TRULY W. COCKING, Claimant and Respondent, v. THE HILLHAVEN CORPORATION, Employer, and RANGER INSURANCE COMPANY, Defendant and Appellant.
No. 86-328.
Supreme Court of Montana
Submitted on Briefs Dec. 11, 1986. Decided Feb. 19, 1987.
732 P.2d 1333
369
Burgess, Joyce & Whelan, Thomas J. Joyce, Butte, for claimant and respondent.
Defendants appeal the award by the Workers’ Compensation Court granting claimant occupational disease benefits plus costs and attorneys’ fees. We reverse and remand.
Claimant began work as a janitor in February, 1983, at Butte Convalescent Center, owned by defendant Hillhaven Corporation. Claimant‘s duties included washing windows, cleaning furniture and stripping floors. During 1983, claimant began taking allergy shots to treat his allergic reaction to horses, dogs, and cats, to which he was exposed away from work. In June, 1984, claimant began breaking out with sores on his side, ankles, face, ears, and eyelids. Claimant attempted to identify the cause by removing all pets from his home, the wood stove, changing his diet, and trying different types of clothing and detergents.
Claimant visited several doctors during July and August of 1984, but none of the doctors were able to diagnose or adequately treat claimant‘s condition. Claimant took an extended leave of absence from work August 21, 1984, through October 14, 1984. Claimant‘s supervisor was aware of his medical problems, yet claimant did not inform the supervisor that his skin infections were work related nor did he file an incident report.
The record is unclear as to claimant‘s work attendance during the last 3 months of 1984. In November of 1984, claimant began treatment with a certified dermatologist, Dr. Ballinger. Dr. Ballinger concluded claimant had contact dermatitis but was unable to positively correlate it with any of the products claimant used at work.
On December 21, 1984, claimant filed a claim for workers’ compensation alleging an industrial injury in July, 1984. Defendant Ranger Insurance Company denied liability by letter dated February 4, 1985. Claimant continued to have outbreaks and began treatment with another certified dermatologist, Dr. Robert Neill. Dr. Neill applied topical medications to claimant‘s eruptions and within two weeks claimant‘s condition had improved substantially. To determine the cause of claimant‘s sores and rashes, Dr. Neill suggested claimant return to work.
Claimant returned to work February 28, 1985, and within two weeks experienced a recurrence of his skin condition after using certain cleaning compounds. Claimant filed an incident report alleging an injury on March 4, 1985, and did not return to work upon Dr. Neill‘s advice. A workers’ compensation claim was filed and defend
Meanwhile, on May 20, 1985, claimant filed a petition for hearing before the Workers’ Compensation Court. Defendant filed a motion to dismiss on July 10, 1985, contending the proceedings before the Division deprived the Workers’ Compensation Court of jurisdiction. The motion to dismiss was denied. On July 31, 1985, the Division entered its order referring copy of medical report to the parties which contained a preliminary finding that claimant was not entitled to occupational disease benefits. On August 19, 1985, the Division entered its order suspending proceedings pending the outcome of industrial injury proceedings before the Workers’ Compensation Court.
Following hearing, the hearing examiner found claimant had not suffered an injury under
- Whether the Workers’ Compensation Court properly awarded claimant occupational disease benefits?
- Whether the Workers’ Compensation Court properly awarded attorneys’ fees and costs to claimant?
The claimant has conceded on appeal that the Workers’ Compensation Court exceeded its jurisdiction in finding claimant suffered from an occupational disease.
This Court has previously held that a claimant may elect to pursue benefits under the Workers’ Compensation Act or the Occupational Disease Act. Ridenour v. Equity Supply Co. (Mont. 1983), [204 Mont. 473,] 665 P.2d 783, 40 St.Rep. 1012.
The procedure for obtaining benefits differs under the two acts. The Occupational Disease Act provides that a physician shall be appointed to examine the claimant when the insurer has not accepted liability.
Prior to the time the Division issues its determination whether the claimant is entitled to occupational disease benefits, the claimant, insurer, or the Division may request a hearing.
In the present case, claimant filed a petition for hearing under the Workers’ Compensation Act alleging an industrial injury. The Workers’ Compensation Court had jurisdiction to determine whether or not claimant was entitled to workers’ compensation benefits. The court did not have jurisdiction to make a finding that claimant suffered from an occupational disease and was entitled to occupational disease benefits. That is a matter to be decided on appeal following final determination by the Division. In this instance, the Division did not make such a determination.
The award of attorneys’ fees and costs pursuant to
The Workers’ Compensation Court is reversed and this case is remanded to the Division of Workers’ Compensation for a determination of claimant‘s entitlement to occupational disease benefits.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and WEBER concur.