Defenses: Subsequent Injury

MONTANA SUPREME COURT DECISIONS

WORKERS' COMPENSATION COURT DECISIONS

Feuerherm v. Liberty Northwest Insurance [12/04/07] 2007 MTWCC 50 Once a claimant has proven a work-related injury and produced evidence that the injury is a cause of a present disability, an insurer who alleges that subsequent events are the actual cause of the claimant’s current disability has the burden of proving that allegation, which is in the nature of an affirmative defense, by a preponderance of the evidence. Briney v. Pacific Employers Ins., 283 Mont. 346, 351, 942 P.2d 81, 84. Where the only evidence Respondent presented are two doctors’ histories, and neither of the doctors who took the histories testified in this case, and where Petitioner was found credible and offered a plausible explanation as to why the doctors’ histories may have misstated the event which allegedly may have caused a subsequent injury, the Court concludes Respondent did not meet its burden of proof.