Proof: Burden of Proof: Between Insurers

MONTANA SUPREME COURT DECISIONS

Travelers Indemnity Company of Illinois v. Nationwide Mutual Fire Insurance Company (Abfalder), 2003 MT 180 When a subsequent injury has arguably aggravated a preexisting condition, the second insurer avoids liability for that condition only upon proving the claimant had not reached maximum medical healing with respect to his prior workers' compensation injury or that the second injury did not in fact permanently aggravate the underlying condition for which the prior insurer was liable.

MONTANA WORKERS' COMPENSATION COURT DECISIONS

Montana State Fund v. Zurich American (In Re Golt) [01/21/09] 2009 MTWCC 3 Since Claimant did not prove that her current back condition is compensable as a work-related injury, neither insurer has the burden to prove the other is liable for a condition which is not work-related.

Liberty NW v. State Fund [10/12/01] 2001 MTWCC 56 In subsequent injury cases, where one of two insurers is liable for claimant's condition and the only question is which one, the insurer which is at risk for the occupational injury or disease which claimant asserts is the cause of the disabling medical condition bears the burden of proving that the other insurer is liable. Where that insurer is the second insurer, it must prove either that the claimant did not reach maximum medical improvement from the first injury or that the first injury is the cause of the disabling condition. If the insurer is the first insurer, then it must prove that claimant reached maximum medical improvement following the first injury or disease and thereafter suffered a work-related injury or exposure which permanently aggravated the pre-existing condition.

Stacks v. Travelers/State Fund [3/1/01] 2001 MTWCC 9 Under Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983), and its progeny, including Perry v. Tomahawk Transp., 226 Mont. 318, 735 P.2d 308 (1987), the insurer at risk at the time of the new injury or aggravation bears burden of proving facts that warrant shifting liability for subsequent medical and indemnity benefits back to the prior insurer.