No. 90-043
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
JOAN C. GAUMER,
Claimant and Respondent,
-vs-
MONTANA DEPARTMENT OF HIGHWAYS,
Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Appellant.
APPEAL FROM: Workers Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leo S. Ward; Browning, Kaleczyc, Berry & Hoven;
Helena, Montana
" For Respondent:
C;*<
C3
Kristine L. Foot; Milodragovich, Dale & Dye,
-
I !
.4 Missoula, Montana
Submitted on Briefs: May 3, 1990
Decided: June 15, 1990
Justice R. C. McDonough delivered the Opinion of the Court.
The State Workers1 Compensation Insurance Fund (the insurer)
as insurer for the Montana Department of Highways appeals the order
of the Workers1 Compensation Court adopting the findings of fact
and conclusions of law of the hearings examiner and entering
judgment in favor of the claimant, Joan Gaumer. The Worker's
Compensation Court's adoption of findings of fact and conclusions
of law involves the construction of recent amendments to the injury
statute, § 39-71-119, MCA. The court essentially held that the
definition of injury under the amended statute includes aggravation
of a pre-existing condition or disease under the specific facts
of this case. We affirm.
The insurer raises the following issues on appeal:
(1) Did the Worker's Compensation Court err in determining
that the claimant suffered a compensable injury under the newly
amended Workers' Compensation Act, i 39-71-119(5), MCA (1987).
(2) Is there substantial credible evidence to support the
conclusion of the Worker's Compensation Court that the claimant was
entitled to benefits because her exposure to chemicals at work was
the primary cause of her physical harm in relation to other
contributing factors?
(3) Did the Worker's Compensation Court err in assessing a
20 percent penalty on the insurer on the grounds that its denial
of the claim was unreasonable?
The facts as found by the hearings examiner and adopted by the
court indicate that the claimant suffered a severe respiratory
attack on May 10, 1988, as a direct result of an exposure to a
chemical or allergen in the workplace. On that day the claimant
had difficulties with her asthma due to some odor present at the
Missoula office of the Montana Department of Highways where she
worked. As a result, she planned to complete some work and then
leave early for the day.
Shortly before noon, the claimant went to the office copy
machine to complete her work. The copy machine is located close
to the mechanic's shop. While operating the copier, the claimant
heard the door to the mechanic's shop open, and detected a strong
chemical odor being drawn into a nearby exhaust fan. Within a few
seconds of inhaling the chemical odor the claimant found breathing
difficult. She returned to her desk and felt the need to rest for
a moment before starting home. Upon heading for her car to leave
for the day, her respiratory difficulties increased severely and
a coworker assisted her. The claimant was taken by ambulance to
the hospital where she spent several days in intensive care.
Claimant was placed on oxygen and the testimony of her treating
physician and an independent examining physician indicate that she
will likely remain on oxygen for the remainder of her life. The
court found that as a result of the episode the claimant is totally
disabled.
The claimant has a history of respiratory ailments prior to
the accident involved here. Her symptoms of respiratory ailments
began in 1983 and 1984. She was evaluated for allergies in June
of 1983. In 1987, an inhaler was prescribed for the claimant to
be used every four hours to control her asthma. Later that year,
she suffered an asthmatic attack on an airplane at the Helena
airport.
The claimantssattending physician, Dr. William Bekemeyer a
specialist in pulmonary medicine and intensive care, treated the
claimant in the emergency room of St. Patrick's Hospital, Missoula,
Montana, the day of the accident. He testified that the claimant
was in severe respiratory distress and if she had not received
treatment that day in his opinion she probably would have died.
Dr. Bekemeyer also opined that the need for hospitalization was
caused by exposure to some unidentifiable chemical present in the
workplace on May 10, 1988.
A mediation conference was held in this matter on December 2,
1988, pursuant to 5 39-71-2401 et seq., MCA. Prior to this time,
no independent medical examination was requested or given.
Following the conference the insurer requested an independent
medical examination which was subsequently conducted by Dr. Thomas
Schimke on April 21, 1989.
Dr. Schimke is a specialist in internal medicine and pulmonary
disease. He testified that his conclusions did not contradict
those of Dr. Bekemeyer. However, he minimized the importance of
the May 10, 1988 episode in relation to the claimant's health
problems I1because she did not have a known toxic exposure to any
identifiable chemi~al.~~
The findings of fact note that this
conclusion clearly contradicts the conclusion of Dr. Bekemeyer,
which clearly connected the claimant's hospitalization to an
exposure to a chemical or allergen in the workplace on that day.
The hearings examiner also found that the claimant's treating and
attending physician, Dr. Bekemeyer, was in a much better position
to assess the cause of the claimant's present medical condition,
noting that Dr. Schimke only spends 25% of his time on respiratory
treatment.
Dr. Schimke also concluded that the claimant has chronic
obstructive lung disease. He ultimately concluded that the
claimants1 alleged exposure to chemical irritants in the work place
was not the primary cause of her physical harm in relation to other
factors contributing to her physical harm. One factor influencing
Dr. Schimke's conclusion was the fact that claimant's alleged
exposure to chemical irritants resulted in a reversible obstructive
airway disease called status asthmaticus which was eventually
corrected. Dr. Schimke concluded that this reversible condition
was the only result of the exposure at the workplace and therefore
the claimant's disability is due to her underlying obstructive lung
disease which was primarily caused by claimant's allergies,
smoking, and heredity.
The State Fund initially denied liability for the claim on
the grounds that the exact chemical agent causing the alleged
injury could not be identified. At the time that denial was issued
the insurer had access to the report of Dr. Bekemeyer connecting
the injury to an exposure in the workplace. Regardless of that
report, the insurer did not make an investigation until after a
petition was filed in this claim. After filing of the petition,
the only investigation by the defendant insurer related to the
independent medical examination which was scheduled only after a
trial date had been set in this case. The hearings examiner and
subsequently the court found that the insurer's denial was
unreasonable and added a 20 percent penalty to all benefits that
the insurer must pay the claimant. The insurer, relying on the
1987 amendments to the Act now appeals both liability for the claim
and assessment of the penalty.
I and 11.
.
Although the Workers' Compensation Act underwent substantial
revision in 1987, this Courts1 standard of review of decisions of
the Workerst Compensation Court remains the same. Decisions of
the Workers' Compensation Court will not be overturned if there is
substantial evidence to support its findings and conclusions.
Giacoletto v. Industrial ~ndemnityCo. (1988), 231 Mont. 191, 751
P.2d 1059 ; Tenderholt v. Travel Lodge International (1985), 218
Mont. 523, 526, 709 P.2d 1011, 1013. Where findings are based on
conflicting evidence, the reviewing court's function is confined
to this determination; it is not the court's function to determine
whether there is sufficient evidence to support contrary findings.
Stamatis v. Bechtel Power Corp. (1979), 184 Mont. 64, 68-69, 601
P.2d 403, 405-406.
The insurer argues as its first two issues that the Workerst
Compensation Court erroneously interpretedthe newly amended injury
statute and substantial evidence is lacking to support the findings
of fact as adopted from the hearings examiner. We will discuss
these first two issues together in light of the above-cited
standard of review.
The injury statute of the Worker's Compensation Act, as
amended in 1987, provides:
39-71-119. Injury and a c c i d e n t d e f i n e d . ( 1 ) gfiInjuryfil
or injured" means :
Ifi
(a) internal or external physical harm to the body;
(b) damage to prosthetic devices or appliances,
except for damage to eyeglasses, contact lenses, dentures
or hearing aids; or
(c) death.
(2) An injury is caused by an accident. An
accident is:
(a) an unexpected traumatic incident or unusual
strain;
(b) identifiable by time and place of occurrence;
(c) identifiable by member or part of the body
affected; and
(d) caused by a specific event on a single day or
during a single work shift.
(3) "Injuryfi1 "injuredfi'
or does not mean a physical
or mental condition arising from:
(a) emotional or mental stress; or
(b) a nonphysical stimulus or activity.
(4) "Injuryw or 'finjured" does not include a
disease that is not caused by an accident.
(5) A cardiovascular, pulmonarv, respiratory, or
other disease, cerebrovascular accident. or myocardial -
infarction suffered by a worker is an injury only if the
accident is the primary cause of the physical harm in
-
relation to other factors contributinq to the physical
harm. (Emphasis added.)
Section 39-71-119, MCA (1987). The claimant concedes that the
amendments to the statute evince an intent by the legislature to
restrict coverage under the WorkersfiCompensation Act. The old
statute provided that "[nlothing 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." See 5 39-71-119(2), MCA (1985). Subsection (5)
of the amended statute now provides some more definite guidelines
as to which diseases are actually compensable under the new law.
Under the new statute, cardiovascular, pulmonary, or respiratory
diseases warrant coverage only if the claimant can show that the
accident is the primary cause of the physical harm in relation
to other contributing factors.
The insurer contends that a plain reading of the statute
requires the claimant to prove by a preponderance of the evidence
that the harm of her chronic obstructive pulmonary disease was
primarily caused by her exposure at work in relation to other
factors contributing to that harm. This contention assumes that
the term "physical harm" in the statute refers to the claimants
cumulative present condition. If claimant were required to prove
that her cumulative health condition was caused primarily by her
exposure at work her burden would be impossible. Thus, to accept
the insurer's contention would render subsection (5) of the
statute meaningless, because a claimant with pre-existing
cardiovascular, pulmonary, or respiratory problems suddenly
aggravated by a traumatic accident at work could never meet this
burden. Also, the legislature did not clearly set forth the
meaning of the term llharmw used in the statute.
as The statute
does define an injury as "physical harm to the bodygtand defines
an injury as an event caused by an accident. It follows that for
a claim to be compensable the physical harm required by the statute
is not the claimant's cumulative present condition but is that harm
which results primarily from the accident at the workplace.
Here the physical harm complained of is not the cumulative
condition of the claimant's chronic obstructive pulmonary disease.
Rather, the resultant harm is the aggravation caused by the
exposure to toxins in the workplace. That the "primary causeI1 of
this aggravation was the exposure in the workplace is apparent from
the drastic change in the claimant's condition following the
exposure on May 10, 1988. This drastic change in her condition is
reflected in finding no. 27:
27. Dr. Schimke testified that the claimant had
irreversible obstructive disease. (Tr. at 89.) He also
testified that there were some significant changes in her
medical situation after May 10, 1988. (Id-
~pecifically, following that date, the claimant was
placed on oxygen. (Id. at 89-90.) She is on oxygen all
of the time. (Id.) Moreover, he [Dr. Schimke] agreed
that the claimant was unable to work following May 10,
1988. (Id. at 90.) Claimant's condition has
dramatically declined, and that decline began immediately
following the May 10, 1988 episode. Even according to
Dr. Schimkels own testimony, she will be on oxygen for
the remainder of her life. She will also be unable to
work. It is clear that the claimantlsmedical condition
chanqed drastically followins the iniury of May 10, 1988.
(Emphasis added.)
As this finding indicates, the drastic change in the claimant's
medical condition was primarily caused by the accident in the work
place where she was exposed to chemical toxins or allergens, it was
not merely the progressive result of her pre-existing respiratory
ailments. Nor did her pre-existing respiratory ailments--
admittedly contributing factors--primarily cause the physical harm
suffered as contemplated by the statute. Rather, the ''primary
cause1'of the harm suffered in this case was the triggering event
where the claimant was exposed to toxic fumes at the workplace.
There is substantial evidence in the testimony of Dr. Bekemeyer to
support this finding. Furthermore, the hearings examiner chose to
assign more weight to the treating physician, Dr. Bekemeyer, than
the independent medical examiner, Dr. Schimke, and this finding
was adopted by the Workerst Compensation Court. We will not
substitute our judgment for that of the Workerst Compensation Court
as to the weight of the evidence on questions of fact. Robins v.
Anaconda Aluminum Co., (1978), 175 Mont. 514, 575 P.2d 67.
Therefore, under these facts the claimant is entitled to benefits
under the statute.
The insurer also claims that the Workers1 Compensation Court
erred in assessing a 20 percent penalty against it on the grounds
that its denial of the claim was unreasonable. The applicable
statute, 5 39-71-2907, provides in pertinent part:
39-71-2907. Increase i n award f o r unreasonable delay or
r e f u s a l t o pay. (1) When payment of compensation has
been unreasonably delayed or refused by an insurer,
either prior or subsequent to the issuance of an order
by the workers1 compensation judge granting a claimant
compensation benefits, the full amount of the
compensation benefits due a claimant between the time
compensation benefits were delayed or refused and the
date of the order granting a claimant compensation
benefits may be increased by the workers' compensation
judge by 20%. The question of unreasonable delay or
refusal shall be determined by the workers1 compensation
judge. ...
Section 39-71-2907, MCA (1987). This penalty statute should not
be used by the Workerst Compensation Court to discourage legitimate
defenses of disputed claims. Paulson v. Bozeman Deaconess Hospital
(1984), 207 Mont. 440, 444, 673 P.2d 1281, 1283. The insurer
contends that the imposition of a penalty in this case by the
Workers' Compensation Court discourages legitimate defenses of
disputed claims because the insurer had a defense for denial of
this claim based on the plain language of the statute, the clear
legislative intent, and the particular facts of this claim as
revealed in the record.
We disagree. The Workers' Compensation Court stated that
"[tlhe imposition of the penalty in this case is premised on the
insurers failure to directly and specifically identify for the
claimant's treating physician, the significance of the term
'primary cause' in a 'medical' context." Moreover, the insurer
made no investigation of the claim in light of the new law when the
reports of the treating physician were available to it; instead it
summarily denied the claim on the grounds that the exact chemical
agent was not identified. Such an identification is not required
by the statute. The insurer has a duty to make at least a minimal
investigation of a claim's validity in light of the relevant
statutes. Absent such an investigation, as in the case at bar,
denial of a claim for benefits is unreasonable. The claimant is
entitled to the penalty under the statute.
The order of the Workers' Compensation Court awarding claimant
benefits and assessing a 20 percent penalty for unreasonable
denial of her claim is
AFFIRMED.
We Concur: