*1 WEAR, Appellant, v. BUTTREY FOODS JOY Claimant Respondent. INCORPORATED, Employer, Defendant No. 88-280. Sept. 9, 1988. Submitted on Briefs Decided Nov. 1988. Martin, Falls,
Linnell, Martin, & Richard J. Great Newhall appellant. claimant Slovak, Falls, Slovak, Alexander, Ugrin, Zadick & Great
J. David employer, respondent. defendant and Opinion of the Court. delivered JUSTICE HARRISON *2 (Wear) Joy appeals judgment of the Work- Claimant Wear from compen- Compensation denying ers’ her claim for benefits Wear has sable The sole issue before this Court is whether statutory “injury.” We affirm the determi- satisfied the Judge Compensation nation that she has not. Buttrey May Wear 1970. On worked as a checker for Foods since 18, 1987, compensation alleging filed a she had sus- claim for in tained different which “arose out of and twelve maladies employment, aggravated course or accelerated her of her or were years employment . . .” Wear her resulted from of claims repetitive motion, stooping, lifting, twisting standing. compensation and addresses of claim listed names physical complaints attending physicians. seven list of included Her arm; pain in in the neck re- weakness and her left cervical arthritis arch; gion; trunk, leg; fallen pain pelvis, upper in her lower knee; back; in right hip; in bursitis her lower bursitis disfigurement upper thighs; symptoms of stress uterus; pains; pressure; blood fibroid in her abdominal tumors varicose veins. requested
Buttrey hearing Foods denied the claim and Compensa- before Workers’ Court. The Workers’ the Mon- Judge tion denied under Wear’s claim present Act, urged tana her to strongly but Occupational Judge concluded a claim under the Disease Act. The statutory had not satisfied the 39-71-119, (1985), alleged Section MCA as it read the time of at injury in 1987: ‘injured’
“Injury ‘Injury’ means: defined. “(1) an tangible happening traumatic unex- nature pected or inter- resulting external cause or strain either result therefrom physical physical nal harm and condition as a such excluding disease not traceable questions of law sim- appropriate of review for standard ply interpretation whether law the lower court’s is correct. (Mont. Wassberg 1985), Copper 309,] v. Anaconda Mont. [215 909, 912, 388, St.Rep. 391. We hold that the lower court’s correct. injury, order for a claimant to an we have held that “unexpectedness”
two definitive elements of “time definiteness” and Phillips (Mont. 1986), Spectrum Enterprises must be shown. v. [224 407,] 1131, 1134, 2288, St.Rep. 2291; 730 P.2d v. Per- 816, kins 202 Mont. 656 P.2d repeated
Wear testified that the
her condition was her
lifting, twisting, turning, bending
standing during
her seventeen
years
employment
specific
with
Foods. No
event or oc
Rather,
currence was said
the cause of her condition.
argues that she suffered
through
an “unusual strain”
a series of mi
nor traumas over
performing
while
her normal duties as a
support
checker.
Wear cites Hoehne v. Granite
Lumber Co.
v. Per
and Wise
Hoehne,
kins
Since Wear suffered a series past of minor seven- traumas years, teen goes, “tangi- the this is sufficient to a happening ble unexpected traumatic nature from reject argument. strain.” We this point More on with the McMahon v. facts case is Anaconda Co. where we a claim- ant, exposed particulates place to noxious fumes and in his of work period years, for a “injured” purposes was not for Compensation Act. We noted:
“The fact very gradual that claimant’s ailments were so onset excludes them from the definition of attempt
“We long-term, grad- hesitate to to locate the line between disease, short-term, trauma, exposure ual trauma or accidental . ‘injury’, strain. Hoehne . . claimant was held to have an though carpal syndrome the place onset of his over a tunnel took period However, of two months. we feel it is safe to conclude that laryngeal pulmonary where resulting psychologi- disorders and 480 by a impairment exposure
cal are to hostile environment occasioned years, meaning of period a disorders within the the the fall (Citation legislatively (Emphasis original.) defined term ‘disease.’ omitted.)” 485-486,
McMahon, reasoning, P.2d at 663. On this 208 Mont. at of “in the conclude has satisfied jury” of Workers’ and therefore the order the
is affirmed. WEBER,
MR. CHIEF JUSTICE TURNAGE and JUSTICES GULBRANDSON, SHEEHY McDONOUGH concur. HUNT, dissenting:
MR. JUSTICE I recognized Court itself that dissent. disability her em- is attributable to disabled and that so, by relying on ployment. majority claim a Even denies Wear’s that is much too narrow. minor majority that the series of holds by time definiteness element Wear over the fails to compensable injury. doing, majority ignores so immediately testimony that her had before she workload increased employment. last month to leave her Wear worked her forced season, busy period grocery stores. Further- during the Easter more, Easter, baggers, experienced shortage that Foods normally by requiring completed Wear to those assume the tasks employees regular in addition to her duties. facts, previous
By disregarding our these contravenes v. Granite decisions Hoehne Lumber P.2d v. Perkins cases, who traumas over those we allowed claimants suffered There course of time collect workers’ is no distinction workload undertaken between claim- during of the her last month of work and workload in Hoehne Perkins. ants is, however, great There between the traumas distinction — — lifting twisting, bending,
caused Wear’s lung led to claimant’s and the inhalation of noxious fumes that *4 v. Anaconda Co. disease McMahon misplaced. majority’s The McMahon P.2d 661. reliance on injury ground that denies Wear’s claim on the major- years. result of minor over ity’s opinion, however, easily can circumvented knowl- edgeable Apparently, claimant. pinpoint if Wear had been able major trauma, recall, the exact date and time of which she could she would have been Perhaps able to recover if Wear had been sophisticated a more claimant she would have remembered such an —event pick up a wrenched back ass bag pota- she crouched to toes, pulled flour, muscle as she a sack of sharp lifted she as stooped change to retrieve Unfortunately the cash drawer. Wear, she was so enlightened. opinion punishes This honesty and naivete.
The purpose of workers’ provide is to benefits for employees who job. Joy have been on the Wear is such an employee. Yet the technical today’s denies her the justly benefits she so deserves.