No. 79-44 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

LESTER D. LITTLE, 

Claimant and Respondent, 

STRUCTURAL SYSTEMS, Employer, 

U. S. F. & G. and INDUSTRIAL 

INDEMNITY COMPANY I 

Defendants and Appellants. 

Appeal from: Workers' Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellants: 

Garlington, Lohn and Robinson, Missoula, Montana 

Larry Riley argued, Missoula, Montana 

For Respondent: 

Goldman and Goldman, Missoula, Montana 

Bernard Goldman argued, Missoula, Montana 

Marra, Wenz, Iwen and Johnson, Great Falls, Montana 

David A. Hopkins argued, Great Falls, Montana 

Filed: 

Submitted: April 17, 1980 

Decided: dL(t I 7 lgp~n " c 
Honorable Joseph B. Gary, District Judge, delivered the 

Opinion of the Court. 

claimant, who had had trouble with a knee since 1941, 

injured his knee on two separate occasions in 1978 while 

working for Structural Systems, Inc. The first injury 

occurred on April 4, 1978, when the claimant slipped on a 

roof of the Craighead Apartments at the University of 

Montana in Missoula, Montana. At that time, Structural 

Systems was insured for workers' compensation purposes by 

U.S.F.&G. Claimant's second injury occurred on June 6, 

1978, when claimant was carrying iron bars while working on 

the Reserve Street Bridge in Missoula. At the time of the 

second accident, Industrial Indemnity Co. was Structural 

Systems' insurer for workers' compensation purposes. 

Both injuries were inflicted upon claimant's right 

knee. Claimant did not consult a doctor after the first 

accident and was able to continue working although he continued to experience severe difficulties and pain with the 

knee. Claimant also continued to work for a month after the 

second accident until he was laid off. At that time, he 

sought medical attention. It was determined that claimant 

was temporarily totally disabled pending a final determination by the Workers' Compensation Court. 

Claimant filed a petition in the Workers' Compensation 

Court on November 15, 1978, against U.S.F.&G. and Industrial 

Indemnity. A pretrial conference was held, and a full 

hearing began on April 10, 1979. The court entered an 

interim order on April 23, 1979, in which U.S.F.&G. and 

Industrial Indemnity were ordered to reimburse claimant for 

all accrued temporary total disability benefits and medical 

expenses on an equal share basis. On September 28, 1979, 
the court entered its findings of fact and conclusions of 

law holding that U.S.F.&G. was to reimburse Industrial 

Indemnity for any and all benefits that had been paid pursuant to the court's interim order. The court held that 

claimant's benefits stemmed primarily from one injury which 

occurred on April 4, 1978, and which was reinjured and 

aggravated on June 6, 1978. Since the second injury was 

merely an aggravation of a preexisting condition, the court 

took the position that U.S.F.&G. was liable for claimant's 

benefits because, according to Montana law, it was improper 

to apportion the liability for workerst compensation benefits between successive insurers. 

From this judgment, U.S.F.&G. appeals and raises the 

following issue: 

Whether the claimant suffered an aggravation of a 

preexisting condition on June 6, 1978; if so, whether the 

insurer on the risk at the time of the last injurious 

exposure is liable for the resulting disability? 

U.S.F.&G. submits that there is no dispute by the 

parties that claimant did in fact suffer an aggravation of a 

preexisting condition on June 6, 1978. It further submits 

that claimant had a history of knee trouble and that the 

April 4, 1978, accident was also an aggravation of a preexisting injury which would have entitled him to benefits 

had he incurred medical expenses or lost wages. It contends, however, that on June 6 claimant suffered a new and 

compensable industrial accident and that since this was the 

disabling injury causing him to seek medical attention, 

Industrial Indemnity Co. is solely responsible for compensating claimant. 
U.S.F.&G. premises its argument on the well-established 

doctrine in Montana that an employer takes an employee as he 

finds him. It contends that the Workers' Compensation 

Court's ruling was contrary to the above doctrine and that 

the "last injurious exposure" rule should operate here, 

placing the responsibility for claimant's compensation on 

Industrial Indemnity. 

Industrial Indemnity argues that under Hartl v. Big Sky 

of Montana, Inc. (1978), 176 Mont. 540, 579 P.2d 1239, 35 

St.Rep. 806, it is improper to apportion workers' compensation benefits between successive insurers. It submits that 

the workers' compensation court correctly followed the 

dictates of Hartl in holding U.S.F.&G. liable for compensating claimant. Industrial Indemnity also cites Newman v. 

Kamp (1962) , 140 Mont. 487, 374 P.2d 100, for the proposition that where a second injury occurs before the first 

injury is healed, the first carrier is liable for all compensation, and the second carrier is relieved of liability. 

It contends that in the instant case there is a plethora of 

medical and lay testimony indicating that the injury resulting from claimant's first accident had not completely healed 

at the time of the second accident. Therefore, Industrial 

Indemnity contends that both Hartl and Newman provide ample 

authority for holding U.S.F.&G. liable for claimant's compensa tion. 

Claimant in this case basically agrees with the Workers' 

Compensation Court's decision holding U.S.F.&G. liable for 

his compensation. 

First of all, in examining the contentions by the 

parties to this appeal, it should be pointed out that this 

Court has consistently held the test of sufficiency of the 
evidence to be whether there is substantial evidence to 

support the court's findings of fact. See Stamatis v. 

Bechtel Power Co. (1979), - Mont. , 601 P.2d 403, 36 

St.Rep. 1866; Head v. Larson (1979), Mont. 

- , 592 P.2d 

507, 36 St.Rep. 571; Strandberg v. Reber Company (1978), - 

Mont. , 587 P.2d 18, 35 St.Rep. 1742; Jensen v. Zook 

Brothers Construction Company (1978) , - Mont. , 582 

P.2d 1191, 35 St.Rep. 1066. In Stamatis and Jensen, this 

Court further held that where the findings are based on 

conflicting evidence, this Court's function on review is 

confined to determining whether there is substantial evidence 

to support the findings and not to determine whether there 

is sufficient evidence to support contrary findings. 

With that as the basic premise, we will then examine 

the facts and the law applicable thereto. 

It is undisputed in Montana that an employer takes his 

employee subject to the employee's physical condition at the 

time of employment. It is also undisputed that an aggravation of a preexisting condition is a compensable injury 

under the Workers' Compensation Act. Robins v. Anaconda 

Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67, 35 St.Rep. 

213; Schumacher v. Empire Steel Mfg. Co. (1977), 175 Mont. 

411, 574 P.2d 9871 34 St-Rep. 1112. 

Where there have been two accidents, each occurring 

under a different insurer, and the second happens before the 

first injury is completely healed, the second accident is 

incident to the first and the first insurer is required to 

pay all compensation. Newrnan v. Kamp, supra. This is so 

because in Montana there is no apportionment of workers' 

compensation benefits between successive insurers. Hart1 v. 

Big Sky of Montana, Inc., supra. 
There is no question that claimant here suffered a 

compensable industrial injury. The main factual issue 

before the Workers' Compensation Court was which carrier was 

responsible for compensating claimant. Resolution of this 

issue rests on a determination of whether the second injury 

was separate and d i s t i n c t o r merely an aggravation of a 

preexisting condition. In essence, then, resolution of 

liability is dependent on a determination of which particular injury was the proximate cause of the present condition 

for which claimant seeks compensation. 

The Workers' Compensation Court, in effect, held that 

the second injury, since it occurred before the first had 

completely healed, was merely an aggravation of a preexisting condition and, therefore, the first injury was the 

proximate cause of claimant's disability. U.S.F.&G. contends that this determination is not supported by the record 

and that the second injury was separate and distinct from 

the first. U.S.F.&G. bases its argument on the fact that 

claimant continued to work after the first accident and did 

not seek medical help; however, it argues, he did see a 

doctor and quit working after the second accident. It 

contends that under our holding in Hartl, Industrial Indemnity should be liable. This is not, however, a completely 

accurate statement of the facts of either this case or of 

Hartl. 

The testimony of Dr. C. G. Cragg, an orthopedic surgeon, indicated that claimant had had knee problems since 

1941. Both accidents, in his opinion, were aggravations of 

that preexisting condition. He also testified that at the 

time of the June 6 accident, claimant had not recovered from 

the April 4 accident. 
The record showed that claimant was somewhat stoical 

and had a high tolerance for pain. It also showed that 

claimant at times had continued to work even though he was 

in pain. In fact, claimant continued working after the June 

6 accident until he was laid off. He apparently sought 

medical help then because the pain had become too much and 

because he was afraid of doing steelwork above the ground 

for fear of his knee collapsing. 

In Hartl, the claimant also suffered from a preexisting 

condition. The physician there testified that all of the 

claimant's back injuries contributed to his present condition, and it was impossible to separate the accidents as to 

the cause of claimant's disability. The physician in 

Hartl, unlike Dr. Cragg here, testified that claimant's most 

recent injury was a separate and distinct one and his present 

impairment was greater as a result of it. As pointed out 

above, Dr. Cragg testified that the June 6 injury here was 

not a separate and distinct injury but merely an aggravation 

of the preexisting one. 

In cases like this, it is incumbent on the insurer 

seeking to be relieved from liability to establish by a 

preponderance of the evidence that the claimant's present 

condition was caused by an accident occurring when the other 

insurer was on risk. Newman v. Karnp, supra, 374 P.2d at 

104. A review of the record indicates that U.S.F.&G. has 

failed to do this and that there is substantial evidence to 

support the decision of the Workers' Compensation Court. 

U.S.F.&G. contends we should apply the "last injurious 

exposure" rule, as stated in 4 Larson, The Law of Workmen's 

Compensation S95.12 at 17-71. This Court has, however, 

previously held this rule to be inapplicable in Montana 
because we are committed to the doctrine that the particular 

injury must be the proximate cause of the present condition 

for which the claimant seeks compensation. Newman, 374 P.2d 

at 104. 

There is sufficient evidence in the record to support 

the finding of the Workers' Compensation Court. Its decision is therefore affirmed. 

One further matter merits discussion. This appeal 

essentially involves only a question of liability between 

the two insurers, with both U.S.F.&G. and Industrial Indemnity agreeing that claimant had suffered a compensable 

injury. Claimant's attorney, however, filed a brief and 

made an appearance at oral argument. He now requests attorney fees and costs for that appearance. In a case such as 

this, where the claimant is assured of compensation, it is 

unnecessary for him to make an appearance other than the 

filing of a short brief stating his position and that he 

will not appear. As the appearance was unnecessary, claimant's request for attorney fees and costs on appeal is 

denied. 

A£ f irmed. 

tdio-< Judge, sitting in &lace 

o%;r~r. Justice Gene B. Daly 

We concur: 

Chief Justice