No. 87-198 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

GLENN EDWARD STANGLER, 

Claimant and Appellant, 

-vsANDERSON MEYERS DRILLING COMPANY, 

Employer, 

and 

HOME INSURANCE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Herndon, Harper & Munro; James G. Edmiston, Billings, 

Montana 

For Respondent: 

Marra, Wenz, Johnson & ~opkins; David E. Bauer, Great 

Falls, Montana 

Submitted on Briefs: Sept. 17, 1987 

Decided: November 24, 1987 

Filed: NOV 2 4 1987 
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of 

the Court. 

Glenn Edward Stangler appeals the judgment of the 

Workers' Compensation Court, which found that Stangler 

suffered a new injury while working out of state and that 

Home Insurance Company was not responsible for payment of 

Workers' Compensation benefits. 

We affirm the order of the Workers' Compensation Court. 

Claimant raises three issues for our review: 

1. Whether defendant as the first insurer in a 

successive injury case should escape liability where; the 

alleged second injury occurred in North Dakota; the second 

employer and insurer are not present before the Workers' 

Compensation Court; and, the North Dakota Bureau of Workers' 

Compensation has denied a claim for the alleged second 

injury. 

2. Whether the evidence was sufficient to support the 

Workers' Compensation Court's conclusion that the claimant 

had reached maximum healing after his industrial injury of 

January 24, 1982. 

3. Whether the Workers' Compensation Court erred by 

failing to hold that the Home Insurance Company waived its 

defenses by agreeing to pay benefits on a non-acceptance 

basis pursuant to § 39-71-608, MCA. 

On January 24, 1982, while working in the course and 

scope of his employment, Stangler injured his lower back. At 

that time, Stangler was employed as an assistant driller for 

Meyers Drilling Co. in Helena, Montana. Stangler worked for 

two more days following his injury but then, upon the advice 

of John Harlan, M.D., a general practitioner in Helena, 

returned to his home in Grenora, North Dakota. After 21 days 
off work, Stangler returned to work in Montana for 

approximately one week. Pain in his back caused him to seek 

further medical advice from his family doctor in Williston, 

North Dakota. Stangler again attempted to return to work but 

due to pain was forced to terminate his job with Meyers 

Drilling on February 22, 1982. 

Stangler's family doctor referred him to Dr. Mattheis, a 

neurosurgeon in Bismark, North Dakota. Dr. Mattheis examined 

Stangler on April 7, 1982, diagnosing his injury as an acute 

lumbar strain, with the possibility of a herniated mid-line 

disc. On April 27, 1982, Dr. Mattheis ordered a CT scan for 

Stangler. The CT scan indicated a "bony spur lateral 

posterior margin of L4 which may be deforming the nerve root 

at this level with disc space minimally bulging at the L4-5 

level with herniated disc at the L5-S1 level anterior and in 

the mid-line." Dr. Mattheis recommended a surgical procedure 

for Stangler. Dr. Mattheis later testified by deposition 

that upon review of the CT scan report he did not know what 

prompted him to recommend surgery as he saw nothing 

indicating any serious abnormalities. 

After seeing Dr. Mattheis, Stangler saw Dr. Roger 

Kennedy, another neurosurgeon, for a second opinion 

concerning the necessity of surgery. Dr. Kennedy examined 

Stangler on May 20, 1982, for approximately one-half hour. 

Based on that examination, Dr. Kennedy did not advise surgery 

for Stangler. In fact, when requested to clarify Stangler's 

condition, Dr. Kennedy stated that he could find no 

structural pathology and assigned a 0% whole body permanent 

physical impairment rating. He later clarified this rating 

by saying that an impairment rating does not account for 

pain. Any pain Stangler was experiencing would limit him 

according to his individual tolerance for pain and the job he 

has expected to perform. Based on Dr. Kennedy's report, 
defendant terminated Stangler's temporary total disability 

benefits of $241.00 per week on September 27, 1982. 

Stangler testified that at this point he believed that 

he was medically released to return to work. Also, he had to 

go back to work to pay bills and provide for his family. 

Stangler testified that although in constant pain, he 

returned to very strenuous work on the oil rigs in North 

Dakota. He had to lift 50-80 pound bags of chemicals on a 

frequent basis. Stangler worked for three different drilling 

companies between the fall of 1982 and June 1, 1984, when his 

legs gave out while lifting a 50 pound sack. He experienced 

severe back pain and reported the injury to his employer. 

The report of this injury was never documented in the 

foreman's logbook, however. At the time of this injury, 

Stangler was employed by Grace Romac Drilling. Following the 

second injury, he did not miss any work, but states that the 

pain was constant. 

On September 17, 1984, Stangler saw Dr. Frank Ise, an 

orthopedic surgeon. A CT scan was performed on Stangler 

which did not show anything which was "clinically 

significant." Dr. Ise fitted Stangler with a lumbosacral 

support on October 3, 1984. Dr. Ise saw Stangler again on 

November 3, 1984, December 31, 1984, and January 16, 1985. 

According to Stangler, continued pain made his condition 

dangerous to himself and fellow employees. At Stangler's 

request, Dr. Ise recommended that Stangler quit work for 

Grace Bomac. On July 31, 1985, a myelogram was performed on 

Stangler. That test was also found to be within normal 

limits. 

Stangler contacted Home Insurance Co. (~ome) in March, 

1985. On March 21, 1985, Home agreed to pay temporary total 

disability benefits on a. non-acceptance basis effective 

February 27, 1985, the date Stangler quit working for Grace 
Romac. Home requested that Stangler file a claim with North 

Dakota's Compensation Bureau with the understanding that such 

a filing would not amount to an admission by Stangler of 

North Dakota's jurisdiction of his claim in Montana. 

Stangler's North Dakota claim was denied by the North 

Dakota's Workmens' Compensation Bureau on the grounds that 

Stangler did not prove that an injury actually occurred on 

June 1, 1984, while employed by Grace Bomac Drilling and that 

any injury causing disability was more likely than not 

related to the first injury on January 24, 1982 in Montana. 

A hearing was then held before the Montana Workers' 

Compensation Court to determine Stangler's benefits. The 

court held that a preponderance of the evidence supported the 

conclusion that claimant had reached maximum healing after 

the January 24, 1982, injury. The North Dakota injury of 

June 1, 1984, was deemed a "successive" injury, and all 

benefits to Stangler were denied. 

As claimant's second issue of whether Stangler had 

reached maximum healing is deemed most critical to this 

appeal, we will address it first in this opinion. 

In Relton v. Carlson Transport (1983), 202 Mont. 384, 

658 P.2d 405, this Court adopted the idea of "maximum 

healing" and "successive injuries" in order to more fairly 

assess which employer is responsible for an employees 

on-the-job injury. Maximum healing means that following a 

compensable injury a claimant has reached a point 

constituting the end of a healing period. It does not mean 

the person is free of symptoms such as pain or objective 

signs. Belton, 658 P.2d at 408. 

The rule in Belton controls a situation where an 

employee has been injured more than once and different 

employers' insurance carriers are at risk for the separate 

injuries. If the first injury has not reached maximum 
healing, the insurer at risk at the time of the first injury 

will be responsible for the second injury as well. If the 

claimant is medically stable or has reached maximum healing, 

the insurer at risk at the time of the second injury is 

responsible for Workers' Compensation benefits. 

The record before us includes deposition testimony of 

Glenn Stangler, Doctors Ise, Mattheis, Kennedy. The Montana 

Workers' Compensation Court found that the doctors' testimony 

showed that Stangler had reached maximum healing, or a 

medically stable condition following the January 24, 1982 

injury. 

The standard of review for this Court when reviewing 

factual findings from the Workers' Compensation Court is 

whether substantial credible evidence supports the findings 

of the Workers' Compensation Court. Tenderholt v. Travel 

Lodge International (Mont. 1985), 709 P.2d 1011, 1013, 42 

St.Rep. 1792, 1794-95. Absent a showing of a lack of 

substantial credible evidence, this Court will not upset the 

decision of the Workers' Compensation Court. Dunn v. 

Champion International (Mont. 19861, 720 P.2d 1186, 1189, 43 

St.Rep. 1124, 1128. Where crucial testimony is taken by 

deposition, the court will examine findings more closely, as 

it is in as good a position as the lower court to assess such 

evidence. Jones v. St. Regis Paper Co. (1981), 196 Mont. 

138, 144, 639 P.2d 1140, 1144. 

Reviewed in that light, the record before us on appeal 

supports the finding that Stangler had reached a stabilized 

medical condition after his January 24, 1982, back injury. 

The testimony of the doctors who saw Stangler indicates 

that he was still experiencing periodic, sometimes severe 

pain. None of the doctors found any objectively identifiable 

injury upon extensive testing conducted on Stangler's back. 

Neither the physicians nor the Workers' Compensation Court 
refuted Stangler's credibility nor his testimony that he was 

experiencing pain. However, pain does not negate a finding 

that an injury has reached maximum healing. Belton, 658 P.2d 

at 408-409. 

Stangler's Montana benefits from his first injury were 

terminated September 27, 1982, based on a report from Dr. 

Kennedy who gave Stangler a 0 percent whole body impairment 

rating. At that time, Stangler returned to work in the oil 

fields, which by all accounts is very strenuous labor. He 

continued to work for various drilling companies until 

February 27, 1985. This is a period of almost two and a half 

years. Even accepting the fact that Stangler was 

experiencing pain, if his back was not medically stable 

during this time it is inconceivable that he would be able to 

keep lifting 50 and 80 pound sacks of chemicals on a 

"frequent" basis. Stangler's physicians testimony as well as 

his own testimony concerning the nature and duration of his 

work supports the finding of the Workers' Compensation Court 

that Stangler had reached maximum healing before working in 

North Dakota from 1982-1984. 

Regardless of our holding concerning claimant's level of 

healing, Stangler requests this Court to adopt a corollary 

rule to the Relton rule of successive injuries. Claimant 

would like us to follow the rationale of the Oregon Court of 

Appeals in Miville v. SAIF (0r.App. 1985) , 710 P.2d 159, as 

precedent for this new rule. However, Miville is factually 

distinguishable from the instant case. In Miville, claimant 

injured himself in Oregon. Later he suffered an on-the-job 

injury while working in Indiana where he filed a Workers1 

Compensation claim. The Oregon Court of Appeals held that if 

the claimant's injury in Oregon "materially contributed" to 

claimant's present condition, even though the injury in 

Indiana also ind-ependently contributed to the same condition, 
- and Indiana denied claimant benefits, then Oregon must 

provide benefits for claimant's compensable injury. 

This rule, although a well-intentioned way to help 

claimants who otherwise would not receive benefits, is not 

applicable to Stangler's situation, nor to the case law in 

Montana. 

The deposition testimony of Dr. Ise supports the holding 

of the North Dakota Workmens' Compensation Bureau that 

Stangler did not adequately show that he was reinjured while 

working for Grace Bomac Drilling in North Dakota. Dr. Ise 

testified that there was no way to determine whether 

Stangler's back pain in 1984 was related to the January 24, 

1982, injury. He also stated that he recommended no 

treatment for Stangler and that his back will probably never 

be "perfect." Stangler missed no work because of the alleged 

second injury. The incident was not recorded on Bomac's 

foreman's logbook. Stangler asserts that if there was no 

second injury, Home - has to be liable for the condition of 

Stangler's back in 1984. We find no merit in this argument. 

Home terminated benefits for Stangler's January, 1984, injury 

in September, 1984, when it was determined that Stangler had 

reached maximum healing. We affirm that finding. The 

condition of Stangler's back in North Dakota in June, 1984, 

is not relevant in light of that holding. 

In addition to the recorded evidence, Montana case law 

presents problems for Stangler's mandatory benefits argument. 

Oregon's "material contributory cause, " (See Grable v 

FJeyerhaeuser Co. (Or. 1980), 631 P.2d 768) is inconsistent 

with Montana ' s "maximum healing'' rule adopted in Belton. 

This Court has refused to allocate benefits based on a first 

injury, however casual, to a subsequent condition. See e.g. 

Newman v. Kamp (1962), 140 Mont. 487, 374 P.2d 100. We now 

uphold the Belton rule that once a claimant has reached 
maximum healing or a medically stable condition the insurer 

at risk at the time of the original injury is no longer 

responsible for any subsequent injuries or conditions. 

Claimant's third issue alleges that Home waived all 

defenses regarding the reopening of Stangler's claim in 1984 

pursuant to $j 39-71-608, MCA, when it accepted liability for 

the January 24, 1982, industrial accident. Section 

39-71-608, MCA, states: 

An insurer may, after written notice to the 

claimant and the division, make payment of 

compensation benefits within 30 days of receipt of 

a claim for compensation without such payments 

being construed as an admission of liability or a 

waiver of any right of defense. 

It is true that Home accepted liability for Stangler's 

claim relating to the January 24, 1982, injury. In 

September, 1982, those benefits were properly terminated. In 

June, 1984, Stangler allegedly reinjured his back while 

working in North Dakota. He continued working until February 

27, 1985. In response to his demand to have his benefits 

reinstated, Home began paying weekly benefits to Stangler on 

a nonacceptance basis from February 27, 1985. A March 21, 

1985, letter to Stangler from Home concerning his demand for 

reinstated benefits stated: 

. . . It is our position that Mr. Stangler had 

reached a medically stable condition prior to 

October of 1984 when to the best of our knowledge 

he aggravated his preexisting condition while 

employed as a derrick hand for Bomac in Williston, 

North Dakota. 

Section 39-71-608 does not require a 30-day notice of 

nonacceptance of a claim demanding reinstatement of benefits 

at the time the original cornpensable injury is claimed. Home 

provided benefits on a nonacceptance basis while Stangler 

pursued his claim in North Dakota and then in Montana. There 
was no waiver of defenses or acceptance of liability for 

benefits by Home at any time during those proceedings. 

The judgment of the Workers ' Compensation Court is 

affirmed on all issues. / 

We Concur: I