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McGuin v. State Compensation Insurance Fund12/16/1999
ate Fund's contention is an affirmative defense and it bears the burden of proof with respect to its allegation. Briney v. Pacific Employers Ins. Co., 283 Mont. 346, 351, 942 P.2d 81, 84 (1997).
The 1991 dive does not provide a basis for an affirmative defense. Section 39-71- 407(5), MCA (1999), currently provides that a non work-related, subsequent injury relieve the insurer from liability for benefits attributable to the subsequent injury, providing:
(5) If a claimant who has reached maximum healing suffers a subsequent nonwork-related injury to the same part of the body, the workers' compensation insurer is not liable for any compensation or medical benefits caused by the subsequent nonwork-related injury
However, the provision was enacted in 1989, approximately three years after claimant's injury . Under Buckman, the section is inapplicable.
The law in effect at the time of claimant's 1986 injury is set out in two Montana Supreme court cases, Rightnour v. Kare-Mor, Inc., 225 Mont. 187, 732 P.2d 829 (1987) and in Guild v. Bigfork Convalescent Center, 229 Mont. 466, 747 P.2d 217 (1987). In Rightnour the Court held the insurer is responsible for a non work-related subsequent injury "if it is the direct and natural result of a compensable primary injury, and not the result of an independent intervening cause attributable to the claimant's own intentional conduct." Rightnour, 225 Mont. at 189, 732 P.2d at 831. In Rightnour the Supreme Court determined that the insurer was liable with respect to back surgery required following a subsequent, non work-related injury where the original, compensable injury weakened the claimant's back, thus contributing to the need of subsequent injury and back surgery. In that case the claimant had suffered a work-related back injury and had undergone two back surgeries. She reached maximum medical improvement (MMI), then, while at home, tripped over her dog's chain, fell, and reinjured her back. She thereafter underwent a third back surgery. The Court found the insurer liable for the third surgery because the industrial injury had weakened her back and set her up for the second injury. In Guild the Supreme Court held that even though the claimant had reached MMI following her work- related injury, the insurer for the work-related injury was liable for benefits flowing from a subsequent, non work-related injury which the Court characterized as "a triggering event relating back to Mrs. Guild's [claimant's] 1983 [industrial] injury." Guild, 229 Mont. at 470, 747 P.2d at 219.
Applying Rightnour and Guild, and imposing the burden of persuasion upon the insurer, the evidence concerning the 1991 dive is insufficient to break the connection to the 1986 injury . If the 1991 dive aggravated the pre-existing perilymph fistula, it did so because the fistula was pre-existing.
The 1988 dive in Lake Koocanusa is a different matter. The Supreme Court has held that a subsequent work-related injury which materially aggravates a pre-existing work- related injury shifts responsibility for the resulting condition from the first insurer to the subsequent insurer, at least where the claimant reaches MMI prior to the subsequent injury. Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983). Whether the rule benefits the State Fund is unknown since the Court is not advised as to whom insured the Lincoln County Sheriff's Department in 1988. If it was the State Fund, the rule is of no avail. If it was not the State Fund, then the insurance company which insured the Sheriff's Department at the time is liable.
In any event, the evidence is insufficient to establish that the Lake Koocanusa dive satisfies the Be
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