No. 81-34
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
GEORGE D. McIilAHON,
Claimant and Appellant,
-vs-
THE ANACONDA COMPANY, Employer,
and
THE APJACONDA COMPANY,
Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court,
The Ilonorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles M. Cruikshank, I11 argued, Great Falls,
)tentana
For Respondent :
Waite, Schuster & Larson; Richard Larson argued,
Great Falls, Montana
- --
Submitted: February 28, 1984
Decided: March 29, 1984
Filed : MAR 2 9 1984
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the opinion of
Court.
George D. McMahon (claimant) appeals from orders of the
Workers' Compensation Court denying benefits under the
Occupational Disease Act and the Workers' Compensation Act.
Claimant sought benefits under both Acts simulta.neously in
separate proceedings. The two cases have been consolidated
for purposes of appeal. We remand for further proceedings.
Claimant worked at the Anaconda Company's copper
refinery in Great Falls from 1956 through December 6, 1978 as
an inspector. During this period, claimant was continuously
exposed to moderate levels of sulphuric acid, organic
arsenic, zinc, lead, copper, tellurium, asbestos, silver,
dust and other compounds in the refinery environment.
Claimant complains of throat and lung problems secondary
to the exposure to the environment at work, and resulting
aggravation of psychological problems. Claimant was
diagnosed as having "chronic obstructive lung disease,"
"laryngeal irritation," "leukoplakia of the vocal cords,"
"severe anxiety" and other psychological problems.
Examining physicians agree that claimant's physical
ailments result more from claimant's one to two pack a day
cigarette habit than from the exposure to fumes, etc. at his
work. However, the Occupational Disease Panel concluded that
the disability attributable to the physical ailments was
"about 15 percent related to his occupation."
The level of disability due to Claimant's physical
ailments is sketchy. With regard to the chronic obstructive
pulmonary disease, panel members noted that 90% of persons
with the same degree of physical impairment could nonetheless
"elk hunt" and "jog" and that if claimant had been young, "he
might have even got stuck in the army." Panel members also
state that claimant could return to work if he would quit
smoking. Dr. French testified that claimant's laryngeal
problems would not "disable you in the conventional sense of
the word that you can't work, unless you are perhaps a singer
or something."
There is no testimony that claimant's job was
particularly strenuous so that the degree of physical
impairment he suffered would prevent him from performing his
job. There is evidence that claimant is totally disabled
because of his psychological problems.
The following issues are dispositive of this appeal:
1. Whether claimant's ailments are "injuries" within
the meaning of the Workers' Compensation Act.
2. Whether claimant is totally disabled as a result of
his physical and/or psychological ailments.
3. Whether psychological disability stemming from
work-related physical diseases is compensable under the
Occupational Disease Act.
4. Whether claimant's psychological disorders were
proximately caused or contributed to by his employment and
resulting physical disorders.
Workers' Compensation Act
With regard to the Workers' Compensation Act, we find
the following issue to be determinative: Are claimant's
physical and psychological ailments, resulting from years of
exposure to noxious fumes and particulates in his work
environment, "injuries" as defined in section 39-71-119, MCA?
The Workers' Compensation Act only provides for
liability of insurers when an employee "received an injury
arising out of and in the course of his employment." Section
39-71-407, MCA (emphasis added) . Injury is defined in
section 39-71-119, MCA as "a tangible happening of a
traumatic nature from an unexpected cause . . . and such
physical condition as a result therefrom excluding disease
not traceable to injury . . .."
Despite the detailed definition, it remains a difficult
task to satisfactorily describe and define injury to the
exclusion of disease. See LaPlant, Opp, Workers'
Compensation and Occupational Disease, 43 Mont. L.l?ev. 75,
92-lOO(1982). Professor Larson identifies two crucial points
of distinction: "unexpectedness," and "time-definiteness."
1R A. Larson, The Law of Workmen's Compensation S41.31 at
7-357. We find the second point to be the critical factor in
this case. The fact that claimant's ailments were so very
gradual in onset excludes them from the definition of injury.
We hesitate to attempt to locate the line between
long-term, gradual trauma or disease, and short-term,
accidental trauma, exposure or strain. In Hoehne v. Granite
Lumber Co. (Mont. 1 9 8 0 ) , 615 P.2d 863, 37 St.Rep. 1307,
claimant was held to have an "injury", though the onset of
his carpal tunnel syndrome took place over a period of -
two
months. However, we feel it is safe to conclude that where
laryngeal and pulmonary disorders and resulting psychological
impairment are occasioned by exposure to a hostile
environment - - a period - years, the disorders fall within
for of
the meaning of the legislatively defined term "disease."
We uphold the Compensation Court's conclusion that
claimant has suffered no compensable injury.
Occupational Disease Act
The first issue under the Occupational Disease Act is
whether claimant is totally disabled, temporarily or
permanently, so as to entitle him to benefits under the Act.
Section 39-72-703, MCA provides that no compensation is
payable to an employee who is "partially disabled from an
occupational disease."
After reviewing all of the evidence in this matter, the
Division of Workers' Compensation of the Department of Labor
and Industry found that substantial, credible and
overwhelming evidence establishes that claimant is not
permanently, totally disabled as a result of his physical
impairment. On appeal this conclusion was found by the
special master to be supported by reliable probative and
substantial evidence on the record. We agree with the
special master and affirm the Compensation Court's adoption
of this portion of the master's report. Claimant may be
impaired and disabled but he is certainly not totally
incapacitated from performing work in the normal labor market
because of his physical ailments. Section 39-72-102(3), MCA.
The only remaining route by which claimant would be
entitled to benefits is where he is totally disabled by
reason of his psychological impairment, and such disorder was
caused by claimant's employment and/or the resulting physical
diseases.
A threshold question to such a route to disability
benefits is whether psychological disability, stemming from
work-related physical diseases, is compensable under the
Occupation Disease Act. This Court has held that
psychological disability steming from a work-related injury
is compensable under the Workers' Compensation Act.
Schumacher v. Empire Steel Manufacturing Co. (1977), 175
Mont. 411, 574 P.2d 987. Whether such disorders are
compensable under the Occupational Disease Act is a question
of first impression. This question was addressed in a
Colorado case where the claimant developed a disabling
emotional reaction to a mild case of silicosis. The Colorado
court focused on the definition of "disablement" as
"physically incapacitated by reason of an occupational
disease" and concluded tha.t the claimant did not show that he
was "'physically' incapacitated." Romero v. Standard Metals
Corp. (1971), 29 Colo. App. 455, 485 P.2d 927, 928.
Professor Larson criticized this sort of
"nineteenth-century compartmentalizing of the 'physical' and
the 'neurotic,' as if the nerves and brain were less a part
of the body than the bones and tissues." 1B A. Larson, The
Law of Workmen's Compensation S42.22, at 7-615.
Although Montana has the same definition of
"disablement" (section 39-72-102 (3), MCA) , we agree with
Larson, and refuse to follow the Colorado court. An
-
"occupational disea.sel'is defined as "all diseases arising
out of or contracted from and in the course of employment."
Section 39-72-102(11), MCA (emphasis added). We specifically
hold that disablement under the Occupational Disease Act
includes inability to work in the normal labor market by
reason of a psychological disorder stemming from an
occupational disease.
Claimant argues tha.t he was disabled because he feared
cancer would result if he continued to work at the refinery.
Whether this fear is rational or not is not determinative.
The question is whether or not claimant is in fact totally
disabled because of his psychological impairment. Under the
Occupational Disease Act, this question is to be answered by
a report from the medical panel. Sections 39-72-602, 609,
610, MCA. Without such a report, the Division could not and
did not determine whether claimant is totally disabled due to
his psychological-disorders.
Instead, the Division found that it was unnecessary to
submit the psychological disorders to the medical panel. The
Division reasoned that claimant's psychological disability
was not proximately caused by his job. On appeal, the
Workers' Compensation Court agreed, conclud-ing that the
deposition of psychologist Jones refuted any claim of
causation.
We disagree. We find that the Jones deposition does not
in any way tend to disprove that claimant's psychological
disability was caused by his employment and resulting
physical ailments.
Section 39-72-706, MCA provides that if disability from
any cause not itself compensable "is aggravated, prolonged,
accelerated, or in any way contributed to by an occupational
disease," then the disability is compensable in the same
proportion as the cause attributable to the occupational
disease bears to all the causes of such disability.
There is evidence in this case that claimant's physical
ailments were occupational diseases and were 15% caused by
his work environment. The medical panel so concluded, and
that conclusion is presumptively correct. Thus, if claimant
can show that his lung and laryngeal disorders aggravated or
contributed to claimant's deteriorating psychological
condition, his disability, if total, is compensable at least
in part.
However, the Division made procedural rulings which kept
claimant from entering into the record information relevant
to this issue. The Anaconda Company's physician, Dr.
Engstrom, wrote a letter dated May 23, 1980 in which he
stated:
"Because the exacerbation of his pre-existing
emotional problems was a result of the onset of his
physical problems, I consider it appropriate to
consider that 15% of his present emotional problems
are related to his occupation."
Subsequent to hearing, claimant's attorney requested
permission to depose Dr. Engstrom because he had believed
that the Anaconda Company would place the May 23, 1980 letter
into evidence. Claimant indicated that the letter itself was
acceptable in lieu of the deposition. The Division treated
the letter as an offer of proof and ruled:
1. No post-hearing deposition would be allowed because
such deposition would be without value as claimant could not
establish a cornpensable psychological disorder in any event.
2. The letter is hearsay and cannot be received in
evidence in an administrative hearing under the Occupational
Disease Act. Hert v. Newberry (1978), 178 Mont. 355, 584
P.2d 656.
Claimant's offer of proof clearly demonstrates that Dr.
Engstrom's testimony could establish the vital causal
connection between claimant's employment and his
psychological disability. There is no evidence of record
which would rebut such a prima facie showing. The Division's
failure to grant claimant's request for a post-hearing
deposition of Dr. Engstrom was a failure to attempt to
correctly resolve this issue of causation. We therefore hold
that the denial of claimant's deposition request was an abuse
of discretion.
The case is remanded to the Division of Workers'
Compensation with directions to (1) direct that claimant be
examined by the medical panel to determine whether or not
claimant is totally disabled due to his physical and
psychological disorders and, (2) consider the deposition or
testimony of Dr. Engstrom with regard to the issue of whether
or not claimant's psychological condition was caused,
aggravated, or "in any way contributed to" by his work
environment and resulting physical disorders.
We concur:
74-4 k . W&
R
Chief Justice
Justices
Mr. Justice L.C. Gulbrandson dissenting.
I respectfully dissent.
I would affirm the orders of the Workers' Compensation
Court.