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Ebi/orion Group v. State Comp. Mut. Ins.8/22/1991
Submitted on briefs July 2, 1991.
EBI/Orion Group appeals from the judgment of the Workers' Compensation Court which held that it was not entitled to indemnification from the State Compensation Mutual Insurance Fund for workers' compensation benefits paid to claimant, Claude Athey. We affirm.
Although several issues have been submitted on appeal, we find only one necessary to our review:
"Whether substantial credible evidence supports the Workers' Compensation Court's determination that no second injury occurred while State Compensation Mutual Insurance Fund was on risk."
On September 19, 1985, claimant, Claude Athey injured his back in a slip and fall accident. This injury occurred in the course and scope of his employment with Harp Line Construction. At this time Harp Line Construction was insured, for workers' compensation purposes, by EBI/Orion Group (EBI). Despite this injury, Mr. Athey continued to work until he was laid off seasonably and did not seek medical attention until February of 1986.
In May of 1986, Mr. Athey's treating physicians determined that his back condition had become medically stable. During the summer of 1986, Mr. Athey continued his employment with Harp Line Construction. His employment required him to engage in heavy work activities that periodically caused pain in the area of his back injury. At this point in time, Harp Line Construction was insured by the State Compensation Mutual Insurance Fund (State Fund).
On September 8, 1986, Mr. Athey was working particularly hard lifting and stacking tires. He suffered an injury to his chest and stomach and also experienced pain in his back. He reported the injury to his superiors at Harp Line Construction and apparently determined that he could no longer work.
Mr. Athey filed a claim for workers' compensation benefits following this accident. Apparently, Mr. Athey has problems reading and writing, so consequently his employer filled out the form for him. Mr. Athey had not filed a claim after his slip and fall accident and it was his impression that the claim for compensation was for both the 1985 injury and his present injuries received when moving the tires. On receipt of the claim, the State Fund began payment of benefits under ยง 39-71-608, MCA, while its investigation of the circumstances surrounding the claim continued.
After investigation, the State Fund determined that the date of Mr. Athey's injuries was September 19, 1985, when EBI was the insurer at risk. On this basis, it terminated the benefits it had been paying Athey.
On January 23, 1987, EBI received a claim for workers' compensation benefits. Eventually EBI accepted liability for Mr. Athey's condition. However it retained a full reservation of rights to recover any amounts paid, from the State Fund, in the event further investigation revealed that a second injury occurred with the State Fund on risk. After settlement was reached with Mr. Athey, EBI requested that the State Fund contribute 50% toward the settlement. The State Fund refused.
EBI filed a petition before the Workers' Compensation Court for determination of its right to indemnification from the State Fund. The Workers' Compensation Court granted summary judgment in favor of the State Fund. EBI appealed to this Court and we reversed. EBI/Orion Group v. State Compensation Ins. Fund (1989), 240 Mont. 99, 782 P.2d 1276. On remand we directed the Workers' Compensation Court "to determine whether Claude Athey had reached the condition of maximum healing following his injury of September 19, 1985, prior to his second injury, and whether in fact a second inj
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