April 22 2008
DA 07-0440
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 132N
NELS OKSENDAHL,
Petitioner and Appellee,
v.
LIBERTY NORTHWEST INSURANCE CORP.,
Respondent /Insurer and Appellant.
APPEAL FROM: Montana Workers’ Compensation Court, No. 2006-1679
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones, Law Offices of Larry W. Jones, Missoula, Montana
For Appellee:
Victor R. Halverson, Halverson, Sheehy & Plath, P.C., Billings, Montana
Submitted on Briefs: February 27, 2008
Decided: April 22, 2008
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court's quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Liberty Northwest Insurance Corporation (Liberty) appeals from the Workers’
Compensation Court’s (WCC) order granting Nels Oksendahl’s (Oksendahl) motion for
summary judgment and holding that Oksendahl’s occupational disease is compensable
under the Occupational Disease Act (ODA). We affirm.
¶3 In June 2005 Oksendahl filed a First Report of Injury and Occupational Disease
with Liberty claiming arthritis in his thumbs. Liberty at all relevant times was the insurer
of Laughlin Construction, Oksendahl’s employer. Two physicians examined Oksendahl.
One stated that he could not “say to any degree of medical certainty that [Oksendahl’s]
basilar joint arthritis was specifically caused by any type of use of his hand, but certainly
heavy use of his hands in carpentry [and] construction, would certainly aggravate the
condition and perhaps accelerate it.” The other doctor reported that Oksendahl’s work as
a carpenter and laborer contributed to a lot of stress on his thumb joints and that his work
as a construction and carpentry laborer “probably contributed to the condition developing
a bit faster than it would have.” This doctor continued, however, that Oksendahl’s work
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contributed less than fifty percent to Oksendahl’s condition. Liberty denied Oksendahl’s
claim.
¶4 Oksendahl filed a Petition for Hearing with the WCC. Liberty filed a motion for
summary judgment and Oksendahl filed a cross motion for summary judgment. The
WCC granted Oksendahl’s motion and denied Liberty’s. The WCC, relying on Polk v.
Planet Ins. Co., 287 Mont. 79, 951 P.2d 1015 (1997), Schmill v. Liberty Northwest Ins.
Corp., 2003 MT 80, 315 Mont. 51, 67 P.3d 290, Hand v. Uninsured Employers’ Fund,
2004 MT 336, 324 Mont. 196, 103 P.3d 994, and Montana State Fund v. Murray, 2005
MT 97, 326 Mont. 516, 111 P.3d 210, concluded that Oksendahl’s work significantly
aggravated or contributed to his condition and therefore he was entitled to compensation
for his occupational disease.
¶5 Liberty appeals the WCC’s decision arguing that the court applied the incorrect
standard and that under the 2003 version of the ODA Oksendahl was required to show
that his employment was the proximate cause of his condition. Liberty maintains without
citing authority that to establish proximate causation Oksendahl had to prove that his
work was at least fifty-one percent the cause of his illness.
¶6 The sole issue before us is whether the WCC applied the correct legal standard to
determine whether Oksendahl’s condition was compensable. This is a legal conclusion
which we review for correctness. Murray, ¶ 13.
¶7 In both Polk and Murray, we clearly stated our established standard—a claimant
must show that occupational exposures “significantly aggravated a preexisting
condition.” Polk, 287 Mont. at 85, 951 P.2d at 1018; Murray, ¶ 23. We have not
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declared an apportionment or percentage number upon which “significant aggravation” or
proximate causation must hinge. In other words, we have never required a greater than
fifty percent work-related aggravation for a condition to be compensable. We decline to
do so here.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of
our 1996 Internal Operating Rules, as amended in 2003, which provide for memorandum
opinions. It is manifest on the face of the briefs and the record before us that substantial
evidence supports the Workers’ Compensation Court’s findings of fact, and that the legal
issues are clearly controlled by settled Montana law and that the Workers’ Compensation
Court correctly interpreted it.
¶9 We affirm the Judgment of the Workers’ Compensation Court.
/S/ PATRICIA COTTER
We concur:
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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