NO. 92-010 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

DOUGLAS R. LAPP, 

Claimant and Respondent, 

-vsW. R. GRACE/BOMAC DRILLING, 

Employer and Respondent, 

and 

TRANSPORTATION INSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers1 Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas R. Bostock, Warden, Christiansen, Johnson & 

Berg, Kalispell, Montana 

For Respondent: 

Marvin L. Howe, Simonton, Howe & Schneider, 

Glendive, Montana 

Submitted on Briefs: April 2, 1992 

Filed: 

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

Defendant Transportation Insurance Company appeals from the 

judgment of the Workers1 Compensation Court which determined that 

claimant's 1990 medical treatment and surgery was causally related 

to his 1979 industrial injury, and held defendant liable for 

medical costs and expenses. We affirm the Workers1 Compensation 

Court. 

The sole issue raised by the insurer on appeal is whether the 

Workersr Compensation Court erred in its determination that 

claimant's medical treatment and surgery in 1990 was not a new 

injury and was causally related to his injury of 1979. 

On October 4, 1979, Douglas R. Lapp was injured when he was 

struck from behind by a cable while working as a floor hand on a 

drilling rig. The cable struck the claimant's upper back, 

shoulder, and neck. He was taken to the hospital in Miles City, 

where a contusion and whip injury across his back were diagnosed. 

claimant was again examined in Billings on November 6, 1979. He 

complained of shoulder pain, neck pain, headache, and some lateral 

discomfort down his arm with occasional numbness. The treating 

physician diagnosed the shoulder problem as post-traumatic 

suprascapular nerve entrapment. 

Claimant was examined by an orthopedic surgeon on December 12, 

1979, who concluded that he had carpal tunnel syndrome of the left 

hand. Claimant underwent surgery on December 14, 1979, which 

relieved all symptoms of numbness in the hand. However, during 

follow-up visits in January and February, 1980, he complained of 
pain in his shoulder, and was treated with anti-inflammatory 

medication. Claimant was released to work without limitation on 

May 15, 1980. 

Claimant was examined again on January 2, 1981, after 

complaints of severe pain in his back and neck with radiation into 

his left arm and leg. Cervical and lumbar myelograms were 

performed, but the results were inconclusive. No physical cause 

for claimant's symptoms was discovered during further exams in 

March and May 1981. 

In May 1981, claimant was requested by defendant to submit to 

a medical panel evaluation. The panel found no abnormalities in 

the x-ray films of claimant's cervical spine. The panel concluded 

that claimant was capable of working and that he had zero permanent 

partial impairment as a result of his 1979 injury. 

On October 21, 1985, claimant received two treatments from a 

Billings chiropractor for a flare-up of neck and back pain. He 

next sought medical treatment in May 1987 in response to acute left 

arm numbness and pain radiating into his left leg. X-ray films did 

not detect any abnormality of the cervical spine. 

On October 26, 1988, the claimant was taken by ambulance to 

the Glendive Community Hospital after having collapsed. Claimant 

complained of headaches in the month proceeding his collapse. 

Hypoglycemia, with subsequent anxiety reaction, were blamed for his 

problems, and he was released the following day. 

On April 18, 1990, claimant was seen at the Billings Clinic 

for neck pain, which continued down his entire left arm. He 
described his injury of October 4, 1979, and stated that it had 

caused him pain and discomfort since that time. X-ray films taken 

of his cervical spine indicated the existence of bone spurring at 

the C5-6 level. His diagnosis was cervical radiculitis. He was 

admitted to the St. Vincent's Hospital in Billings on April 22, 

1990, and a magnetic resonance imaging examination (MRI) was 

performed, which demonstrated a posterior disc protrusion at the 

C5-6 level. On April 25, 1990, claimant underwent an anterior disc 

excision and fusion. 

Claimant sought compensation from defendant, maintainingthat 

his 1990 medical condition was causally related to his 1979 

industrial accident. Defendant, by letter dated July 18, 1990, 

denied responsibility for both disability payments and medical 

expenses. 

The parties thereafter submitted the issue of entitlement to 

medical benefits to the Workers' Compensation Court on briefs, 

deferring the issue of disability benefits. The Workersv 

Compensation Court adopted the findings of the hearing examiner, 

finding the defendant liable for claimant's medical benefits. From 

this ruling, the defendant appeals. 

At the time of the 1979 accident, the applicable statute in 

effect, 9 39-71-704, MCA (1979), provided: 

Payment of medical, hospital, and related services. 

In addition to the compensation provided by this chapter 

and as an additional benefit separate and apart from 

compensation, the following shall be furnished: 

(1) After the happening of the injury, the employer 

or insurer shall furnish, without limitation as to length 
of time or dollar amount, reasonable services by a 

physician or surgeon, reasonable hospital services and 

medicines when needed, and such other treatment as may be 

approved by the division for the injuries sustained. 

Defendant maintains that claimant attained maximum medical 

healing in 1981, that various work-related activities between 1981 

and 1990 aggravated his preexisting condition, and that this 

aggravation constituted a new injury. Claimant worked a number of 

jobs during that time, many of which involved medium-duty lifting. 

Post-operative notes demonstrate that claimant experienced 

problems with his neck since his 1979 oil field injury. Dr. 

Johnson, the orthopedic surgeon who had treated claimant in 1979 

and 1980, testified during his deposition that it was more probable 

than not that the bulging disc identified in the 1990 MRI exam had 

been caused by the 1979 injury. This testimony was based upon his 

treatment of the claimant and available medical records. 

Furthermore, Dr. Johnson testified that the radiological procedures 

claimant underwent earlier were inadequate to detect claimant's 

injury, and thus went undetected until the MRI became available. 

There was no evidence that claimant ever alleged a back or 

neck injury or filed an additional claim between 1981 and 1990. 

This Court stated in EBIIOnon Groupv. StateFund (1991), 249 Mont. 449, 

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. 

Curlson i?ansport (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. 

Defendant has offered no evidence that claimant suffered any 

job-related injury after reaching maximum healing. The evidence 

presented is that claimant continued to suffer neck pain after his 

industrial accident in 1979. The fact that a claimant has reached 

maximum medical healing does not relieve an insurer from future 

liability for medical and compensatory benefits where there is no 

new, intervening cause. 

The preponderance of the evidence supports the lower court's 

judgment. Accordingly, that judgment is affirmed. 

We concur: 
August 20, 1.992 

CERTIFICATE OF SERVICE 

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

following named: 

THOMAS R. BOSTOCK 

Warden, Christiansen, Johnson & Berg 

P.O. Box 3038 

Kalispell, MT 59903-3038 

Marvin L. Howe 

SIMONTON, HOW & SCHNEIDER 

P.O. Box 1250 

Glendive, MT 59330-1250 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: