Montana State Fund v. Grande

333 FUND, MONTANA STATE Respondent Appellant,

v. GRANDE, CLARENCE Appellee. Petitioner No. DA 11-0492. February 2012. on Briefs Submitted March 2012. Decided MT 67. Mont. 333. part part.

JUSTICE RICE concurred and dissented Braun, General, Kevin Appellant: Special Attorney For Assistant Fund, Montana State Helena. Lauridsen, Wallace, P.C.,

For Laurie Bothe Appellee: & Columbia Falls. Opinion

JUSTICE NELSON delivered the of the Court. (MSF) The appeals Montana State Fund decision ofthe Workers’ ¶1 (WCC) Compensation Court concluding job Clarence Grande’s (Valcon) City duties as a truck driver for Service Valcon are suffering cause of his arthritic thus he is from We affirm. MSF on following appeal: raises the three issues ¶2 concluding 1. Whether the WCC erred that Grande ¶3 from a occupational disease out of arising and scope employment. course and of his ordering payment Whether the erred in oftemporary

¶4 WCC total disability benefits and medical benefits. ordering payment 3. Whether the

¶5 WCC erred of costs. MSF’s entire argument on Issues 2 and 3 consists one sentence in the conclusion section ofits initial ‘Upon brief wherein states: regarding reversal of the threshold compensability issue of the claim, the award of benefits and costs should likewise be reversed disposing remaining two on appeal.” issues Since we are issue, affirming on threshold we do not address MSF’s second and third issues.

FACTUAL AND PROCEDURAL BACKGROUND Grande has been a truck driver his entire life. Prior to his Valcon, with self-employed he was as an over-the-road truck driver. He dump also drove a truck for one season. began working Grande for Valcon long-haul in October as a

propane truck He up day, driver. worked to 15 hours per per 60 hours driving throughout week the northwest and into obtaining Canada (a delivering propane in a truck that consisted of a tanker a pup first). second tanker job hooked behind the required that he up large hook several hoses to the tanker and the pup as well as the propane storage tanks. Some ofthe were hoses four inches in diameter heavy with a brass end. Grande had to caps covering unscrew the truck, pup storage valves of the before connecting tanks the hoses. Grande testified that there as many were as 12 valves that opened needed to during loading be closed and unloading processes. amongst gears shifting addition, constantly Grande was winter, up to chain And, Grande would have during the his truck. A depending on the weather. as times a week truck often three truck, weighed 75 chains, which went on both sides triple

set the back of single chains on also had to install sets pounds. pup. and on the the truck Services, Inc., Management Vocational Janet Schroeder of as follows: duties

described Grande’s road in transport propane over the Operates tractor/trailer pre- Idaho, Washington: Performs Montana, and eastern western pick propane up Drives tractor/trailer trip inspection. position Drives truck into Canada and delivers to customers. fill pumps tank. filling Opens load rack. valves starts Drives quantity and records loaded. truck gauges Reads meters from a businesses. Pulls hose propane and delivers customer’s a storage Pulls tube on storage along tube side tank. hose drain Records amount Opens side of truck. valves to tank. Maay up [sic] to chain delivered. Returns hose to hose tubes. have log adverse conditions. Maintains driver’s during weather according regulations.... Employee wai[s]t to DOT reaches chest vehicle; use clutch height on a continual basis to steer and continuously. Employee break as well as accelerator is used [sic] right must shift to Employee grip/grasp use arm to truck.... uses truck, hose, truck, pull pull steer and shift self into/out of and to etc. specializes Dr. in and Schumpert, John who

¶11 medicine, independent conducted an medical environmental 9,2007. January a Dr. prior injury examination of Grande for back evaluation, Schumpert later noted that at the time of that Grande did exhibit symptoms of arthritis. August to Van Grande was referred Dr. Bernadette Belois ¶12 2007, for in his hands. Dr. Van Belois board suspicion arthritis diagnosed rheumatology and internal medicine. She certified in both possibility of an additional having osteoarthritis with Grande arthritis, arthritis. diagnosis inflammatory possibly rheumatoid person a genetic predisposition Dr. noted that there for Van Belois has a develop to osteoarthritis and rheumatoid arthritis. Grande a brother family history parents, grandparents, of arthritis with his suffering a cousin all from various forms of and number Belois follow-up had a visits with Dr. Van Grande January July changed between 2008 and 2009. Dr. Van Belois times, significant any Grande’s medications several but without improvement 16,2009, July his condition. On Grande called Dr. Van complaining pain swelling Belois’ office in his hands to such a degree July 27, that made it difficult for him work. After visit on 2009, Dr. noted in Van Belois Grande’s chart Grande was working unable to truck significant continue as a driver because of the swelling pain right in his in particular hand “that would make sedentary one, occupation, including difficult him.” 2009, August 3, May Concern,” In a letter dated ‘ToWhom it Dr. arthritis, significant Van Belois stated that Grande’s which caused swelling right in his pain particular, ‘impaired ability hand his safely drive a truck.” Dr. Van Belois also noted in the letter pain taking may medication Grande was make drowsy impair him senses, stop working. his thus she had him advised resigned from with Valcon effective 7, August 2009. years. He had worked for Valcon for almost four addition to Dr. Van Belois’ recommendation that he stop working, to pass physical Grande was unable necessary examination (CDL). renew his commercial drivers license Grande later testified that if it wasn’t for his arthritic driving he would still be truck. Grande filed claim for compensation August with MSF on alleged He in his claim that he suffered from occupational in the form of rheumatoid arthritis and osteoarthritis as a result of employment with Valcon. In response questions counsel, Grande’s Dr. Van Belois August 26,

wrote a letter dated opined wherein she job duties, repetitive which involved of his use hands with repetitive gripping, firm had aggravated his arthritis such extent that he working. pointed was unable to continue She out that Grande’s job aggravated his arthritis rather than causing it. Dr. Van Belois that, stated opinion, her medical Grande’s arthritis is an occupational disease. Dr. Schumpert reviewed Grande’s medical records at request report

of MSF. In a February dated Schumpert stated that he believed that Grande could continue to as a work truck driver. He also stated that he did not feel Grande was from an occupational disease or that employment major was the Instead, Schumpert ofhis condition. stated that opinion, arthritis, in his is suffering from rheumatoid autoimmune disorder that is unrelated as truck

337 is not osteoarthritis Schumpert opined also that Grande’s driver. Dr. aggravate by driving truck his work caused underlying arthritic condition. claim on liability for Grande’s MSF denied 5, Thereafter, Hearing a Petition for with 2010. Grande filed

March its filings by the WCC entered parties, After various both WCC. Fact, Judgment on Conclusions of Law and June Findings of that Grande’s duties were the which concluded arthritis, suffering he is cause of his therefore a motion to amend the occupational disease. Grande filed decision, July 22, The motion was denied on WCC’s but that stay MSF’s for a while subsequently granted WCC motion Fact, Findings of Conclusions of Law appealed the WCC’s Judgment. OF

STANDARD REVIEW findings by review of fact made the WCC to determine We evidence, by substantial, supported credible findings whether those are if by law the WCC to determine and we review conclusions of made Co., 2011 Wright v. Ace American Ins. those conclusions are correct. Missoula Hiett v. 43, 13, 332, (citing MT 249 359 Mont. P.3d 485 ¶ 341). Schs., 15, 213, 95, 75 In County Pub. MT 317 Mont. P.3d 2003 ¶ findings, reviewing the factual we will not conflicts WCC’s resolve findings supports or consider evidence evidence whether Instead, are we will our different from those made WCC. confine determining supports substantial credible evidence review whether Quick Wright, Mont. v. (citing made 14 findings by the WCC. ¶ 415). Fund, 32, 455, State 208 2009 MT Mont. P.3d ¶ addition, concerning credibility and we will defer to the WCC’s weight testimony testify to be accorded to the of witnesses who But, person position trial. are in the WCC good at because we as trial, testimony presented such deposition assess we will review Wright, Liberty v. Harrison deposition testimony (citing de novo. ¶ Corp., Ins. 12-13, 342 326, 181 Northwest MT ¶¶ 590). Nevertheless, we “even where conduct de novo review determining deposition testimony, ultimately are restricted to we findings.” evidence supports whether substantial credible WCC’s 13). Harrison, Wright, (citing ¶ ¶

DISCUSSION concluding the WCC erred in that Grande is Whether compensable occupational arising out and in the disease of scope employment. course and his of argues following changes occupational that the to the disease 2005, employment statutes in a claimant’s must be the contributing cause of the claimant’s condition in order to have a MSF, compensable occupational addition, according disease. In aggravation condition, work-related of a personal health such as arthritis, Grande’s unless the aggravation not is due a compensable injury occupational or disease. MSF maintains that employment major contributing was not the cause of condition, that aggravation arthritic the of not was compensable injury disease, due to a or occupational hence the WCC erred when it an occupational concluded Grande suffers from disease. Grande the contends on other hand that where it is established complained by objective the harm ofis evidenced harm,

and the the leading duties were to that an occupational proven disease is regardless of whether the harm is a aggravation Thus, new or an pre-existing of a condition. argues decision the of the WCC should be affirmed. have repeatedly We stated that the law effect on employee’s day last governs of work the an occupational resolution of Hardgrove Co., 340, disease claim. v. Transportation Ins. 2004 MT ¶ 2, 238, Cas., Mont 103 P.3d 999 Grenz v. (citing Fire & 278 (1996)). 268, 271, 924 264, 266 day Because Grande’s last ofwork August was of version the Workers Compensation (WCA) Act applies in this case. In Legislature the Montana repealed Occupational (ODA) (Title 39, MCA),

Disease Act chapter and amended sections necessary numerous ofthe WCAto incorporate provisions coverage occupational continue for diseases. 2005 Mont. Laws 1404- 33. The 2009 version substantially of WCA is similar to the WCA as amended in 2005. 39-71-116(20), (2009), Section MCA defines an

disease as:

(a) harm, damage, ... arising death out of or contracted and scope employment course caused by occurring events day than single more or work shift. (b) The term a physical does include or mental condition arising from nonphysical emotional mental stress or from a activity. stimulus or (2009), every §39-71-407(8), employer addition, provides MCA for disease compensation payment liable scope course out of or is contracted

that “arises (2009), 39-71-407, provides: further Section employment.” (9) to arise out of are considered diseases Occupational scope in the course or be contracted employment if: (a) by objective medical is established disease findings; and

(b) single day or work on more than a occurring events major contributing are the shift to the

in relation to other factors (13) section, means “major As in this cause” used to the result cause that a all other causes. impermissibly case subjudice MSF contends in the the WCC ¶26 compensability of pre-2005 determining to the standard for reverted forth in v. occupational an disease claim. That standard was set Polk (1997). Co., 79, Ins. Mont. P.2d 1015 Planet 287 951 (Koch) factory Koch by Agriculture, Polk worked in a Inc. ¶27 owned processed types grain from 1985 to 1993. Koch seeds from various meal sold feed. generally performed physical into oil and for cattle Polk factory stacking at the sacks of carrying labor which included meal, cleaning machinery, scraping moldy grain from the machine pits. Although subjected of the elevator and Polk’s inside mold, him dust and him with a dust provide airborne Koch Polk, 81, until in 1992. 287 Mont. 951 P.2d at 1016. mask sometime at 1991, began tired April experiencing problems. In Polk health He easily, nearly pounds. he had and he lost 40 Polk breathing, trouble smoking heavy years. attempted quit had smoker for He been 30 1993, entirely in he as he continued December but was not successful 1993, doctor occasionally. By to smoke November or December Polk’s 81, job. Polk, him to Mont. 951 P.2d at 1016. advised leave his 287 at January filed a in occupational Polk claim for disease benefits doctors, by was some of whom concluded 1994. Polk examined several an and others who occupational that he suffered from hearing, hearings After examiner with concluded that he did not. Industry determined that Polk Department the Montana Labor appealed disease. Polk occupational was not 340 hearings

WCC in March 1996. The WCC determined by clearly supported examiner’s were erroneous and were Polk, 81-83, at substantial evidence. 287 Mont. 951 P.2d at 1016-17. provided The statute at the time Polk was decided that a worker may occupational compensation aggravated “[i]f receive disease is by any infirmity compensable disability other disease or not itself or if aggravated, or death from other cause not itself accelerated, prolonged, any way by contributed an occupational 2005). 39-72-706(1), (repealed disease ....’’Section Polk, appeal, hearings On we held that the examiner applied the wrong standard of causation requiring Polk’s “major exposures causing to be the or primary factor his medical rather reviewing condition” than the medical experts’ testimony supported finding determine whether an occupational exposure aggravated contributed to or Polk, Polk’s condition. 287 88, 951 Mont. P.2d at 1020. We stated in “an employer Polk that accepts employee injuries Polk, all of with 287 diseases.” 84, Co., Mont. at 951 1018 (citing P.2d at Ridenour v. Equity Supply 473, (1983); Co., 665 P.2d 783 Eastman v.Atlantic Richfield (1989)). 332, 777 And, 237 Mont. we held that the proper test for compensability of an disease is “whether significantly factors aggravated pre-existing not whether significant factors played major most role causing resulting disease.”Polk, the claimant’s Mont. at P.2d at 1018. case, argues the instant that in light changes of the

Legislature made to laws diseases applicable. Polk standard is no longer MSF maintains that the express language post-2005 occupational disease statutes the damage or harm arise out of or be contracted in the course and scope employment of the claimant’s which in turn workplace major contributing events to be the cause the claimant’s MSF condition. contends that both Van Belois and Dr. Schumpert opined that Grande’s as a truck driver was not the contributing cause of his arthritis. While it is true the Legislature changed that the definition of Polk,

occupational disease after the Legislature specify in those changes that an not occupational compensable disease is at all if the underlying pre-existing already indicated, is a condition. As occupational version MCA defines an disease follows: (9) Occupational diseases are to considered arise out scope course or contracted in the employment be if: employment

(a) objective is occupational disease established findings; and

(b) single day or work occurring on more than the events occupational disease major contributing cause of the shift are the contributing occupational in relation to other factors disease.

(13) section, contributing means “major As used in this cause” when contributing is the to the result cause that to all causes. other added). (2009) 39-71-407, (emphasis Section MCA case, its presented any support In MSF evidence to this has statutorily Legislature that the 2005 intended revoke position §39-71-407(13), fact, there created when it enacted MCA. benefits MCA, 39-71-407(13), that plain language is in the nothing § is occupational an disease time there precludes compensability of disposition toward underlying pre-existing an cause or condition. intent, it would not have included Legislature’s Had that been There is to indicate language nothing we have italicized above. completely compensation eliminate Legislature

that the intended congenital disease there are occupational an factors (2009), by §39-71-407(10), it. MCA position to MSF’s undermined only employer that liable for a provides which employer disease “is the in whose employee injuriously exposed the hazard of the disease.” was last may an for an language employer This be liable contemplates employee prior if the had the disease even disease acknowledge by noting seems working employer. for that MSF this position preexisting in its brief that its “that conditions reply substantially materially aggravated by injuries are however, compensable.” position, diseases remain takes aggravation before an individual must have an can be compensable, only occupational of it can and thus factors be meets determining considered in whether condition the definition argument Legislature’s This overlooks the occupational disease. be expression clear all factors considered determining qualifies whether as an (2009). 39-71-407(13), Section Moreover, “major the fact that the contributing definition the significant light

cause” is tied to result is of the evidence 39-71-407(13), (2009), case. presented this Section MCA does not leading disease, the be require cause of the onset of the but result, leading contributing to the which in this case is the progression point disease’s to the where is unable work. required An an employer employee cannot be to take as he finds him, ignore while at same impact time be allowed to of work- pre-existing only by finding related factors on conditions. It is that the pre-existing statute the consideration of conditions on the development diseases that can give meaning courts statutory “major requirement contributing to determine the cause” of the claimant’s condition. §39-71-407(2)(a)(ii),MCA, MSF also that argues under an insurer an only injury aggravates

is liable when pre-existing a not an occupational aggravates pre-existing condition. MSF notes that there injury was no in this case. Section 39-71- 407(2)(a)(ii), (2009), provides MCA part: relevant

(2) (a) An insurer injury, is liable for an as defined 39-71- injury by if the objective established if the claimant probable establishes it is more than not that:

(ii) injury a claimed aggravated preexisting condition. Contrary interpretation, §39-71-407(2)(a)(ii), to MSF’s (2009), MCA referring not to an liability insurer’s Instead, (2009) (which by 39-71-119, referencing MCA § defines ‘injury” “accident”), this ofthe liability subsection statute refers to injury. 39-71-119(4), for an (2009), Section excludes from the ‘injury” definition of by “disease that is not caused an accident.” Liability occupational disease, for an above, as noted is covered § (2009). 39-71-407(8),MCA As pointed out, although the WCC “aggravation” the word does appear statutory in the “occupational disease,” definition of

statutory requirement that aspect the work-related “major disease be the meaningless if, cause” would be argues, permanent MSF aggravations underlying conditions can no longer be considered diseases even if work-related factors are the contributing cause of the unlikely condition. It is only contributing factor to an occupational disease will be the duties, employee’s job why §39-71-407, is precisely MCA, provides that for an disease to be under the must be to the result” WCA, only leading ‘the §39-71-407(13),MCA,requires Moreover, employment. related to “all other must be ‘leading cause” certainly falls within the ambit causes,” preexisting contributing causes.” “all other be argues that in order for Grande’s work weigh must heavier occupational factors his the

cause of to an contributors any of other individual than the by a as a can ‘lead” race pointed just The out that horse disease. WCC cause which ranks nose, cause” under the statute is that ‘leading result”4.e., the the condition among “contributing all causes first the of sought regardless respective percentages of which benefits are contributing causes. multiple the acknowledged Dr. that Schumpert Both Dr. and Van Belois are Dr. and rheumatoid arthritis unknown.

causes of osteoarthritis understanding of the current of the cause Van Belois testified that may component as genetic of arthritis is that there be a most forms that exposure. pointed She out with well as environmental osteoarthritis, genetic triggered by trauma or predisposition is (“wear tear”), is exposure over time and while rheumatoid arthritis person. by agent that is different for each triggered an environmental genetic of need for a Dr. Van Belois was pre-disposition, Because job his arthritis. She did unwilling state that Grande’s duties caused shifting state, however, gears, of hands for repetitive that use his wheel, steering twisting and hoses on and off accelerated gripping both Grande’s osteoarthritis his rheumatoid arthritis. opined probable Dr. Van Belois that it was more than duties, causes, job to all

Grande’s other accelerating of his worsening were the cause of his spent doing most of his time osteoarthritis because Grande work- Dr. of repetitively. related activities Van Belois testified that activities living conditions, to lesser daily aggravate degree can arthritic but they spend doing time because individuals can moderate how much way they those activities in a cannot a work environment which repetitive movement. solely Schumpert, report As for Dr. is based on a review of Schumpert records. Dr. did not examine Grande addition, Schumpert’s opinion he Dr. report. time wrote aggravate either job prone of truck driver is not osteoarthritis job of rely arthritis more on the title truck appears rheumatoid of included rather than on the actual duties Grande’s which driver twisting storage on the gripping caps and off valves tanker, twisting tanks and the the hoses on and off gripping valves. This is those evident various statements in Dr. Schumpert’s report, such as his statement that he was “unable identify any [Grande’s] factor work as truck driver that would problem this involving isolated the hands.” Moreover, Schumpert based his on the opinion part lack supporting aggravation literature of rheumatoid arthritis working And, individual’s in the vocation of truck driver.” he noted driving arthritis, if truck could cause rheumatoid then is, “rheumatoid arthritis would be far more prevalent than as there literally are hundreds thousands of truck drivers the United Clearly only States.” Dr. Schumpert driving focused on the truck portion job; of Grande’s he did not take into consideration the other required perform duties Grande was of his part job. rule, As a general opinion a treating physician greater weight accorded than the opinions other expert witnesses. Blythe, 90, 12, 288 v. MT Group 356, 957 Mont. ¶ EBI/Orion (EBI/Orion II) Group (citing v. Group Blythe, 281 EBI/Orion (EBI/Orion (1997) I)). 931 P.2d Group This Court held, however, treating physician’s has that a opinion not conclusive. “ ‘To presume quash otherwise would the role of fact in the finder questions alleged of injury. [WCC], fact, The as the finder of inis ” position the to credibility best assess testimony.’ witnesses’ and II, 13 Group (quoting Kloepfer v. ¶ Lumbermen’s Mut. Cas. EBI/Orion (1996)). Co., 276 Mont. 916 P.2d that, The WCC noted here in assigning weight ¶46 expert relative to opinions, medical it takes experts into account whether the have physically claimant, the examined as well the expert’s background experience and working particular with the disease at in issue Thus, occupational disease cases. the WCC stated in of Findings its Fact, that, Conclusions of Law Judgment bases, on those greater assigned weight Dr. Van Belois’ to opinions than because, Schumpert’s Dr. Schumpert, unlike Dr. Van Belois is Grande’s treating physician; Dr. Van examined physically Belois has occasions; Grande on a of number and Dr. Van Belois is board-certified in rheumatology. We in conclude this case that

¶47 the WCC’s of fact are substantial, supported by evidence, credible and that its conclusions Accordingly, law are correct. we hold that the WCC err in concluding that Grande is from a occupational scope employment. arising out of and the course disease Affirmed. COTTER, BAKER and WHEAT concur. JUSTICES part. part RICE concurs in dissents JUSTICE analysis the I much the Court’s about concur with While ultimately reaches an incorrect parties’ arguments, I believe the Court the statutes. governing result under analysis that the demonstrating is directed Most Court’s did of an legislative changes preclude “compensability not underlying pre-existing time disease there is an

occupational I the 34. With this disposition Opinion, toward condition.” ¶ cause Merely pre-exists medical the agree. because a worker’s condition employment prohibit compensability. pre- does not The subject the analysis, inquiry. is a in the but does not end condition factor statute, must be ‘the Under the worker’s in relation to other contributing occupational disease 39-71- contributing disease.” Section factors added). 407(9)(b), Thus, (emphasis of all factors condition, including pre-existing contribute to worker’s the current work duties must be nature and extent of in order for the major contributing cause” ofthe medical condition “the a compensable occupational condition to be disease. 39-71-407(13), MCA, “major phrase defines the internal Section “a cause is the cause” as result when all other causes.’T believe Court, inserting than this sub-definition back into

that the rather §39-71-407(9)(b), MCA, instead definition meaning. The Court reasons that gives separate it a and inconsistent referenced within this sub-definition is worker’s “the result” here, outcome, Opinion, to work.” ‘Grande unable issue, However, disability occupational outcome is worker’s ¶ not provisions later. The at issue here are which is determined do addressing disability incorporate a worker’s Rather, “the result” result into the definition of issue, here current medical which referenced is the MCA, 39-71-407(9)(b), to determine the applied definition § Paralleling occupational disease. compensability ofthe condition as an 407(9)(b), major to be which work duties factors,”407(13) disease ‘in relation to other cause leading “major contributing defines the cause”to be likewise Together, these all other causes.” compared “when provisions major contributing define “the the cause of disease,” 39-71-407(9)(b), added), (emphasis § are not addressing result. Thus, compensable, for Grande’s current to be his work

duties must be “the contributing cause of the occupational (WCC) However, disease.” Compensation Workers’ Court find opinion this to be so. Crediting the of Dr. Van Belois over the opinions physicians, of the other the WCC noted that Dr. Van Belois’ opinion duties, was that job ‘Grande’s to all other causes, leading were the cause of the worsening accelerating of Contrary statutory [Grande’s] osteoarthritis.” requirement that Grande’s leading duties must be the cause of his the WCC found that the duties were the “worsening accelerating” I his condition. submit that this analysis failed to satisfy statutory requirements. correctly argues this outcome improperly returns to the Polk standard. Polk permitted job-related “aggravations” of compensable. diseases to be Co., Polk v. Planet Ins. (1997). Here, 951 P.2d 1015 the disease found to be is based on duties that are merely “the leading cause” of a worsening the condition. I would reverse.

Case Details

Case Name: Montana State Fund v. Grande

Court Name: Montana Supreme Court

Date Published: Mar 20, 2012

Citation: 274 P.3d 728

Docket Number: DA 11-0492

Court Abbreviation: Mont.