NO. 88-280
I N THE SUPREME COURT O F THE STATE O F MONTANA
1988
J O Y WEAR,
C l a i m a n t and A p p e l l a n t . ,
-vs-
BUTTREY FOODS INCORPORATED,
Employer, D e f e n d a n t and R e s p o n d e n t .
A P P E A L FROM: T h e Workers' C o m p e n s a t i o n C o u r t , The Honorable ~ i m o t h y
R e a r d o n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Linnell, Newhall & Martin; R i c h a r d J. M a r t i n , G r e a t
F a l l s , Montana
For Respondent:
J. D a v i d Slovak; U g r i n , A l e x a n d e r , Zadick & Slovak,
G r e a t Falls, Montana
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,,, S u b m i t t e d on B r i e f s : Sept. 9 , 1988
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Decided: November 3, 1988
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Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Claimant Joy Wear (Wear) appeals from a judgment of the
Workers' Compensation Court denying her claim for benefits
for compensable injury. The sole issue before this Court is
whether Wear has satisfied the statutory definition of
Iinjury . "
' We affirm the determination of the Workers'
Compensation Judge that she has not.
Wear worked as a checker for Ruttrey Foods since 1970.
On May 18, 1987, Wear filed a claim for compensation alleging
she had sustained twelve different maladies which "arose out
of and in the course of her employment, or were aggravated or
accelerated by her employment . . ."Wear claims her
disability resulted from years of repetitive motion, constant
stooping, lifting, twisting and standing.
Wear's compensation claim listed the names and
addresses of seven attending physicians. Her list of
physical complaints included weakness and pain in her left
arm; cervical arthritis in the neck region; pain in her lower
trunk, pelvis, and upper leg; a fallen arch; bursitis in her
right knee; pain in her lower back; bursitis in her hip;
disfigurement of her upper thighs; symptoms of stress and
increased blood pressure; fibroid tumors in her uterus;
abdominal pains; and vericose veins.
Buttrey Foods denied the claim and a hearing was
requested before the Workers' Compensation Court. The
Workers' Compensation Judge denied Wear's claim for
compensation under the Montana Workers' Compensation Act, but
strongly urged her to present a claim under the Occupational
Disease Act. The Judge concluded that Wear had not satisfied
the statutory definition of "injury" in S 39-71-119, MCA
(1985), as it read at the time of the alleged injury in 1987:
Injury or injured defined. "Injury" or
"injured" 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 ...
The appropriate standard of review for questions of law
is simply whether the lower court's interpretation of the law
is correct. Wassberg v. Anaconda Copper Co. (Mont. 1985) ,
697 P.2d 909, 912, 42 St.Rep. 388, 391. We hold that the
lower court's decision is correct.
In order for a claimant to establish an injury, we have
held that the two definitive elements of "time definiteness"
and "unexpectedness" must be shown. Phillips v. Spectrum
Enterprises (Mont. 1986), 730 P.2d 1131, 1134, 43 St.Rep.
2288, 2291; Wise v. Perkins (1983), 202 Mont. 157, 166, 656
P.2d 816, 820.
Wear testified that the cause of her condition was her
repeated lifting, twisting, turning, bending and standinq
during her seventeen years of employment with Buttrey Foods.
No specific event or occurrence was said to be the cause of
her condition. Rather, Wear argues that she suffered an
"unusual strain" through a series of minor traumas over the
years while performing her normal duties as a checker. In
support of this argument Wear cites Hoehne v. Granite Lumber
Co. (1980), 189 Mont. 221, 615 P.2d 863, and Wise v. Perkins
(1983), 202 Mont. 157, 656 P.2d 816. In Hoehne, we held that
a chain of actions or incidents which led to nerve damage
over the course of two and one-half months did satisfy the
statutory definition of injury. In Perkins, we held that an
extraordinary work load over the course of two weeks which
resulted in serious injury to the claimant was an "unusual
strain" which satisfied the definition of injury.
Since Wear suffered a series of minor traumas over the
past seventeen years, the argument goes, this is sufficient
to establish a "tangible happening of a traumatic nature from
an unexpected cause or unusual strain." We reject this
argument.
More on point with the facts of this case is McMahon v.
Anaconda Co. (1984), 208 Mont. 482, 678 P.2d 661, where we
held that a claimant, exposed to noxious fumes and
particulates in his place of work for a period of years, was
not "injured" for purposes of the Workers' Compensation Act.
We noted:
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
... 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
for a period of years, the disorders fall
within the meaning of the legislatively
defined term "disease." (Emphasis
original.) (Citation omitted.)
McMahon, 208 Mont. at 485-486, 676 P.2d at 663. On this
reasoning, we conclude Wear has not satisfied the statutory
definition of "injury" and therefore the order of the
W o r k e r s V o m p e n s a t i o n Court is affirmed.
We concur:
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Justices
Nr. Justice William E. Hunt, Sr., dissenting:
I dissent. The Workers' Compensation Court itself
recognized that Wear is disabled and that her disability is
attributable to her employment. Even so, the majority denies
Wear's claim by relying on a definition of "injury" that is
much too narrow.
The majority holds that the series of minor traumas
experienced by Wear over the years fails to satisfy the time
definiteness element of a compensable injury. In so doing,
the majority ignores Wear's testimony that her workload had
increased immediately before she was forced to leave her
employment. Wear worked her last month during the Easter
season, a busy period for grocery stores. Furthermore, that
Easter, Buttrey Foods experienced a shortage of baggers,
requiring Wear to assume the tasks normally completed by
those employees in addition to her regular duties.
By disregarding these facts, the majority contravenes
our previous decisions in Hoehne v. Granite Lumber Co.
(1980), 189 Mont. 221, 615 P.2d 863, and Wise v. Perkins
(1983), 202 Mont. 157, 656 P.2d 816. In those cases, we
allowed claimants who suffered traumas over the course of
time to collect workers' compensation benefits. There is no
distinction between the increased workload undertaken by Wear
during her last month of work and the workload of the
claimants in Hoehne and - -
Perkins.
There is, however, a great distinction between the
traumas that caused Wear's disability--constant twisting,
bending, and lifting--and the inhalation of noxious fumes
that led to the claimant's lung disease in McMahon v.
Anaconda Co. (1984), 208 Mont. 482, 678 P . 2 d 661. The
maiority's reliance on McMahon is misplaced.
The majority denies Wear's claim on the ground that her
injury is the result of minor traumas experienced over the
years. The majority's opinion, however, can easily be
circumvented by the knowledgeable claimant. Apparently, if
Wear had been able to pinpoint a major trauma, the exact date
and time of which she could recall, she would have been able
to recover benefits. Perhaps if Wear had been a more
sophisticated claimant she would have remembered such an
event--a wrenched back as she crouched to pick up a bag of
potatoes, a pulled muscle as she lifted a sack of flour, a
sharp pain as she stooped to retrieve change from the cash
drawer. Unfortunately for Wear, she was not so enlightened.
This opinion punishes her for her honesty and naivety.
The purpose of workers' compensation is to provide
benefits for employees who have been injured on the job. Joy
Wear is such an employee. Yet the technical definition of
injury in today's decision denies P r the benefits she so
justly deserves.