3. In addition to his civilian employment, the claimant has served in the Montana National Guard since 1986. He began his service in the Air National Guard but later on transferred to the Army National Guard. He has been trained as a helicopter pilot.

4. The Court finds claimant to be a credible witness.

5. On March 28, 1986, claimant suffered an industrial injury while working for Valley Excavation. (Ex. 2-R.) His job duties included digging basements, grading roads, loading gravel and equipment repair and maintenance. At the time of his injury he was driving a CAT on a side hill. He backed over a rock, which caused the CAT to tip over. Claimant had his seat belt on at the time and he landed on the ground. The initial impact was to his right arm and shoulder. (Ex. 2-R at 46.)

6. Following claimant's 1986 industrial injury, he was treated for neck, back, right shoulder and right arm complaints by Dr. Michael Pardis, a local chiropractor. (Ex. 2-R at 31-46.) Claimant's condition improved and his treatment ended December 29, 1986. (Id.) His 1986 industrial accident did not result in permanent injuries or disability.

7. On July 13, 1987, while still working for Valley Excavation, claimant suffered a second industrial injury. (Uncontested Fact No. 3(a).) He was welding on the upper deck of a gravel screening plant. A cable broke and claimant fell several feet onto the screening plant. He then fell several more feet to the ground. He hit the ground with his head, right shoulder and neck.

8. Following the accident claimant experienced sharp pain in the right side of his neck and aching in his right shoulder and arm.

9. Following the 1987 accident, claimant was initially treated by Dr. Pardis. Claimant's testimony and medical records from Dr. Pardis show that his primary symptoms were cervical pain and pain in the right shoulder and arm. (Ex. 2-R at 1-2.)

10. Claimant moved to Moses Lake, Washington in August of 1987, where Dr. Ronald Covey, a chiropractor, picked up his treatment. Dr. Covey treated claimant from September of 1987, until June of 1988. (Ex. 2-H.) On June 7, 1988, he wrote a letter to the State Fund concerning claimant's condition: "The condition of the above-named claimant has shown a positive response to treatment. Mr. Beckers has reached pre-injury status and was released from care effective 6-7-88." (Id. at 2.)

11. Notwithstanding his June 7, 1988 report, Dr. Covey treated claimant on two more occasions in June for his neck complaints. (Covey Dep. at 17-18.) At that time, claimant had returned to National Guard duty. The doctor viewed claimant's Guard duties as precipitating the onset of renewed symptoms and, therefore, did not directly attribute the symptoms to claimant's prior injuries. (Id. at 17.) However, Dr. Covey testified in his deposition that "had I continued to treat this man and found that he continued to experience symptoms related to these same areas of the spine, my opinion could be different." (Id. at 18.) When asked to elaborate, he said further:

(Covey Dep. at 18.) In fact, the claimant did continue to seek treatment for the same symptoms after June of 1988.

12. Claimant moved back to Helena in July 1988. He again sought treatment for neck pain. (Ex. 2-R at 2.) His first treatment was by Dr. Pardis on October 19, 1988. (Ex. 2-R at 22.) Dr. Pardis continued to treat claimant until August of 1990. (Ex. 2-R.) Although most of Dr. Pardis' office notes are illegible, the word "neck" is legible in his October 19, 1988 note (Ex. 2-R at 22) and Dr. Pardis confirmed in a December 8, 1993 letter that treatments from 1988 to 1990 "were for complaints of the neck and upper back pain" (Id. at 2.) There was no regularity to the treatments. There was a two and a half month interval between the claimant's first, October 19,1988 treatment and the next treatment. During some months he received two or three treatments. (Ex. 2-R at 21-22.)

13. Between August 1990 and October 1991, the claimant attended flight school in Alabama. The schooling was in conjunction with his National Guard service.

14. While living in Alabama, claimant was treated by Drs. Alan Conrad and Howell, who are chiropractors. (Ex. 2-F and N.) Claimant completed a "CONFIDENTIAL PATIENT INFORMATION" form during his first visit to the chiropractic clinic. (Ex. 2-F at 3-4.) On that form, he stated that his current chief complaint was a stiff neck and pain turning to the right. (Id.)

15. Between August 1990 and October 1991, claimant was also treated on three occasions by Dr. Kenneth Stein, a chiropractor in Miles City, Montana. (Ex. 2-W.) Claimant saw Dr. Stein when he was home visiting his parents. Dr. Stein treated claimant for neck and shoulder pain. (Id.)

16. Claimant returned to Montana in October of 1991 and again worked for a time for Valley Excavating in Helena and for Poverty Well Service in Great Falls.

17. Between October of 1991 and July of 1992, claimant was treated by Dr. Pardis. (Ex. 2-R.) Claimant's last documented visit was in July of 1992. (Id.) The treatments were billed to the State Fund under a separate industrial injury claimant suffered on May 16, 1990. That injury occurred when claimant was carrying a hydraulic cylinder and slipped and fell in the mud. He fell on his buttocks and the cylinder hit him in the waist. Dr. Pardis treated claimant for low-back pain. (Ex. 2-R at 8-10.) However, claimant testified that some of the treatments also included specific therapies for his neck and shoulder. Dr. Pardis' handwriting is illegible, but the Court found claimant's testimony credible and consistent with the overall, long-term pattern of chiropractic treatment of his neck.

18. Claimant returned to Alabama in October of 1992 for additional flight training and remained there until February 1993. He testified that during that time he was again treated by Dr. Howell. Although, the visits are not documented with records from Dr. Howell, continued chiropractic treatment is consistent with the pattern of treatments over the preceding years, and the Court found claimant's testimony in this regard to be believable.

19. Dr. Stein treated claimant again on March 18, 1993, for his neck. (Ex. 2-W at 3.)

20. Claimant started treating with chiropractor Forrette, on April 27, 1993, in Boulder, Montana. (Ex. 2-K at 5.) Dr. Forrette treated claimant for his right arm and neck. (Id.) Claimant's last recorded visit with Dr. Forrette was in December of 1993. (Id.)

21. Because of continuing pain in his neck, right shoulder and right arm, claimant was referred by Dr. Forrette to Dr. Max Iverson, an orthopedic surgeon, in Helena, Montana. (Ex. 2-0 at 18.) Dr. Iverson first examined claimant on November 8, 1993. A cervical MRI taken November 9, 1993 disclosed protruding discs at C5-6 and C6-7, disc space narrowing at C5-6 and C6-7. On January 4, 1994, Dr. Iverson recommended that claimant stop working due to his symptoms. (Id. at 10.) Dr. Iverson's office note for that day reads in part:

(Id.)

22. On September 14, 1994, Dr. H.C. Chandler, who is a neurosurgeon in Missoula, performed posterior cervical laminoforaminotomy surgery at the C5-6, C6-7 and C7-T1 vertebral levels. (Ex. 2-U at 6.)

23. Three medical practitioners have provided opinions that claimant's neck condition and consequent surgery are attributable to claimant's 1987 injury.

a. On October 24, 1994, Dr. GaleWyrick, wrote a letter to claimant's attorney in which he stated:

(Ex. 2L.) Dr. GaleWyrick based his opinion on his review of medical records and claimant's verbal reports over the years about his on-going problems. In reaching his opinion, Dr. GaleWyrick provided the following analysis:

(Id.) In reviewing this letter, the Court has taken into consideration the fact that Dr. GaleWyrick is claimant's uncle. However, his opinion and comments were corroborated by Dr. Iverson and unrefuted by any other medical opinion.

b. On June 28, 1993, Dr. Forrette wrote to the State Fund, requesting permission to treat claimant with respect to his 1987 industrial injury. (Ex. 2-K at 2.) He expressed his opinion that claimant's condition is attributable to his 1987 injury.

c. On March 30, 1994, Dr. Iverson wrote a letter to claimant's attorney, stating in part:

(Ex. 2-O at 7.)

24. Dr. Iverson testified by deposition. He reiterated his opinion that claimant's neck condition was caused by his 1987 injury. As did Dr. GaleWyrick, he specifically noted the nature of the interval between the accident and the degenerative changes in claimant's cervical spine were significant:

(Iverson Dep. at 14.)

25. The State Fund insists, however, that these opinions should be disregarded because they do not fully take into account the claimant's true medical history and other injuries he has suffered along the way. The State Fund points to references to various incidents that may have triggered increased symptoms in the claimant and argues that either these individual incidents, or all of them together, are responsible for claimant's current symptoms. The incidents referred to include:

26. The State Fund has offered no medical opinions demonstrating that any of these incidents permanently aggravated claimant's neck condition. Many of them occurred outside the time frame for the degenerative changes in claimant's neck to have occurred. Dr. Iverson was vigorously cross-examined about the incidents and their effect on his opinions. He stood by his original opinion. In response to questions by the State Fund's attorney, he testified:

(Iverson Dep. at 27-28; emphasis added.) In redirect examination, he said:

(Iverson Dep. at 29-30.)

27. The State Fund has refused to pay for claimant's surgery. It has also denied liability for disability benefits.

28. The State Fund's refusal to pay medical or compensation benefits was unreasonable. Claimant orally requested payment for chiropractic services of Dr. Forrette. On June 30, 1993, the State Fund received Dr. Forrette's letter specifically relating claimant's current symptoms to the 1987 industrial injury. (Ex. 2-K at 2.) The State Fund initially authorized treatment, but once it discovered Dr. Covey's June 7, 1988 letter in which he stated that claimant had reached "pre-injury status" it denied further treatment. It later received Dr. Iverson's March 30, 1994 letter in which he related claimant's condition to his 1987 injury. The State Fund never sought nor obtained an independent medical opinion, choosing rather to disregard and second guess the medical opinions which had been furnished to it.

CONCLUSIONS OF LAW

1. The law in effect at the time of the injury governs the claimant's entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986). Thus, the 1987 version of the Workers' Compensation Act governs claimant's entitlement to benefits.

2. Claimant seeks temporary total disability benefits from January 4, 1994, until he is released to return to work. He also seeks payment of his medical bills relating to his neck.

Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Ricks v. Teslow Consolidated, 162 Mont. 469, 483-484, 512 P.2d 1304 (1973); Dumont v. Aetna Fire Underwriters, 183 Mont. 190, 201, 598 P.2d 1099 (1979). Claimant has met his burden. A preponderance of the evidence demonstrated that claimant has had recurring neck, shoulder and arm pain since his 1987 injury. The medical evidence establishes that he suffered a degeneration of his cervical vertebrae, that the degeneration was consistent with his 1987 trauma, and that it could ordinarily be expected to develop over a several year period. The State Fund's theory that his condition was due to his 1986 accident or to subsequent permanently aggravating injuries was unpersuasive. While subsequent incidents caused his symptoms to flare-up, the State Fund failed to prove that the incidents permanently worsened claimant's underlying condition. Indeed, the frequency of the flare-ups and the nature of some of the incidents, e.g., flying a helicopter, suggest that the underlying condition was the root of claimant's problems, and that his activities merely made his underlying condition more symptomatic.

Once a claimant meets this initial burden of proof, the burden shifts to the insurance carrier to show that claimant suffered a permanent aggravation. Walker v. United Parcel Service, 262 Mont. 450, 456, 865 P.2d 1113 (1993). The State Fund did not introduce evidence to show that any of claimant's subsequent incidents permanently aggravated his condition. Dr. Iverson viewed subsequent incidents as temporary aggravations of his underlying condition. Dr. Iverson's and Dr. GaleWyrick's opinions establish that claimant's neck condition in 1987 was the product of trauma many years past.

3. Maximum medical healing does not cut-off the future liability of an insurance carrier. The Montana Supreme Court stated in 1987: