### 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 COMPANYI 

### 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:

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# 7lgp~n "cHonorable Joseph B. Gary, District Judge, delivered the Opinion of the Court.

claimant, who had had trouble with a knee since 1941, injured hisknee on two separate occasions in 1978 while working for Structural Systems, Inc. The firstinjury occurred on April 4, 1978, when the claimant slipped on a roof of the Craighead Apartments atthe University of Montana inMissoula, Montana. Atthat time, Structural Systems was insured forworkers' compensation purposes by U.S.F.&G. Claimant's second injury occurred on June 6, 1978, when claimantwas carrying iron bars while working on the Reserve StreetBridge inMissoula. Atthe 

### timeof the second accident, Industrial Indemnity Co. was Structural Systems' insurer forworkers' compensation purposes. Both injuries

### were inflicted upon claimant's right knee. Claimant did not consult a doctor after the first accident and was able tocontinue working although he continued to experience severe difficulties and pain with the knee. Claimant also continued towork for a month after the second accident until he was laid off. Atthattime, he sought medical attention. It

### was determined that claimant

was temporarily totally disabled pending a finaldetermination by theWorkers' Compensation Court. Claimant filed a petition inthe Workers' Compensation Court on November 15, 1978, againstU.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, inwhich U.S.F.&G. and Industrial Indemnity were ordered toreimburse claimant for allaccrued temporary total disabilitybenefits and medical expenses on an equal share basis. On September 28, 1979,the court entered its findings of fact and conclusions of law holding thatU.S.F.&G. was toreimburse Industrial Indemnity for any and allbenefits thathad been paid pursuant to the court's interim order. The courtheld 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 thatU.S.F.&G. was liable for claimant's benefits because, according toMontana law, it

### was improper toapportion the liability forworkerst compensation benefitsbetween successive insurers. From thisjudgment, 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 atthe time of the lastinjurious exposure is liable for the resulting disability? U.S.F.&G. submits that there isno disputeby the parties that claimant did infact 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 tobenefits had he incurred medical expenses or lostwages. Itcontends, however, that on June 6claimant suffered a new and compensable industrial accident and that since thiswas 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 inMontana that an employer takes an employee ashe 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 toapportion workers' compensation benefits between successive insurers. It submits that the workers' compensation court correctly followed the dictates of Hartl inholding U.S.F.&G. liable for compensating claimant. Industrial Indemnity alsocites Newman v. Kamp (1962)

## , 140Mont. 487, 374 P.2d 100, for the proposition thatwhere a second injury occurs before the first injury 

### ishealed, the firstcarrier is liable for 

### all compensation, and the second carrier isrelieved of liability. It contends that inthe instant case there is a plethora of medical and lay testimony indicating that the injury resulting from claimant's firstaccident had not completely healed atthe 

### timeof 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 compensation. Claimant inthis case basically agrees with theWorkers' Compensation Court's decision holding U.S.F.&G. liable for his compensation. Firstof all, inexamining the contentions by the parties to this appeal, it should be pointed out that this Court has consistently held the test of sufficiency of theevidence tobe 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 thatwhere the findings arebased on conflicting evidence, this Court's function on review is confined to determining whether there is substantial evidence to support the findings and not todetermine 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 isundisputed inMontana that an employer takes his employee subject to the employee's physical condition atthe timeof employment. It is also undisputed that an aggravation of a preexisting condition isa compensable injury under theWorkers' Compensation Act. Robins v. Anaconda Aluminum Co. (1978), 175Mont. 514, 575 P.2d 67, 35 St.Rep. 213; Schumacher v. Empire SteelMfg. Co. (1977), 175Mont. 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 firstinjury is completely healed, the second accident is incident to the firstand the firstinsurer isrequired to pay allcompensation. Newrnan v. Kamp, supra. This is so because inMontana there is no apportionment of workers' compensation benefits between successive insurers. Hart1 v. Big Sky of Montana, Inc., supra.There 

### isno question thatclaimant 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 rmerely an aggravation of a preexisting condition. In essence, then, resolution of liability isdependent on a determination of which particular injury was the proximate cause of the present condition forwhich claimant seeks compensation. The Workers' Compensation Court, ineffect, held that the second injury, since it occurred before the firsthad completely healed, was merely an aggravation of a preexisting condition and, therefore, the firstinjurywas 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 injurywas separate and distinctfrom the first. U.S.F.&G. bases itsargument on the factthat claimant continued towork after the firstaccident and did not seek medical help; however, it argues, he did see a doctor and quitworking after the second accident. It contends thatunder our holding inHartl, Industrial Indemnity should be liable. This isnot, however, a completely accurate statementof 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, inhis opinion, 

### were aggravations of thatpreexisting condition. He also testified that atthe 

### timeof the June 6 accident, claimant had not recovered from theApril 4 accident.The record showed that claimantwas somewhat stoical and had a high tolerance forpain. It also showed that claimant attimeshad continued towork even though he 

### was inpain. In fact, claimant continued working after the June 6 accident untilhe 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. InHartl, the claimant also suffered from a preexisting condition. The physician there testified thatallof the claimant's back injuries contributed tohis present condition, and itwas 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 hispresent 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 distinctinjury butmerely an aggravation of the preexisting one. In cases like this, it isincumbent 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 thatU.S.F.&G. has failed todo this and that there is substantial evidence to support the decision of theWorkers' 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 thisrule tobe inapplicable inMontana

### because we are committed to the doctrine that the particular injurymust be the proximate cause of the present condition for which the claimant seeks compensation. Newman, 374 P.2d at 104. There is sufficientevidence 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 claimanthad 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 shortbrief stating his position and that he will not appear. As the appearancewas unnecessary, claimant's request for attorney fees and costs on appeal is denied. A£firmed.

tdio-<Judge, sitting in&lace o%;r~r.Justice Gene B. Daly We concur:

Chief Justice