No. 88-45:!
IN THE SIJPREME COURT OF THE STATE OF MONTANA
1989
PAUL R. EASTMAN,
Claimant and Appellant,
-VS-
ATLANTIC RICHFIELD COMPANY, Employer,
CefenZant and Respondent.
APPEAL FRON: The Corkers' Compensation Court, The Ilonorahle Timothy
Reardon, zudge presiding.
COUNSEL OF RECORD:
For Appellant:
Paul R. Eastman, pro se, Kalispell, Montana
For Respondent:
Andrew 2 . IJtick; [Jtick & Grosfield, Helena, Montana
Suhmitted on Briefs: March 9, 1989
i - Decided: May.10, 1989
Mr. Justice Fred J. Weher delivered the Opinion of the Court.
The claimant, Paul Eastman, appeals from a final deci-
sion of the Workers' Compensation Court denying him benefits
under the Workers' Compensation Act and affirming a compensa-
tion award of $10,000 under the Occupational Disease Act. Me
affirm.
Mr. Eastman appears pro se and requests this Court to
review the decision of the Workers' Compensation Court in two
respects. First, we are asked to determine the constitution-
ality of the Occupational Disease Act, and then to review the
sufficiency of the evidence to support the lower court's
determination. We phrase the issues as follows:
1. Does the treatment of employees suffering
work-related diseases under the Occupational Disease Act
violate equal protection or deny a claimant's right to full
legal redress?
2. Did the Workers' Compensation Court err in determin-
ing that Mr. Eastman is ent-itled to benefits under the Occu-
pational Disease Act rather than the Workers' Compensation
Act?
3. Is claimant entitled to reasonable costs and attor-
ney fees and a 20% penalty?
Pa-ul Eastman began working for Atlantic Richfield Compa-
ny (ARCO) at its Columbia Fa1l.s Aluminum plant in June 19?7.
He was employed! as a welder, and continued i n that position
.
until he was laid off on April 26, 1985, following the clo-
sure of the Columbia Falls plant. Two weeks prior to the lay
off, Mr. Eastman was exposed to an unusually large and con-
centrated dose of fumes while welding at the plant. He was
working with a heavy metal pot in which aluminum ore is
refined, when the welding debris dripped onto plastic and tar
belcv, 1-he area and ignited those materials. The smoke and
fumes from the burning materials were much more j-ntense and
concentrated than normal.
Following the incident, Mr. Eastman left work and drove
himself to t.he emergency room at Kal-ispel: Regional Hospitz!
for treatment. He was hospitalized for three days, during
which time he was given large doses of: steroids. Followj-ng
hospitalization, Mr. Eastman returned to work urrtil he was
laid off two weeks Later.
b i r . Eastman had a history of asthma prior to the inci-
dent of April 8, 1985. He first began to experience short--
ness 05 breath in 1973 during periods of heavy exercise. Re
continued. to experience shortness of breath during exertion
while empl-oyed with ARC0 between 1978 and 1980, during whj-ch
time he al.so experienced recurring bouts of bronchitis. R y
1983, Mr. Eastman's condition had developed into full-blown,
severe asthma, which was mefiically diagnosed as Chronic
ObstructFve Pulmonary Cisease. He was first treated with
antibiotics and steroid medication in April, 1983, under the
care of Dr. Rosetto. The steroid treatments have continued
on and off since that time. Dr. Rosetto described Mr. East.-.
man as "steroid dependent," meaning that the claimant is
unable to go off the medication without his ast-hma flaring to
the point where he either couldn't do anything or would end
up in the hospit.al. Dr. Rosetto testified that the claim--
ant's steroid dependency had existed prior to the incident
which occurred in April, 1985. The medication he must take
to control his asthma has severe physical and emotional side
effects, which the claimant. testified affects his ability to
find and perform work.
Since his layoff in April, 1985, Mr. Eastman has con-
ducted an extensive job search through the Montana Department
of Social and Rehabi.l.itative Services. Despi.te applying for
2C t-c 30 jobs, Mr. Rastman has failed t o find
. steady
employment. He worked as a retail clerk in 1986, but had tc
quit after one day because the job required him to lift and
carry 10 pound boxes which exacerbated his breathing problems
and precipitated an asthma attack. A vocational counselor
.for the Career Exploration and Development Center t-estified.
that Mr. Eastman has the work habits, grooming, and aptitudes
of competitive employment and has many transferable skills.
Kith the exception of one clay of employment, the cl-aimant did
not work at all between April 1985 and June 1 9 8 7 .
I . Eastman filed a claim for compensation with the
Division of Workers1 Compensation on May 1 , 1985. The
Division designated the claim as one for benefits under the
Occupational Disease Act, although the claimant later filed a.
petition alleging that he was entitled to benefits under the
Workers' Compensation Act because of his April 8, 1985 "inju-
ry." The determination of "injury" was consolidated with the
claimant's appeal from the Division's final decision regard-
ing compensation under the Occupational Disease Act. In that
order, the Division determined that Mr. Eastman suffered from
a nondisabling occupational disease and was awarded the
maximum statutory allowance of $10,000 pursuant tc 5
3 9 - 7 2 - 4 0 5 ( 2 ) , MCA.
The Workers1 Compensation Court affirmed the decision of
the Division that the claimant's occupational disease was
nondisabling. The court also addressed the "injury" issue,
noting that the claimant did not elect to pursue either form
of ccmpensation, but instead presented both theories of
recovery for determination. The court held that the unex-
pected occurrence of abn~rmallydense fumes at work on April
8, 1985, caused an aggravation of the claimant's preexisting
asthma condition, and therefore qualified as an "linjur.;."
?Towever, the court then concluded that,
. . . the mezical evidence from claimant's treating
physician Dr. Rosetto clearly indicates that the
claimant's medication during his three days of
hospitalization returned him to his
pre-exacerbation state. The claimant was then
released from the hospital to return to his full-
time work which he continued until he was laid off
some two weeks later. A1 though the claimant's
incident is technically an "injury," his asthma
condition returned to its pre-injury state with no
loss of wages or impairment being established.
Having satisfied the statutory criteria for an
injury, the Court's function has not encied. The
overwhelming medical evidence is that claimant's
April 8, 1985 exposure was disabling only for a few
days and upon receiving medication he was essen-
tia!ly restored to his pre-April 8, 1985 condition.
That condition, as well as his health after the
three-day hospital stay, was a product of an occu-
pational disease exposure as found by the Division.
Although the court determined that Mr. Eastman suffered
an injury on April 8, 1985, it concluded that the injury was
noncompensable under the Workers' Compensation Act. The
court also concluded that the claimant was not entitled tc a
2 C % increase in award pursuant to S 39-71-2907, MCA, nor was
he entitled to reasonable costs and attorney fees under 5
39-71-61.?, NCA. It j.s from this jud-gment that Kr. Eastman
appeals.
Does the 0cc.upational Cisease Act violate equal protec-
tion or deny a claimant's right to full legal redress?
The employer argues that this Court should not address
the claimant's constj.tuti.onal arguments because he failed to
present them before the lower court. It is a general ru1.e
that new issues may not be raised for the first time or!
appeal. Bauer v. Kar Products, Inc. ( ~ o n t .19881, 749 P.2d.
1385, 1318, 45 St.Rep. 322, 326. However, this Court "re-
serves to itself the power to examine constitutional issues
that. involve broad public concerns," and even if raised for
the 5 r s t time on appeal, this Court can hear the issue if
the alleged error affects the substantial. right of a liti-
gant. Cot-trillv. Cottrill Sodding Service (Mont. 1987), 744
P.2d 895, 896, 44 St.Rep. 1762, 1763. Claimant has not
briefed his constitutional contentions in detail. Nonethe-
less, considering the nature of such ccntentions as well as
his pro se status, we will consider his constitutional
challenges.
----- PROTECTION
EQUAL
Mr. Eastman first challenges the State's classification
of diseasecl workers under the Occr~pational Disease Act as
arbitrary and discriminate and in violation of the Equal
Protection Clauses of the U . S . and Montana Constitutions. In
determining what level of scrutiny is to be applied to this
legislation under an equal protection analysis, it is neces--
sary to determi-ne what rights are involved and whether the
legislation infringes ,upon the rights of any suspect cl-ass.
Cottrill, 744 P.2d at 897.
--
We have held that the right to receive b?srkers1 Cornpen-.-
sation benefits is not a fundamental right. - - Cottrill, ?44
-
P . 2 d at 897, citing Shapiro v. Thompson (19691, 394 U.S. 618,
89 S.Ct. 1322, 22 T,.Ed.2d 600. This same rule applies to
benefits under the Occupational Disease Act, which are also a
form of disability benefits, so that no fundamental right is
at stake here. The classification dces not affect the rights
of a suspect class, which woul-d. i.ncl.ude race, nationality,
alienage and wealth. Cottrill, 744 P.2d at 897. We conclude
that the Act is not subject to strict scrutiny. As a result.
ARC0 nee$. not show a compelling state interest. We conclude
that the Act should be analyzed under the rational basis
test. That test requires a legitimate governmental objective
whi ch bears some identifiabl e rational relationship tc: the
c!asstfication in question. --- - -- -
Cottrill, 744 P.2d at 897.
Mr. Eastman argues that there is no rational basis upon
which to distinguish an employee who suffers from an occupa-
tional disease from an employee who suffers an injury. F e 7
disagree. A historical inquiry into the subject reveal-s a
legislative purpose for this differentiation.
Historically workers' conpensation was enacted to com-
pensate vFctims of industrial. accidents and injuries. It was
not set up to respond to workers suffering occupational
c',is~ase. That distinction was partial-ly explained by the
common law historical background which had allowed tort suits
fcr i.njuries but generally had shown that the negligence of
an employer was not a basFs for a common law action. As
state6 in 1 F Iarson, I4Torkmen's Cornpensat<-on T,aw , Section
41.20 (1987):
To the extent that compensation acts were thought
of as substituting nonfault liability for the kind
of in-juries that were potential subjects of fault
liahil-ity, there was thought to he no place for
occupational diseases, which (in the sense of a
disease due to the "normal" conditions of t-he
industry as distinguished from the negligence of
the employer) had consistently been hel-d incapable
of supporting a common-law act!-on.
As the incidence of devastating diseases of the work place
increased, legislatures concluded that some system of compen-
sation was needed. Gradually the law was expanded to provide
henefits for the victims of occupational disease, notably
silicosis and ashest-osis. 32 Labor Law Journal (1981), 3 1 3 ,
By 1978, every state had enacted statutes making occupa-
tional di.seases compensable. 1B Larson, Workmen's Compensa-
tion Law, Section 41.00. Larson points out that this lag in
coverage can be attributed to the heavy incidence of silicc-
s _ i s a ~ dasbestosis in certain j.ndustries, for whi-ch full
coverage under workers' compensation would have created a
difficult burden. 1R Larson, supra, Section 41.10.
Kontana creat.ed a statutory remedy for work-related
eiseases in 1959 by the enactment of t.he Occupational Disease
Act, S 92-1301 RCM (19471 et seq., now S S 39-72-101 to 7 1 6 ,
MCA. In the workers' compensation field, this Court upheld
the power cf the legislature to enact workers' compensation
which replaced common law remedies. Shea v. North-Butte
Plining Co. (1919), 55 Mont. 522, 534, 179 P.2d 499, 503. We
conclude that the same rationale properly can be applied to
the Occupational Disease Act. We concl-ude there is a ration-
al basis for the enactment of the Occupational Disease Act. by
the legislature.
Claimsnt argues that the benefits payable under both
workers' compensation and the Occupational Disease Act shou.15
be the same. We recognize the fairness of Fn argument for
i
equal compensation for similar disabilities. However, the
equal protection clause does not require that all aspects of
occupational disease and occupational injury be dealt with in
the same manner. As stated. bl7 the Unite? States Supreme
Court in Iqilliamson v. Lee Optical Co. (19551, 3 4 8 1T.S. 483,
99 L.Ed. 563, 75 S.Ct. 461:
The problem of legislative classification is a
perennial one, admitting of no doctrinaire defini--
tion. Evils in the same field may be of different
dimensions and proportions, requiring different
remedies. Or so the legislature may think. (case
cited) Or the reform may take one step at a time,
addressing itself to the phase of the problem which
seems most acute to the legislative mind. (case
cited) The legislature may select one phase of one
field and apply a remedy there, neglecting the
others. (case cited)
We conclude that the claimant has failed to show that
the legislature is required to award the same or comparable
benefits under the Gccupational Eisease Act as compare6 to
the Workers' Compensation Act. We hold that there is a
rational basis for the benefits awarded under the Occupation-
al Disease Act and that the claimant has failed to establish
a viclation under the equal protection clauses of the Montana
Consti-tution and of the Constj.tution of the United St-ates.
While we find that claimant has failed to show a consti-
tutional violation of the equal protection clauses, our
review of the Occupational Disease Act has shown there are
serious questions which should be addressed by the legisla-
ture. In this instance Mr. Eastman has proved permanent
partial disabiLity which would entitle him to extensive
benefits i f he came under the Workers' Compensation Act.
However, under the Occupational Disease Act, because he is
not totally disabled, his award is limited to $ 1 0 , 0 0 0 . We
suggest that a review of the benefjts under this Act is
certainly Cue cn the part of the leaislature.
FUIdL LEGAL REDRESS
. Eastrnan next argues that he was denied full legal
redress under the Occupational Disease Act because of the
requirement that a worker be disabled for more than five days
t o receive compensation. He argues that had he remained off
.
the joh For more than five days, he would have received full
compensation under the Workers' Compensation Act, but because
he missed only two days of work, the statutory requirement
arbitrarily denies him his right to full legal redress. We
p ~ i n t out that the five d a y requirement appears under 9
39-71-736, MCA ( 1 9 8 5 ) , of t h e Wor1;ers' Compensation Act, and
no similar requirement is contained in the Occupational
Disease Act as Mr. Eastmarl asserts. Plhile the lower court
concluded that the claimant suffered an injury nnder the
Workers ' Compensation Act, it further concluded that the
injury was only temporary an2 did not continue to be dis-
abling. Based on that evidence, the court held that claim-
ant's injury was noncompensahle and affirmed the Division's
award under the Occupational Disease Act.
Even if claimant had proved an injury which resulted in
e Zisahility of more than five days, under the medical evi-
dence of this case he would n u t be entitled to compensation
unler the klorkers' Compensation Act. The court found that
the medical evidence established that his condition returned
to its pre-exacerbation state following medical. treatment
which extended over just a few d a y s . We therefore hold that
claimant has "ailed to establish a denial of his right to
full legal redress because he ha-s not been denied any compen-
sation under the Workers' Compensation Act.
I1
Did the Workers' Compensation Court err in determining
that Mr. Eastman was entitled to benefits under the Occupa-
tional Disease Act rather than the Workers' Compensation Act?
The Workers' Compensation Court found that the claim-
ant's asthma was a preexisting condition which was aggravated
by his 8 years of enployment as a welder with ARCO. This
Court has he12 that a preexisting condition of Chronic Ob-
structive Pulmonary Disease, which includes asthma, is com-
pensable under the FJorkers' Compensation Act if a claimant
can identify an unexpected tangible happening on a specific
date which aggravate6 the condition. Flhittington v. Ramsey
Construction and Fabrication (Mont. 1987), 744 P.2d 1251, 44
St.P.ep. 1823. Ridenour v. Equity Supply Co. 11983), 204
Mont. 473, 665 P.2d 783. Fhere the claimant was unable to
show that his asthma was significantly aggravated by an
unexpected incident. rather than a deteriorating condition
over time, t-hjs Ccurt has upheld the lower court's conclusion
that the claimant suffered from an occupational disease
rather than an injury compensable under the Workers ' Compen-
Whittington, 744 P.2d at 1257.
sation Act. --
In this case, the court determined that the unexpected
occurrence of abnormal.2.y dense fumes at work on April 8, 1985
caused an aggravation of claimant's preexisting asthma, and
that the incident was unexpected and time definite enough to
qualify as an "injury" under the Workers' Compensation Act.
g 39-71-119, MCA (1985). Fowever, the court went on to
conclude that the injury was noncompensable under the Work-
ers' Compensc;t::'.on Act based on the medical evidence which
established that the injury did not continue to be disabling.
Following hospitalization and medication, the court found
that Mr. Eastman was returned to his pre-exacerbation state
and failed to prove any loss of wages or additional physical
Impairment. The court concluded that his pre-April 8, 1985
condit.i.on, as well as his health following the three day
hospital stay, was a product of an occupational disease and
affirmed the Division's award under the Cccupati.onal Disease
Act..
It is not the function of this Court to reweigh the
evidence. We will uphold the findings and conclusions of the
Workers' Compensation Court if they are supported by substan-
tial credible evidence in the record. Snyder v . San Francis-
co Feed and Grain (Mont. 1987), 748 P . 2 d 924, 929, 44 St.Rep.
2216, 2 2 2 1 .
The testimony which led the lower court to conclude that
Mr. Eastman's injury did not continue to be disabling and was
therefore noncompensable under the Workers' Compensation Act
was given hy several medical experts. The claimant's own
treating physician, Dr. Rosetto, testified that Mr. Eastman's
asthma condition would not change in the f.uture, that his
disease w a s not: caused by any single e v e ~ t , ancl tha-t any
"incident" which occurred during the progression of his
6isease would not change the status of his condition as it
was at the time of trial. Dr. Rosetto also testified that
having worked at ARC0 for 8 years as a we]-der, the worsening
of claimant's disease could have heen expected, and that the
incident of breathing toxic fumes did not cause any permanent
significant additional impairment.
Another physician, Dr. Schimke, testified that the
fluctuations in claimant's condition over 8 years showed a
norseni-ng trend, and that his employment as a welder was the
cause of the dFsease becoming disabling.
Dr. Power examined Mr. Eastman at the request of the
claims division to determine whether claimant suffered an
occupationaL disease. The examination consisted of a general
physical, chest X-rays, and a pulmonary function test, which
took place in November 1985, seven months after the April 8
incident. Dr. Power testified that any aggravation caused b
:-
the incident was only temporary and that claimant's asthma
had stabilized to its pre-April 8 condition.
The conclusion of the lower court that claimant's condi--
tion had returned to his conditjon prior to the April 8, 1985
injury does not suggest that he had returned to good health.
The evidence shoo~s that he had disability from the disease
prier to April 8, 1985 and that such disability continued and
grew worse thereafter. Our examination of the record demon-
strates there is substantial medical evidence which show^
that claimant experienced no additional physical impairment
as a result of the injury of April 8, 1985. The record also
contains substantial evizence to support the conclusion that
his condition was the result of an occupational disease. Ve
hold that it was not error For the lower court to conclude
that r . Eastman's injury was not compensahle under the
F l o r k e r s ' Compensation Act.
Is claimant entitled to reasonable costs a c attorney
nl
fees and/or a 20% penalty?
The provi-sions for costs and attorney fees and a 2 0 %
penalty are found in the Workers' Compensation Act, 5s
33-71-61? and 39-72-2907, MCA (1985). Since this Court
affFrms the determination by the lower court that Mr. Eastman
i s not entitled to benefits und.er the Workers' Compensation
.
A c t , those provisions do not apply in this case.
Affirmed.
We Concur: A
Chief Justice
-- -- - - - - --
Justices
Mr. ~ustice~ i l l i a mE. Hunt, Sr., dissenting:
I dissent. From the beginning, Eastman has been forced
to surmount hurdles that would challenge even the greatest
trial tactician. He appears before this Court pro se because
his attorney, after collecting his fee, merged his law firm
with the firm representing ARCO. Added to this burden, is
the fact that Steven J. Shapiro, chief legal counsel for the
Workers' Compensation Division--the same division that
actively opposed Eastman every step of the way--was appointed
the first hearing examiner. The facts found by Shapiro and
adopted by Robert J. Robinson, administrator for the
division, are the facts Eastman has had to struggle with
throughout this legal and medical morass. The wonder here is
not that Eastman was denied his rights as an injured Montana
worker. The wonder is that he got anything at all.
The majority holds that Eastman's April 8, 1985, injury
did not significantly aggravate his preexisting disease.
Eastman's medical history, however, tells a different story.
Prior to the April 8, 1985, injury, Eastman's breathing
difficulties forced him to seek treatment at Kalispell
Regional Hospital on only two occasions. In July, 1983, he
consulted with the hospital emergency room. In June, 1984,
he was hospitalized. Within the four months following the
accident, however, his visits to the hospital became much
more frequent. He visited the hospital emergency room
twice--once on May 20, 1985, and again on July 31, 1985. On
August 20, 1985, he was hospitalized for four days with
severe asthma.
In addition, Eastman's need to consult with his treating
physician had subsided in the months preceding the injury.
In 1983, he called or visited Dr. Rossetto almost monthly.
In 1984, however, he saw Dr. Rossetto twice--once in June and
once in July. He called the doctor three times. His last
flare up of asthma prior to April 8, 1985, occurred in
December, 1984. After the April accident, however, his
asthma repeatedly flared. He consulted Dr. Rossetto at least
once a month thereafter.
In ide en our v. Equity Supply Co. (1983), 204 Mont. 473,
665 P.2d 783, a claimant's preexisting Chronic Obstructive
Pulmonary ise ease (COPD) was aggravated by a high
concentration of grain dust. We awarded the claimant
permanent total disability benefits under the Workers'
Compensation Act. Yet in this case, where the facts are
almost identical, we award claimant a mere $10,000 under the
Occupational Disease Act and send him on his way.
In Ridenour, the claimant was injured on December 18,
1978. He was unable to perform his usual job from that date,
though he did attempt less strenuous work. A little over
five months after the accident, his breathing difficulties
became so severe that he was forced to cease employment.
Unlike the claimant in ide en our, Eastman returned to his
normal job for two weeks after the accident. He was able to
do so, however, only because he was heavily medicated with
steroids. He returned to work rather than remaining on sick
leave because he knew ARC0 was planning a large reduction in
force and he wanted to work as much as possible before being
laid off.
Had Eastman not been laid off as part of ARCO's general
reduction in force, his breathing problems would have soon
forced him to quit, just as the claimant in Ridenour
eventually ceased working. Slightly over two months after
the accident, on June 11, 1985, Dr. Rossetto wrote a letter
to Job Service in which he sta.ted that Eastman's condition
had progressively worsened and he would be unable to work in
the foreseeable future. On September 9, 1985, Dr. Rossetto
noted on the medical record that Eastman should not return to
work because of recent extensive asthma attacks. Eastman
himself testified that, due to his physical condition, he had
not been able to return to work since the lay off even though
ARC0 had called him back two or three times.
The medical record amply demonstrates that the April 8,
1985, injury aggravated Eastman's disease. Nevertheless, the
majority refuses to acknowledge this objective evidence.
Instead, the majority relies on the deposition testimony of
three doctors--even though one of the doctors, Dr. Power, did
not have access to Eastman's medical record. Dr. Power's
testimony indicates that he was unaware of Eastman's complete
medical history.
Furthermore, the testimony of the remaining doctors does
not unequivocally support the majority's holding. Dr.
Rossetto testified that the injury was unlikely to change
Eastman's medical status as of the time of the deposition.
He acknowledged that since the accident, Eastman continued to
have periods of severe exacerbations. He also stated that
Eastman had been on steriods almost continuously since that
time and was steroid dependent.
Dr. ~chimke's testimony is more telling. Dr. Schimke
testified that the ~ p r i l8, 1985, incident was not the single
underlying cause of Eastman's disease. However, he could not
state with medical certainty that Eastman's status returned
to his preexacerbated condition following the accident. He
stated:
I view the ~ p r i l , 1985, incident as but one in a
long series of similar incidents. And I believe I
stated if the incident caused hospitalization--and
I believe that one did--it could have had some
long-term lasting effect. And it is medical
speculation, I think, to tell you how much or how
little.
We have previously recognized that "'cautious medical
testimony' should, whenever possible, be interpreted in favor
of the claimant.'' Wheeler v. Carlson Transport (1985), 217
Mont. 254, 262, 704 P.2d 49, 54. Indeed, in Ridenour, we
granted disability benefits based on testimony very similar
to that given by the doctors in this case--testimony that the
claimant's accident "may have resulted in more asthma and
more bronchitis, which could flare up more readily in the
ensuing months and years." (Emphasis added.) Ridenour, 204
Mont. at 475-76, 665 P.2d at 785. The majority in this case,
however, ignores the precedent set in Ridenour and unfairly
denies Eastman disability under the Workers' Compensation
Act.
The majority also asserts that there is a rational basis
for paying benefits to claimants under the Occupational
Disease Act at a lower rate than those paid to claimants
under the Workers' Compensation Act. I wish somebody would
tell me exactly what that rational basis is. I certainly
cannot find it in this opinion.
n
I would reverse the Workers'
We join Mr. Justice William E. Hunt, Sr., in his
dissent to the majority opinion.
/