were the litigants in this matter, with the issue being 

which company was liable for the benefits to the claimant. This 

Court held that the insurer at the time of the second injury was 

liable for benefits relating to a permanent total disability when 

the claimant reached "maximum healing" from his first back injury 

prior to the time of the second back injury. "' [MI aximum healing' 

. . . conveys the message that the claimant's condition ha[s] 

arrived at a point where it [will] get no better even though the 

claimant . . . still [has] symptoms of the injury whether it be an 

objective sign or a subjective symptom such as pain." Belton, 658 

P.2d at 406. 

Although Belton dealt primarily with the issue of liability 

between two insurance companies, the "maximum healing" rule can be 

applied here to determine which injury proximately caused Lee's 

current disability. Here, Lee lost no work time following his 1986 

injury. Nearly two and a half years elapsed between the 1986 

injury and the 1989 injury; although Lee did report occasional pain 

and other incidences of discomfort in 1986 and continued manipula7 
tive treatments with Dr. Pardis, Lee continued to perform his 

normal work duties steadily up until his January, 1989, injury. 

Based on the above, we hold that substantial evidence exists to 

conclude that Lee reached llmaximum healing1' from his 1986 injury 

prior to his 1989 injury, and therefore, Lee's 1989 injury was the 

proximate cause of his current disability. 

2. Did Lee's subsequent 1989 injury extinguish a permanent 

partial disability entitlement from his previous 1986 injury? 

Alternatively, Lee argues that even if his 1989 injury is 

deemed a separate injury, he is still entitled to indemnity 

benefits under 39-71-703 to -709, MCA (1985), for his 1986 

injury. Lee's argument lacks merit, as we have already determined 

that Lee's permanent partial disability was proximately caused by 

his 1989 injury. 

Moreover, as Pacific's brief indicates, the uncontroverted 

facts of this case reveal that Lee lost no time from work as a 

result of his 1986 injury. Although he continued to report 

instances of pain and discomfort, he lost no work wages from his 

1986 injury. No effort was made in the months after his 1986 

injury to evaluate his functional capacities, measure his labor 

market, and otherwise make a determination of what future loss of 

earning capacity he might have as a result of this injury. Rather, 

all such data was gathered after Lee's 1989 injury, the injury 

which resulted in Lee's approximate three-month absence from work, 

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and according to Lee, resulted in the most pain and suffering. We 

therefore uphold the Workers1 Compensation Courtls holding that any 

benefits owed to Lee for his permanent partial injury are subject 

to the laws in effect at the time of his 1989 injury. 

Affirmed. 

We concur: