No. 90-561 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

LEO BODILY, 

Petitioner and Appellant, 

-vsJOHN JUMP TRUCKING, INC., Employer, and 

STATE COMPENSATION MUTUAL INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers1 Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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

For Respondent: 

Richard E. Bach, State Comp. Mutual Ins. Fund, 

Helena, Montana 

OCT 2 9 1991 Submitted on Briefs: May 16, 1991 

I 

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

Claimant Leo Bodily filed a petition in the Workers' 

Compensation Court to recover disability and medical benefits as a 

result of injuries he alleged he sustained during the course of his 

employment with John Jump Trucking, Inc. Following trial before 

the court's hearing examiner, the court concluded as a matter of 

law that claimant failed to give adequate notice of his injury to 

his employer, as required by 5 39-71-603, MCA (1985), and that 

claimant's disability did not result from an injury as defined in 

5 39-71-119 (1) , MCA (1985) . From the judgment entered pursuant to 

those conclusions, claimant appeals. We reverse. 

The issues which control our decision are the following: 

1. Did claimant provide his employer with timely notice of 

his injury pursuant to 5 39-71-603, MCA (1985)? 

2. Did claimant sustain an injury within the meaning of 

5 39-71-119(1), MCA (1985), during the course of his employment 

with John Jump Trucking, Inc.? 

FACTUAL BACKGROUND 

In 1979, prior to his employment with John Jump Trucking 

(hereinafter referred to as tlJumplt), claimant sustained severe 

injuries while operating a logging truck when a log rolled off the 

truck and landed on him. Robert Schimpff, M.D., a board certified 

neurologist, who treated him at the hospital for that injury, 

diagnosed hemorrhaging into claimant's cervical spine, a collapsed 

right lung, fracture of several ribs, fracture of his scapula, 
injury to several intervertebral discs in his lower back, internal 

injuries, and injuries to his right wrist and foot. 

However, claimant recovered from those injuries sufficiently 

to go to work for Jump as a logging truck driver in March 1981. He 

worked for Jump continuously until taking a leave of absence for 

medical reasons on July 8, 1986. 

Claimant testified that the only residual impairment that he 

was aware of from his 1979 accident was some loss of strength in 

his right arm. However, in December 1985, he began developing loss 

of strength in his left arm. Over the course of the next six 

months, his left-sided symptoms progressed from weakness to muscle 

spasms, cramps, and numbness in his lower left extremity, as well 

as his upper left extremity. Claimant testified that by July 8, 

1986, he was experiencing terrible neck pain, loss of strength on 

his left side, and was so impaired by pain medication that he felt 

it was unsafe for him to continue operating a logging truck on the 

state's highways. By July 8, 1986, he determined that he could not 

continue with his employment, and asked his employer for permission 

to take leave from his job so that he could seek medical treatment 

for his condition. 

Claimant testified that prior to leaving work on July 8, 1986, 

he met with his employer, John Jump, and explained that he felt it 

was unsafe for him to continue working, due to his physical 

condition. He testified that he also recalls explaining to Jump 

that although he felt reasonably comfortable upon arriving at work, 
within a couple of hours after getting into his truck and being 

exposed to the bouncing around that occurred from operating that 

truck on logging roads, he could no longer stand the pain. When 

the pain developed he was forced to take Tylenol I11 with codeine. 

After taking leave from his employment, claimant went to the 

Veteran's Administration Center at Fort Harrison to be examined in 

an effort to determine the cause of his complaints. However, the 

VA Center had no neurology department, and therefore, put him on a 

waiting list for an examination at the Veteran's Administration 

Center in Salt Lake City, Utah. He was accepted at the VA Center 

in Salt Lake City on about July 21, 1986, and was discharged on 

August 5, 1986. However, the physicians at the VA Center were 

unable to explain the physiological basis for claimant's 

complaints, and speculated that they may result from nerve root 

irritation or multiple sclerosis. Claimant's multiple sclerosis 

had been diagnosed in 1969 and periodically through the years he 

had experienced neurological problems which he attributed to that 

condition. 

Claimant testified that shortly after he returned from Salt 

Lake City he arranged to meet his employer at a restaurant to 

explain what he had learned about his condition, and to discuss a 

date for returning to work. He testified that during that meeting 

he explained to Jump that he did not know the cause of his 

symptoms, but had been advised to rest, exercise, and try to 

rebuild his strength. Claimant testified that he explained to his 
employer at that time that in his opinion if he returned to his job 

his condition would worsen. 

John Jump testified that he recalled claimant taking time off 

from work in July 1986, and assumed that he had been given notice 

by claimant of the fact that he would not be coming to work and the 

reasons for his absence. However, he testified that he had no 

specific recollection of the explanation given to him by claimant 

for claimant's leave of absence. He also recalled having a 

conversation with claimant in a cafe after his return from Salt 

Lake City, but could not recall what was said during that 

conversation. He had no recollection of having been advised by 

claimant that he was having physical problems related to the 

performance of his job. However, he was unable to deny that 

claimant discussed those problems based on any specific 

recollection of his conversations with the claimant. 

During his absence from employment, claimant testified that he 

was unable to rebuild the strength in either arm, but that the pain 

he had been experiencing while working subsided and that he 

eventually ran out of money. He called his employer and asked to 

return to work with a reduced work load. He did return to work on 

October 22, 1986. 

For the first month after returning to work, claimant was 

given easier jobs which did not involve operating a logging truck 

on logging roads. His routes were limited to highway hauls, which 

did not involve as much jarring and jostling of his spine. 
However, after returning to his normal duties, his physical 

condition became progressively worse and the pain which he had 

experienced prior to July 8, 1986, returned. 

Claimant testified that during spring break-up in 1987 he 

again explained to his employer that a few hours after getting into 

and operating his truck, his pain would become intolerable. He 

testified that at that point he and Jump agreed that he could begin 

seeing a chiropractor for his neck pain. However, in spite of his 

efforts to obtain further treatment, claimant testified that by 

June 30, 1987, his left leg started to go numb while at work, and 

by the time he returned home his body had gone numb from the waist 

down. He remained in that condition until he terminated his 

employment with Jump in August 1987. 

Claimant testified that when his symptoms would worsen they 

would do so quickly. For example, when he lost strength in his 

left arm, that development occurred overnight. When he lost 

sensation in his left leg and lower body, that development occurred 

in the course of 24 hours. When pain would develop during the 

course of his employment, it would develop within hours after 

getting into and operating his logging truck. 

On August 4, 1987, claimant returned to Dr. Schimpff who felt 

that, because of the earlier hemorrhaging in the area of claimant's 

spinal cord, further neurological evaluation was warranted. 

Eventually, diagnostic studies illustrated arthritic development 

and stenosis in the area of claimant's cervical spine which was 
compressing or displacing his spinal cord. It was Dr. Schimpffts 

opinion that the condition for which he examined claimant in August 

1987 was the same condition from which claimant was suffering when 

he left work and sought treatment on July 8, 1986. Dr. Schimpff 

testified that in his opinion the original injury that had occurred 

in 1979 predisposed claimant to degenerative changes in his 

cervical spine which were accelerated by the repeated trauma to the 

spine associated with his activities driving a logging truck. It 

was also Dr. Schimpff's opinion that without the traumas caused 

during the course of claimant's occupation, the cervical stenosis 

which was responsible for his neurological symptoms may never have 

occurred, or would probably have occurred years later than it did 

develop. 

Dr. Schimpff described the impact caused by claimantt s 

occupation as repetitive trauma which accelerated the degenerative 

changes in claimant's spine. 

He described the jolting and jarring that claimant experienced 

as a logging truck driver as small injuries which cumulatively 

became a substantial injury. 

Dr. Schimpff also testified that, while the further 

degeneration of claimant's spine occurred over the entire period 

that he worked for his employer, the onset of disabling symptoms 

from that physical condition could have occurred relatively 

suddenly. 
As a result of his diagnosis, Dr. Schimpff referred claimant 

to Albert Joern, M. D., a neurosurgeon. Dr. Joern first examined 

claimant on September 14, 1987, and on September 18 of the same 

year, admitted claimant to the hospital where he performed a 

cervical discectomy and interbody fusion at three levels of 

claimant's cervical spine. 

Based upon what he found when he performed that surgery, and 

based upon his review of claimant's diagnostic studies, it was also 

Dr. Joern's opinion that the condition for which he operated on 

claimant was related to his employment as a logging truck driver. 

Dr. Joern explained that during his operation he observed severe 

degeneration at three levels of the cervical spine, but that films 

which were taken of claimant's neck in 1979 showed no such disc 

damage. From that he was able to conclude that between 1981 and 

1987 these discs herniated. 

Dr. Joern explained that, in his opinion, claimant had an 

injury to his neck in 1979 which did not produce a herniation, but 

which produced weakness or some internal disruption; and that due 

to claimant's subsequent employment which involved bouncing around 

in a logging truck day after day, his neck was subjected to 

repeated stresses. He testified that through a cumulative 

traumatic process over a period of three to four years those discs 

were caused to bulge, scar down, calcify, and stabilize. In his 

opinion, the primary occupational factor that ultimately made 
surgery necessary for claimant was the bouncing associated with 

operating a logging truck over logging roads. 

It was Dr. Joernfs opinion, however, that the symptoms 

associated with claimantfs worsened neurological condition appeared 

to have developed from late 1985 through mid-1986 when claimant 

presented at the VA Hospital with neurological impairment. 

By the time Dr. Joern saw claimant in 1987, he considered his 

condition a medical emergency. 

On November 17, 1987, claimant filed his claim for 

compensation, alleging that he had been injured during the course 

of his employment and setting forth July 6, 1986, as the date of 

his injury. 

The Workersr Compensation Court's findings of fact were less 

specific, but not significantly different from those facts 

previously set forth in this opinion. However, that court 

concluded that as a matter of law the information given by claimant 

to his employer was not sufficient to satisfy the notice 

requirement of 5 39-71-603, MCA (1985). The Workersf Compensation 

Court concluded that there was not a statement by claimant to his 

employer of an injury related to his job which was sufficient to 

notify a reasonably prudent employer that there may be a potential 

compensation claim. 

The Workersr Compensation Court further concluded that 

claimant did not suffer an injury as defined in 5 39-71-119(1), 

MCA, because the period of time over which the injury occurred 
lacked sufficient time definiteness to qualify as an injury 

according to the previous decisions of this Court. 

Did claimant provide his employer with timely notice of his 

injury pursuant to 5 39-71-603, MCA (1985)? 

The notice requirement in effect at the time of claimant's 

injury was § 39-71-603, MCA (1985). It provided that: 

No claim to recover benefits under the Workers' 

Compensation Act, for injuries not resulting in death, 

may be considered compensable unless, within 60 days 

after the occurrence of the accident which is claimed to 

have caused the injury, notice of the time and place 

where the accident occurred and the nature of the injury 

is given to the employer or the employer' s insurer by the 

injured employee or someone on the employee's behalf. 

Actual knowledge of the accident and injury on the part 

of the employer or the employer's managing agent or 

superintendent in charge of the work upon which the 

injured employee was engaged at the time of the injury is 

equivalent to notice. 

To conclude claimant's notice to his employer was inadequate, 

the Workersr Compensation Court relied on our decision in Reil v. 

BillingsProcessors,Inc. (1987), 229 Mont. 305, 746 P.2d 617. The scope 

of our review is to determine whether the decision in that case was 

correctly applied to the fact situation in this case. Therefore, 

the standard for review is to determine whether the trial court's 

interpretation of the law, as applied to the facts in this case, is 

correct. Wassbergv.AnacondaCopperCo. (1985), 215 Mont. 309, 697 P.2d 

909. In Reil, the claimant suffered from congenital deformities in 

both arms. Following several operations and various jobs, claimant 
was employed as a computer operator where he lifted boxes, unloaded 

computer tape reels, and performed light janitorial work. The work 

he did, as well as recreational activities that he performed, 

caused pain in his arms. 

Reil occasionally complained to his employers about the pain 

that he experienced in his arms. However, we concluded that those 

complaints were insufficient to constitute notice under 

8 39-71-603, MCA, for the following reasons: 

However, Reil did not relate to his employers that this 

pain was as a result of his work related duties. Reil's 

employers assumed that his problems were merely the 

consequences of the congenital deformities. Reil did not 

ask to be reassigned to another position nor did he 

request that his employers modify his duties to reduce 

the necessity for use of his arms and hands. 

Reil, 746 P.2d at 618. 

We held that: 

The fact that Billings Processors knew Reil was 

experiencing pain, either taken alone or cumulatively 

with the other facts of this case, does not constitute 

actual knowledge. Accordingly, the lower court erred in 

finding that Billings Processors had actual knowledge of 

Reills alleged injury. We find that Billings Processors 

had no actual knowledge of either an injury or a jobinduced aggravation of a preexisting condition in this 

case. 

Reil, 746 P.2d at 623. 

The facts in this case are significantly different. According 

to claimant's testimony, he did relate his pain and deteriorating 

physical condition to his employment. He explained that within two 

hours after getting into and operating his truck, the pain he 
experienced became extreme. He advised his employer, after being 

off work for a period of time, that his symptoms had improved, but 

that he was afraid to return to work too soon for fear of 

re-aggravating his condition. When claimant did return to work, he 

requested that he be allowed to avoid rough roads for awhile so as 

not to aggravate his condition; and after returning to normal 

duties, he again informed his employer that within hours after 

entering and operating his truck his physical condition was 

intolerable and it was necessary to consume significant pain 

medication. Unlike Reil, claimant did associate his symptoms with 

his employment. He did take time off to recover from his injuries, 

and he did ask to modify his duties to avoid aggravation of his 

condition. 

In Leev.Lee (1988), 234 Mont. 197, 199, 761 P.2d 835, 837, we 

interpreted Reil to mean that, [tlhe employer must have notice that 

the claimant considers his injury work-related." We relied on the 

following discussion from a leading treatise on workers' 

compensation law: 

It is not enough, however, that the employer, 

through his representatives, be aware that claimant 

!#feels sick", or has a headache, or fell down, or 

walks with a limp, or has a pain in his back, or 

shoulder, or is in the hospital, or has a blister, 

or swollen thumb, or has suffered a heart attack. 

There must in addition be some knowledge of 

accompanying facts connecting the injury or illness 

with the employment, and indicating to a reasonably 

conscientious manager that the case might involve a 

potential compensation claim. 
3 Larson, Workmans' Compensation Law, 5 78.31 (a) (2) 

pp. 15-126 to 15-136 (1988). 

Lee, 761 P.2d at 837. 

In this case, unlike the claimant in Reil, claimant provided 

his employer with all the information he had regarding the nature 

of his injury and its relationship to his employment. Claimant 

knew that he had neck, arm, and leg problems of unknown etiology 

which were made worse after performing his job duties for a short 

period of time. That is all he knew. According to claimant's 

testimony, that is what he reported to his employer. By providing 

his employer with all the information he had regarding the nature 

of his injury, the period of time over which it occurred, and the 

nature of activity that contributed to or caused his condition, 

claimant did all that can be reasonably expected to comply with the 

notice requirement in 5 39-71-603, MCA. 

In this case, where there is a slowly developing injury which 

does not lend itself to precise notification, the requirement of 

5 39-71-603, MCA (1985), is satisfied by giving the employer 

sufficient information to lead a reasonably conscientious person to 

conclude that there may be a connection between the worker's 

condition and his job. 

Claimant's employer testified that he has no recollection of 

being told by claimant that his symptoms were related to his 

occupational duties. However, claimant's employer does recall 

having conversations with claimant about his physical complaints. 
He simply could not recall the substance of those conversations at 

the time of trial. In a similar situation, we held in Harmon v. 

DeaconessHospital (1981), 191 Mont. 275, 623 P.2d 1372, that: 

[Tlhe testimony of a witness that he does not remember 

whether a certain event or conversation took place does 

not contradict positive testimony that such event or 

conversation did take place. [Citations omitted.] 

Harmon, 623 P.2d at 1374. 

Thus, claimant's testimony regarding the substance of his 

conversations with his employer is uncontradicted. 

We have previously held that: 

We must liberally construe the Workers1 Compensation Act 

(3 39-71-104, MCA) , and there is probably no area more 

important to imply a liberal construction than on the 

question of whether sufficient notice was given of the 

accident. 

Ackemnn v. Pierce Packing Co. (1983) , 206 Mont. 508, 511, 672 P. 2d 267, 

While 3 39-71-104, MCA (1985) , has since been repealed, we 

must apply the statutes to this case which were in effect on the 

date of cl a imant s in j ury . Yozlng Motor Co. v. Division of Workers' Compensation 

(1985), 219 Mont. 1, 710 P.2d 58. 

We conclude that claimant satisfied the notice requirement. 

Since claimant's disability was the result of cumulative traumas 

which occurred over a period of time, the date of injury, for 

purposes of complying with the notice requirement, is the date on 

which claimant was first unable to continue with his employment due 

to his physical condition. That date was July 8, 1986. Applying 
a liberal construction to 39-71-603, MCA (1985), we conclude that 

by providing his employer with all the information available to him 

on that date regarding the nature of his injuries, the fact that 

his condition was aggravated by his employment, and the nature of 

job duties which appeared to aggravate his condition, claimant 

complied with the Workers' Compensation Actts notice requirements. 

Did claimant sustain an injury within the meaning of 

5 39-71-119() , MCA (1985), during the course of his employment 

with John Jump Trucking, Inc.? 

It is undisputed that claimant went to work for Jump with 

preexisting pathology in his cervical spine. It is undisputed that 

the condition of his spine made him more susceptible to further 

injury from even minor trauma, if experienced on a regular basis. 

It is undisputed that the bouncing and jarring from operating his 

logging truck did aggravate claimant's underlying condition and 

culminated in the disability for which he first left work on July 

8, 1986. However, in spite of those undisputed facts, the hearing 

examiner concluded as a matter of law that: 

3. Claimant did not suffer an I1injuryt1 as defined in 

Section 39-71-119 (I), MCA (1985) that arose out of and in 

the course of his employment for John Jump Logging. 

The trial court did not explain clearly how it arrived at that 

conclusion. However, in its discussion of that conclusion, it 

stated: 
Where a disabling condition occurs over a long period of 

time, it may be an occupational disease rather than an 

injury. Greser v. United Prestress, Inc. , 180 Mont . 348, 

590 P.2d 1121 (1978). Also, it is important to consider 

the issue of "time definiteness," where a limited and 

specific exposure to fumes and chemicals satisfied both 

unexpectedness and time definiteness required by the 

injury statute. Bremer v. Intermountain Ins. Co. , 223 

Mont. 495, 727 P.2d 529, 43 St.Rep. 1942 (1986). 

While the trial court indicated the importance of considering 

"time definiteness," it does not appear from its decision that it 

did consider that factor or that that was the basis on which it 

arrived at its decision. 

As we pointed out in the previous section, we review a trial 

court's conclusions of law to determine whether they are correct. 

On appeal, claimant contends that the following series of 

decisions from this Court establish that based on the undisputed 

facts he did sustain an injury within the meaning of 

5 39-71-119(1), MCA (1985): Yietsv.SweetGrassCorlnty (1978), 178 Mont. 

337, 583 P. 2d 1070; Strandberg v. Reber Co. (1978), 179 Mont. 173, 587 

P.2d 18; Hoelznev. GraniteL~lmber Co. (1980), 189 Mont. 221, 615 P.2d 

863; Jonesv.St. RegisPaperCo. (1982), 196 Mont. 138, 639 P.2d 1140; Wise 

v. Perkins (1983) 202 Mont. 157, 656 p.2d 816; Shepard v. MidlandFoods, Inc. 

(1983), 205 Mont. 146, 666 P.2d 758; Kraft v. Flathead Valley Labor& 

Contractors (1990), 243 Mont. 363, 792 P.2d 1094. 

The application of this line of authority to a fact situation 

similar to the one in this case was first summarized in Jones v. St. 

RegisPaperCo. In that case, the claimant went to work at a lumber 
mill with preexisting degenerative disc disease in his lower back. 

There was evidence that the continual bending and lifting done by 

him in his job caused stress on his lower back which aggravated the 

existing degenerative disc condition over the period of 

approximately two years that he worked there. Defendant denied 

that claimant sustained an injury within the meaning of 

§ 39-71-119, MCA. It was the defendant's position that it was 

inconsistent for the claimant to allege that his injury developed 

gradually and that it was caused by a specific incident. 

In reversing a Workerst Compensation Court conclusion that 

claimant had not suffered a compensable injury, we found the 

following evidence significant: 

Evidently, the Workers1 Compensation Court did not 

consider Dr. Shanks1 deposition testimony which indicated 

that a series of minor traumas could lead to a condition 

such as that suffered by the claimant. 

. . . In addition to his definite statement quoted above, 

that degenerative disc disease was not a disease, but a 

condition associated with acute trauma, or "repeated 

small tra~rnas,~~ Dr.Shanks testified that the condition 

had, to the best of his knowledge, been present before 

August 21, 1979. 

Jones, 639 P. 2d at 1145. 

Based on the above testimony, we cited the following line of 

decisions to support a conclusion that claimant had in fact been 

injured during the course of his employment. 

In Strandberg v. Reber Co. (1978), 179 Mont. 173, 175-177, 587 

P.2d 18, 19, 20, this Court held that when it is proved 

medically possible that an industrial accident or injury 

aggravated a pre-existing condition, that proof is 

sufficient to establish a compensable disability. 
Similarly, in Viets v. Sweet [Gjrass Co~lrzty (1978), 178 Mont. 

337, 340, 583 P.2d 1070, 1072, we indicated that evidence 

that an accident aggravated a pre-existent condition is 

more reliable than evidence that an accident caused a 

disabled condition. In Hoehne v. Granite Lumber Company 

(1980), [I891 Mont. [221, 2251, 615 P.2d 863, 865, 37 

St.Rep. 1307, 1310, a case more nearly on point, we held 

that "a tangible happening" under Section 39-71-119, MCA, 

could be Ifnot a single isolated incident . . . but rather 

a chain of accidents or incidents, i.e., the stacking of 

lumber on a daily basis.I1 We cited approvingly Erhart v. 

Great Western Sugar Company (1976), 169 Mont. 375, 380-381, 

546 P.2d 1055, 1058, which said: 

ItNot only must claimant show an unusual strain, but the 

strain must result from a tangible happening of a 

traumatic nature . . . A tangible happening must be a 

perceptible happening . . . Some action or incident, or 

chain of actions or incidents, m~ist be shown which may be perceived as a 

contributing cause of the resulting injury. (Emphasis suppl ied . ) 

The lines in Hoehne, supra, were clearly drawn. The sole 

difference was that one party believed that a gradually 

developing, job-related injury not attributable to one 

specific incident was an l1injury, and the other believed 

it was not. This Court held that it was. The reasonable 

conclusion from this holding is that, if there is strong 

enough evidence that the gradually developing injury is 

job-related, it is an llinjuryll within the meaning of 

section 39-71-119, MCA, and is cornpensable, whether or 

not claimant states that there was a specific incident. 

Jones, 639 P.2d at 1145-46. 

Based on the same authorities, we arrived at a similar 

conclusion in Shepard v. Midland Foods, Inc. In that case, the claimant 

had pain in his knees from degenerative conditions which preexisted 

his employment. That condition was diagnosed in 1972 and he went 

to work for his employer in 1973. However, there was evidence that 

the rate of degeneration was accelerated by both the physical 

nature of his work over a period of eight years, and a single 
incident at work in which he twisted and struck his left knee. 

Several months after that incident he was forced to retire from 

work because his knees were so bad that they were no longer 

functional. The evidence was, however, that the single traumatic 

incident was a small factor in the total extent of his impairment, 

and that the primary cause of his ultimate disability was the long 

term wear and tear on his knees throughout the course of his 

employment from 1972 through 1980. When asked about the cause of 

his disabling condition, his treating physician testified: "The job 

that you described to me, that was described to me that Mr. Shepard 

did at Midland Pack, I am sure would be an accelerant.I1 Shepnrd, 

In Shepard, the Workers' Compensation Court also denied 

claimant disability benefits based on its conclusion that his knees 

deteriorated for other than work-related reasons. However, citing 

the previous line of authorities, we reversed that decision by the 

trial court. In conclusion, we held that: 

In the case at bar, both Dr. Griffin and Dr. Taylor 

testified by deposition that the heavy work Mr. Shepard 

routinely performed at Midland would have aggravated his 

existing condition, i.e., would have accelerated the 

breakdown of his knees. Both physicians recognized the 

February 14, 1980 accident as an aggravant of Mr. 

Shepard's condition. X-rays showed !la marked increasen 

in varus bone deformity between 1972 and 1980, just after 

Mr. Shepardf s accident. The x-rays indicate 'Imany, many 

subluxations, or small dislocations in the knee joints, 

which were not evident in 1972. The physicians stated that these 

symptoms were indicative of wear atid tear on the joint, and would 

probably result in pain and instability. This evidence 

of work-related injury aggravating a pre-existing 
condition is considerable and is unrebutted. [Emphasis 

added. ] 

Shepard, 666 P.2d at 762. 

Most recently, in Kraft v. Flathead Valley Labor & Contractors, we held 

that an employee who developed worsening symptoms of carpal tunnel 

syndrome from the repeated trauma of stacking lumber over a period 

of 15 months, sustained an injury within the meaning of 

5 39-71-119 (I), MCA (1985). 

The defendant, on the other hand, relies on a series of 

decisions from this Court which stand for the proposition that 

ailments which occur gradually over a long period of time lack 

sufficient "time def initenessw to be considered an injury. For 

example, in McMahon v. Anaconda Co. (1984), 208 Mont. 482, 678 P.2d 

661, the claimant was exposed to various toxins in the work place 

over the period of 22 years that he worked for the employer. As a 

result, he complained of throat and lung problems which, in turn, 

led to psychological problems. The Workersf Compensation Court 

denied benefits for injury or disease. We remanded for further 

consideration under the Occupational Disease Act, however, we 

concluded that the conditions about which claimant complained 

resulted from exposure over too many years to fall within the 

definition of injury. In arriving at that decision, we stated: 

Despite the detailed definition, it remains a difficult 

task to satisfactorily describe and define injury to the 

exclusion of disease. see ~a~lant, ~pp, Workers' 

Compensation and Occupational Disease, 4 3 Mont . L . Rev. 7 5, 9 2 - 1 0 0 

(1982). Professor Larson identifies two crucial points 
of distinction: llUnexpectedness, and "time 

definiteness. l1 1B A. Larson, The Law of Workmen's 

Compensation, Section 41.31 at 7-357. We find the second 

point to be the critical factor in this case. The fact 

that claimant's ailments were so very gradual in onset 

excludes them from the definition of injury. 

McMahon, 678 P. 2d at 663. 

We also added that: 

We hesitate to attempt to locate the line between 

long-term, gradual trauma or disease, and short-term, 

accidental trauma, exposure or strain. 

McMahon, 678 P.2d at 663. 

In Wear v. Buttrey Foods, Irlc. (1988) , 234 Mont. 477, 764 P. 2d 139, 

we held that where a grocery checker alleged numerous physical 

complaints attributable to the wear and tear of her job activities 

over a period of 17 years, she had also failed to satisfy the 

requirement of "time definitenessv1 which would classify her 

physical maladies as 

The State Fund argues that because claimant's disability 

resulted from micro-traumas which occurred over a period of 

approximately five and one-half years, the traumas were not 

sufficiently "time definitef1 to constitute an injury. 

In those cases relied on by claimant, the period of time over 

which the injury occurred ranged from one week (Wise v. Perkins) to 

eight years (Sizepard). In those cases relied upon by defendant, the 

physical conditions complained of were caused by activities that 

occurred over periods of 17 and 22 years. However, as we pointed 

out in McMalzon, ll[w]e hesitate to attempt to locate the line 
between long-term, gradual trauma or disease, and short-term, 

accidental trauma, exposure or strain." McMahon, 678 P.2d at 663. 

Further, in this case it is not necessary that we do so. 

We relied on Professor Larson8s treatise for the "time 

definitene~s~~ requirement. It is appropriate, therefore, to look 

to the same treatise for further elaboration on what is meant by 

"time definite." In doing so, we see that the requirement may be 

satisfied by applying it to either the time over which claimant's 

physical condition is caused, or the time period over which 

disability results. For example, Professor Larson states: 

Probably the underlying practical reason for insisting on 

a definite date is that a number of important questions 

cannot be answered unless a date of injury or accident is 

fixed, such as which employer and carrier is on the risk, 

whether notice of injury and claim are within the 

statutory period, whether statutory amendments were in 

effect, which wage basis applies, and many others. 

It has been shown above that the concept of time-definiteness can be thought of 

as applying to either the cause or the result. A relatively brief 

exposure to fumes, dust or cold may lead to a protracted 

period during which the victim gradually succumbs to 

disease; conversely, months or years of exposure to 

poisons, jolts or strains may lead to a sudden collapse 

on a particular day. In either case it is relatively 

easy to satisfy the definite-time requirement by merely 

accepting the view that suddenness may be found in either 

cause or result. . . . 

. . . It is safe to say, however, that on the strength of 

one or more of these reasons, most jurisdictions have at 

some time awarded compensation for conditions that have 

developed, not instantaneously, but gradually over 

periods ranging from a few hours to several decades, 

culminating in disability from . . . arthritis . . . back 

injury, herniated disc . . . and the like. 
On the other hand, most of the same jurisdictions have at 

some time denied compensation for injuries in this 

category. 

It will be observed, however, on examination of the 

unsuccessful cases, that most of them fall into the 

category of injuries whose cause and result were both 

difficult to locate in time. In other words, the 

majority of jurisdictions appear to be satisfied on the 

time-definiteness issue if either the precipitating 

incident or the manifestation of the disability itself 

was of a sudden or reasonably brief character. [Emphasis 

added. ] 

113 A. Larson, TheLawofWorkmen'sCompensation, (5 39.01 at 7-334, 7-335, 

7-350, and 7-350.13 (1987). 

In this case, we conclude that the Ittime definiteness" 

requirement articulated in McMahon is satisfied by the fact that 

the physical results of the traumas that claimant experienced over 

a protracted period of time manifested themselves over a relatively 

short period of time. 

Claimant testified that he first began losing strength in his 

left arm in December 1985, and that those symptoms increased to 

include muscle spasms, cramps, and severe neck pain between that 

time and July 8, 1986. From the onset of his symptoms, until they 

became so severe that he could no longer continue working, 

approximately six months elapsed. Claimant's testimony in this 

regard is undisputed. For these reasons, the results of the 

traumas to which claimant was exposed during the course of his 

employment were sufficiently "time definiteItt and pursuant to our 
previous decisions relied on in Jones and Shepard, we conclude that 

claimant was injured within the meaning of B 39-71-119, MCA (1985) . 

We reverse the judgment of the Workerst Compensation Court and 

remand this case for further proceedings consistent with this 

opinion, including a determination of the extent of claimant's 

disability and what, if any, benefits, costs, or fees he may be 

entitled to under the Workersr Compensation Act. 

Reversed and remanded. 

We concur: /'