No. 85-92 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1.985 

MABEL C. TENDERHOLT, 

Claimant and Respondent, 

-vsTRAVEL LODGE INTERNATIONAL, Employer, 

and 

ROYAL INSURANCE COMPANY OF AMERICA, 

Defendant and Appellant. 

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 : 

Lynaugh, Fitzgerald & Hingle; Michael Eiselein, 

Billings, Montana 

Filed: 

Submitted on Briefs: July 11, 1985 

Decided: December 5, 1985 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The Workers' Compensation Court held that claimant's 

disability was proximately caused by an industrial accident 

while working at Travel Lodge International (Travel Lodge) 

and awarded Mabel C. Tenderholt temporzry total disability 

benefits. Travel Lodge and Royal Insurance Company of 

America (Royal Insurance) appeal. We affirm. 

The issues on appeal are: 

1. Did the Workers' Compensation Court err in 

concluding that Mrs. Tenderholt's disability was proximately 

caused by an industrial accident while employed at Travel 

Lodge? 

2. Is Royal Insurance entitled to seek indemnity from 

subsequent insurers? 

In September 1981, while employed as a maid for Travel 

Lodge, Mrs. Tenderholt experienced a sharp pain in her back 

as she unraveled the cord of a vacuum cleaner. She finished 

her shift and went home. Later that evening, she went to the 

emergency room after increased pain made it impossible for 

her to walk without her husband's help. At the emergency 

room, X-rays were taken, medication prescribed and advi-ce 

given to see a specialist, Dr. Hayward. 

Dr. Hayward, an orthopedic surgeon, saw Mrs. Tenderholt 

on October 6, October 16, November 13 and December 11, 1981. 

During the November visit, Dr. Hayward advised her that she 

could probably return to work the foll-owing week but should 

wear a corset. 

Travel Lodge accepted liability for Mrs. Tenderholt's 

injury and paid weekly temporary total disability benefits 

through November 15, 1981. 

Mrs. Tenderholt sought to return to work at Travel Lodge 

but was told her position had been filled. On or about 
November 20, 1981, she went to work at Lewis and Clark Inn as 

a maid and worked until April 1982. In August 1982, she went 

to work as a maid for Picture Court Motel. After a month, 

she returned to Lewis and Clark Inn where she remained until 

back pain caused her to quit, in May 1983. 

Mrs. Tenderholt returned to Dr. Haywood for office 

visits on Janua-ry 11, January 20, February 3, March 16 and 

April 11, 1984. After extensive examination, she was 

diagnosed as having extra dural defects and possibly a 

herniated nucleus pulposus. In order to relieve the 

pressure, Dr. Hayward recommended surgery, which requires 

exploration of three different levels in the spine. In July 

1984, Mrs. Tenderholt filed a claim against Travel Lodge. In 

December 1984, the Workers' Compensation Court ordered Royal 

Insurance to pay temporary total disability benefits until 

Mrs. Tenderholt submits to and recovers from surgery. 

Did the Workers' Compensation Court err in concluding 

that Mrs. Tenderholt's disability was proximately caused by 

an industrial accident while employed at Travel Lodge? 

At issue is the question of whether Mrs. Tenderholt's 

injury ever reached a medically stable condition. Stated 

otherwise, was Mrs. Tenderholt's low back injury restored as 

far as the permanent character of her injuries would permit? 

Travel Lodge and its insurer argue that Mrs. 

Tenderholt's low back injury reached a point of maximum 

healing prior to the time she returned to work as a maid at 

another motel. Mrs. Tenderholt contends she has suffered 

constant pain since the industrial accident at Travel Lodge, 

and that her low back injury never reached a medically stable 

condition. 

In his testimony, Dr. Hayward stated that Mrs. 

Tenderholt had reached a medically stable condition in 
December 1981. Travel Lodge argues that this terminates its 

responsibility for the first injury, and that the subsequent 

injury therefore should be charged to subsequent employers. 

Normally that would be an appropriate conclusion. However, 

following his 1984 examinations, Dr. Hayward concluded that 

the hernia.ted nucleus pulposus was a development which can be 

medically traced baclc to the original back injury and is not 

a separate problem. 

The court found Mrs. Tenderholt to be a credible 

witness. Mrs. Tenderholt unequivocally testified that from 

the time of the first injury in 1981 up until the 1984 

examinations by Dr. Hayward, she continued to experience the 

sa.me, constant, severe pain in her lower back. In addition, 

she testified that there were no intervening events in 

subsequent employments which ha.d aggravated her back or 

constituted a reinjury. 

The Workers' Compensation Court concluded. that Mrs. 

Tenderholt's present disability was proximately caused by the 

original 1981 industrial accident while employed at Travel 

Lodge. 

This Court will not reverse the Workers' Compensation 

Court on the issue of proximate cause unless the findings of 

fact or conclusions of law are clearly erroneous. Rule 

52(a), M.R.Civ.P., states in pertinent part: 

Findings of fact shall not be set aside unless 

clearly erroneous, and due regard shall be given to 

the opportunity of the trial court to judge of the 

credibility of the witnesses. 

Findings of fact are not clearly erroneous if supported 

by substantial credible evidence. As this Court stated in 

Olson v. Westfork Properties, Inc. (1976), 171 Mont. 154, 

157, 557 P.2d 821, 823: 

This Court's function . . . is not to substitute 

its judgment in place of the trier of facts but 
rather it is "confined to determining whether there 

is substantial credible evidence to support" the 

findings of fact and conclusions of law. Although 

conflicts may exist in the evidence presented, it 

is the duty and function of the trial judge to 

resolve such conflicts. His findings will not be 

disturbed on appeal where they are based on 

substantial though conflicting evidence. 

The court's findings were based on conflicting evidence. 

"[Tlhis 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." Davis v. Mtn. West 

Farm Bur. Mut. Ins. Co. (Mont. 19851, 701 P.2d 351, 353, 42 

While we have not set forth all of the testimony on the 

part of Mrs. Tenderholt and Dr. Hayward, we have reviewed the 

record carefully. There is substantial credible evidence to 

support the Workers' Compensation Court's conclusion that 

Mrs. Tenderholt's disability was proximately caused by an 

industrial accident while employed at Travel Lodge. 

In view of this holding, we are not required to address 

the second issue with regard to indemnity from subsequent 

insurers. Recause Travel Lodge is responsible for the 

benefits to be paid to the claimant, it has no right to seek 

indemnity from a third party. See Belton v. Carlson 

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

We affirm the Workers' Compensation Court. 
We Concur: 

Ju tices