No. 90-561
IN THE SUPREME COURT OF THE STATE OF MONTANA
LEO BODILY,
Petitioner and Appellant,
-vs-
JOHN JUMP TRUCKING, INC., Employer, and
STATE COMPENSATION MUTUAL INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers1 Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Darrell S. Worm; Ogle & Worm, Kalispell, Montana
For Respondent:
Richard E. Bach, State Comp. Mutual Ins. Fund,
Helena, Montana
OCT 2 9 1 9
91 Submitted on Briefs: May 16, 1991
I
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Claimant Leo Bodily filed a petition in the Workers'
Compensation Court to recover disability and medical benefits as a
result of injuries he alleged he sustained during the course of his
employment with John Jump Trucking, Inc. Following trial before
the court's hearing examiner, the court concluded as a matter of
law that claimant failed to give adequate notice of his injury to
his employer, as required by 5 39-71-603, MCA (1985), and that
claimant's disability did not result from an injury as defined in
.
5 39-71-119 (1), MCA (1985) From the judgment entered pursuant to
those conclusions, claimant appeals. We reverse.
The issues which control our decision are the following:
1. Did claimant provide his employer with timely notice of
his injury pursuant to 5 39-71-603, MCA (1985)?
2. Did claimant sustain an injury within the meaning of
5 39-71-119(1), MCA (1985), during the course of his employment
with John Jump Trucking, Inc.?
FACTUAL BACKGROUND
In 1979, prior to his employment with John Jump Trucking
(hereinafter referred to as tlJumplt),
claimant sustained severe
injuries while operating a logging truck when a log rolled off the
truck and landed on him. Robert Schimpff, M.D., a board certified
neurologist, who treated him at the hospital for that injury,
diagnosed hemorrhaging into claimant's cervical spine, a collapsed
right lung, fracture of several ribs, fracture of his scapula,
injury to several intervertebral discs in his lower back, internal
injuries, and injuries to his right wrist and foot.
However, claimant recovered from those injuries sufficiently
to go to work for Jump as a logging truck driver in March 1981. He
worked for Jump continuously until taking a leave of absence for
medical reasons on July 8, 1986.
Claimant testified that the only residual impairment that he
was aware of from his 1979 accident was some loss of strength in
his right arm. However, in December 1985, he began developing loss
of strength in his left arm. Over the course of the next six
months, his left-sided symptoms progressed from weakness to muscle
spasms, cramps, and numbness in his lower left extremity, as well
as his upper left extremity. Claimant testified that by July 8,
1986, he was experiencing terrible neck pain, loss of strength on
his left side, and was so impaired by pain medication that he felt
it was unsafe for him to continue operating a logging truck on the
state's highways. By July 8, 1986, he determined that he could not
continue with his employment, and asked his employer for permission
to take leave from his job so that he could seek medical treatment
for his condition.
Claimant testified that prior to leaving work on July 8, 1986,
he met with his employer, John Jump, and explained that he felt it
was unsafe for him to continue working, due to his physical
condition. He testified that he also recalls explaining to Jump
that although he felt reasonably comfortable upon arriving at work,
within a couple of hours after getting into his truck and being
exposed to the bouncing around that occurred from operating that
truck on logging roads, he could no longer stand the pain. When
the pain developed he was forced to take Tylenol I11 with codeine.
After taking leave from his employment, claimant went to the
Veteran's Administration Center at Fort Harrison to be examined in
an effort to determine the cause of his complaints. However, the
VA Center had no neurology department, and therefore, put him on a
waiting list for an examination at the Veteran's Administration
Center in Salt Lake City, Utah. He was accepted at the VA Center
in Salt Lake City on about July 21, 1986, and was discharged on
August 5, 1986. However, the physicians at the VA Center were
unable to explain the physiological basis for claimant's
complaints, and speculated that they may result from nerve root
irritation or multiple sclerosis. Claimant's multiple sclerosis
had been diagnosed in 1969 and periodically through the years he
had experienced neurological problems which he attributed to that
condition.
Claimant testified that shortly after he returned from Salt
Lake City he arranged to meet his employer at a restaurant to
explain what he had learned about his condition, and to discuss a
date for returning to work. He testified that during that meeting
he explained to Jump that he did not know the cause of his
symptoms, but had been advised to rest, exercise, and try to
rebuild his strength. Claimant testified that he explained to his
employer at that time that in his opinion if he returned to his job
his condition would worsen.
John Jump testified that he recalled claimant taking time off
from work in July 1986, and assumed that he had been given notice
by claimant of the fact that he would not be coming to work and the
reasons for his absence. However, he testified that he had no
specific recollection of the explanation given to him by claimant
for claimant's leave of absence. He also recalled having a
conversation with claimant in a cafe after his return from Salt
Lake City, but could not recall what was said during that
conversation. He had no recollection of having been advised by
claimant that he was having physical problems related to the
performance of his job. However, he was unable to deny that
claimant discussed those problems based on any specific
recollection of his conversations with the claimant.
During his absence from employment, claimant testified that he
was unable to rebuild the strength in either arm, but that the pain
he had been experiencing while working subsided and that he
eventually ran out of money. He called his employer and asked to
return to work with a reduced work load. He did return to work on
October 22, 1986.
For the first month after returning to work, claimant was
given easier jobs which did not involve operating a logging truck
on logging roads. His routes were limited to highway hauls, which
did not involve as much jarring and jostling of his spine.
However, after returning to his normal duties, his physical
condition became progressively worse and the pain which he had
experienced prior to July 8, 1986, returned.
Claimant testified that during spring break-up in 1987 he
again explained to his employer that a few hours after getting into
and operating his truck, his pain would become intolerable. He
testified that at that point he and Jump agreed that he could begin
seeing a chiropractor for his neck pain. However, in spite of his
efforts to obtain further treatment, claimant testified that by
June 30, 1987, his left leg started to go numb while at work, and
by the time he returned home his body had gone numb from the waist
down. He remained in that condition until he terminated his
employment with Jump in August 1987.
Claimant testified that when his symptoms would worsen they
would do so quickly. For example, when he lost strength in his
left arm, that development occurred overnight. When he lost
sensation in his left leg and lower body, that development occurred
in the course of 24 hours. When pain would develop during the
course of his employment, it would develop within hours after
getting into and operating his logging truck.
On August 4, 1987, claimant returned to Dr. Schimpff who felt
that, because of the earlier hemorrhaging in the area of claimant's
spinal cord, further neurological evaluation was warranted.
Eventually, diagnostic studies illustrated arthritic development
and stenosis in the area of claimant's cervical spine which was
compressing or displacing his spinal cord. It was Dr. Schimpffts
opinion that the condition for which he examined claimant in August
1987 was the same condition from which claimant was suffering when
he left work and sought treatment on July 8, 1986. Dr. Schimpff
testified that in his opinion the original injury that had occurred
in 1979 predisposed claimant to degenerative changes in his
cervical spine which were accelerated by the repeated trauma to the
spine associated with his activities driving a logging truck. It
was also Dr. Schimpff's opinion that without the traumas caused
during the course of claimant's occupation, the cervical stenosis
which was responsible for his neurological symptoms may never have
occurred, or would probably have occurred years later than it did
develop.
Dr. Schimpff described the impact caused by claimantts
occupation as repetitive trauma which accelerated the degenerative
changes in claimant's spine.
He described the jolting and jarring that claimant experienced
as a logging truck driver as small injuries which cumulatively
became a substantial injury.
Dr. Schimpff also testified that, while the further
degeneration of claimant's spine occurred over the entire period
that he worked for his employer, the onset of disabling symptoms
from that physical condition could have occurred relatively
suddenly.
As a result of his diagnosis, Dr. Schimpff referred claimant
to Albert Joern, M. D., a neurosurgeon. Dr. Joern first examined
claimant on September 14, 1987, and on September 18 of the same
year, admitted claimant to the hospital where he performed a
cervical discectomy and interbody fusion at three levels of
claimant's cervical spine.
Based upon what he found when he performed that surgery, and
based upon his review of claimant's diagnostic studies, it was also
Dr. Joern's opinion that the condition for which he operated on
claimant was related to his employment as a logging truck driver.
Dr. Joern explained that during his operation he observed severe
degeneration at three levels of the cervical spine, but that films
which were taken of claimant's neck in 1979 showed no such disc
damage. From that he was able to conclude that between 1981 and
1987 these discs herniated.
Dr. Joern explained that, in his opinion, claimant had an
injury to his neck in 1979 which did not produce a herniation, but
which produced weakness or some internal disruption; and that due
to claimant's subsequent employment which involved bouncing around
in a logging truck day after day, his neck was subjected to
repeated stresses. He testified that through a cumulative
traumatic process over a period of three to four years those discs
were caused to bulge, scar down, calcify, and stabilize. In his
opinion, the primary occupational factor that ultimately made
surgery necessary for claimant was the bouncing associated with
operating a logging truck over logging roads.
It was Dr. Joernfs opinion, however, that the symptoms
associated with claimantfsworsened neurological condition appeared
to have developed from late 1985 through mid-1986 when claimant
presented at the VA Hospital with neurological impairment.
By the time Dr. Joern saw claimant in 1987, he considered his
condition a medical emergency.
On November 17, 1987, claimant filed his claim for
compensation, alleging that he had been injured during the course
of his employment and setting forth July 6, 1986, as the date of
his injury.
The Workersr Compensation Court's findings of fact were less
specific, but not significantly different from those facts
previously set forth in this opinion. However, that court
concluded that as a matter of law the information given by claimant
to his employer was not sufficient to satisfy the notice
requirement of 5 39-71-603, MCA (1985). The Workersf Compensation
Court concluded that there was not a statement by claimant to his
employer of an injury related to his job which was sufficient to
notify a reasonably prudent employer that there may be a potential
compensation claim.
The Workersr Compensation Court further concluded that
claimant did not suffer an injury as defined in 5 39-71-119(1),
MCA, because the period of time over which the injury occurred
lacked sufficient time definiteness to qualify as an injury
according to the previous decisions of this Court.
Did claimant provide his employer with timely notice of his
injury pursuant to 5 39-71-603, MCA (1985)?
The notice requirement in effect at the time of claimant's
injury was § 39-71-603, MCA (1985). It provided that:
No claim to recover benefits under the Workers'
Compensation Act, for injuries not resulting in death,
may be considered compensable unless, within 60 days
after the occurrence of the accident which is claimed to
have caused the injury, notice of the time and place
where the accident occurred and the nature of the injury
is given to the employer or the employer' s insurer by the
injured employee or someone on the employee's behalf.
Actual knowledge of the accident and injury on the part
of the employer or the employer's managing agent or
superintendent in charge of the work upon which the
injured employee was engaged at the time of the injury is
equivalent to notice.
To conclude claimant's notice to his employer was inadequate,
the Workersr Compensation Court relied on our decision in Ri v
el .
B l i g P o e s r , n . (1987), 229 Mont. 305, 746 P.2d 617.
ilnsrcsosIc The scope
of our review is to determine whether the decision in that case was
correctly applied to the fact situation in this case. Therefore,
the standard for review is to determine whether the trial court's
interpretation of the law, as applied to the facts in this case, is
correct. Wassbergv.AnacondaCopperCo. (1985), 215 Mont. 309, 697 P.2d
909. In R i , the claimant suffered from congenital deformities in
el
both arms. Following several operations and various jobs, claimant
was employed as a computer operator where he lifted boxes, unloaded
computer tape reels, and performed light janitorial work. The work
he did, as well as recreational activities that he performed,
caused pain in his arms.
Ri occasionally complained to his employers about the pain
el
that he experienced in his arms. However, we concluded that those
complaints were insufficient to constitute notice under
8 39-71-603, MCA, for the following reasons:
However, Reil did not relate to his employers that this
pain was as a result of his work related duties. Reil's
employers assumed that his problems were merely the
consequences of the congenital deformities. Reil did not
ask to be reassigned to another position nor did he
request that his employers modify his duties to reduce
the necessity for use of his arms and hands.
Reil, 746 P.2d at 618.
We held that:
The fact that Billings Processors knew Reil was
experiencing pain, either taken alone or cumulatively
with the other facts of this case, does not constitute
actual knowledge. Accordingly, the lower court erred in
finding that Billings Processors had actual knowledge of
Reills alleged injury. We find that Billings Processors
had no actual knowledge of either an injury or a job-
induced aggravation of a preexisting condition in this
case.
R i , 746 P.2d at 623.
el
The facts in this case are significantly different. According
to claimant's testimony, he did relate his pain and deteriorating
physical condition to his employment. He explained that within two
hours after getting into and operating his truck, the pain he
experienced became extreme. He advised his employer, after being
off work for a period of time, that his symptoms had improved, but
that he was afraid to return to work too soon for fear of
re-aggravating his condition. When claimant did return to work, he
requested that he be allowed to avoid rough roads for awhile so as
not to aggravate his condition; and after returning to normal
duties, he again informed his employer that within hours after
entering and operating his truck his physical condition was
intolerable and it was necessary to consume significant pain
medication. Unlike Reil, claimant did associate his symptoms with
his employment. He did take time off to recover from his injuries,
and he did ask to modify his duties to avoid aggravation of his
condition.
In Leev.Lee (1988), 234 Mont. 197, 199, 761 P.2d 835, 837, we
interpreted Reil to mean that, [tlhe employer must have notice that
the claimant considers his injury work-related." We relied on the
following discussion from a leading treatise on workers'
compensation law:
It is not enough, however, that the employer,
through his representatives, be aware that claimant
!#feelssick", or has a headache, or fell down, or
walks with a limp, or has a pain in his back, or
shoulder, or is in the hospital, or has a blister,
or swollen thumb, or has suffered a heart attack.
There must in addition be some knowledge of
accompanying facts connecting the injury or illness
with the employment, and indicating to a reasonably
conscientious manager that the case might involve a
potential compensation claim.
3 Larson, Workmans' Compensation Law, 5 78.31 (a)(2)
pp. 15-126 to 15-136 (1988).
Lee, 761 P.2d at 837.
In this case, unlike the claimant in Reil, claimant provided
his employer with all the information he had regarding the nature
of his injury and its relationship to his employment. Claimant
knew that he had neck, arm, and leg problems of unknown etiology
which were made worse after performing his job duties for a short
period of time. That is all he knew. According to claimant's
testimony, that is what he reported to his employer. By providing
his employer with all the information he had regarding the nature
of his injury, the period of time over which it occurred, and the
nature of activity that contributed to or caused his condition,
claimant did all that can be reasonably expected to comply with the
notice requirement in 5 39-71-603, MCA.
In this case, where there is a slowly developing injury which
does not lend itself to precise notification, the requirement of
5 39-71-603, MCA (1985), is satisfied by giving the employer
sufficient information to lead a reasonably conscientious person to
conclude that there may be a connection between the worker's
condition and his job.
Claimant's employer testified that he has no recollection of
being told by claimant that his symptoms were related to his
occupational duties. However, claimant's employer does recall
having conversations with claimant about his physical complaints.
He simply could not recall the substance of those conversations at
the time of trial. In a similar situation, we held in Harmon v
.
DeaconessHospital (1981), 191 Mont. 275, 623 P.2d 1372, that:
[Tlhe testimony of a witness that he does not remember
whether a certain event or conversation took place does
not contradict positive testimony that such event or
conversation did take place. [Citations omitted.]
Harmon, 623 P.2d at 1374.
Thus, claimant's testimony regarding the substance of his
conversations with his employer is uncontradicted.
We have previously held that:
We must liberally construe the Workers1 Compensation Act
( 3 39-71-104, MCA) , and there is probably no area more
important to imply a liberal construction than on the
question of whether sufficient notice was given of the
accident.
Ackemnn v. Pierce Packing Co. (1983), 206 Mont. 508, 511, 672 P.2d 267,
While 3 39-71-104, MCA (1985), has since been repealed, we
must apply the statutes to this case which were in effect on the
date of claimant s injury . Yozlng Motor Co. v. Division of Workers' Compensation
(1985), 219 Mont. 1, 710 P.2d 58.
We conclude that claimant satisfied the notice requirement.
Since claimant's disability was the result of cumulative traumas
which occurred over a period of time, the date of injury, for
purposes of complying with the notice requirement, is the date on
which claimant was first unable to continue with his employment due
to his physical condition. That date was July 8, 1986. Applying
a liberal construction to 39-71-603, MCA (1985), we conclude that
by providing his employer with all the information available to him
on that date regarding the nature of his injuries, the fact that
his condition was aggravated by his employment, and the nature of
job duties which appeared to aggravate his condition, claimant
complied with the Workers' Compensation Actts notice requirements.
Did claimant sustain an injury within the meaning of
5 39-71-119() , MCA (1985), during the course of his employment
with John Jump Trucking, Inc.?
It is undisputed that claimant went to work for Jump with
preexisting pathology in his cervical spine. It is undisputed that
the condition of his spine made him more susceptible to further
injury from even minor trauma, if experienced on a regular basis.
It is undisputed that the bouncing and jarring from operating his
logging truck did aggravate claimant's underlying condition and
culminated in the disability for which he first left work on July
8, 1986. However, in spite of those undisputed facts, the hearing
examiner concluded as a matter of law that:
3. Claimant did not suffer an I1injuryt1 defined in
as
Section 39-71-119 (I), MCA (1985) that arose out of and in
the course of his employment for John Jump Logging.
The trial court did not explain clearly how it arrived at that
conclusion. However, in its discussion of that conclusion, it
stated:
Where a disabling condition occurs over a long period of
time, it may be an occupational disease rather than an
injury. Greser v. United Prestress, Inc. , 180 Mont 348, .
590 P.2d 1121 (1978). Also, it is important to consider
the issue of "time definiteness," where a limited and
specific exposure to fumes and chemicals satisfied both
unexpectedness and time definiteness required by the
injury statute. Bremer v. Intermountain Ins. Co. , 223
Mont. 495, 727 P.2d 529, 43 St.Rep. 1942 (1986).
While the trial court indicated the importance of considering
"time definiteness," it does not appear from its decision that it
did consider that factor or that that was the basis on which it
arrived at its decision.
As we pointed out in the previous section, we review a trial
court's conclusions of law to determine whether they are correct.
On appeal, claimant contends that the following series of
decisions from this Court establish that based on the undisputed
facts he did sustain an injury within the meaning of
5 39-71-119(1), MCA (1985): Yietsv.SweetGrassCorlnty (1978), 178 Mont.
337, 583 P.2d 1070; Strandberg v. Reber Co. (1978), 179 Mont. 173, 587
P.2d 18; Hoelznev. GraniteL~lmber
Co. (1980), 189 Mont. 221, 615 P.2d
863; Jonesv.St. RegisPaperCo. (1982), 196 Mont. 138, 639 P.2d 1140; Wise
v. Perkins (1983) 202 Mont. 157, 656 p.2d 816; Shepard v. MidlandFoods, Inc.
(1983), 205 Mont. 146, 666 P.2d 758; Kraft v. Flathead Valley Labor&
Contractors (1990), 243 Mont. 363, 792 P.2d 1094.
The application of this line of authority to a fact situation
similar to the one in this case was first summarized in Jones v. St.
RegisPaperCo. In that case, the claimant went to work at a lumber
mill with preexisting degenerative disc disease in his lower back.
There was evidence that the continual bending and lifting done by
him in his job caused stress on his lower back which aggravated the
existing degenerative disc condition over the period of
approximately two years that he worked there. Defendant denied
that claimant sustained an injury within the meaning of
§ 39-71-119, MCA. It was the defendant's position that it was
inconsistent for the claimant to allege that his injury developed
gradually and that it was caused by a specific incident.
In reversing a Workerst Compensation Court conclusion that
claimant had not suffered a compensable injury, we found the
following evidence significant:
Evidently, the Workers1 Compensation Court did not
consider Dr. Shanks1 deposition testimony which indicated
that a series of minor traumas could lead to a condition
such as that suffered by the claimant.
... In addition to his definite statement quoted above,
that degenerative disc disease was not a disease, but a
condition associated with acute trauma, or "repeated
small tra~rnas,~~ Shanks testified that the condition
Dr.
had, to the best of his knowledge, been present before
August 21, 1979.
Jones, 639 P.2d at 1145.
Based on the above testimony, we cited the following line of
decisions to support a conclusion that claimant had in fact been
injured during the course of his employment.
In S r n b r v. Reber Co. (1978), 179 Mont. 173, 175-177, 587
tadeg
P.2d 18, 19, 20, this Court held that when it is proved
medically possible that an industrial accident or injury
aggravated a pre-existing condition, that proof is
sufficient to establish a compensable disability.
Similarly, in Viets v. Sweet [Gjrass Co~lrzty (1978), 178 Mont.
337, 340, 583 P.2d 1070, 1072, we indicated that evidence
that an accident aggravated a pre-existent condition is
more reliable than evidence that an accident caused a
disabled condition. In Hoehne v. Granite Lumber Company
(1980), [I891 Mont. [221, 2251, 615 P.2d 863, 865, 37
St.Rep. 1307, 1310, a case more nearly on point, we held
that "a tangible happening" under Section 39-71-119, MCA,
could be Ifnota single isolated incident ...
but rather
a chain of accidents or incidents, i.e., the stacking of
lumber on a daily basis.I1 We cited approvingly Erhart v.
Great Western Sugar Company (1976), 169 Mont. 375, 380-381,
546 P.2d 1055, 1058, which said:
ItNot only must claimant show an unusual strain, but the
strain must result from a tangible happening of a
traumatic nature . . . A tangible happening must be a
perceptible happening ... Some action or incident, or
chain of actions or incidents, m~istbe shown which may be perceived as a
contributing cause of the resulting injury. .
(Emphasis supplied )
The lines in Hoehne, supra, were clearly drawn. The sole
difference was that one party believed that a gradually
developing, job-related injury not attributable to one
specific incident was an l1injury, and the other believed
it was not. This Court held that it was. The reasonable
conclusion from this holding is that, if there is strong
enough evidence that the gradually developing injury is
job-related, it is an llinjuryll within the meaning of
section 39-71-119, MCA, and is cornpensable, whether or
not claimant states that there was a specific incident.
Jones, 639 P.2d at 1145-46.
Based on the same authorities, we arrived at a similar
conclusion in Shepard v. Midland Foods, Inc. In that case, the claimant
had pain in his knees from degenerative conditions which preexisted
his employment. That condition was diagnosed in 1972 and he went
to work for his employer in 1973. However, there was evidence that
the rate of degeneration was accelerated by both the physical
nature of his work over a period of eight years, and a single
incident at work in which he twisted and struck his left knee.
Several months after that incident he was forced to retire from
work because his knees were so bad that they were no longer
functional. The evidence was, however, that the single traumatic
incident was a small factor in the total extent of his impairment,
and that the primary cause of his ultimate disability was the long
term wear and tear on his knees throughout the course of his
employment from 1972 through 1980. When asked about the cause of
his disabling condition, his treating physician testified: "The job
that you described to me, that was described to me that Mr. Shepard
did at Midland Pack, I am sure would be an accelerant.I1 Shepnrd,
In Shepard, the Workers' Compensation Court also denied
claimant disability benefits based on its conclusion that his knees
deteriorated for other than work-related reasons. However, citing
the previous line of authorities, we reversed that decision by the
trial court. In conclusion, we held that:
In the case at bar, both Dr. Griffin and Dr. Taylor
testified by deposition that the heavy work Mr. Shepard
routinely performed at Midland would have aggravated his
existing condition, i.e., would have accelerated the
breakdown of his knees. Both physicians recognized the
February 14, 1980 accident as an aggravant of Mr.
Shepard's condition. X-rays showed ! a marked increasen
l
in varus bone deformity between 1972 and 1980, just after
s
Mr. Shepardf accident. The x-rays indicate 'Imany, many
subluxations, or small dislocations in the knee joints,
which were not evident in 1972. The p y i i n s a e that t e e
h s c a s ttd hs
symptoms w r i d c t v o wear ai t a on the j i t and would
e e niaie f td e r on,
probably result in pain and instability. This evidence
of work-related injury aggravating a pre-existing
condition is considerable and is unrebutted. [Emphasis
added. ]
Shepard, 666 P.2d at 762.
Most recently, in K a t v. Flathead V l e Labor & Contractors, we held
rf aly
that an employee who developed worsening symptoms of carpal tunnel
syndrome from the repeated trauma of stacking lumber over a period
of 15 months, sustained an injury within the meaning of
5 39-71-119 (I), MCA (1985).
The defendant, on the other hand, relies on a series of
decisions from this Court which stand for the proposition that
ailments which occur gradually over a long period of time lack
sufficient "time definitenessw to be considered an injury. For
example, in McMahon v Anaconda Co. (1984), 208 Mont. 482, 678 P.2d
.
661, the claimant was exposed to various toxins in the work place
over the period of 22 years that he worked for the employer. As a
result, he complained of throat and lung problems which, in turn,
led to psychological problems. The Workersf Compensation Court
denied benefits for injury or disease. We remanded for further
consideration under the Occupational Disease Act, however, we
concluded that the conditions about which claimant complained
resulted from exposure over too many years to fall within the
definition of injury. In arriving at that decision, we stated:
Despite the detailed definition, it remains a difficult
task to satisfactorily describe and define injury to the
exclusion of disease. see ~ a ~ l a n t , p p , W r e s
~ okr'
.. -
Compensation and Occupational Disease, 4 3 Mont L Rev. 75, 9 2 100
(1982). Professor Larson identifies two crucial points
of distinction: llUnexpectedness, and "time
definiteness.l1 1B A. Larson, The Law of Workmen's
Compensation, Section 41.31 at 7-357. We find the second
point to be the critical factor in this case. The fact
that claimant's ailments were so very gradual in onset
excludes them from the definition of injury.
McMahon, 678 P. 2d at 663.
We also added that:
We hesitate to attempt to locate the line between
long-term, gradual trauma or disease, and short-term,
accidental trauma, exposure or strain.
McMahon, 678 P.2d at 663.
In Wear v Buttrey Foods,Irlc. (1988), 234 Mont. 477, 764 P.2d 139,
.
we held that where a grocery checker alleged numerous physical
complaints attributable to the wear and tear of her job activities
over a period of 17 years, she had also failed to satisfy the
requirement of "time definitenessv1 which would classify her
physical maladies as
The State Fund argues that because claimant's disability
resulted from micro-traumas which occurred over a period of
approximately five and one-half years, the traumas were not
sufficiently "time definitef1 constitute an injury.
to
In those cases relied on by claimant, the period of time over
which the injury occurred ranged from one week (Wise v. Perkins) to
eight years (Sizepard). In those cases relied upon by defendant, the
physical conditions complained of were caused by activities that
occurred over periods of 17 and 22 years. However, as we pointed
out in McMalzon, ll[w]e hesitate to attempt to locate the line
between long-term, gradual trauma or disease, and short-term,
accidental trauma, exposure or strain." McMahon, 678 P.2d at 663.
Further, in this case it is not necessary that we do so.
We relied on Professor Larson8s treatise for the "time
definitene~s~~
requirement. It is appropriate, therefore, to look
to the same treatise for further elaboration on what is meant by
"time definite." In doing so, we see that the requirement may be
satisfied by applying it to either the time over which claimant's
physical condition is caused, or the time period over which
disability results. For example, Professor Larson states:
Probably the underlying practical reason for insisting on
a definite date is that a number of important questions
cannot be answered unless a date of injury or accident is
fixed, such as which employer and carrier is on the risk,
whether notice of injury and claim are within the
statutory period, whether statutory amendments were in
effect, which wage basis applies, and many others.
It has been shown above that the concept of time-definiteness can be thought of
as applying to either the cause or the result. A relatively brief
exposure to fumes, dust or cold may lead to a protracted
period during which the victim gradually succumbs to
disease; conversely, months or years of exposure to
poisons, jolts or strains may lead to a sudden collapse
on a particular day. In either case it is relatively
easy to satisfy the definite-time requirement by merely
accepting the view that suddenness may be found in either
cause or result. ...
. .
. It is safe to say, however, that on the strength of
one or more of these reasons, most jurisdictions have at
some time awarded compensation for conditions that have
developed, not instantaneously, but gradually over
periods ranging from a few hours to several decades,
culminating in disability from ...
arthritis . . back .
injury, herniated disc . . . and the like.
On the other hand, most of the same jurisdictions have at
some time denied compensation for injuries in this
category.
It will be observed, however, on examination of the
unsuccessful cases, that most of them fall into the
category of injuries whose cause and result were both
difficult to locate in time. In other words, the
majority of jurisdictions appear to be satisfied on the
time-definiteness issue if either the precipitating
incident or the manifestation of the disability itself
was of a sudden or reasonably brief character. [Emphasis
added. ]
1 3 A. Larson, TheLawofWorkmen'sCompensation,
1 (5 39.01 at 7-334, 7-335,
7-350, and 7-350.13 (1987).
In this case, we conclude that the Ittime definiteness"
requirement articulated in McMahon is satisfied by the fact that
the physical results of the traumas that claimant experienced over
a protracted period of time manifested themselves over a relatively
short period of time.
Claimant testified that he first began losing strength in his
left arm in December 1985, and that those symptoms increased to
include muscle spasms, cramps, and severe neck pain between that
time and July 8, 1986. From the onset of his symptoms, until they
became so severe that he could no longer continue working,
approximately six months elapsed. Claimant's testimony in this
regard is undisputed. For these reasons, the results of the
traumas to which claimant was exposed during the course of his
employment were sufficiently "time definiteItt
and pursuant to our
previous decisions relied on in Jones and Shepard, we conclude that
claimant was injured within the meaning of B 39-71-119, MCA (1985).
We reverse the judgment of the Workerst Compensation Court and
remand this case for further proceedings consistent with this
opinion, including a determination of the extent of claimant's
disability and what, if any, benefits, costs, or fees he may be
entitled to under the Workersr Compensation Act.
Reversed and remanded.
We concur: /
'