December 29 2008
DA 07-0579
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 443
DEAN L. KRATOVIL,
Petitioner and Appellee,
v.
LIBERTY NORTHWEST INSURANCE
CORPORATION,
Respondent/Insurer and Appellant.
APPEAL FROM: Montana Workers’ Compensation Court, WCC No. 2006-1551
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones, Law Offices of Larry W. Jones, Missoula, Montana
For Appellee:
R. Russell Plath, Halverson, Sheehy & Plath, P.C., Billings, Montana
Submitted on Briefs: July 16, 2008
Decided: December 29, 2008
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Dean Kratovil (Kratovil) worked as a plumber/pipefitter for G & T Plumbing &
Mechanical (G & T) from April 2003 until July 18, 2004. After leaving G & T, he filed
both a workers’ compensation injury claim and an occupational disease claim. The
claims were submitted to Liberty Northwest Insurance Company (Liberty), G & T’s
insurer during Kratovil’s employment. Liberty denied liability, asserting that Kratovil
had received the injuries that primarily prohibited him from working in a motorcycle
accident, and that his earliest symptoms of occupational disease appeared before Kratovil
began working for G & T. In July 2007, the Workers’ Compensation Court (WCC or
court) held Liberty liable for Kratovil’s occupational disease claim. The court
determined Kratovil had an employment-related occupational disease that may have been
exacerbated by the motorcycle accident but was, nonetheless, compensable under the
Occupational Disease Act (ODA). The WCC also concluded that as the employer of last
injurious exposure, G & T was statutorily liable. Liberty appeals. We affirm and
remand.
ISSUE
¶2 A restatement of the issue on appeal is:
¶3 Did the WCC correctly conclude that Kratovil was entitled to, and Liberty was
liable for, benefits under the Occupational Disease Act?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Dean Kratovil was a heavy construction site plumber/pipefitter for approximately
thirty years when injury and occupational disease forced him to stop working in July
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2004. Prior to becoming a plumber, Kratovil worked finishing cement and formsetting
concrete for several years. Both the concrete work and plumbing/pipefitting required
regular use of heavy equipment, such as jackhammers and reciprocal saws. He claims he
first experienced work-related hand and wrist soreness while working as a concrete
formsetter.
¶5 After several years as a plumber/pipefitter, his symptoms grew worse, and during
the early-to-mid 1990s, Kratovil began experiencing numbness in multiple fingers and
pain in his hands and wrists. His work as a plumber/pipefitter, specializing in copper
pipe, required that he perform several repetitive tasks such as hand sanding, reaming and
deburring. These tasks subjected his hands and wrists to regular stress and over-use. At
the time G & T hired him in April 2003, he had been experiencing hand pain and
numbness for approximately ten years. He asserts G & T was aware of this condition at
the time it hired him.
¶6 For several years after these symptoms emerged, resting his hands each weekend
would ease the numbness and discomfort and allow Kratovil to return to work the
following week and perform his job. Kratovil filed no workers’ compensation or
occupational disease claims relating to these symptoms during this time.
¶7 During his first prolonged construction job for G & T, Kratovil’s pain and
numbness increased significantly. He developed a weakness in his right hand, and rest no
longer eased the symptoms. He began having trouble sleeping due to the pain. He
purchased special gloves to provide wrist support and requested a specialized pipe cutting
tool to minimize the twisting associated with his job-related tasks. G & T purchased the
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cutting instrument for him. While Kratovil initially made no formal complaint to his
supervisors at G & T, he states that he, his supervisor and co-workers regularly discussed
the pain and numbness he was experiencing.
¶8 On March 26, 2004, Kratovil was involved in a motorcycle accident in which he
injured his ribs, hips, and lower back. For several months afterwards, he had significant
trouble with his hips and lower back. He subsequently had bilateral hip replacement
surgery. Kratovil also had his left thumb x-rayed at the hospital after the accident
because of some additional pain; however, he maintains he suffered no substantial injury
to his hands or wrists during the accident. The x-rays of his thumb revealed no fracture
or dislocation but identified a marked degenerative condition.
¶9 Subsequently, on June 17, 2004, Kratovil was injured on the job while operating a
large thirty-to-forty pound drill. The drill hit an unseen object, possibly rebar or a large
bolt, stopped abruptly, and severely twisted his hands and wrists. A co-worker was
present and witnessed the accident. Kratovil did not report the accident or seek medical
treatment. He continued working for G & T on this construction project until mid-July
2004, at which time his work on the project was complete and he was laid off. He has
not worked since that time.
¶10 In January 2005, Kratovil saw Dr. Hansen, an orthopedic surgeon, and discussed
several of his physical conditions, including continued pain associated with injuries
received in his motorcycle accident and the pain and numbness in his hands and wrists.
Among other things, Dr. Hansen diagnosed Kratovil with bilateral carpal tunnel
syndrome, an advanced slack wrist condition of his right wrist, a left thumb joint injury
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with partial dislocation and arthritis with a degenerative component. After seeing Dr.
Hansen, Kratovil filed an original injury claim with G & T for the June 17, 2004 drill
incident. G & T electronically filed the workers’ compensation claim with Liberty on
January 28, 2005. In April 2005, Kratovil filed a second claim for occupational disease
relating to the pain and numbness in his hands and wrists. The report stated that the
repetitive work as a plumber had caused, over time, both of his hands to become numb
and weak. Liberty denied both the workers’ compensation and the occupational disease
claims.
¶11 On March 9, 2006, Kratovil filed a Petition for Hearing in the WCC. The WCC
held a trial on June 27, 2006, and on July 17, 2007, the court issued its Findings of Fact,
Conclusions of Law and Judgment in which it held that Liberty was liable for payment of
occupational disease benefits to Kratovil.
¶12 Liberty filed a timely appeal of the WCC’s ruling.
STANDARD OF REVIEW
¶13 We review the WCC’s findings of fact to determine whether they are supported by
substantial credible evidence. Substantial credible evidence is that evidence which a
reasonable mind could accept as adequate to support a conclusion. Evidence will be
considered substantial even if it is contradicted by other evidence, even if it is somewhat
less than a preponderance, and even if it is inherently weak. Gamble v. Sears, 2007 MT
131, ¶ 20, 337 Mont. 354, ¶ 20, 160 P.3d 537, ¶ 20. We conduct de novo review of the
WCC’s conclusions of law in order to determine whether they are correct. Gamble, ¶ 20.
DISCUSSION
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¶14 Did the WCC correctly conclude that Kratovil was entitled to, and Liberty was
liable for, benefits under the ODA?
¶15 Liberty challenges both the WCC’s findings and its conclusions. The WCC made
numerous findings pertaining to Kratovil’s work history, the inception and progression of
the condition of his hands and wrists, his motorcycle accident, and Dr. Hansen’s
diagnoses. It then rendered the following legal conclusions: (1) the 2003 ODA, the law
in effect on Kratovil’s last day of work, applied; (2) Kratovil had the burden of proving
by a preponderance of the evidence that he was entitled to ODA benefits; (3) the legal
standard for determining compensability under § 39-72-408, MCA (2003), is whether the
claimant’s employment significantly aggravated or contributed to h i s alleged
occupational disease; (4) based on hearing testimony and medical records, Kratovil’s
employment significantly aggravated or contributed to his occupational disease; (5) under
the “last employer” provision of § 39-72-303(1), MCA (2003), G & T is liable; (6) while
the motorcycle accident may have contributed to Kratovil’s problems, the record contains
abundant evidence that Kratovil’s hand/wrist condition predated the accident and his
employment as a plumber/pipefitter significantly aggravated or contributed to his
occupational disease; and (7) Liberty is liable for payment of occupational disease
benefits to Kratovil.
¶16 On appeal, Liberty insists that Kratovil must prove that his bilateral hand
conditions were caused “on a more probable than not basis . . . from his employment with
[G & T],” and that Kratovil must prove that his work was 51% the cause of his illness.
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The insurer asserts that Kratovil had failed to make the requisite showing that he has a
compensable occupational disease requiring medical treatment on his hands and wrists.
¶17 Liberty also argues that benefits should be denied because Dr. Hansen indicated in
a letter to the insurer liable for Kratovil’s motorcycle accident that Kratovil’s inability to
work was approximately two-thirds related to the motorcycle accident and one-third
related to his work-related hand condition. Liberty opines, therefore, that we must deny
benefits under the ODA because Kratovil’s inability to work is due primarily to non-
employment-related circumstances.
¶18 Kratovil maintains that he suffers a work-related occupational disease for which
he is entitled to receive ODA benefits. He argues that the evidence he presented, together
with that of his supervisor Scott Branstetter and Dr. Hansen, was sufficient to establish
that his bilateral upper extremity injuries were work-related, developed gradually over
time, and were significantly aggravated by the tasks he performed as a plumber/pipefitter
for G & T and previous employers. Additionally, he asserts, this evidence establishes
that he was last injuriously exposed to the hazard of the disease while employed at
G & T; consequently, under § 39-72-303(1), MCA (2003), Liberty, as G & T’s insurer, is
liable. Furthermore, Kratovil maintains that his motorcycle accident did not relieve
Liberty of its obligation to pay his ODA benefits for his hand and wrist claims because
that accident primarily injured his hip with only minor, temporary injury to his left hand.
Lastly, Kratovil clarifies that he is not seeking payment of benefits related to injuries he
suffered in his motorcycle accident or payment of total disability benefits since leaving
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work in July 2004. He is simply seeking ODA benefits for claims arising out of his hand
and wrist condition.
¶19 Section 39-72-102(1), MCA (2003), defined, in relevant part, “occupational
disease” to mean “harm, damage, or death as set forth in 39-71-119(1) [MCA (2003)],
arising out of or contracted in the course and scope of employment and caused by events
occurring on more than a single day or work shift.” For an employer to be liable for
occupational disease benefits, the occupational disease must arise out of the claimant’s
employment. Section 39-72-408, MCA (2003), provided:
(1) Occupational diseases are considered to arise out of the employment if:
(a) there is a direct causal connection between the conditions under
which the work is performed and the occupational disease;
(b) the disease can be seen to have followed as a natural incident of
the work as a result of the exposure occasioned by the nature of the
employment;
(c) the disease can be fairly traced to the employment as the
proximate cause;
(d) the disease comes from a hazard to which workers would not
have been equally exposed outside of the employment.
(2) If the treating physician makes a positive determination pursuant
to the factors provided in subsection (1), the treating physician shall also
determine by percentage the amount of the occupational disease that was
attributable to work rather than to activities or other conditions unrelated to
the employment.
¶20 Additionally, because occupational disease frequently manifests over several years
and possibly several employers, § 39-72-303, MCA (2003), stated, in relevant part:
Which employer liable. (1) Where compensation is payable for an
occupational disease, the only employer liable is the employer in whose
employment the employee was last injuriously exposed to the hazard of the
disease.
(2) When there is more than one insurer and only one employer at
the time the employee was injuriously exposed to the hazard of the disease,
the liability rests with the insurer providing coverage at the earlier of:
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(a) the time the occupational disease was first diagnosed by a
treating physician or medical panel; or
(b) the time the employee knew or should have known that the
condition was the result of an occupational disease.
¶21 We first address whether the WCC applied the correct standard for determining
proximate causation for compensability of an ODA claim—i.e., whether claimant’s
employment significantly aggravated or contributed to the occupational disease—as
opposed to Liberty’s contention that the claimant must establish that his work was
responsible for at least 51% of his condition. We conclude that the WCC indeed did
apply the correct standard, and reject Liberty’s claim to the contrary.
¶22 Our decisions in Polk v. Planet Ins. Co., 287 Mont. 79, 951 P.2d 1015 (1997) and
Montana State Fund v. Murray, 2005 MT 97, ¶ 23, 326 Mont. 516, ¶ 23, 111 P.3d 210,
¶ 23, illustrate the fallacy of Liberty’s argument that a claimant must prove that his or her
work was 51% of the cause of his or her compensable condition. In Polk, this Court
analyzed the interrelationship of two statutes—§§ 39-72-408 and -706, MCA. Section
39-72-706, MCA (1995), was an aggravation statute that allowed insurers to
proportionately decrease occupational disease benefits if the disease was aggravated by a
non-compensable disease or infirmity. In Polk, we explained that § 39-72-706, MCA,
did not circumvent the proximate cause requirement in § 39-72-408, MCA, and the test
for compensability is “whether occupational factors significantly aggravated a preexisting
condition, not whether occupational factors played the major or most significant role in
causing the claimant’s resulting disease.” Polk, 287 Mont. at 85, 951 P.2d at 1018. See
also Murray, ¶ 23.
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¶23 Subsequently, in Schmill v. Liberty Northwest Ins. Corp., 2003 MT 80, ¶ 23, 315
Mont. 51, ¶ 23, 67 P.3d 290, ¶ 23, we held § 39-72-706, MCA, unconstitutional. Two
years later, we decided Murray and, relying on Polk, affirmed the WCC’s award of ODA
benefits on the ground that Murray’s work significantly contributed to his debilitating
knee condition, despite the testimony of two physicians that Murray’s work-related
activities were less than 50% of the cause of his disabling condition.
¶24 Accordingly, we reject Liberty’s argument that Kratovil must prove that his
employment was 51% the cause of his occupational illness.
¶25 We next address whether Kratovil presented substantial credible evidence to
support the WCC’s finding that he had a compensable occupational disease requiring
medical treatment of his hands and wrists. The WCC heard the testimony of both
Kratovil and his former supervisor, Scott Branstetter, and found them to be credible
witnesses. Both men testified that the work of a pipefitter/plumber was repetitive, labor
intensive, and caused the hands of many people in this trade to “go” over time.
Branstetter reported that Kratovil told him on numerous occasions about the pain and
numbness in his hands and that these conditions had worsened through his years as a
plumber/pipefitter.
¶26 Kratovil explained in a telephone interview in February 2005, in a deposition in
May 2006, and at the hearing in June 2006, the history of his hand and wrist conditions,
linking these conditions specifically to certain jobs, repetitive work tasks, and work-
related accidents/incidents, the last of which occurred in June 2004 while working at
G & T. He also described, in detail, his motorcycle accident, explaining that he did not
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believe it caused significant injury to his hands or wrists because the gloves he was
wearing during the accident bore little damage and he suffered no additional or protracted
pain or discomfort in his hands or wrists after the accident.
¶27 Dr. Hansen’s reports indicate that Kratovil’s hands and wrist injuries were “clearly
a pre existing condition” occurring before his motorcycle accident and that his hand
numbness occurred gradually over time and had gotten worse. He also reported that
Kratovil’s wrist had experienced several job-related injuries and was subject to “a lot of
repetitive overuse.” Dr. Hansen recommended surgery on Kratovil’s hands.
¶28 Based on this evidence, which is fully supported by the record, we conclude the
WCC’s factual findings pertaining to Kratovil’s hand/wrist condition being an
occupational disease that was not significantly affected by his motorcycle accident are
supported by substantial credible evidence.
¶29 We next determine whether the court’s legal conclusion that Kratovil’s
occupational disease is compensable by Liberty is correct. As noted above, the WCC
interpreted § 39-72-408, MCA (2003), to require a showing that Kratovil’s employment
significantly aggravated or contributed to his occupational disease. Relevant case law,
addressed above, supports the application of this standard. We further conclude that the
evidence, as herein described, supports the WCC’s conclusion that Kratovil’s work as a
plumber/pipefitter significantly aggravated or contributed to h i s hand and wrist
conditions.
¶30 Applying § 39-72-303(1), MCA (2003), the WCC then concluded that G & T was
the employer at the time Kratovil was last injuriously exposed to the hazard of the
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disease. This conclusion is fully supported by the evidence and is a correct interpretation
of the plain language of the statute. As insurer for G & T at the time Kratovil worked for
G & T, Liberty is liable for benefits under the ODA to Kratovil.
¶31 Finally, as noted above and acknowledged by Liberty in its reply brief, it bears
repeating that Kratovil is not seeking ODA benefits for injuries or lost wages associated
with injuries sustained in his motorcycle accident; rather, he seeks ODA benefits solely
for his work-related occupational disease.
CONCLUSION
¶32 For the foregoing reasons, we affirm the WCC’s Findings of Fact, Conclusions of
Law and Judgment imposing liability for payment of occupational disease benefits to
Kratovil on Liberty. The amount of such benefits have not yet been quantified. We
therefore remand for further proceedings consistent with this Opinion.
/S/ PATRICIA COTTER
We concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JOHN WARNER
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