No. 87-208 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DELORES E. GUILD, 

Claimant and Appellant, 

-vsBIGFORK CONVALESCENT CENTER, and 

NORTHWEST HORIZONS, Employers, 

and 

ROCKWOOD INSURANCE COMPANY, and 

EMPLOYEE BENEFITS INSURANCE CO., 

Defendants and Respondents. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bothe & Lauridsen; David W. Lauridsen, Columbia Falls, 

Montana 

For Respondent : 

Garlington, Lohn & Robinson; E. Craig Daue, Missoula, 

Montana 

Keller, Reynolds, Drake, Sternhagen & Johnson; William 

G. Sternhagen, Helena, Montana 

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Filed: 

Submitted on Briefs: Nov. 24, 1987 

Decided: December 22, 1987 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Claimant Mrs. Guild appeals the decision of the Workersq 

Compensation Court on her claim for temporary total disability benefits. Employee Benefits Insurance Co. (EBI) also 

appeals. We reverse and remand. 

The issues raised by Mrs. Guild are: 

1. Did the Workers' Compensation Court err in failing 

to award Mrs. Guild temporary total disability benefits from 

Rockwood Insurance Company after August 16, 1985? 

2. Did the court err in failing to find that Mrs. Guild 

had sustained a compensable hip injury on July 1, 1985? 

3. Is Mrs. Guild entitled to an increase in her award 

for unreasonable delay or refusal to pay benefits, and is she 

entitled to costs and attorney fees? 

EBI raises the issues of whether Rockwood Insurance 

Company is liable to EBI for 1) benefits paid by EBI during 

the pendency of this action, and 2) EBI's attorney fees and 

costs. 

In August 1983, Mrs. Guild suffered a back injury arising out of and in the course of her employment as a nurses' 

aide at Bigfork Convalescent Home. The insurer, Rockwood 

Insurance Company (Rockwood), accepted liability and paid 

Mrs. Guild temporary total disability benefits for about ten 

days. Mrs. Guild then returned to work. She remained employed at Bigfork Convalescent Home until October 1984, when 

she found employment elsewhere. 

On July 1, 1985, while lifting a patient in the course 

of her employment at Northwest Horizons, Inc., Mrs. Guild 

suffered a second industrial accident. EBI was the insurance 

carrier. Mrs. Guild continued working her regular schedule 

until July 26, when she was unable t.o return to work. Her 

physician diagnosed her problem as abdominal muscular strain. 
On August 12, Mrs. Guild's physician released her to return 

to work on August 20. In the meantime, on August 16, Mrs. 

Guild injured her back while sliding into her small car after 

watching a parade. She remained unable to work at the time 

of trial. Her condition has been diagnosed as the effect of 

a calcified bulging disk upon a nerve root. In the opinions 

of two physicians who have examined Mrs. Guild, the calcified 

bulging disk is a result of the 1983 industrial accident. 

Beginning August 21, 1985, EBI paid Mrs. Guild temporary 

total disability benefits retroactive to the date of her 

abdominal muscular injury and until October 1986. On October 

17, 1986, the Workers' Compensation hearing examiner ordered 

that Rockwood assume responsibility for temporary total 

disability benefits until this matter was finally adjudicated. The hearing examiner ruled that in the event EBI were 

eventually determined to be the insurer on risk, Rockwood 

would be reimbursed. 

After the hearing, the Workers' Compensation Court 

concluded that Mrs. Guild was entitled to temporary total 

disability benefits from EBI for the period from July 1, 

1985, to August 16, 1985. It ruled that Mrs. Guild was not 

entitled to disability benefits from either defendant for her 

August 16, 1985, parade injury, but instructed Mrs. Guild and 

Rockwood to reach a settlement on the question of whether 

Mrs. Guild is entitled to permanent partial disability benefits. It ordered that the temporary total disability benefits paid by Rockwood to Mrs. Guild during the pendency of 

this action be credited toward those permanent partial benefits, if any. It denied Mrs. Guild an increase in award for 

unreasonable delay or refusal to pay benefits, and denied her 

claim for costs and attorney fees. 
I 

Did the Workers1 Compensation Court err in failing to 

award Mrs. Guild temporary total disability benefits from 

Rockwood Insurance Company after August 16, 1985? 

Mrs. Guild argues that her present disability is a 

result of aggravation of her pre-existing injury from her 

first industrial accident. She asserts that this entitles 

her to benefits from Rockwood from the date of the parade 

incident until she reaches maximum healing. 

Mrs. Guild cites Rightnour v. Kare-Mor, Inc. (Mont. 

1987), 732 P.2d 829, 44 St.Rep. 141. The claimant in 

Rightnour had suffered an industrial injury to her 3-ower 

back. A settlement was negotiated, with the claimant reserving medical benefits. Claimant subsequently reinjured her 

back, not in the course of her employment. Notwithstanding 

the fact that the reinjury occurred outside claimant's employment, the Workers' Compensation Court ordered claimant's 

med'ical expenses paid from the medical benefits reserved from 

the compensable injury. We affirmed. 

Rockwood states that this case is governed by Belton v. 

Carlson Transport (Mont. 1983), 658 P.2d 405, 40 St.Rep. 158. 

In that case, we held that a traumatic event or unusual 

strain which aggravates a pre-existing compensable injury may 

be a compensable injury. We also held that the carrier at 

risk at the time of the first compensable injury is liable 

for benefits up to the point of maximum healing. Rockwood 

says that in this case there was maximum healing from both 

the first and second injuries, so that Rockwood is no longer 

liable for total disability benefits. 

The Workers' Compensation Court found that Mrs. Guild's 

first industrial injury confined her to bed for a week with 

"excruciating" pain in her back. It found that Rockwood paid 

temporary total disability benefits for this injury. The 
court found that Mrs. Guild returned to work fulltime, and it 

is undisputed that she resumed her normal work activities. 

The court found that Mrs. Guild's subsequent abdominal muscular injury did not create any change in her back condition. 

The court further found that Mrs. Guild testified that in the 

parade incident, "a pain shot through her lower back similar 

to the 1983 pain." It then found that Mrs. Guild's doctor 

testified that Mrs. Guild's 1983 low back injury was aggravated by the August 16, 1985, parade incident. The last 

medical evidence submitted, the court found, was that Mrs. 

Guild had not yet reached maximum healing from the parade 

incident. It also found that one physician testified Mrs. 

Guild will not be able to return to work as a nurses1 aide 

because she will never be able to lift. These findings would 

support a conclusion that Mrs. Guild is entitled to temporary 

total disability benefits from Rockwood following the parade 

incident. 

However, the Workers' Compensation Court concluded that 

the medical evidence supports the conclusion that 

the claimant reached maximum healing when she 

successfully returned to work at the Bigfork Convalescent Home and defendant Rockwood Insurance 

Company is not liable for temporary total disability benefits after August 22, 1983. 

In this unusual case, the parade incident was not a separate 

injury, but a triggering event relating back to Mrs. Guild's 

1983 injury. The court's conclusion is inconsistent with its 

findings listed above. We hold that under the law of Montana, the fact that a claimant has reached maximum healing 

does not eliminate the employer's future liability for temporary total disability benefits where, as here, a subsequent 

non-employment related event causes aggravation of the first 

injury. Such a case is not comparable to a case where there 
is a second industrial injury covered by workers' compensation. We remand to the Workers' Compensation Court for 

reconsideration consistent with this opinion. 

Did the court err in failing to find that Mrs. Guild had 

sustained a compensable hip injury on July 1, 1985? 

Mrs. Guild testified that she had hip and radiating leg 

pain following her July 1, 1985, industrial injury but before 

the August 16, 1.985, parade incident. She argues that EBI is 

responsible for benefits for that injury. 

The medical testimony relied upon by Mrs. Guild is Dr. 

Stephen's deposition testimony, which was based on a hypothetical question. His testimony was that the presence of 

such pain would "make me feel it was probable" that she 

aggravated the lower back condition on July 1, 1985. He also 

stated, though, that the date on which she started having hip 

problems would make a difference: 

If it was, you know, within a few days of the 

7/1/85, I would think that like I said it would be 

probable. If it was several weeks later, we would 

be back to the possible range again. 

Mrs. Guild did not complain to her doctor of hip and leg pain 

until July 26, almost four weeks after her compensable 

injury. 

The Workers' Compensation Court did not enter a finding 

or conclusion on Mrs. Guild's hip pain. We conclude that the 

evidence that this hip pain was related to her compensable 

abdominal muscular injury is not sufficient to put the lower 

court in error. 

Is Mrs. Guild entitled to an increase in her award for 

unreasonable delay or refusal to pay benefits, and is she 

entitled to costs and attorney fees? 
The first of these claims is based on Rockwood's failure 

to promptly forward to EBI a letter it received from Mrs. 

Guild's physician. Mrs. Guild indicates that she has been 

needlessly forced to prosecute a claim against both insurers 

because of this failure. She claims an entitlement to a 20% 

penalty under 5 39-71-2907, MCA. 

We have reviewed the letter at issue, and conclude that 

it does not constitute the type of evidence which could serve 

as a basis for a finding of unreasonable delay or refusal to 

pay justifying a penalty under 5 39-71-2907, MCA. The letter 

does not set forth a medical opinion or diagnosis, but merely 

relays Mrs. Guild's belief that her back problem is related 

to her 1983 industrial injury. 

Mrs. Guild also argues that she is entitled to costs and 

attorney fees under 5 39-71-612, MCA. The claim for costs 

and attorney fees is based on the erroneous proposition that 

"[tlhe Court has found that Rockwood is liable for Claimant's 

temporary total disability benefits after August 16, 1985. " 

This was not true, as stated above. However, the lower court 

is directed to reconsider this issue on remand. 

IV 

Is Rockwood Insurance Company liable to EBI for 1) 

benefits paid during the pendency of this action, and 2) 

EBI's attorney fees and costs? 

EBI claims that this Court's opinion in Belton v. 

Carlson Transport (Mont. 1983), 658 P.2d 405, 40 St.Rep. 158, 

entitles EBI to indemnity from Rockwood for benefits paid by 

EBI after the second injury reached maximum healing. The 

claimant in Belton was injured twice, with each accident 

occuring under a different insurer for purposes of workers' 

compensation. We held in Belton that it was the duty of the 

insurance company at risk at the time of the accident to pay 
benefits until liability was resolved. Belton, 658 P.2d at 

410. 

If it is later determined that the insurance company on risk at the time of the accident should not 

pay the benefits, this insurance company, of 

course, has a right to seek indemnity from the 

insurance company responsible for the benefits 

already paid out to the claimant. 

Belton, 658 P.2d at 410. 

If on remand the Workers' Compensation Court rules that 

Rockwood is responsible for temporary total or permanent 

partial benefits for Mrs. Guild, it appears that Rockwood is 

liable to EBI for benefits paid during this action and for 

EBI1s attorney fees. We conclude that this must be considered on remand. 

We reverse the decision of the Workers1 Compensation 

Court, and remand for further proceedings in accordance with 

this opinion. 

\ 

We Concur: 

Chief Justice 

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, Justices