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No. 01-630 IN
THE SUPREME COURT OF THE STATE OF MONTANA DEBRA STAVENJORD, Petitioner and Respondent, v. MONTANA STATE FUND, Respondent, Appellant and Insurer for PRAIRIE NEST RANCH, Employer. APPEAL
FROM: Workers' Compensation Court, State of Montana, COUNSEL OF RECORD: For Appellant: Bradley
J. Luck (argued), Kelly M. Wills, For Respondent: Thomas
J. Murphy (argued), For Amicus Montana Defense Trial Lawyers Association: Michael
P. Heringer, Lisa A. Speare, For
Amicus Montana Self-Insurers' Association and Oliver
H. Goe (argued), Kimberly L. Towe, For Amicus American Insurance Association: Charles
G. Adams, Jacqueline T. Lenmark, For Amicus Plum Creek Timber Company, Inc.: Todd
A. Hammer, David M. Sandler, For Amicus Montana Trial Lawyers Association: Elizabeth
A. Brennan, For Amicus Montana Injured Workers Resource Council: Larry
A. Anderson, Argued:
March 28, 2002
Justice Terry N. Trieweiler delivered the Opinion of the Court. 1 The Petitioner, Debra Stavenjord, filed a petition for hearing before the Workers' Compensation Court for the State of Montana in which she alleged that she had contracted an occupational disease on April 1, 1998, arising from her employment with Prairie Nest Ranch and that her employer was insured against workers' compensation claims by the Respondent, Montana State Fund. She contended that because the benefits provided to her for partial disability pursuant to § 39-72-405(2), MCA (1997), were less than provided for the same partial disability pursuant to § 39-71-703, MCA (1997), of the Workers' Compensation Act, she was denied equal protection of the law in violation of Article II, Sec. 4 of the Montana Constitution. After the parties agreed on the relevant facts, the Workers' Compensation Court held that based on our decision in Henry v. State Compensation Ins. Fund, 1999 MT 126, 294 Mont. 449, 982 P.2d 456, Stavenjord had been denied equal protection of the law and entered judgment for her in the amount she would have received pursuant to the Workers' Compensation Act. The Montana State Fund appeals from that conclusion. We affirm the judgment of the Workers' Compensation Court. 2 The Montana State Fund raises the following issues on appeal: 3 1. Whether the
Workers' Compensation Court abused its discretion when it declined to
reopen the record at the request of the Respondent to allow additional
evidence of the historical and anatomical differences between injuries
and occupational diseases. DISCUSSION 5 The parties agreed to the following facts which form the basis for the Workers' Compensation Court's decision: 6 Debra Stavenjord contracted an occupational disease arising out of and in the course of her employment with Prairie Nest Ranch in Cascade County, Montana, on April 1, 1998, when she was diagnosed with epicondylitis of both elbows. She had surgery on both elbows. She also had cervical disc removal surgery. (It is not clear from the facts whether the cervical disc removal surgery was related to her occupational disease.) 7 At the time of her injury, Stavenjord's employer was enrolled in compensation plan III of the Workers' Compensation Act and its insurer was the State Compensation Insurance Fund. 8 After Stavenjord
reached maximum medical improvement, she was given a 12% impairment rating
of the whole person. As a result of her condition, her lifting ability
had been diminished. She had previously been able to perform heavy work
but as a result of her condition, could only perform work in the "light"
category. 10 However, the
maximum that Stavenjord could recover pursuant to § 39-72-405, MCA
(1997), of the Occupational Disease Act, even though she suffered a wage
loss and could no longer return to her former employment, was $10,000.
13 The Workers' Compensation Court held that its decision was compelled by our decision in Henry v. State Compensation Ins. Fund and that the broad language used in that opinion contraindicated limiting its affect to only the type of benefits (vocational rehabilitation benefits) at issue in that case. As a result, the Workers' Compensation Court held that Stavenjord was entitled to permanent partial disability benefits in the amount of $27,027. 14 After the Workers' Compensation Court's decision and judgment were entered, the State Fund moved for reconsideration or rehearing and for an order re-opening evidence. The State Fund sought to offer additional evidence of the historical difference between injuries and occupational diseases. Those motions were denied. STANDARD OF REVIEW 15 Whether to reopen a case for the introduction of further evidence after the case has been submitted to the court is within the discretion of the trial court. Its ruling, upon the request to reopen, will not be disturbed by this Court unless there has been a clear abuse of discretion. Cole v. Helena Light & Ry. Co. (1914), 49 Mont. 443, 143 P. 974. 16 The Workers' Compensation Court's decision on the merits was based on its construction of constitutional law. We review conclusions of law to determine whether they are correct. See Henry, 10 (citing State v. Butler, 1999 MT 70, 7, 294 Mont. 17, 7, 977 P.2d 1000, 7). ISSUE ONE 17 Did the Workers' Compensation Court abuse its discretion when it declined to reopen the record at the request of the Respondent to allow additional evidence of the historical and anatomical differences between injuries and occupational diseases? 18 The State Fund contends that the Workers' Compensation Court abused its discretion when it denied its motion to reopen evidence so that it could offer statistical evidence demonstrating that most occupational disease claims do not involve herniated intervertebral discs such as were at issue in Henry and that, therefore, the traditional reasons for treating occupational diseases differently from injuries are as applicable now as ever. 19 In Cole, we held that: The reopening of a case for the introduction of further evidence after it has been closed is within the discretion of the trial court. Its ruling upon the request to reopen will not be disturbed by the appellate court, unless there has been a clear abuse of discretion. [Citations omitted.] Cole, 49 Mont. at 453, 143 P. at 976. 20 In Kipp v. Wong (1974), 163 Mont. 476, 484, 517 P.2d 897, 902, we stated:
21 We conclude that the State Fund could have offered the evidence for which it sought to reopen its case prior to the close of evidence and that it did not demonstrate the materiality of the evidence in support of its motion to reopen. The State Fund sought to prove the nature of most occupational disease claims and their similarity to the traditional occupational diseases discussed by this Court in Eastman v. Atlantic Richfield Co. (1989), 237 Mont. 332, 777 P.2d 862. However, Stavenjord's challenge to the constitutionality of § 39-72-405(2), MCA (1997), was not based on the traditional treatment of occupational diseases nor the types of claims that are currently being brought by others. It was based upon the current definition of occupational disease as opposed to the current definition of injury and based upon her own condition of epicondylitis, which the State concedes is an inflammatory disease of the connective tissues of the elbow which develops over time. Stavenjord's affliction is exactly the kind of condition that would traditionally have been treated as an injury under the Workers' Compensation Act but is no longer treated as such based upon definitional changes made to § 39-71-703, MCA, and § 39-72-405(2), MCA, in 1987. For example, in Hoehne v. Granite Lumber Co. (1980), 189 Mont. 221, 615 P.2d 863, we held that Carpel Tunnel Syndrome caused over time by the continual strain involved in lifting and stacking lumber was an injury pursuant to the definition formerly found at § 39-71-119(1), MCA, even though it could not be related to any specific incident and "developed gradually" over time. We held that pursuant to the pre-1987 definition of injury, all that had to be shown was a chain of actions resulting in physical harm to some part of the body from unusual strain. Hoehne, 189 Mont. at 225, 615 P.2d at 865. 22 Therefore,
because there is no indication that the evidence which the State Fund
sought to offer following trial was not available prior to trial and because
the evidence of other claims for occupational disease were not material
to the issue involved in this case, we conclude that the Workers' Compensation
Court did not abuse its discretion when it denied the State Fund's motion
to reopen the evidence. ISSUE 2 23 Did the Workers' Compensation Court err when it concluded that § 39-72-405, MCA (1997), of the Occupational Disease Act violated the Equal Protection Clause of the Montana Constitution? 24 The State Fund contends that the Workers' Compensation Court erred by concluding that § 39-72-405(2), MCA (1997), violates Stavenjord's right to equal protection of the law because 1) injured workers and those with occupational diseases are not similarly situated; 2) if this Court concludes they are similarly situated, there is a legitimate government interest in treating the two classes differently; and 3) the manner in which the legislature has chosen to treat the two classes is rationally related to that legitimate interest. The State Fund also contends that this case presents facts more similar to those before the Court in Eastman v. Atlantic Richfield Co. (where the Court was asked to address the equal protection issue based on a difference in the amount of benefits provided) than Henry v. State Compensation Ins. Fund (where workers with occupational diseases were completely denied the vocational rehabilitation benefit at issue.) Finally, the State Fund asks that we limit our holding in Henry to the unique factual circumstances presented in that case where a worker was denied benefits under the Workers' Compensation Act simply because his herniated intervertebral disc was caused over two work shifts rather than one. 25 Stavenjord,
of course, contends that her right to equal protection was violated for
the same reason that we concluded that Jerry Henry's right to equal protection
was violated and that the result in this case is compelled by our decision
in that case. 27 The legislature's objective for enactment of the 1997 Workers' Compensation Act and Occupational Disease Act as they relate to compensation of workers who sustain a reduction in their earning capacity due to a work-related injury or disease is set forth in the legislature's declaration of public policy found at § 39-71-105, MCA (1997), which provides in relevant part as follows:
28 The manner
in which the legislature sought to provide a partial wage loss benefit
for workers suffering an "injury" as defined at § 39-71-119,
MCA (1997), is set forth at § 39-71-703, MCA (1997), of the Workers'
Compensation Act. Without setting forth that statute in its entirety,
it provides for a partial disability benefit based on the injured worker's
actual wage loss, permanent impairment, age, education and occupational
limitations. The parties agree that based on those factors, if Stavenjord
had met the definition of "injury," she would have been entitled
to permanent partial disability benefits in the amount of $27,027. 30 We first considered disparate legislative treatment under the Workers' Compensation Act and the Occupational Disease Act in Eastman. In that case, the claimant had been employed as a welder for Atlantic Richfield Company's aluminum plant from 1977 until 1985. He was diagnosed with chronic obstructive pulmonary disease leading to steroid dependency which caused severe physical and emotional side affects. He petitioned the Workers' Compensation Court for workers' compensation benefits based on his contention that his condition had been aggravated by a single incident which led to smoke and fume inhalation while at work. The Workers' Compensation Court held that he suffered from an occupational disease and was limited to $10,000 of benefits pursuant to the Occupational Disease Act. 31 Eastman appealed the Workers' Compensation Court decision. However, according to the dissenting opinion, Eastman was:
Eastman, 273 Mont. at 343, 777 P.2d at 868 (Hunt, J., dissenting).
Eastman, 237 Mont. at 337, 777 P.2d at 865 (emphasis added). 33 The Court then
went on to decide the constitutional rights of the pro se claimant whose
trial counsel had not raised the constitutional issue and who had not
briefed his constitutional contentions in detail adversely to the claimant.
More importantly, the Court decided the issue based on the definition
of "injury" found at § 39-71-119, MCA (1985) -not the definition
at issue in this case. See Eastman, 237 Mont. at 341, 777 P.2d at 867.
35 The Court concluded without further explanation that:
Eastman, 237 Mont. at 339, 777 P.2d at 866. 37 We began our analysis with a historical review of the Workers' Compensation Act and the Occupational Disease Act. We acknowledged, as we did in Eastman, that the workers' compensation system is an outgrowth of tort law, Henry, 12; that the workers' compensation system was not originally designed to compensate workers suffering from occupational diseases, Henry, 13; but that due to the frequency of diseases such as silicosis and asbestosis in the work place, the Occupational Disease Act was finally enacted in Montana in 1959. Henry, 14. We noted that based on the historical circumstances that gave rise to each act, an "injury" was defined differently from an "occupational disease" but that in 1987, those terms were significantly redefined so that now, rather than focusing on the nature of the medical condition, the terms are differentiated based on the number of work shifts over which a worker contracts an affliction. Henry, 15 and 18. 38 We pointed out that the public policy of the 1987 Workers' Compensation Act and Occupational Disease Act, as it relates to vocational rehabilitation benefits, was set forth in § 39-71-105(2), MCA (1987), where the legislature provided that:
39 We pointed out, however, that vocational rehabilitation benefits for the purpose of getting workers back to work were only provided for in the Workers' Compensation Act and not the Occupational Disease Act. 40 In Henry, for the purposes of equal protection analysis of benefits provided to injured or diseased workers, we applied the rational basis test and stated that:
Henry, 32-33. 41 We identified
the Legislature's objective as the declaration of public policy previously
set forth from § 39-71-105(2), MCA (1987), and agreed that the early
return to work of an employee following an injury or disease is a legitimate
objective. Henry, 34-35. However, we held that elimination of workers
suffering occupational diseases from access to rehabilitation benefits
bore no rational relationship to the government objective of returning
workers to work as soon as possible. We held that there was no rational
basis for providing rehabilitation benefits to workers based simply on
the number of work shifts over which a worker is injured. Henry, 38-39.
Furthermore, we held that economic reasons are not sufficient justification
for treating the class of workers injured during one shift differently
from the class of workers injured from activity or events that occurred
over more than one work shift. Henry, 40.
Henry, 43. 43 In Henry, we concluded:
Henry, 45. 44 We conclude
that our reasoning in Henry is equally applicable to the facts before
us and that our holding in Henry compels the result reached by the Workers'
Compensation Court. 46 As we did in Henry, we identify the two classes involved in the present case as those workers whose benefits are provided for pursuant to the Workers' Compensation Act and those workers whose benefits are provided for pursuant to the Occupational Disease Act. However, since 1987, they are distinguished merely by the number of work shifts over which their work-related affliction is sustained. Therefore, as in Henry, the two classes on appeal remain "(1) workers who suffer a work related injury on one shift; and (2) workers who suffered a work related injury on more than one work shift." Henry, 27. We conclude that they are similarly situated because regardless of the number of days over which their condition occurs or the mechanism which causes their affliction, they are, for purposes of the facts in this case, both physically impaired as a result of work related activity and both in need of wage supplement benefits to compensate for the impairment to their earning capacity. 47 We identify
the government's objective or interest in this case by the declaration
of public policy found at § 39-71-105(1), MCA (1997), as to provide
a wage loss benefit which bears "a reasonable relationship to actual
wages lost as a result of a work-related injury or disease." (Emphasis
added). However, we conclude that the disparate treatment of disabled
workers based simply on the length of time over which their injury or
disease is sustained is not rationally related to that legitimate governmental
interest. /S/ TERRY N. TRIEWEILER
Justice Jim Rice dissenting in part and concurring in part. 49 I respectfully dissent with the Court's holding on Issue 2. 50 The Court arrives at a conclusion which seems to be "fair." Indeed, requiring equal compensation for workers suffering from an equal impairment would also seem to be the essence of constitutional "equal protection." However, it is not. In reaching its decision, the Court has applied an incomplete constitutional analysis. 51 The Court's
opinion consists of a restatement of the rationale offered by the Court
in Henry v. State Compensation Ins. Fund, 1999 MT 126, 294 Mont. 449,
982 P.2d 456, and a conclusion that "our reasoning in Henry is equally
applicable to the facts before us." Thus, a critique of the Court's
holding here must necessarily address Henry. First, however, a complete
statement of our standards of constitutional review must be provided. 53 The Court in Henry summarized its equal protection analysis of the 1987 amendments to the Workers' Compensation Act (WCA) and the Occupational Disease Act (ODA) by its now-famous statement:
Henry, 44. Today,
the Court again embraces this rationale in toto, concluding that workers
injured under the two Acts "are distinguished merely by the number
of work shifts over which their work-related affliction is sustained"
and that such "disparate treatment of disabled workers based simply
on the length of time" is not rationally related to a legitimate
government interest. See 46 and 47 (emphasis added). However, the conclusion
that workers injured under the two Acts are distinguished only by the
number of work shifts was erroneous in Henry and is erroneous today. Although
this error, given the issues in Henry, may not have affected the outcome
there, it does so here.
Larson, Workmen's
Compensation Law, Vol. 1B, § 41.31 (1987) (emphasis added). Application
of these factors led to numerous decisions involving various medical conditions
which were considered either as injury, or as disease, depending only
on how they occurred. Thus, for example, in 1983, we concluded that a
phlebitis condition in the worker's legs was an injury, rather than a
disease, because of the manner in which it had developed-from extra work
shifts during the course of one week. Wise v. Perkins (1983), 202 Mont.
157, 656 P.2d 816. We noted in Wise that the "two critical points
of distinction" between injuries and diseases "are time definiteness
and unexpectedness," citing to Larson. Wise, 202 Mont. at 166, 656
P.2d at 820. Finding that the phlebitis neither "developed over time"
nor was "expected" from Wise's work activities, we concluded
that the condition constituted an injury and not a disease. Wise, 202
Mont. at166, 656 P.2d at 820. Thus, the decision turned on the manner
in which the condition was sustained, or caused, not the nature of the
condition itself. 56 However, court decisions applying these statutes gave rise to considerable uncertainty in the law, and obvious difficulty in ascertaining whether conditions were injuries or diseases. The 1987 amendments sought to clarify and simplify this determination, as well as to fulfill other stated purposes: eliminate time-consuming, costly litigation, provide benefits to injured workers "speedily," and provide constant premiums to employers. See § 39-71-105, MCA (1987), "Declaration of public policy." However, notwithstanding the 1987 revisions, the traditional factors which distinguished injuries and diseases, namely, time-definiteness and unexpectedness, as well as other distinctions, were clearly retained, and remain a part of the 1997 version at issue here, and are discussed below. Thus, Henry's conclusion that these distinctions had been erased in 1987 was also flawed. 57 Causation for an injury is defined in § 39-71-119, MCA:
In contrast to the above definition of injury, but consistent with pre-1987 law, an occupational disease is now defined as the same medical condition which would constitute an injury, but which occurs on more than one day or work shift, and which is proximally caused by the employment, a requirement which must not be demonstrated in order to establish an injury. Section 39-72-408, MCA, states as follows:
This proximate cause provision is necessary for occupational disease conditions because there is no clearly identifiable work injury caused by a single accident. As in pre-1987 law, time-definiteness and unexpectedness remain as the two causation-related distinctions between injury and disease. Further, the condition may be caused, in part, by conditions outside of employment, and thus, a connection to the employment must be established. 58 In a discussion of the differing exclusivity statutes for injuries and diseases, a dissenting opinion in Torres v. State (1995), 273 Mont. 83, 902 P.2d 999, noted some of the fundamental distinctions between diseases and injuries, including the possibility that diseases may have contributing causes from outside of the employment, based upon the above-quoted definition of proximate cause, which, as mentioned, has been in effect since the ODA was originally enacted. The dissenting opinion explained that the distinctions between injuries and diseases required a different application of their respective exclusivity provisions:
Torres, 273 Mont.
at 92, 902 P.2d at 1005 (Trieweiler, J., dissenting). Thus, an occupational
disease, unlike an injury, can develop over the course of time, while
on duty and off duty, and while the claimant is working for more than
one employer. The ODA, unlike the WCA, contemplates such development and
the proper compensation therefor. However, this distinction, and the others
discussed herein, have been brushed aside by the Court's adoption of Henry's
erroneous conclusion that the only difference between the WCA and ODA
is the number of shifts involved. 60 In contrast
to the WCA's 30-day requirement, the ODA requires a claim to be filed
"within 1 year from the date the claimant knew or should have known
that the claimant's condition resulted from an occupational disease."
Section 39-72-403(1), MCA. These distinctive notice provisions are tied
to the fundamental differences between injuries and diseases which remain
in the law.
Holt v. Nevada Industrial Commission (Nev. 1978), 578 P.2d 752, 753 (emphasis added). 62 Imbedded into the constitutional law of this country and this state is the principle that the legislature is the body which is charged with drawing lines and making choices, even if those choices are illogical or unfair. These differences, in and of themselves, do not render such decisions violative of equal protection. As we have recognized:
Gulbrandson v. Carey (1995), 272 Mont. 494, 503, 901 P.2d 573, 579 (citing Arneson v. State (1993), 262 Mont. 269, 274, 864 P.2d 1245, 1248). In fact, a presumption arises that imprudent legislative decisions will ultimately be corrected by the legislative body. As noted by the United States Supreme Court:
Vance v. Bradley (1979), 440 U.S. 93, 97, 99 S.Ct. 939, 942-43, 59 L.Ed.2d 171, 176. Vance's statement that the legislature must act with "antipathy," at least inferred, to violate equal protection guarantees, is a requirement which has been reiterated by this Court. As we recently held in Price:
Price, 41. 64 Given that the Acts' legitimate purposes are demonstrated in the legislation itself, I find no error in the Workers' Compensation Court's denial of the State Fund's motion to reopen evidence, and therefore, on that issue, I concur with the Court. /S/ JIM RICE
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