NO. 91-031 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

EBI/ORION GROUP, Petitioner/Appellant and Cross-Respondent,


### -vsSTATE COMPENSATION MUTUAL INSURANCE FUND, Defendant/~espondentand Cross-Appellant, in re CLAUDE ATHEY, Intervenor/Claimant.

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

COUNSEL OF RECORD: For Appellant: Bradley J, Luck and Charles E. McNeil; Garlington, Lohn & ~obinson, Missoula, Montana. For Respondent: Richard E, Bach, Attorney at Law, Helena, Montana;



### AUG

## 22

## 1991 Submitted on briefs: July 2, 1991

. . .. .. 

### __, Decided: August 22, 1991 ZILERK OF SUPREMECOUR'b S'FA'TEOF MONTANA

ClerkJustice R. C. McDonough delivered the Opinion of the Court. EBI/Orion Group appeals from the judgment of the Workers' Compensation Court which held that it was not entitled to indemnification from the State Compensation Mutual Insurance Fund forworkerstcompensationbenefits paid to claimant, Claude Athey. We affirm. Although several issueshave been submitted on appeal, we find only one necessary to our review: Whether substantial credible evidence supports the Workers' Compensation Court's determination that no second injury occurred while State Compensation Mutual Insurance Fund was on risk. On September 19,1985,claimant, ClaudeAthey injuredhisback in a slip and fall accident. This injury occurred in the course and scope of his employment with Harp Line Construction. At this time Harp Line Construction was insured, forworkers' compensation purposes,by EBI/Orion Group (EBI). Despite this injury,Mr. Athey continued towork until hewas laid off seasonably and did not seek medical attention until February of 1986. In May of 1986, Mr. Athey1streating physicians determined that his back condition had become medically stable. During the summer of 1986, Mr. Athey continued his employment with Harp Line Construction. His employment required him to engage in heavy work activities that periodically caused pain in the area of his back injury. At thispoint in time,Harp Line Constructionwas insured by the State Compensation Mutual Insurance Fund (StateFund). On September 8, 1986,Mr. Athey was working particularly hardlifting and stacking tires. He suffered an injury tohis chest and stomach and also experienced pain in his back. He reported the injury to his superiors at Harp Line Construction and apparently determined that he could no longer work. Mr. Athey filed a claim for workers' compensation benefits following this accident. Apparently, Mr. Athey has problems reading and writing, so consequently his employer filled out the form for him. Mr. Athey had not filed a claim after his slip and fall accident and 

### it was his impression that the claim for compensationwas forboth the 1985 injury and his present injuries receivedwhen moving the tires. On receipt of the claim, the State Fund began payment of benefits under 

### 5 39-71-608, MCA, while its investigationof thecircumstances surroundingtheclaim continued. After investigation, the State Fund determined that the date of Mr. Athey's injuries was September 19, 1985, when EBI was the insurer at risk. On this basis, it terminated the benefits it had been paying Athey. On January 23, 1987, EBI received a claim for workers' compensation benefits. Eventually EBI accepted liability for Mr. Athey's condition. However it retained a full reservation of rights to recover any amounts paid, from the State Fund, in the event further investigation revealed that a second injury occurred with the State Fund on risk. After settlementwas reached with Mr. Athey, 

### EBI requested that the State Fund contribute 50% toward the settlement. The State Fund refused. EBI filed a petition before the Workers' Compensation Courtfor determination of its right to indemnification from the State Fund. TheWorkerstCompensation Court granted summary judgment in favor of the State Fund. EBI appealed to this Court and we reversed. EBI/Orion Group v. State Compensation Ins. Fund (1989), 240 Mont. 99, 782 P.2d 1276. On remand we directed the Workersf Compensation Court "to determine whether Claude Athey had reached the condition of maximum healing followinghis injury of September 19, 1985, prior to his second injury, and whether in fact a second injury occurred." EBI/Orion Group, 240 Mont. at 105, 782 P.2d at 1280. In its Order on Remand, the Workers' Compensation Court denied EBI8sclaim for indemnification on the grounds that Athey did not suffer an "injury" on September 8, 1986. This appeal followed. As stated above, the State Fund has cross-appealed from the judgment of theWorkers' Compensation Court. Itmaintains that the court erred when it found that Mr. Athey had reached a medically stable condition before the accident of 1986. Because we affirm the Workers1 Compensation Court we need not address this issue. A finding in favor of the State Fund on this issuewould not change the result of this opinion. We need only review EBIfsassignment of error that the lower court incorrectly found Mr. Athey did not suffer an injury in September of 1986. The standard of review utilized when reviewing decisions of the WorkerstCompensation Court is well established. Our function in reviewing a decision of the Workers' Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute ourjudgment for that of the trial court as to the weight of evidence on questions of fact. Steffesv. 93 Leasincl Co. 

### Inc. (1978), 177 Mont. 83, 86, 580 P.2d 450, 452. However, decisions of the Workers' Compensation Court must be based upon substantial credible evidence. OtBrienv. Central Feeds (1990), 241 Mont. 267, 271, 786 P.2d 1169, 1172. If the conclusions of law are not supported by the Court's findings of fact, those conclusions must be reversed. Hume v. St. Reqis Paper Company (1980)

### , 187 Mont. 53, 608 P.2d 1063. Hash v. Montana Silversmith (Mont. 1991), 810 P.2d 1174, 1175, 48 St.Rep. 364, 365. The Workers1Compensation Court found that the State Fund was not legally required to indemnify EBI for benefits paid to Claude Athey. In reaching this conclusion, the court relied upon the Belton rule. Simply stated the Belton rule holds that once a claimant has reached maximum healing or a medically stable condition, the insurer at risk is no longer responsible for any subsequent injuries or conditions. SeeBeltonv. Carlson Transport (1983), 202 Mont. 384, 389, 658 P.2d 405, 408. As this rule clearly states, in order for EBI to sustain a claim of indemnification against the State Fund it must establish two elements. First it must show that Mr. Athey had attained a condition of maximum healing. Second, it must establish that he sustained an injury after he reached maximum healing. As stated above, the Workers1 Compensation Court found, and EBI agrees, that Claude Athey had reached maximum healing before the injury of September 8, 1986. However, the Workers Compensation Court did not find that Mr. Athey injured his back while lifting tires on that date. Based upon this finding, the court denied EBI's claim for indemnification. 5EBI maintains that theWorkers' compensation Court's judgment

on this issuewas not supported by substantial evidence. Inmaking this argument, EBI relies upon testimony elicited from Athey's doctors which suggeststhat the September 1986 accidentpermanently aggravated his condition. TheWorkers' Compensation Court did not attribute much weight to this testimony because it found that the doctors' responses to questions on this issue resulted more from skillful examination of EBI1scounsel than frommedical fact. This doctor was deposed ex parte and the other doctor's opinion contradicted an earlier report that he issued. In weighing all evidence includingAthey1sown testimony,the court determined that the back condition when Athey left work on September 8, 1986, was the result of Athey1sgradually worsening condition and was not a separate injury that caused any permanent aggravation. Therefore

no injury, within the meaning of 5 39-71-119, MCA, occurred. We disagree with EBI's argument that this conclusion was not properly supported. We have fully read the depositions that were submitted to the Workers' Compensation Court. It is by no means clear that Mr. Athey1s 1986 accident permanently aggravated his underlying back condition or constituted an injury as that term is defined by the Workers' Compensation Act. While theremay be some conflicting evidence on this point, the lower court's judgment is supported by substantial evidence. Substantial evidence has been defined as that evidence that

a reasonablemind might accept asadequateto support a conclusion. Although it may be based upon weak and conflicting evidence, inorder to rise to the level of substantial evidence it must be greater than trifling or frivolous. Christensenv. Britton (1989), 240 Mont. 393, 401, 784 P.2d 908, 913. In this case, the Workers' Compensation Court considered the depositions of all doctors involved in this case. It also took into account Mr. Athey's testimony concerningthecircumstances surrounding his accidentand injury and thathisback hurt him all of the time and progressively worsened. Substantial evidence supports the court's judgment on this issue. Accordingly, its judgment is affirmed.

We Concur: 

# @P 

# ~k&,&/ Justice ,' /

### August 22, 

### 1991 CERTIFICATEOFSERVICE Iherebycertifythat thefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed: BradleyJ. 

### Luck and Charles

### E. McNeil GARLINGTON,LOHN &

### ROBINSON 199W. 

### Pine,P.O. Box 7909 Missoula, MT59807-7909 RICHARD

### E.BACH StateCompensation Mutual Ins.Fund 5SouthLast Chance Gulch Helena, MT 59601 Joseph 

### F.Daley,Esq. DALEY, SEAMAN &

### VANNOY 

### 1325Highway 2West 

### Kalispell, MT 59901 AttorneyforClaimant EDSMITH THESUPREMECOURT STA 

### FMONTANA