No. 86-236
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
DOUGLAS E. PHILLIPS,
Claimant and Appell.ant,
-VS-
SPECTRUM ENTERPRISES, Employer,
and
INTERMOUNTAIN INSURANCE COMPANY,
Insurer, Defendant and
Respondent,
APPEAL FROM: The Workers' Compensation Court, The Honorable ~imothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Morales & Volinkaty; Julio K. Morales, Missoula,
Montana
For Respondent :
Garlington, Lohn & Robinson; Bradley J. Luck, Missoula,
Montana
Submitted on Briefs: Sept. 11, 1986
Decided: December 23, 1986
.DEC 2
Filed. 3 1986
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Claimant appeals an order of the Workers' Compensation
Court. Following a two day hearing, the court found he
suffers from an occupational disease, he is not 100% disabled
at this time and currently is not entitled to further
benefits under 5 39-72-703, MCA. He is not entitled to
attorney's fees or to a 20% penalty. We affirm.
Claimant Douglas Phillips (Phillips) was employed by
Spectrum Enterprises at the time of his alleged injury.
Spectrum's electronics manufacturing process includes
extensive soldering, painting, and conformal coating
(application of plastic coating). Solder smoke, fumes and
other airborne chemicals are produced in the work place.
Phillips worked for Spectrum as a mechanical technician
from July, 1982, until May 6, 1983. He performed conformal
coating, painting, cleaning, blue print reading, special
tooling and soldering. Sometime between January and May,
1983, a can of solvent Phillips was opening splashed up onto
his face. Several employees helped him wash the solvent off
his face and moustache. He did not go to the doctor that
day, a Friday, hoping that by doing some running over the
weekend his system would be cleared. The date the solvent
splashed onto his face has never been determined. The record
shows, however, he saw his family physician, Dr. Ballhagen,
May 3, 1983. Neither Dr. Ballhagen, ro
!r Dr. Schimke, a
pulmonary disease specialist who examined him a few days
later, has any record Phillips told. him about the spla.shina
incident.
Phillips terminated his employment with Spectrum May 6.
He executed a claim for compensation in his own hand, May 9,
1983, listing the date of iniury as May 3, 1983. The basis
of his request for benefits was because he " [hlad to stop
work due to inhalation of solder smoke and chemical vapors."
He executed another claim for compensation June 7, 1983, in
which he said:
I worked for a period of about one year
for the company (Spectrum Enterprises).
We did a lot of conformal coating and
soldering in a building without proper
ventilation. This caused my lung to hurt
and I got dizzy to the point that I
couldn't work any longer. I also had
nose bleeds later on.
The Division of Workers' Compensation treated the claim
as being under the Occupational Disease Act, and requested
Dr. Schimke, a member of the Occupational Disease Medical
Panel, to examine and report on Phillips' condition. Dr.
Schimke had seen Phillips earlier as a referral from Dr.
Ballhagen. Schimke's initial report to the Workers'
Compensation Division stated:
This bronchitis is in fact the result of
his employment as a welder where he was
exposed to nauseous chemicals which in
this case resulted in bronchitis. The
illness is due to the work environment
where he was exposed to various chemical
fumes and welding fumes.
The Division issued its order of determination August
3, 1983, indicating no party had requested a second medical
examination. The Division found Phillips had an occupational
disease and was entitled to benefits so long as he was
totally disabled. No timely appeal was taken from this
determination and Intermountain Insurance Company (Insurer),
paid benefits for total disability on the claim through
August 20, 1984. The benefits were discontinued on the basis
of Dr. Schimke's letter of August 1, 1984, to the Division
stating he did "not see any reason to continue [Phillips] on
permanent or total disability."
Phillips filed a petition with the Workers'
Compensation Court August 8, 1984, requesting further
benefits under the Occupational Disease Act or benefits under
the Workers' Compensation Act. He appeals the court's
findings denying further benefits.
As to questions of fact, we are limited
to examining the record to determine
whether it contains substantial credible
evidence to support the court's findings.
If this quantum of evidence is in the
record, we will defer to the trier of
fact s resolution of the factual
dispute ...
Wassberg v. Anaconda Copper Co. (Mont. 19851, 697 P.2d 909,
A thorough review of the record indicates substantial
credible evidence to support the court's findings that
Phillips1 respiratory condition is due to the work
environment. The medical records reflect ongoing respiratory
problems, Dr. Schimke's initial report to the Division said
his condition was due to the work environment, and Phillips
testified he was having work related respiratory problems by
March, 1983.
There also is substantial credible evidence Phillips
did not sustain an injury. "Injury" means:
(1) A tangible happening of a traumatic
nature from an unexpected cause or
unusual strain resulting in either
external or internal physical harm and
such physical condition as a result
therefrom and excluding disease not
traceable to injury, except as provided
in subsection (2) of this section;
(2) cardiovascular or pulmonary or
respiratory diseases contracted by a paid
firefighter ...
Nothing herein shall be
construed to exclude any other working
person who suffers a cardiovascular,
pulmonary, or respiratory disease while
in the course and scope of his
employment.
Section 39-71-119, MCA.
Although $ 39-71-119 ( I ) , MCA, excludes diseases not
traceable to injury, subsection (2) does not automatically
exclude respiratory di-seases contracted while in the course
and scope of one's employment. Occupational diseases are
defined in the Occupational Disease Act as "all diseases
arising out of and contracted from and in the course of
employment." Section 39-72-102 (11), MCA. We have held that
although a claimant may have a compensible disease under the
Occupational Disease Act, that status does not preclude
eligibility under the Workers' Compensation Act. Ridenour v.
Equity Supply Co. (Mont. 1983), 665 P.2d 783, 786, 40 St-Rep.
3.012, 1015. When an employee contracts a respiratory disease
in the course and scope of his employment, he may elect
coverage under the Occupational Disease Act or the Workers'
Compensation Act if he can meet the requirements of both
Acts. Ridenour, supra, at 787, 40 St.Rep. at 1017.
[Tlhe legislature realized that these
kinds of diseases, while normally
considered under the Occupational Disease
Act, could be compensable as injuries
under the definition of subsection (1) of
39-71-119, MCA.
Ridenour, supra.
The evidence shows Phillips suffers a respiratory
disease resulting from his employment. Although he is not
automatically excluded, he must show he suffered a "tangible
happening of a traumatic nature from an unexpected cause" to
be included.
The two definitive elements of "time definiteness" and
"unexpectedness," must be shown to establish an injury.
Wise v. Perkins (Mont. 19831, 656 P.2d 816, 820, 40 %.Rep.
1, 6. Phillips claims the splashing incident involving the
can of solvent is both time definite and unexpected. There
is sufficient medical evidence the splashing incident lacks
medical significance, making it unnecessary to determine the
date it occurred.
Dr. Schimke testified he did not believe exposure to
the solvent would cause a persistent couah, that it would
have had. only a temporary adverse effect on Phillips'
bronchitis, and "was just another incident in a chain of
events that led to his problems." Schimke testified that
Phillips' medical history included "symptoms of cough,
wheezing, and intermittent breathlessness" as early as
October, 1978. In 1973 he was hospitalized after being
exposed to welding fumes for a three to four month period.
Based on Phillips' medical history, it is not unexpected he
should suffer recurring attacks of bronchitis, regardless of
the splashing incident.
We find substantial credible evidence to support the
conclusion of the Workers1 Compensation Court:
It is apparent that while the chemical
splashing did occur, it had no permanent
effect and did not cause Claimant's
current physical problems. Claimant did
not suffer an industrial injury which
would entitle him to workers '
compensation benefits.
The Workers'Compensation Court correctly found that
Phillips was not totally disabled. Disability is not a
purely medical condition.
A worker is disabled when his ability to
engage in gainful employment is
diminished as a result of impairment,
which in turn may be combined with such
factors as the worker's physical
condition, age, education, work history,
and other factors affecting the worker's
abilj-ty to engage in gainful employment
...
Section 39-71-121, MCA.
We previously set out the applicable considerations in
establishing disability:
To establish the existence of no
reasonable prospect of employment in the
normal labor market, a claimant must
introduce substantial credible evidence
of (1) what jobs constitute his normal
labor market, and (2) a complete
inability to perform the employment and
duties associated with those jobs because
of his work-related injurv.
Metzger v. Chemetron Corp. (Mont. 1984), 687 P.2d 1033, 1035,
41 St.Rep. 1788, 1790.
By September, 1983, Dr. Schimke characterized Phillips'
chronic bronchitis as a minimal impairment. A year later
Schimke found no total or permanent disability. A clinical
psychologist testified Phillips should not be precluded "from
working normally in the jobs which are consistent with his
medical conditions, employment experience, and abilities."
Phillips himself testified that physically he could handle
jobs in a clean environment. He defined his normal lahor
market to include substantial experience in non-strenuous
clean air positions. His doctors released him for such
position, and he did not provide contrary evidence.
There is no evidence Phillips is entitled to award of
penalty for unreasonable delay or refusal by the Insurer to
pay. The Insurer accepted the determination by the Workers'
Compensation Division that Phillips suffered from an
occupational disease. On order from the Division, Phillips
was paid total disability benefits until Dr. Schimke, findinq
he was no longer totally disabled, released him for work.
The insurer met its statutory responsibilities under
§ 39-71-2907, MCA. The statutory requirements for attorney's
fees are not met.
Finally, we find Phillips is not entitled to a nt7
en
trial pursuant to S 25-11-102 (4), MCA. Phillips claims he
has newly discovered evidence and a new witness who can
pinpoint the date of the splashing incident. Notwithstandjng
the fact Phillips already presented numerous witnesses on
this question, the court previously found the date of the
incident was unimportant because the doctors' testimony
attaches no medical significance to it. In addressing
Phillips' claim that the Workers' Compensation Court is
obliged to reach a finding of total disability pending
. .
retraining because he had been certified for retra.ining by
the Department of Social and Rehabilitation Services, the
court said in its order denying a new trial:
Merely because the Department of Social
and Rehabilitation Services has placed an
individual into a rehabilitation program
does not necessarily mean that that
individual is totally disabled under
Montana's Workers' Compensation Act.
The Order of the Workers' Compensation Court is
affirmed.
We concur:
A