Belton v. Hartford Accident Indem

No. 82-90 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983

RALPH V. BELTON, Claimant and Respondent,

vs. CARLSON TRANSPORT, Bmnloyer, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and Appellant,

and RICE TRUCK LINE, Employer, and TRANSPORT INDEMNITY COMPANY, Co-Defendant and Respondent.

Appeal from: Workers' Compensation Court Honorable Tim Reardon, Judqe presiding. Counsel. of Record : For Appellant:

Crowley, Hauqhey, Hanson, Toole & Dietrich, Billings, Montana Randall Bishop argued, Billings, Montana For Respondents: Victor R. Halverson argued, Billings, Montana Garlington, Lohn and Robinson, Missoula, Montana Larry E. Riley argued, Missoula, Montana

Submitted: September 17, 1982 Decided: February 7, 1983 &FE97 m

Filed: 1984

------- Clerk

Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Hartford Accident and Indemnity Company (Hartford) appeals from an order of the Workers' Compensation Court which held that Hartford must pay permanent total disability benefits to claimant, Ralph Belton. Claimant injured his back in two separate accidents--one in 1977, when Hartford was on risk--and one in 1979, when Transport Indemnity was on risk. The Workers' Compensation Court found that cla.irr!antls1979 injury was an aggravation of the 1977 injury, and because the 1977 injury had not "completely healed," Hartford, rather than Transport Indemnity, must pay the compensation benefits. We vacate the order and remand for further proceedings. The trial court based its decision on Little v Structural . Systems (1980), Mont . , 614 p.2d 516, 37 St.Rep. 1187. We held in Little that: "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." (Emphasis added.) 614 P.2d at 519. We recognize that use of the term "completelv healed" was an unfortunate choice of language and that a more meaningful term based on medical fact and legal conclusj-on,would have been one such as "maximum healing," "nedically stable condition," or one which conveys the message that the claimant's condition had arrived at a point where it would get no better even though the claimant would still have symptoms of the injury whether it be an objective sign or a subjective symptm such as pain. The claimant sustained a series of work-related injuries between 1970 and 1979. Between September 1971 and mid-1977, he was totally disabled, due in part to low back pain for which he was rated 15 percent permanently partially impaired. During this

period, he received t o t a l disability benefits from the Social Security Administration. Two of the accidents involved here occurred a f t e r he went back t o work in 1977. The f i r s t accident occurred on November 7, 1977 and the second occurred on December 7,

L979.

Claimant was a long-haul truck driver. O November 7, 1977, n

while employed w i t h Carlson Transport, and while Hartford Indemnity was on risk, claimant slipped on a frost-covered t r a i l e r and f e l l .

H injured h i s buttocks on the edge of the t r a i l e r and slipped off e

the t r a i l e r onto the ground injuring h i s lower back. The injury was diagnosed a s a " l a t e r a l extradural defect a t TJ4-5." Hartford Indemnity paid compensation benefits u n t i l March 31, 1978, when

claimant was released t o go back t o work. H returned t o Carlson e

Transport i n April 1978, but l a t e r worked for other trucking firms.

On December 7, 1979, while working for Rice Truck Line, and while Transport Indemnity was on risk, claimant slipped off a fuel

tank on which he had been standing. H f e l l approximately three e

f e e t and when he h i t the ground mst of h i s weight was on h i s l e f t

foot. H inmediately f e l t pain and it increased over the next four e

hours. H went to the doctor and he has not worked since. e Both

insurers concede, and the t r i a l court found that claimant has been t o t a l l y disabled since the December 1979 accident. It is also undisputed that the December 1979 accident aggravated the lower back injury sustained i n November 1977.

Claimant t e s t i f i e d , t h a t he was often i n pain a f t e r the 1977

lower back injury up t o the time of the 1979 accident. H testified e

t h a t he was also limited i n some of the work he was required t o do.

H needed help i n putting up the end gage of the t r a i l e r ; he needed e

help in putting the tarp over the loads he carried; and he had t o stop a t l e a s t once every 100 miles t o briefly rest h i s back, while before he only had t o stop once every 200 miles. A co-worker corroborated claimant's d i f f i c u l t i e s i n performing h i s job.

At trial, Transport Indemnity relied entirely on our "completely healed" requirenent i n L i t t l e , and i n i t s appellate brief Transport Indemnity has cited and discussed only the L i t t l e

case. W have no doubt, furthermore, t h a t it was our unfortunate e

choice of language in Little which led t o the t r i a l court's ruling.

The t r i a l court ruled t h a t Hartford Indemnity must prove t h a t claimant sustained a "separate and d i s t i n c t injury from the November 7, 1-977 injury" and that "implicit i n t h i s burden is a requirement of proof t h a t the claimant had completely healed f r m the f i r s t injury . . ." (Ehphasis added. ) The court examined the evidence and using the "completely healed" requirement a s the standard, concluded t h a t :

". . . the claimant had certainly reached m a x k healing for purposes of determining temporary t o t a l d i s a b i l i t y during the period beginning March of 1978 throuqh December of 1979. - - requirement of But the is th - must have L i t t l e - -a t the claimant - - r e a c h 2 complete healing. - - - -of the doctors muld Here, none - e- a t the claimant was ccanpletely h e a w stat th - - (Ehphasis added. )

Based on t h i s analysis of the evidence (which was correct) the t r i a l court held that Hartford Indemnity must pay the canpensation benefits. Because of our language i n L i t t l e , the t r i a l court had l i t t l e choice but t o conclude that Hartford Indemnity must pay the

benefits. Nevertheless, w hold t h a t the t r i a l court reached an e

improper legal conc'usion based i n p a r t on our erroneous "completely healed" standard.

A cornpensable event does not require t h a t a "separate and d i s t i n c t injury" be proved. I t has long been the law t h a t an accident i s cornpensable i f the traumatic event o r unusual s t r a i n aggravates a pre-existing injury. The employer takes the employee as he finds him. Therefore, no basis exists t o conclude t h a t a second accident is cornpensable as a separate event only i f it is proved t h a t the injury resulting from the f i r s t accident had "completely healed." The f a c t s reveal without question t h a t two accidents are involved.

An industrial accident is defined in part by section

, 39-71-119 (1) MCA, a s "a tangible happening of a traumatic nature

. . ." The s l i p and f a l l in 1977 and the s l i p and f a l l i n 1979 were

without question "a tangible happening of a traumatic nature . . ." Further, the 1979 s l i p and f a l l indisputably aggravated the injuries

received i n the 1977 accident, and this 1979 accident is just a s indisputably cornpensable.

The "campletely healed" standard s e t forth i n L i t t l e is not an appropriate standard by which t o determine whether the insurer on r i s k during the f i r s t accident or the insurer on r i s k during the second accident should pay the benefits. W e have no d i f f i c u l t y i n distinguishing the facts here from the facts i n L i t t l e , but the f a c t

remains t h a t w adopted the "ccmpletely healed" standard i n L i t t l e , e

and it is a standard w now expressly overrule. e

In Little, on April 4, 1978, while U.S.F.&G. was the compensation c a r r i e r for the employer, claimaint injured h i s knee.

However, he continued t o work and did not see a doctor. Two mnths l a t e r , on June 6, 1978, claimant again injured h i s knee while

working for the same employer. A t t h i s t k , however, Industrial Indemnity was the compensation carrier for the employer. Claimant reported this second accident and sought medical attention. The question arose a s t o whether U.S.F.&G., the insurer W i n g the f i r s t accident, o r Industrial Indemnity, the insurer during the second accident, should pay the compensation benefits. Medical t e s t k n y established that claimant was a stoic onc cam plainer who had knee problems going back t o 1941. Both the April 1978 and the June 1978 accidents aggravated this longstanding knee problem.

The treating doctor t e s t i f i e d t h a t when claimant reinjured h i s

knee i n the June 1978 accident, h i s knee had not recovered £a the rm injury just two months before i n the April 1978 accident. Although

neither the questions put t o the doctor nor the answers were f r m d i n language of whether claimant had reached "maximum heal-ing," o r had reached a "medically stable condition" a t the time of the second

accident, w have no doubt that t h i s i s what the doctor meant when e

he t e s t i f i e d t h a t claimant had not f u l l y recovered from the knee injury sustained just two months k f o r e . Based on t h i s testimony,

we held t h a t the insurer on r i s k a t the time of the f i r s t accident must pay the canpensation benefits. Our adoption of the requiremnt "completely healed" i n L i t t l e

m y have been occasioned by our use of this term i n Newman v. Kamp (1962), 140 Mont. 487, 374 P.2d 100, cited and quoted i n L i t t l e . In listing the irrrportant facts we stated in N e m that the (claimant's) injury caused by the f i r s t accident had not completely healed a t the time of the second accident. 140 Mont. a t 494, 374 P.2d a t 102. However, the issue was not the same i n Newman. There,

the essence of our holding w s a rejection of the " l a s t injurious a

exposure" rule and a holding t h a t instead the particular injury must be the proximate cause of the present condition for which the claimant seeks cmpnsation. 140 Writ. a t 494, 374 P.2d a t 104. We now expressly r e j e c t t h i s term because it creates a dichotany between medical f a c t and legal conclusion.

Doctors will rarely, if ever, say that an injury has "campletely healed." On the other hand, doctors can t e s t i f y a s t o whether a particular injury has reached a point of "maximum healing," o r a "medically stable condition." So, a question of whether a person has reached "maximum healing" o r a "medically stable condition," has meaning t o a doctor who must give an opinion as t o whether a point has been reached t o constitute the end of a

healing period. But even an affirmative answer t these questions o does not necessarily mean that the injured person is free of symptoms, whether it be a subjective symptom such as pain or objective signs which can be determined by an examination or tests. We also recognize that the Workers' Compensation statutes, for the purpose of focusing on the transition from one stage of recovery to another, or one stage of capnsati.on to another, do not require "ccanpl-ete recovery." Rather, the definitional statute, section 39-71-116, MCA, and particularly subsections (12), (13), and (19), have as their focal point a state j n which the question turns on whether the "injured worker is as far restored as the p e m e n t character of his injuries will permit." This Court has recognized these statutory criteria jn

determining the transition point from one point of recovery to another or one stage of compensation to another. See, for example, Anderson v. Carlsons Transport (19781, 178 Mont. 290, 583 P.2d 440; Hendricks v. Anaconda Ccanpany (1977), 173 Mnt. 59, 566 P.2d 70; and W e a r v Arthur G. McKee and C q a n y (1976), 171 Mont. 462, 558 . P.2d 1134. Although we used the word camplete in Anderson, it was not meant there that a person must be symptamless before he has reached a point where he is no longer temporarily totally disabled. Other jurisdictions have reached similar holdings when called on to determine or define the healing period. See, for example, Armstrong Tire and Rubber Company v. Kubli (Iowa App. 1981), 312 N.W.2d 60, and v State Department of Labor (N.H. 1977), 373 . =- f A.2d 341. Particularly instructive is the Georgia case of Garner v. Atlantic Guilding Systems Inc. (1977), 142 Ga.App. 517, 236 S.E.2d 183, because it dealt with the same problems of semantics we are

concerned with here. The Georgia court cautioned against the use of the term "aggravation" when meant to express a condition where the

claimant's condition worsened after the injury because of the wear and tear of performing his usual duties. If the event occurs &cause of a new accident, the Court declared that the term "aggravation" should be used; but if the event occurs when it does not arise out of a new accident, the Court cautioned that the terminology of "gradual worsening or deterioration, or recurrence, as appropriate to the circumstances," should be used. 236 S.E.2d at 184. In a later case, this clarified rule was applied to make the second carrier liable in a factual situation remarkably similar to this case. Crown American Inc. v. West (1977), 143 Ga.App. 525, 239 S E 2d 208. .. The Court found that the events leading to the claimant's total disability were i aggravation of the pre-existing n condition and therefore compensation was found to be payable at the rates in effect at the time the canpensable aggravation resulted in the worker's total disability. From this, the Georgia court found the second carrier was liable. Crown American Inc. , 239 S E 2d at .. 210. Based on what we consider the proper test to be for the healing period, the claimant had reached that point of recovery from the 1977 injury, when he had the 1979 accident which resulted in an aggravation of the 1977 injury. The trial court held not only that this was a aggravation of a pre-existing injury, but - - n also that claimant had reached maximum healing for purposes of determining temporary total disability--in effect that he had reached a dically stable condition. Despite this state of the record, we do not feel a reversal is warranted. It would not be fair, to either side, to hold now that "maximum healing" or "maximum recovery" or a "medically stable condition" had been reached. Both the claimant and Transport Indemnity proceeded at hearing on the basis that Hartford Indemnity

had the burden t o prove t h a t claimant had "completely healed." They confined t h e i r proof t o the "campletely healed" standard s e t forth in L i t t l e . In addition, claimant has a special i n t e r e s t i n this case because of the changed and decreased r a t e s of compensation. Although it would not normally be the case, the canpensation r a t e s i n e f f e c t a t the time of claimant's 1979 accident were l e s s than those in e f f e c t during claimant's 1977 accident. Justice requires, therefore, t h a t the parties have another evidentiary hearing t o determine whether Hartford Indemnity o r Transport Indemnity should pay the benefits t o claimant.

Although not raised a s an issue, w also address the question e

of which insurer has the burden of proof t o establish that claimant had reached a medically stable condition before the D e c a r 1979 accident. In L i t t l e , we held that the burden was on the insurer seeking t o avoid paying. 614 P.2d 520, 37 St.F&p. 1191. However, t h i s r e q u i r m t is of no help where, a s here, each insurance company is disclaiming coverage. Both insurance campanies contend they have no duty t o pay compensation t o claimant--each contends t h a t it is the other insurance company's duty t o pay benefits.

W e hold that the burden of proof is properly placed on the insurance company which i s on r i s k a t the time of the accident i n which a cornpensable injury is claimed. This holding assures t h a t claimant w i l l always know which insurer he can rely on t o pay the benefits. It i s the duty of the insurance campany on r i s k t o pay the benefits u n t i l it proves, o r u n t i l another insurance company agrees, t h a t it should pay the benefits. I f it is l a t e r determined t h a t the insurance company on r i s k a t the t k . of the accident should not pay the benefits, t h i s insurance company, of course, has a right t o seek indemnity from the insurance cmpany responsible for the benefits already paid out t o the claimant.

The order of the Workers' Cmpensa.tion Court is vacated and the case remanded for further proceedings consistent with t h i s opinion.

W Concur: e