Richter v. Simmons Drilling3/2/1990
st indemnify the State Fund for benefits paid to Richter since that time
Here, two accidents were involved — one on July 5, 1984, when Richter was employed by General Wells Service, insured by the State Fund, and one on June 27, 1985, when Richter was employed by Simmons Drilling, insured by Industrial Indemnity. In this case, a subsequent event caused an aggravation of a pre-existing injury . Thus, in order for Richter to receive compensation from Industrial Indemnity for the second injury, the evidence must show that Richter reached a medically stable condition before the occurrence of the second injury. Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405.
In Belton, 658 P.2d at 409-10, we stated that the burden is on the insurance company that was "on risk" at the time of the accident. The insurer seeking to avoid payment, in this case Industrial Indemnity, has the burden of proving that claimant's present condition was caused by an accident that occurred when another insurer was on risk. Little v. Structural Systems (1980), 188 Mont. 482, 614 P.2d 516, (overruled on other grounds in Belton, 658 P.2d at 408). The burden of disproving Richter's medically stable condition is on Industrial Indemnity since it is seeking to avoid payment of Workers' Compensation benefits for an accident that occurred while Richter was employed by Simmons Drilling, its insured. The Workers' Compensation Court found that Industrial Indemnity did not meet the burden in proving that Richter was not medically stable prior to his subsequent employment
On March 20, 1985, Dr. Lovitt released Richter to work without restrictions because he felt Richter's condition was medically stable. On May 20, 1985, after Dr. Lovitt examined Richter for his back problems, Dr. Lovitt advised Richter that he could return to work. Although Richter was found to be "partially disabled, probably 50 percent," Dr. Lovitt felt that Richter's condition was medically stable. While Dr. Lovitt did write Richter a letter on June 6, 1985, and advised him to "sit back," Dr. Lovitt never stated that Richter's condition was not medically stable. In fact, Dr. Lovitt reiterated in his deposition that Richter was medically stable at the time of his second injury
Industrial Indemnity argues that the fact that Richter injured his back on the second day he was employed by Simmons Drilling was indicative of his medical condition. Nevertheless, the mere fact that Richter was injured the second day he worked for Simmons Drilling is not, in and of itself, proof that he had not reached a medically stable condition
Industrial Indemnity has failed to persuade this Court, as it failed to persuade the Workers' Compensation Court, that Richter had not reached a medically stable condition when his second injury occurred because it did not meet its burden of proof and, thus, is liable, as the insurer of Simmons Drilling, for Richter's Workers' Compensation benefits in the amount of $286 per week. Because we hold Industrial Indemnity liable for benefits due as the insurer on risk when the June 27, 1985, accident occurred, we also hold that it must indemnify the State Fund for benefits the State Fund paid Richter since that date
Affirmed
CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY, McDONOUGH, WEBER and BARZ concur
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