No. 87-368
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
MICHELLE M. DANIELS,
Claimant and Appellant,
-vs-
RALISPELL 2EGIOiJAL HOSPITAL,
Employer,
and
ERJ/ORION GROUP,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry N. Trieweiler argued, Whitefish, Montana
For Respondent:
Paul C. Meismer argued; Garlington, Lohn & Robinson,
Missoula, Montana
Submitted: January 12, 1988
Decided: February 18, 1988
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Michelle Daniels, age 32, suffers from anaphylactic
reactions that first occurred while she was wearing latex
surgical gloves and working as a nurse's aide at the
Kalispell Regional Hospital, a Plan I1 employer. The
Workers' Compensation Court determined that Ms. Daniels was
permanently and totally disabled and entitled to $128.35 in
compensation per week after adjustment for Social Security
offsets. It denied conversions to lump sum totalling nearly
$140,000 to allow her money to purchase a house and also to
start a backhoe excavation business. Ms. Daniels appeals the
denial of the lump sum request. The insurer likewise appeals
claiming Ms. Daniels suffers from an occupational disease not
an injury.
On April 2, 1985, Ms. Daniels wore surgical gloves for
the first time as a nurse's aide. The gloves are coated with
a fine talc powder to ease in wearing and removing them. Ms.
Daniels' hands immediately began to burn and itch so she
removed the gloves. She then rubbed her eyes, which also
became inflamed. Dr. Marise Johnson saw the claimant,
believed her to be suffering an allergy attack, and
controlled the problem with administration of Benadryl. On
May 21, 1985, Ms. Daniels completed her workshift and then
saw Dr. Johnson about cramps and nausea. Dr. Johnson
conducted a pelvic- rectal examination, including a barium
enema. As the enema began, Ms. Daniels became anxious and
her pulse increased while her blood pressure dropped. Dr.
Johnson diagnosed this as anaphylactic shock, which is a
potentially life-threatening physiological condition caused
when the patient comes into contact with an element to which
she is sensitive, causing the patient's blood vessels to
dilate and leaving the heart with less blood to pump to the
lungs, kidneys, brain and other vital organs.
Dr. Johnson and specialists in Missoula and at the
University of Washington Medical School have concluded the
talc powder on surgical gloves triggered Ms. Daniels' initial
reactions. Ms. Daniels has since left the hospital job, but
her exposure to the talc on the observation gloves harmed her
immune system resulting in an increased tendency to have
anaphylactic reactions. She attended training for certain
clerical jobs, the stress of which caused reactions forcing
her to give up the retraining.
She and her family live thirty miles from Kalispell and
the nearest medical help. The area is not served by
ambulance. She contends that because neither she nor her
husband has a job they cannot afford a telephone. Husband
claims he is unable to leave the house to look for work since
Ms. Daniels then would have no access to medical care.
Ms. Daniels sought to convert $39,000 of her award to a
lump sum to finance the start-up of an excavation business in
which she would do office work out of the home and her
husband would operate the backhoe. She also sought $100,000
in lump sum for purchase of a house nearer to Kalispell--but
not in town--that would be large enough for the couple's home
and the business office and would have a shop with sufficient
space for storing a backhoe and equipment.
The Workers' Compensation Court considered the two
aspects of the lump sum request separately. It ruled that
the $39,000 business request was not justified:
Claimant's business proposal fails in two
respects. First, claimant's involvement
in the business is so marginal that this
is more of a passive investment than a
business venture. Second, ... the
court is unconvinced that the business
has a chance of success reasonable enough
to justify risking a substantial portion
of claimant's entitlement.
It noted that the $100,000 housing request could not be
severed from the business request:
The proposed utilization of a lump sum to
purchase living quarters to suit the very
unique needs of this claimant and her
family would be appropriate under
different evidence. At bar, the housing
acquisition was dependent on the business
to replace the lost compensation money
when the advance was credited. Since we
are convinced that the business had
little likelihood of success, the
financing of the home would reduce
claimant's family income to the point
where they could not afford to pay for
groceries, utilities and other basic
needs. Thus, the use of funds to buy a
home would not be in claimant's best
interests since the family would not be
able to keep it.
While this court is very sympathetic
toward claimant and appreciates the
dilemma she has, the court cannot
increase her entitlement beyond that
allowed by law. Under the facts
presented here, the court has no options,
but if suitable housing could be located
and found at a price which would allow a
lump sum advance, but still retain
sufficient monthly income to sustain
claimant's family, the court would
encourage the parties to come to an
agreement. Or--if need be--to return to
court.
Basically, four issues are presented for review:
(1) Did Ms. Daniels suffer an injury or an
occupational disease?
(2) Is Ms. Daniels' condition stable enough to be
designated permanent and total, thus allowing a determination
of disability and an award of benefits?
(3) Does substantial credible evidence support the
Workers' Compensation Court's denial of a $39,000 lump sum
for the business?
(4) Does substantial credible evidence support that
court's denial of a $100,000 lump sum for more adequate
housing?
We affirm the court's judgment as it was issued.
ANAPHYLACTIC CONDITION AS INJURY
Section 39-71-119, MCA (1983), defined an injury as "a
tangible happening of a traumatic nature from an unexpected
cause or unusual strain resulting in either external or
internal physical harm ... " An injury is distinguished
from disease by time definiteness and unexpectedness. Wise
v. Perkins (1983), 202 Mont. 157, 166, 656 P.2d 816, 820.
When a worker is exposed to a harmful substance at one
instant or during one distinct period, the result may be an
injury. In Wise, the claimant was a bartender who was
suddenly rescheduled to operate a tavern by herself during
the New Year's holidays. This entailed working double shifts
to clean the bar during the day, open the bar in the early
evening and lastly to close the bar. Subsequently, she
contracted phlebitis. Two doctors testified that the amount
of standing required by this situation contributed to her
phlebitis, which provided a time definite and qualified the
condition as an injury. The presence of an underlying
disease does not preclude recovery under the Workers'
Compensation Act. Wise, 656 P.2d at 820.
The insurer claims that no time definite can be found
here because Dr. Johnson testified that Ms. Daniels suffers
from an underlying disease that lay dormant until she first
wore the surgical gloves. We rejected that argument in
Rremer v . Buerkle (Mont. 1986), 727 P.2d 529, 43 St.Rep.
1942. There we concluded that an auto body repairman who had
worked with certain chemicals for nine years had suffered
both an occupational disease and an injury when one exposure
to the chemicals produced allergic contact dermatitis.
Because it was both an occupational disease and an injury,
this Court said he could choose his remedy. Bremer, 727 P.2d
at 533, citing Ridenour v. Equity Supply Co. (19831, 2 0 4
Mont. 473, 665 P.2d 783.
It appears in Bremer that the claimant's condition
could not have been expected since he had worked with the
chemicals for nine years with no difficulties until February
17, 1983. This is in contrast with Greger v. United
Presstress, Inc. (1979), 180 Mont. 348, 590 P.2d 1121. In
Greger, a cement company changed the chemical additives it
used. The claimant noticed an allergic reaction on his hands
but continued to work until being laid off. When he was
called back to work the allergic contact dermatitis began
again at which point he saw a doctor. The doctor diagnosed
claimant1s allergic reaction to the chemical additives. F e
7
held that the claimant qualified only for occupational
disease benefits since he had suffered from the condition
previously and the condition was not totally unexpected.
Greger, 590 P.2d at 1124.
Like the claimant in Bremer, Ms. Daniels meets the
requirements of Wise. It is undisputed that her first
reaction occurred on April 2, 1985. Furthermore, her
reaction was unexpected since she had been around the
hospital for several months as a trainee, had learned how to
wear and to remove the gloves during her training, and had
not suffered any ill effects. She also has a history of at
least two surgeries by gloved surgeons that produced no
reactions. We find that there is substantial evidence for
the decision of the Workers' Compensation Court and refuse to
reverse it. Ms. Daniels' anaphylactic condition is marked by
a time definite and was unexpected, thus qualifying as an
injury under the Workers' Compensation Act.
MEDICAL STABILITY AND BENEFITS
The Workers' Compensation Court found that Ms. Daniels
has been unable to undergo further training because of her
anaphylactic condition and that Dr. Johnson testified the
condition could not be cured. The insurer argues this is an
inadequate basis for permanent total disability since the
physician did not testify that Ms. Daniels had attained
medical stability.
Section 39-71-116 (13), MCA (1983), defined permanent
total disability as:
[A] condition resulting from injury as
defined in [the Workers' Compensation
Act] that results in the loss of actual
earnings or earning capability that
exists after the injured worker is as far
restored as the permanent character of
the injuries will permit and which
results in the worker having no
reasonable prospect of finding regular
employment of any kind in the normal
labor market ...
The claimant must prove by a preponderance of medical
evidence that she has no reasonable prospect of re-entering
the normal labor market to qualify as permanently totally
disabled. Bundtrock v. Duff Chevrolet (1982), 199 Mont. 128,
131, 647 P.2d 856, 857-58. Because Ms. Daniels could not be
cured, Dr. Johnson testified that she could not return to a
job where she could not control her environment. Ms. Daniels
has worked as a bartender, a convenience store clerk, and as
a nurse's aide. Because a worker in such jobs typically
cannot control the job environment, Ms. Daniels cannot return
to them. That being so, the Workers' Compensation Court did
not err in designating the claimant as permanently and
totally disabled. Wise, 656 P.2d at 819. The court then
properly made the award of the weekly rate that the parties
had agreed to.
PARTIAL CONVERSION OF BENEFITS TO LUMP SUM
Although benefits generally are to be paid on a
periodic basis, S 39-71-741, MCA (1983) allows lump sum
awards if they would be to the claimant's best interests.
Utick v. Utick (1979), 181 Mont. 351, 355, 593 P.2d 739, 741.
Lump sums also may be made to clear up a claimant's
outstanding debts or to satisfy her pressing needs. Belton
v. Carlson Transport (Mont. 1986), 714 P.2d 148, 150, 43
St.Rep. 286, 288; Willoughby v. Arthur McKee & Co. (1980),
187 Mont. 253, 257, 609 P.2d 700, 702. This Court will not,
however, disturb a denial of lump sum unless the claimant can
show an abuse of discretion. Krause v. Sears Roebuck & Co.
(1982), 197 Mont. 102, 107, 641 P.2d 458, 460; ~ u p l e v.
Peterson Logging Co. (Mont. 1984), 679 P.2d 1252, 1254, 41
Was the refusal to provide a $39,000 lump sum for the
business an abuse of discretion?
A vocational counselor, whose husband coincidentally
ran a backhoe operation, drew up the Danielses' plan relying
on the experience of the counselor's husband. The plan
estimated start-up costs of between $34,000 and $39,500, and
net income of more than $11,000 for the Danielses in the
first year increasing to as much as $22,000 by the third
year. However, the tax records for consultant's husband
showed his operation, which had been in business for several
years, had a net income of $7,472 in 1985. Ms. Daniels'
husband, who had worked as a diesel mechanic for Anaconda
Minerals Company in Butte, acknowledged that he had operated
a backhoe only occasionally and had never bid on an
excavation job.
A University of Montana business and economic analyst
considered the plan on behalf of the insurer. He testified
by deposition that the data used in the plan were not the
most recent and that the construction industry had since
declined. He further noted that already there are some
thirty backhoe businesses in the Flathead Valley and also
that the Danielses' plan made no provisions for either labor
costs or depreciation.
The court denied a lump sum on this evidence reasoning
that the plan was too speculative and Ms. Daniels' role too
tangential to justify risking a substantial portion of her
benefits. The Workers' Compensation Court is in a much
better position than are we to acquaint itself with the needs
of the claimant and to rule accordingly. Where the evidence
does not clearly preponderate against its decision, we will
not reverse it. Krause, 641 P.2d at 461. The claimant has
the burden to prove that her business proposal has a
reasonable chance of succeeding. Bundtrock, 647 P.2d at 858.
The record before us does not show such evidence. We hold
that the Workers' Compensation Court properly exercised its
discretion.
Was the refusal to provide as much as $100,000 in a
lump sum for housing an abuse of discretion?
The Workers' Compensation Court may award lump sums for
purchase of housing if, considering the claimant's age and
health, such an award would be in her best interests.
Belton, 714 P.2d at 150; Polich v. Whalen's O.K. Tire
Warehouse (Mont. 1981), 634 P.2d 1162, 1165, 38 St.Rep. 1572,
1575, aff'd on remand, (1983), 203 Mont. 280, 661 ~ . 2 d38;
Garmann v. E.R. Feqgert Co. (Mont. 19871, 736 P.2d 123, 125,
44 St.Rep. 781, 784. The court noted Dr. Johnson's testimony
about claimant's housing needs:
38. Dr. Johnson testified that claimant
needs to live "in a place where the roads
will he reasonably accessible in all
weather circumstances so that she
(claimant) or ambulance personnel can get
her the treatment she needs if she's in a
desperate situation." ... However, Dr.
Johnson does not want claimant to be
exposed to the city on a daily basis and
prefers claimant live in a rural
surrounding ... Claimant should also
have telephone access to medical
assistance ...
The court had no evidence as to the cost of appropriate
housing. The claimant's real estate broker testified about
four specific properties that fit the claimant's needs but
also were properties large enough to run the excavation
business and store the backhoe and equipment. These prices
ranged from $89,500 to $105,000. The witness had no idea
what appropriate housing without the business aspects might
cost except to say it "probably" would cost at least $75,000.
It is the claimant's burden to introduce evidence substantial
enough to justify a lump sum. Belton, 714 P.2d at 150;
Garmann, 736 P.2d at 125. The Workers' Compensation Court
concluded that there was insufficient evidence to justify a
lump sum award for the backhoe excavation business; it also
concluded that claimant's evidence included costs for a house
large enough to operate the backhoe excavation business.
Despite the extremely pressing nature of Ms. Daniels'
condition it had no evidence on which to base a lump sum for
appropriate housing. To award the $100,000 would be to
waste some portion of Ms. ~aniels'rightful benefits. The
denial of a lump sum for housing, considering the nature of
the evidence and the court's invitation to reconsider the
request on more appropriate evidence, is not an abuse of
discretion.
Affirmed.
We concur:
@E 52%
Justices