(Ex. 5 at 18.)

¶16 Claimant began driving on September 7, 2000. He drove 11½ hours that day. (Reynold's Dep. Ex. 2 at 93.) Even though the seats of the trucks claimant drove were good ones, claimant was nonetheless bounced around while driving, especially when his truck was empty, and by the end of the day of September 7^th, his back was stiff.

¶17 Claimant again drove 11½ hours on September 8, 2000. (Id. at 92.) By the end of his shift, his back was "pretty sore."

¶18 Claimant's final day as a driver was September 9, 2000. He drove only four hours that day (id. at 91), even though scheduled for a full shift. He was unable to continue driving because of back pain. He finished his shift by working in the shop cleaning. (Id.) He never returned to truck driving.

¶19 Claimant reported his inability to continue truck driving to his supervisors. At the end of the day he was required to fill out a time card. The time card requires the worker to circle "yes" or "no" as to "personal injury" occurring on a work shift. Claimant was told by his supervisor not to report a new injury on his time card and to mark "no injury." Instead of marking "no" as instructed on September 9^th, he circled neither "yes" nor "no." (Id.)

¶20 Claimant thereafter experienced continued back pain and began taking Percocet, which is a narcotic analgesic. On September 18, 2001, Dr. Goodman imposed further restrictions on claimant's work, limiting him to jobs which allowed him to adjust his activities as needed. (Goodman Tr. Test.; Goodman Dep. Ex. 1 at 156⁽¹⁾.) Claimant went back to working as an oiler, then a mechanic.

¶21 On October 16, 2000, Dr. Goodman's nurse noted a telephone call from claimant. He complained of low-back pain radiating down his right leg. (Goodman Dep. Ex. 1.)

¶22 On October 18, 2000, an MRI of claimant's lumbar spine was done. It disclosed recurrent disk herniation at the L4-5 level, specifically a 'large focal herniated nucleus pulposus at L4-L5 on the right which dorsally displaces the right L5 nerve root . . . [and] causes severe "right lateral recess" stenosis.' (Id. at 152.) Dr. Goodman opined that while claimant's February 2000 injury and resultant surgery predisposed him to the new herniation (a "1 in 20 chance") (Goodman Dep. at 25, 32-33), the October truck driving caused the actual herniation (id. at 21.) On a more likely than not medical basis, he further opined that claimant would not have suffered the new herniation had he continued to do light-duty shop work rather than driving. (Goodman Dep. at 21, 37.) Dr. Goodman's opinions were unrebutted.

¶23 Claimant continued working until October 30, 2000. On that date he was using a pipe wrench on a brake cylinder of a truck when he felt something in his back. Within an hour or so he was experiencing severe pain and had to leave work. The next day he underwent an epidural steroid aimed at alleviating his pain. (Ex. 5 at 36-37.)

¶24 On October 30, 2000, Decker's safety supervisor, Don Reynolds (Reynolds), completed a First Report of Occupational Injury or Occupational Disease. In that report he wrote that claimant had surgery on March 20, 2000, had returned to work on June 6, 2000, and later "drove a coal hauler [truck] for two days and complained his back was hurting." (Ex. 19, capitalized in original.) Reynolds further noted that claimant had "recently had an MRI which disclosed a bulging disc." As pertains to the issue in this case, he wrote, "THERE WASN'T ANY TRAUMATIC HAPPENING OR ACCIDENT!" (Id.) There was no mention of the October 30^th incident.

¶25 By the time claimant commenced his truck driving for Decker, and thereafter, Decker was insured by Liberty Northwest Insurance Corporation (Liberty). The October 30^th report was therefore submitted to Liberty. Claimant did not see or sign the report prior to its submission. (Waurio Dep. at 91-92.)

¶26 On December 27, 2000, pursuant to section 39-71-608, MCA, Liberty agreed to pay claimant benefits under a reservation of rights. It thereafter brought the present petition seeking indemnification from the State Fund. It seeks a determination that the claimant's disability and medical expenses are the State Fund's responsibility and prays for indemnification.

¶27 Following the October 30^th incident, Dr. Goodman ordered yet another MRI. That MRI was done on November 29, 2000, and confirmed a right-sided herniation at the L4-5 level which "produces significant deformity of the thecal sac with mass effect upon the traversing right L5 and S1 nerve roots." (Ex. 1.) Dr. Goodman characterized the herniation as "worse" in comparison to the October 18, 2000 MRI, and decided to operate for a second time. (Ex. 5 at 26.)

¶28 The second surgery was in two parts on two different dates. The first consisted of a posterior hemilaminotomy and diskectomy at the L4-5 level performed on December 12, 2000. (Ex. 5 at 26-28; Goodman Dep. Ex. 1 at 68.) The second was an anterior fusion of the L4 through S1 disks done on January 22, 2001. (Goodman Dep. Ex. at 62.)

¶29 At the time of trial, claimant had not recovered from his surgery and had not returned to work. Dr. Goodman testified at trial that the fusion attempted on January 22^nd is not solid. He will re-evaluate claimant's condition in three months. If, at that time, there is unacceptable movement of the spinal segments he will consider doing a posterior fusion.

¶30 Dr. Goodman testified that as a result of the reherniation the claimant will have a greater impairment than that which followed his first surgery. As with his other opinions, the opinion is unrebutted.

¶31 The facts of this case are straightforward and need little elaboration. The opinions of Dr. Goodman, who testified both by deposition and personally, were not only persuasive but unrefuted by other medical evidence. Those opinions establish the following:

CONCLUSIONS OF LAW

¶32 The law in effect at the time the claimant's alleged aggravations governs, therefore the 1999 version of the Workers' Compensation Act (WCA) and Occupational Disease Act (ODA) apply.

¶33 Liberty and State Fund do not dispute that one or the other is liable for claimant's compensation and medical benefits paid since October 7, 2000. The question for the Court is, which one is liable?

¶34 The seminal case concerning liability for successive work-related injuries is Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983). Claimant in that case had injured his low back in 1977 when Hartford Accident and Indemnity Company insured his employer. Hartford accepted liability and paid benefits. Claimant returned to work and reinjured his low back in a 1979 fall at work. Transport Indemnity Company insured the employer at that time.

¶35 It was undisputed that the 1979 accident aggravated the claimant's 1977 injury, however, the insurer for the second incident - Indemnity - argued that the first insurer - Hartford - continued to be liable for claimant's low-back condition, including the aggravation, because claimant had not "completely healed" after the first accident. The Supreme Court rejected a "completely healed" rule and held that the second insurer is liable for an aggravation of a prior injury which occurs after the claimant has reached MMI with respect to the prior injury. The Court went on to determine which insurer has the burden of proof in such cases: "We hold that the burden of proof is properly placed on the insurance company which is on risk at the time of the accident in which a compensable injury is claimed." Id. at 392, 658 P.2d at 409-410 (emphasis added).

¶36 Subsequent cases demonstrate that the insurer at risk may be either the first or the second insurer. In both Perry v. Tomahawk, 226 Mont. 318, 320, 735 P.2d 308, 310 (1987), and Richter v. Simmons Drilling, 241 Mont. 518, 522, 788 P.2d 308, 310 (1990), the Court determined that the second, subsequent insurer was at risk and bore the burden of proving that the first insurer was liable for claimant's condition. But in EBI/Orion Group v. State Compensation Mut. Ins. Fund, 249 Mont. 449, 452-53, 816 P.2d 1070, 1072 (1991) and Chaney v. U.S. Fidelity & Guar., 276 Mont. 513, 520, 917 P.2d 912, 916 (1996), the burden was placed on the first insurer to prove that claimant had reached MMI and thereafter suffered a new injury or aggravation. The cases are reconcilable. In Perry and Richter the claimants alleged that a second injury was the cause of disability. In EBI/Orion and Chaney the claimants asserted that the first injury was the cause of disability. Thus, it appears that insurer which the claimant alleges is responsible bears the burden of proof.

¶37 Liberty argues that subsequent injury and disease cases decided since Belton are inconsistent. Specifically, it urges that under Belton it would be liable for the claimant's continuing disability and medical expenses while under Briney v. Pacific Employers Ins. Co., 283 Mont. 346, 942 P.2d 81 (1997) and Romero v. Liberty Mutual Fire Ins. Co. and State Compensation Ins. Fund, 2001 MTWCC 5, it would not be. (Liberty's Post-Trial Brief at 9.) It asks the Court to consider, clarify, and reconcile the case law. In oral argument, Liberty urged the Court to establish a "bright line" for determining which insurer is liable in subsequent injury/aggravation cases.

¶38 After reading the cases cited by the parties, as well as other cases involving subsequent injury and disease issues, I am unpersuaded that the cases are inconsistent or that a different result is required under Belton than under Briney and Romero.

¶39 Belton and its progeny did not change the rule that a new injury or aggravation of a prior injury relieves the prior insurer of liability for medical expenses and disability resulting from the new injury or aggravation. 'A limitation not at issue in Belton, but clearly set forth therein, is that the second injury must be "an aggravation of a pre-existing injury."' Kuntz v. Nationwide Mut. Fire Ins. Co., 1998 MT 5 at ¶19, 287 Mont. 142, 146, 952 P.2d 423, 424. Belton addressed only the "completely healed" rule, which it rejected, and the allocation of burden of proof as between insurers.

¶40 Belton also does not address other issues arising in subsequent injury and disease cases. First, it did not discuss who bears the burden of proof as between the claimant and insurer. Secondly, it does not address what constitutes an injury or aggravation sufficient to relieve the prior insurer of liability.

¶41 Briney, which Liberty cites as conflicting with Belton, is one of three similar cases. The other two are Walker v. United Parcel Service, 262 Mont. 450, 456, 865 P.2d 1113, 1117 (1993) and Burgland v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 136, 950 P.2d 1371, 1372 (1997). In each of the three cases the claimant had suffered a previous work-related injury. In each case the claimant returned to his time-of-injury job following the injury, worked at that job for a number of years but ultimately was unable to continue working in the time-of-injury job. In each case the claimant then brought a petition for permanent partial disability (PPD) benefits. The insurers in each case denied liability for PPD benefits, arguing that the disability was due to aggravations of the initial condition occurring over the intervening years. The insurers in Burgland and Briney affirmatively accepted liability for claimant's current condition as a subsequently occurring occupational disease. The insurer in Walker offered to do so.

¶42 As should be apparent from the foregoing factual summary, in each case the first and second insurers were one and the same. The allegations of subsequent disease were interposed in an attempt to limit the insurer's liability to the $10,000 maximum available under section 39-72-405, MCA, rather than the 500 weeks which were potentially available with respect to the claimants' original injuries.⁽²⁾

¶43 In each of the three cases, the claimant mustered substantial evidence that the first injury caused the permanent partial disability for which compensation was sought. The Supreme Court held that with the production of that evidence the burden of proof shifted to the insurer to prove that a subsequent injury or disease caused the disabling condition. Discussing the respective burdens, the Court in Briney said:

Briney at 351, 942 P.2d at 84. As the quoted text indicates, the basic burden shifting rule was established in Walker.

¶44 In Chaney, a case mentioned in my earlier discussion of Belton, the Court followed a similar analysis where the claimant alleged that USF&G, the first of two insurers, was liable for his condition. The first insurer - U.S. Fidelity - was liable for a wrist injury claimant suffered in 1983. Applying the Walker rule, the Court held that USF&G bore the burden of proof with respect to the claimant's claim against it:

276 Mont. at 519, 917 P.2d at 915.

¶45 The proof required to establish a subsequent occupational disease as the cause of a medical condition and disability is outlined in Caekaert v. State Compensation Ins. Fund, 268 Mont. 105, 885 P.2d 495 (1994). The claimant in Caekaert had developed carpal tunnel syndrome in 1988 while working as a plumber and had undergone bilateral carpal tunnel surgery. The State Fund insured his 1988 employer and accepted his condition as an occupational disease. In 1992 claimant needed additional carpal tunnel surgeries. The State Fund denied liability for the surgeries and concomitant disabilty, urging that claimant's work in a home poultry business had aggravated his carpal tunnel syndrome and therefore created the need for the second surgeries. This Court found for the insurer, however, on appeal the Supreme Court reversed.

¶46 Initially, the Supreme Court held that the aggravation rule which had previously been applied to injury cases is also applicable to occupational diseases. Adopting a "last injurious exposure rule", it held that the insurer liable for a prior work-related occupational disease is not liable for a second, post-MMI injurious exposure which "materially or substantially contributed" to the condition requiring treatment or giving rise to disability; however, if the condition which gives rise to treatment or disability is a mere recurrence of the condition caused by the first occupational disease or injury, and "is a direct and natural result" of that first disease or injury, then the primary insurer remains liable. Id. at 112, 885 P.2d at 499. As a factual matter, the Supreme Court in Caekaert found that the evidence was insufficient to establish that claimant had either reached MMI after his first surgeries or that claimant's work in his poultry business caused his second surgeries.⁽³⁾ To the contrary, it found that medical testimony by claimant's surgeon established that the second surgeries were required on account of the original, 1988 condition.

¶47 In Liberty Northwest Ins. Corp. v. Champion International Corp., 285 Mont. 76, 945 P.2d 433 (1997), the Supreme Court applied the last injurious exposure rule to an injury-disease situation. In that case, the claimant injured his back in 1992 while working for Champion, which was self-insured. Claimant recovered from his injury, was declared at MMI with "minimal" problems, and was released to return to work. Id. at 78, 945 P.2d at 434. Subsequent to his return to work, he worked in a light-duty position, however, he was then transferred to a heavier position. His work in that position led to increasing back pain which was eventually disabling. By that time his employer was insured by Liberty Northwest, which commenced paying benefits but petitioned the Court for indemnification from Champion. After trial, I denied Liberty's petition, finding that the evidence affirmatively established that claimant's subsequent work had "accelerated and significantly aggravated his preexisting degenerative disc disease, and that his disability was not a mere result of the natural progression of his underlying condition." Id. at 79, 245 P.2d at 435. On appeal the Supreme Court followed Caekaert but affirmed. This Court, as well as the Supreme Court, reached a different result in Champion not because of any different legal analysis but simply because the evidence and facts in the case were different. In Caekaert the evidence failed to support a finding of a subsequent occupational disease as the cause of claimant's condition. In Champion the facts did.

¶48 Romero v. Liberty Mutual Fire Ins. Co. and State Compensation Ins. Fund, 2001 MTWCC 5, which Liberty says is another inconsistent case, simply follows and applies Caekaert. The claimant in that case suffered a work-related right arm injury in 1992, which the State Fund accepted as compensable. Claimant thereafter developed difficulties in both arms, leading to a diagnosis of thoracic outlet syndrome. Claimant was off work for a substantial period of time but worked at the County Market bakery for 15 weeks in 1997. Her physician took her off work after 15 weeks because she was having difficulty using her arms. She then filed an occupational disease claim alleging that her work at County Market aggravated her condition. Liberty Mutual, which insured claimant, denied liability. After trial I found that claimant's ongoing arm problems were caused by her 1992 injury and its sequela, not by her work at County Market:

Romero, ¶¶ 52 and 61.

¶49 Romero is reconcilable with Champion and Caekaert. It is in accord with the rule, previously discussed, that the insurer for a work-related injury or disease remains liable for the medical condition and disability resulting from the injury or disease, including conditions and disability that are the "direct and natural result." If a work-related condition deteriorates prior to the claimant reaching MMI, then the insurer remains liable for the condition irrespective of any subsequent aggravation. After MMI, liability for the condition shifts to a subsequent insurer only if claimant suffers another work-related injury or exposure which "materially or substantially" worsens the claimant's condition, leading to additional treatment and disability. If the aggravation is only temporary, then liability shifts back to the first insurer once the aggravation has completely healed, see Allen v. Treasure State Pluming, 246 Mont. 105, 110, 803 P.2d 644, 647 (1990),⁽⁴⁾ otherwise the first insurer is relieved of further liability for subsequent medical expenses and disability.

¶50 Ascertaining whether a subsequent work-related injury or exposure has "materially or substantially" aggravated or worsened a condition caused by a prior work-related injury or exposure turns on the particular facts of each case, and especially upon the medical testimony and evidence. While no bright line may be drawn, Caekaert establishes that a mere worsening in symptoms while working is not in and of itself material and substantial. In Caekaert the second round of surgeries were required even before claimant's work in his poultry business. In Romero the medical testimony indicated that claimant's arm conditions were destined to deteriorate with any activity. Thus, in both cases the claimants' subsequent work did not substantially and materially contribute to their conditions.

¶51 In this case the facts are clear and it makes no difference which insurer bears the burden of proof. The real issue is whether the reherniation of the claimant's disk and his resulting disability is the result of an occupational disease that arose after he reached MMI. I proceed upon the assumption that the State Fund bears the burden of proof.⁽⁵⁾

¶52 The facts of this case are more like those in Champion than in Caekaert and Romero, and far more compelling. Dr. Goodman's opinions, on a more probable than not basis, established that claimant had reached MMI and that his truck driving in September 2000 caused a reherniation of his disk. Dr. Goodman further opined that the recurrence was unlikely had claimant continued to do light-duty work. His opinions were unrefuted. Thus, the evidence establishes a series of incidents at work which satisfy the definition of an occupational disease. "'Occupational disease' means harm, damage, or death as set forth in 39-71-119(1) arising out of or contracted in the course and scope of employment and caused by events occurring on more than a single day or work shift." § 39-72-102(10), MCA (1999).

¶53 I am perplexed by Liberty's assertion that it would be liable under Belton but not under Briney and Romero v. Liberty Mutual Fire Ins. Co. and State Compensation Ins. Fund, 2001 MTWCC 5. As I noted earlier, Belton dealt with the burden of proof and the general principal concerning liability as between two insurers. I find nothing inconsistent between the legal principles set out in Belton and those applied in Briney and Romero. Each case simply turns on its particular facts.

¶54 In summary, the evidence in this case affirmatively establishes that the reherniation of claimant's disk in September 2000, and his resultant disability are the result of his truck driving on September 7, 8, and 9, 2000. Accordingly, Liberty is liable for his medical expenses and compensation benefits. It is not entitled to indemnification from the State Fund.

JUDGMENT

¶55 From and after September 9, 2000, Liberty is liable for medical expenses for the treatment of claimant's herniated disk and associated conditions and for compensation benefits. Liberty is not entitled to indemnification from the State Fund.

¶56 The parties are responsible for their own costs and attorney fees.

¶57 This JUDGMENT is certified as final for purposes of appeal.

¶58 Any party to this dispute may have 20 days in which to request a rehearing from these findings of fact, conclusions of law and judgment.

DATED in Helena, Montana, this 12^th day of October, 2001.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Mr. Larry W. Jones
Mr. Greg E. Overturf
Submitted: September 14, 2001

1. The Court has numbered the pages of Exhibit 1 to Dr. Goodman's deposition since it would otherwise be difficult to find the exhibits cited in the decision.

2. The original injuries were all pre-1987.

3. Consistent with the Walker line of cases discussed earlier, the Court held that the insurer for claimant's 1988 injury bore the burden of proving that he had reached MMI and that he sustained a subsequent injury or disease. 268 Mont. at 114, 885 P.2d at 500-501.

4. In Allen the Supreme Court said: