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/~espondent and 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 2 2 1991 Submitted on briefs: July 2, 1991 . . . . .. __, Decided: August 22, 1991 

ZILERK OF SUPREME COUR'b 

S'FA'TE OF MONTANA 

Clerk 
Justice 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 

for workerst compensation benefits paid to claimant, Claude Athey. 

We affirm. 

Although several issues have 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, Claude Athey injured his back 

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, for workers' compensation 

purposes, by EBI/Orion Group (EBI). Despite this injury, Mr. Athey 

continued to work until he was laid off seasonably and did not seek 

medical attention until February of 1986. 

In May of 1986, Mr. Athey1s treating 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 this point in time, Harp Line Construction was insured 

by the State Compensation Mutual Insurance Fund (State Fund). 

On September 8, 1986, Mr. Athey was working particularly hard 
lifting and stacking tires. He suffered an injury to his 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 

compensation was for both the 1985 injury and his present injuries 

received when moving the tires. On receipt of the claim, the State 

Fund began payment of benefits under 5 39-71-608, MCA, while its 

investigation of the circumstances surrounding the claim 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 settlement was 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 Court 
for determination of its right to indemnification from the State 

Fund. The Workerst Compensation 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 following his 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 EBI8s claim 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 the Workers' Compensation Court. It maintains 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 issue would not change 

the result of this opinion. We need only review EBIfs assignment 

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 Workerst Compensation 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 our 
judgment for that of the trial court as to the weight of 

evidence on questions of fact. Steffes v. 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. 

OtBrien v. 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 Workers1 Compensation 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. See Belton v. 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. 

5 
EBI maintains that the Workers' compensation Court's judgment 

on this issue was not supported by substantial evidence. In making 

this argument, EBI relies upon testimony elicited from Athey's 

doctors which suggests that the September 1986 accident permanently 

aggravated his condition. The Workers' 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 EBI1s counsel than from medical fact. This 

doctor was deposed ex parte and the other doctor's opinion 

contradicted an earlier report that he issued. In weighing all 

evidence including Athey1s own testimony, the court determined that 

the back condition when Athey left work on September 8, 1986, was 

the result of Athey1s gradually 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 there may 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 reasonable mind might accept as adequate to support a conclusion. 

Although it may be based upon weak and conflicting evidence, in 
order to rise to the level of substantial evidence it must be 

greater than trifling or frivolous. Christensen v. 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 concerningthe circumstances surrounding his accident and 

injury and that his back 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 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Bradley J. Luck and Charles E. McNeil 

GARLINGTON, LOHN & ROBINSON 

199 W. Pine, P.O. Box 7909 

Missoula, MT 59807-7909 

RICHARD E. BACH 

State Compensation Mutual Ins. Fund 

5 South Last Chance Gulch 

Helena, MT 59601 

Joseph F. Daley, Esq. 

DALEY, SEAMAN & VANNOY 

1325 Highway 2 West 

Kalispell, MT 59901 

Attorney for Claimant 

ED SMITH 

THE SUPREME COURT 

STA F MONTANA