September 3 2008
DA 07-0651
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 306
CHARLES LANES,
Petitioner and Appellee,
v.
MONTANA STATE FUND,
Respondent and Appellant.
APPEAL FROM: Montana Workers’ Compensation Court, WCC No. 2006-1638
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Leo S. Ward, Browning, Kaleczyc, Berry & Hoven, Helena, Montana
For Appellee:
Bernard J. Everett, Knight, Dahood, Everett & Sievers,
Anaconda, Montana
Submitted on Briefs: August 13, 2008
Decided: September 3, 2008
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 The Montana State Fund (State Fund) appeals a decision of the Workers’
Compensation Court (WCC) which found it liable for occupational disease benefits to
appellee Charles Lanes (Lanes). We affirm the decision of the WCC.
FACTUAL AND PROCEDURAL BACKGROUND
¶1 Lanes began work as an electrician for MSE Technology (MSE) of Butte,
Montana in 1991. His job duties included light and heavy industrial work, as well as
standing, kneeling, crawling, and lifting anywhere from forty to fifty pounds on a regular
basis. In addition, Lanes holds a bachelor of arts degree in ministry and bible theology.
In 1988, he began performing minister duties for the Whitehall Assembly of God Church
(Assembly) in Whitehall, Montana. Initially, he received $400.00 per month for his
services, but when the Assembly could no longer pay him, he continued to serve without
pay until February 2005.
¶2 In May 2001, Lanes sustained an occupational disease to his left knee while in the
course and scope of his employment with MSE. State Fund, as MSE’s workers’
compensation insurer, accepted liability for Lanes’ left knee condition. From the time
that Lanes filed his occupational disease claim in May 2001, until he had knee surgery
with Dr. Nicholas Blavatsky (Blavatsky) of Butte, Montana in April 2004, he continued
working for MSE. After Lanes healed from the surgery and was released to full duty by
Dr. Blavatsky, Lanes returned to work for MSE, but later accepted a reduction in force
buyout in January 2005. Lanes testified that he would have continued working for MSE
if the buyout had not been offered.
2
¶3 After surgery, Lanes’ left knee improved for a period of time, but he eventually
began to experience progressive pain in that knee. Lanes eventually developed a limp in
the left knee, and put more weight on his right knee to compensate. Lanes testified that
he would stand primarily on his right leg to perform his electrician duties. After Lanes
accepted the buyout, he put his name on a union list for future jobs, but then removed his
name by the fall of 2005 because he felt his knees were not strong enough for him to
perform future work.
¶4 From February 2005 until November 2005, the Assembly paid Lanes $800.00 per
month. During that time, Lanes estimated that he worked approximately thirty hours per
week. His job duties included studying the bible and preparing weekly sermons,
attending funerals and weddings, preaching, and visiting the sick and elderly. According
to his testimony, these tasks required him to perform roughly the same physical duties as
daily living, including walking, standing, and sitting. In the course of performing these
tasks, Lanes would have to walk on a variety of different surfaces and stand during the
sermons for approximately forty-five minutes. Lanes testified that standing for his
sermons would aggravate the pain he felt in both knees after about thirty minutes, and
that he would lie down immediately after sermons to rest his knees. After he rested, the
pain would return to its normal levels. Lanes testified that the pain would always
alleviate with rest and that he did not believe it permanently worsened while he
performed his duties as a minister.
¶5 In November 2005, Lanes gave up his full-time position as a minister because he
felt that his knees prevented him from doing his duties; in particular, his left knee would
3
give way and be unable to support weight. On November 11, 2005, Lanes went back to
see Dr. Blavatsky. Dr. Blavatsky noted that Lanes had more discomfort in his left knee
as well as in his right, and that he had been unloading weight from the left knee to the
right knee. He also noted that previous examinations of the right knee showed some
changes, although they were not as advanced as his left knee. In deposition testimony,
Dr. Blavatsky stated that Lanes’ right knee had had no previous problems and did not
start to bother him until after he had quit his employment with MSE. Pursuant to his
examination of Lanes, Dr. Blavatsky reviewed job analyses for the electrician and
minister positions and approved only the minister job, stating that Lanes was not
employable in a position which required standing for any length of time, nor could he
stoop, bend, climb, or regularly use stairs or ladders. Dr. Blavatsky classified the
minister position as sedentary.
¶6 By January 2006, the increased pain in both Lanes’ right and left knees effectively
prevented Lanes from performing his duties as a minister. Lanes filed an occupational
disease claim for his right knee with the State Fund on January 16, 2006. In his claim,
Lanes alleged that his right knee occupational disease was the result of his employment
as an electrician with MSE. The last date of his employment with MSE was January 18,
2005. In his claim, Lanes requested total disability benefits for bilateral occupational
disease conditions that prevented him from working. The State Fund denied the claim
and also stopped payment of all partial disability benefits to Lanes.
¶7 On April 20, 2006, Dr. Blavatsky wrote a letter to State Fund’s counsel in which
he opined that Lanes’ knee complaints were based on his occupational exposure as an
4
electrician, and not due to his work as a minister. It was Dr. Blavatsky’s opinion that the
activities Lanes performed as a minister were sedentary and would not be responsible for
the injuries to his knee. Instead, the “frequent stooping, bending, lifting and crawling
during the course of [Lanes’] work as an electrical contractor and electrician would most
likely be the source of his current complaints.” In response, Patricia Hunt, a claims
adjustor for State Fund, sent Dr. Blavatsky a letter seeking further clarification of Dr.
Blavatsky’s opinion in light of an expert opinion he rendered in a somewhat similar case,
Mont. State Fund v. Murray, 2005 MT 97, 326 Mont. 516, 111 P.3d 210. In Murray, Dr.
Blavatsky had opined that a claimant’s job duties, which required him to walk and stand
on hard surfaces, were a significant contribution to a claimant’s pre-existing degenerative
knee condition which eventually required knee surgery, and thus gave rise to a
compensable occupational disease claim. Murray, ¶¶ 12, 16-17, 22. Ms. Hunt quoted to
Dr. Blavatsky his expert testimony from the Murray case and provided a further job
description of the types of tasks that Lanes performed as a minister, including standing
and walking frequently on carpet, tile, grass, dirt, gravel, snow and ice. Ms. Hunt
specifically asked Dr. Blavatsky if it would be medically probable that Lanes’ year-long
employment as a minister, in which he had to walk on several types of surfaces, could
have aggravated his underlying knee condition.
¶8 Dr. Blavatsky responded on June 9, 2006, and stated that in his opinion Lanes had
developed arthritic changes in his right knee and that several factors, including age and a
rather marked state of deconditioning, had exacerbated his condition. Dr. Blavatsky also
5
acknowledged that Lanes’ employment as a minister walking on several types of surfaces
following his employment at MSE aggravated his underlying knee condition.
¶9 On June 16, 2006, Lanes filed a petition in the WCC for a hearing on the denial of
his claim. Lanes contended he was entitled to temporary total disability (TTD) benefits
from the date his total disability benefits were terminated on December 15, 2005, until
the date he is determined to be at maximum medical improvement. Further, Lanes
contended that he was entitled to permanent total disability (PTD) benefits from the date
he is determined to be at maximum medical improvement for his occupational disease
because he is unable to work without pain and unable to tolerate that pain in order to
perform the duties of regular employment. The State Fund opposed Lanes’ petition,
arguing that MSE was not the employer of last injurious exposure for Lanes’ right knee
condition, and that his right knee condition was not caused, either directly or proximately,
by his employment at MSE. State Fund further argued that Lanes was not totally
disabled due to his left knee condition, and that he was not entitled to additional medical
benefits, TTD benefits, or PTD benefits.
¶10 A hearing on Lanes’ petition was held before the WCC on November 2, 2006.
Through deposition testimony, Dr. Blavatsky opined that Lanes had evolving
degenerative conditions in his right knee which began prior to his left knee injury while
he was employed with MSE. Importantly, Dr. Blavatsky opined that the aggravation
caused to his knees by his job duties as a minister was temporary additional pain which
did not permanently aggravate the pre-existing condition.
6
¶11 The WCC ultimately concluded that Lanes’ right knee condition was not
proximately caused by his work as a minister, and that his work as a minister did not
significantly aggravate or contribute to his right knee condition. Moreover, the WCC
concluded that the testimony and medical evidence established that Lanes was last
injuriously exposed to the hazard of the occupational disease he developed in his right
knee while working for MSE; consequently, the State Fund was liable for the payment of
occupational disease benefits to Lane as the insurer of MSE. The WCC further ordered
that Lanes was entitled to TTD benefits for his right knee occupational disease.
However, the WCC denied Lanes’ request for PTD benefits, as well as his requests for
costs, attorney’s fees, and a statutory penalty under the Workers’ Compensation Act,
Title 39, chapter 71, MCA.
¶12 State Fund now appeals the WCC’s decision, presenting the following issues on
appeal:
¶13 Issue One: Did substantial credible evidence support the WCC’s factual findings
that Lanes’ employment as a minister did not significantly aggravate his right knee
condition?
¶14 Issue Two: Did the WCC correctly conclude that a temporary aggravation of a
pre-existing right knee condition did not result in an injurious exposure pursuant to
§ 39-72-303(1), MCA (2003)?
STANDARD OF REVIEW
¶15 We review the WCC’s findings of fact to determine whether they are supported by
substantial credible evidence and its conclusions of law to determine whether they are
7
correct. BeVan v. Liberty N.W. Ins. Corp., 2007 MT 357, ¶ 8, 340 Mont. 357, ¶ 8, 174
P.3d 518, ¶ 8. Substantial credible evidence is “evidence that a reasonable mind might
accept as adequate to support a conclusion; it consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” S.L.H. v. State Compen. Mut.
Ins. Fund, 2000 MT 362, ¶ 42, 303 Mont. 364, ¶ 42, 15 P.3d 948, ¶ 42 (quotation
omitted). When examining conflicting evidence, we consider “whether substantial
evidence supports the Workers’ Compensation Court, not whether the evidence might
support contrary findings.” Caekaert v. State Compen. Mut. Ins. Fund., 268 Mont. 105,
110, 885 P.2d 495, 498 (1994).
DISCUSSION
¶16 Issue One: Did substantial credible evidence support the WCC’s factual findings
that Lanes’ employment as a minister did not significantly aggravate his right
knee condition?
¶17 State Fund argues that the WCC had insufficient credible evidence in this case to
conclude that Lanes’ employment as a minister caused only a temporary aggravation to
his right knee, and that the credible evidence indicates that Lanes’ right knee condition
arose while he was working as a minister and was significantly aggravated by that
employment. State Fund points out that Lanes recovered from his left knee condition and
surgery, returned to full employment duty at MSE, and continued to work there without
complaint until he accepted the reduction in force buyout. Additionally, State Fund
argues that Lanes conceded that he would have continued to work had the reduction in
force buyout not been offered. It was not until roughly ten months later that he removed
his name from the union list due to the condition of his knees. However, during that
8
time, he worked as a minister. State Fund points out that he admitted under oath that he
worked more than fifty-six hours per week at times, and not the thirty hours he originally
claimed. Moreover, although Dr. Blavatsky approved the minister position for Lanes, he
acknowledged in his letter to Ms. Hunt of the State Fund, that the minister duties
aggravated his right knee condition. Additionally, State Fund points out that Dr.
Blavatsky did not disapprove of the minister position until May 26, 2006, when Lanes
could no longer tolerate the long hours of walking and standing.
¶18 In this connection, State Fund argues that under the WCC decision of Mont. State
Fund v. Murray, 2004 MTWCC 33,1 the WCC is required to conclude that State Fund
was not liable for Lanes’ right knee condition because he was last injuriously exposed to
the hazards causing this condition while working as a minister for the Assembly. State
Fund further argues that under Murray and Polk v. Planet Ins. Co., 287 Mont. 79, 951
P.2d 1015 (1997), the aggravation of a condition need only be “significant,” but not the
major or most significant factor, in order to be compensable under the Workers’
Compensation Act. See Polk, 287 Mont. at 85, 951 P.2d at 1018. State Fund further
argues that there was no credible evidence that Lanes suffered a significantly
symptomatic pre-existing right knee condition during his MSE employment. Instead,
State Fund argues that the evidence shows Lanes’ right knee condition arose while he
was performing his duties as a minister.
¶19 State Fund also argues that the WCC had insufficient credible evidence to
conclude that Lanes’ minister duties simply caused a “temporary aggravation” to his right
1
We affirmed this decision in the Murray Opinion referenced in ¶ 7 of this Opinion.
9
knee, and that the record shows those duties caused a significant aggravation to his right
knee. State Fund notes that Lanes worked at times up to fifty-six hours a week and stood
on a variety of different surfaces. Additionally, State Fund argues that even if Lanes’
right knee injury was a “temporary aggravation,” under Mont. Contractor Compen. Fund
v. Liberty N.W. Ins. Co., 2003 MTWCC 10, the Assembly took Lanes as it found him and
must pay him benefits until he returns to his pre-aggravation condition. Because Dr.
Blavatsky did not testify that Lanes ever achieved pre-aggravation status, and Lanes was
able to work for approximately ten months as a minister until the pain in his knees was
too great, no evidence was presented showing that he returned to pre-aggravation status.
Accordingly, State Fund argues the burden is on the Assembly to demonstrate that Lanes
returned to pre-aggravation status. State Fund maintains this issue should be remanded in
order for the WCC to properly address it.
¶20 Lanes maintains the WCC’s findings were supported by substantial credible
evidence. Lanes points to Dr. Blavatsky’s deposition, where he stated that Lanes had a
degenerative condition in his knees before his left knee injury, and that following the
injury to his left knee during his employment with MSE, he began overloading the right
knee to compensate. While Dr. Blavatsky testified that the ministerial duties did
aggravate his right knee, he stated that those aggravations were only temporary, and
Lanes’ own testimony confirmed this view. Lanes argues that State Fund has presented
no evidence to refute the testimony of Dr. Blavatsky and Lanes on this point.
¶21 In reviewing the WCC’s decision in this case, our role is not to determine whether
there was sufficient evidence to enable the WCC to reach a different conclusion; rather,
10
we simply determine whether the conclusion that it did reach is supported by substantial
credible evidence. Caekaert, 268 Mont. at 110, 885 P.2d at 498. We conclude that it
was.
¶22 Here, Dr. Blavatsky’s deposition testimony indicated that the right knee condition
developed when Lanes began overloading that knee after his left knee was injured. This
evidence was confirmed in his testimony at the hearing, and consistent with the testimony
given by Lanes himself. Dr. Blavatsky agreed that Lanes’ duties as a minister aggravated
his right knee, but testified that the aggravation was temporary and that the cause of the
right knee condition stemmed from the initial injury to the left knee. State Fund claims
that under Montana law, the Assembly maintains liability for the right knee until Lanes
returns to pre-aggravation status; however, it provides no authority for this proposition.
A review of the Montana Contractor case upon which State Fund relies in this regard
demonstrates that it is devoid of such authority, contrary to State Fund’s assertions.
¶23 Instead, the pertinent authority in the instant case is found in Burglund v. Liberty
Mut. Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997), a case upon which Montana
Contractor relies. In that case, Burglund sustained a back injury on February 14, 1984,
while performing his duties as a package car driver at United Parcel Service (UPS).
Burglund, 286 Mont. at 135, 950 P.2d at 1371. Burglund had surgery for this condition
in 1991, and resumed his position with UPS later that year. His lower back condition
worsened and he resigned from the position in 1995.
¶24 Liberty was UPS’ insurer. Liberty concluded that Burglund’s inability to work
was a result of an occupational disease arising subsequent to his 1984 injury, and began
11
paying Burglund TTD benefits. When Burglund reached maximum medical
improvement, Liberty begin paying a $10,000.00 award pursuant to § 39-72-405(2),
MCA (1993). However, Burglund petitioned the WCC claiming that his condition was a
result of the 1984 injury rather than an occupational disease. The WCC found that
Burglund’s injuries were the result of his 1984 injury, and that Liberty had failed to
satisfy its burden of showing that Burglund’s condition was not a natural progression of
the 1984 injury. Liberty appealed.
¶25 On appeal, we stated that the “crux of Liberty’s argument is that Burglund’s low-
back condition accelerated while performing his duties at UPS between 1991 and 1995
and that the acceleration, rather than the original injury in 1984, caused his current
disability.” Burglund, 286 Mont. at 136, 950 P.2d at 1372. We noted that Burglund had
the initial burden of showing by a preponderance that he was entitled to compensation,
and met this burden by establishing a clear connection between his current condition and
the 1984 injury through the testimony of a physician who testified that the 1984 injury
was the material and substantial cause of Burglund’s disability. Burglund, 286 Mont. at
136, 950 P.2d at 1372.
¶26 Accordingly, “the burden of proof shifted to Liberty to establish that Burglund’s
degenerative low-back condition was accelerated by a subsequent occupational disease.”
Burglund, 286 Mont. at 136, 950 P.2d at 1372. Specifically, it was incumbent upon
Liberty to prove that the “increased disability was not the result of a natural progression
of the condition caused by the 1984 injury.” Burglund, 286 Mont. at 136, 950 P.2d at
1372. We held that Liberty failed to meet its burden. In particular, we noted that the
12
medical testimony substantially supported the WCC’s finding that Burglund’s condition
was caused by the natural progression of the 1984 injury, and that notwithstanding the
fact “that Burglund’s work from 1991 to 1995 may have hastened the degenerative
process that Burglund experienced, [the physician] further testified that such work was
not a substantial cause of the degeneration and that Burglund’s low-back condition would
have deteriorated even if he had not resumed his duties at UPS.” Burglund, 286 Mont. at
137, 950 P.2d at 1372-73. This is essentially what the deposition of Dr. Blavatsky
established. Dr. Blavatsky opined that the original injury to the left knee, combined with
Lanes’ pre-existing degenerative condition, led him to overload h i s right knee.
According to Dr. Blavatsky’s deposition, Lanes’ duties as a minister did not permanently
aggravate this pre-existing condition. In fact, Dr. Blavatsky opined that the minister
duties only constituted a “temporary aggravation” to Lanes’ right knee condition. Lanes’
own testimony confirmed this view. Under Burglund, this was sufficient credible
evidence to support the WCC’s factual findings that Lanes’ employment as a minister did
not significantly aggravate his right knee condition. We therefore decline to disturb the
WCC’s findings in this regard.
¶27 Issue Two: Did the WCC correctly conclude that a temporary aggravation of a
pre-existing right knee condition did not result in an injurious exposure pursuant
to § 39-72-303(1), MCA (2003)?
¶28 The WCC concluded that the temporary aggravation of Lanes’ knee while
performing his job duties as a minister did not constitute the last injurious exposure under
the Workers’ Compensation Act; therefore, MSE, and not the Assembly, was liable for
Lanes’ occupational disease. In reaching this conclusion, the WCC relied heavily upon
13
its prior decision in Romero v. Liberty Mut. Fire Ins. Co., 2001 MTWCC 5, aff’d 2001
MT 303N, 308 Mont. 394, 43 P.3d 983. In that case, Romero had injured her right
shoulder in 1992 while working as a janitor for Commercial Building Maintenance
(CBM). Romero, ¶ 6. CBM was insured by State Fund which accepted liability for the
injury. In December 1994, Romero’s treating physician noted that she was having left
shoulder problems, which he attributed to her reliance on her left arm due to the fact that
she was unable to use her right arm. Romero, ¶ 27. He further opined that Romero
suffered from low-grade thoracic outlet syndrome, and that her left arm and shoulder
complaints were due to her inability to use her right arm. Romero, ¶ 33.
¶29 In November 1997, Romero began working part-time in the bakery of County
Market in Billings. Romero, ¶ 8. She worked at County Market for approximately
fifteen weeks, and during that time suffered increased pain in her left arm. Romero, ¶ 9.
Romero filed an occupational disease claim, asserting that her left arm problems
developed while working for County Market. County Market’s insurer, Liberty Mutual,
denied liability and claimed that the left arm problems were caused by the original injury
to the right arm. Romero, ¶ 10.
¶30 The issue before the WCC was whether Romero’s left arm condition was due to or
aggravated by her work at County Market. The WCC concluded that Romero’s left arm
and right arm conditions were the result of her 1992 industrial accident, and not a result
of her work at County Market. Romero, ¶ 12. The WCC in Romero began its analysis by
noting that under the Workers’ Compensation Act, an insurer is liable for “ ‘a subsequent
injury . . . if it is the direct and natural result of a compensable primary injury, and not the
14
result of an independent intervening cause.’ ” Romero, ¶ 56 (quoting Rightnour v. Kare-
Mor, Inc., 225 Mont. 187, 189, 732 P.2d 829, 831 (1987)). Additionally, the Romero
WCC cited to Caekaert for the proposition that “ ‘[a] later injury is compensable by the
original carrier if it is a direct and natural result of a compensable primary injury, and not
the result of an independent intervening cause attributable to the claimant.’ ” Romero,
¶ 56 (quoting Caekaert, 268 Mont. at 112, 885 P.2d at 499). In examining the medical
testimony before it, the Romero WCC found that while Romero’s work at the County
Market made her left arm worse, the testimony also established that any activity requiring
her to use her arms would invariably result in further deterioration of the left arm.
Romero, ¶ 52. The Romero WCC found this evidence significant because it indicated
that her left arm condition was attributable to the 1992 injury to the right arm for which
State Fund was liable, and not her work at County Market. Romero, ¶ 63.
¶31 The WCC in the instant case relied upon Romero and found it similar to Lanes’
situation because Dr. Blavatsky opined that Lanes overloaded his right knee due to the
injury to the left knee, and that the activities which he performed as a minister were
simply the activities of daily living. As stated by the WCC, “[l]ike Romero, Petitioner
had to overuse his other limb to compensate for the injured limb, and therefore, the over
use or overloading of the uninjured limb would have caused the development of problems
in that limb, regardless of whether he engaged in subsequent employment.” Following
the rationale of Romero, the WCC concluded the evidence before it did not indicate that
Lanes’ work as a minister significantly aggravated or contributed to his right knee
15
condition, and that the cause of the right knee injury was attributable to the occupational
disease he sustained while working for MSE.
¶32 State Fund argues the WCC erred. State Fund maintains that under
§ 39-72-303(1), MCA (2003), even a temporary aggravation satisfies the definition of
“last injurious exposure.” This statute reads as follows:
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.
Section 39-72-303(1), MCA (2003).
¶33 State Fund argues that under the WCC’s prior decision in Fleming v. Intl. Paper
Co., 2005 MTWCC 34, and Fleming’s citation to Larson’s Workers’ Compensation Law,
any injurious exposure, including an aggravation, is sufficient to satisfy the “last injurious
exposure” rule. State Fund quotes Larson’s for the proposition that “ ‘[a]s long as there
was some exposure of a kind that could have caused the disease, the last insurer at risk is
liable for all disability from that disease.’ ” Fleming, ¶ 51 (quoting Arthur Larson & Lex
Larson, Larson’s Workers’ Compensation Law vol. 9, § 153.02 [7][a], 153-19-20
(2004)). In this regard, State Fund argues that Romero is distinguishable because unlike
Romero, Lanes’ right knee condition was not a prior injury resulting during his
employment at MSE, but instead arose many months after that employment ended and
was aggravated by his minister duties to the point where he could no longer perform
those job duties. State Fund points out that in his testimony Lanes downplayed any
16
outside activities which might have contributed to his right knee condition, meaning that
the condition could only have been caused by his work for the Assembly.
¶34 Lanes argues that the WCC did not err because the injurious exposure for his right
knee condition occurred during his employment with MSE. Lanes cites to Caekaert to
argue that State Fund cannot succeed in its argument because the testimony and medical
evidence established that Lanes’ right knee injury condition was caused by his work at
MSE, and not from his work as a minister and, further, that State Fund failed to offer any
evidence that Lanes’ work as a minister significantly contributed to his right knee
condition.
¶35 Under § 39-72-706(1), MCA (2003), an aggravation of a pre-existing condition
may give rise to a compensable occupational disease. As noted by the WCC in Murray,
“[t]he aggravation provision is a reflection of the long standing rule that employers take
their workers as they find them, with all their underlying ailments, and that a traumatic
event or unusual strain which lights up, accelerates, or aggravates an underlying
condition is compensable.” Murray, ¶ 39 (citing Birnie v. U.S. Gypsum Co., 134 Mont.
39, 45, 328 P.2d 133, 136 (1958)). To determine whether an aggravation of a pre-
existing condition gives rise to a compensable occupational disease, “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;
accord Murray, ¶ 22.
¶36 To succeed in its challenge, State Fund must demonstrate that the occupational
17
factors in Lanes’ work with the Assembly “significantly aggravated” Lanes’ pre-existing
condition. While State Fund argues that Fleming’s citation to the Larson treatise
provides the “general rule of injurious exposure” which controls in this case, that
assertion is not supported by the rule expressed in Polk which requires a showing of a
“significant aggravation.” Moreover, State Fund’s reliance on Fleming is misplaced. In
that case, Fleming had worked at a lumber mill in Libby, Montana from 1960 to May
1998, and claimed that exposure to asbestos during his employment caused a lung
disease. Fleming, ¶ 1. The mill had been owned by Champion International Corporation
from 1960 and November 1993, and by Stimson Lumber Company from November 1993
onward. Fleming, ¶ 1. At issue in Fleming was only whether the asbestos-related lung
disease was attributable to Champion or Stimson under the “last injurious exposure rule.”
Thus, Fleming differed from other cases, such as Caekaert and Murray, involving
“allegations of aggravations suffered on account of second, subsequent occupational
diseases or aggravations arising after an earlier injury or a previously diagnosed
occupational disease. In this case, a single disease has been diagnosed and it was
diagnosed subsequent to the claimant’s retirement.” Fleming, ¶ 47. This factual scenario
is clearly distinguishable from the case at bar, as here a second aggravation is at issue.
¶37 Irrespective of the applicability of Romero to the instant case,2 State Fund does not
provide any authority showing that a “temporary aggravation” is sufficient to establish a
2
In Romero there was direct medical testimony that the claimant’s work at the County Market
constituted a “significant” aggravation of her pre-existing condition. Romero, ¶ 51. Under Polk,
it is arguable that such testimony could have been sufficient to establish County Market as the
employer of the last injurious exposure.
18
last injurious exposure under § 39-72-303(1), MCA (2003). Under Polk, the aggravation
must be “significant” before it will be considered the last injurious exposure. Dr.
Blavatsky’s and Lanes’ testimony established only that Lanes’ ministerial duties
constituted a temporary aggravation. Because the evidence did not establish that the
minister duties “significantly aggravated” Lanes’ pre-existing condition, the WCC did
not err in concluding that this temporary aggravation did not constitute the last injurious
exposure under § 39-72-303(1), MCA. Finally, State Fund provides no authority for the
proposition that the burden was on the Assembly to show that Lanes returned to pre-
aggravation status in order to escape liability. Thus, we affirm the WCC’s decision.
¶38 Affirmed.
/S/ PATRICIA COTTER
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
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