Use Back Button to return to Index of Cases
THE SUPREME COURT OF THE STATE OF MONTANA
Petitioner and Appellant,
LIBERTY NORTHWEST INSURANCE CORP.,
Respondent and Insurer for
PARTNERS IN HOME CARE, INC.,
Eric Rasmusson, Bulman Law Associates, PLLC, Missoula, Montana
Larry W. Jones and Carrie L. Garber, Liberty Northwest Insurance Corp., Missoula, Montana
Decided: December 20, 2002
1 Appellant Edna Hanks (Hanks), appeals the Workers' Compensation Court's dismissal of her workers' compensation claim with prejudice. We affirm.2 The sole issue on appeal is whether the Workers' Compensation Court erred in concluding that Hanks had suffered an injury under the Workers' Compensation Act and in turn dismissing her occupational disease claim?
3 On July 31, 1995, Hanks went to work for Partners in Home Care, Incorporated (Partners), as a home-care aide. Her job entailed helping patients with baths and their basic personal care, including helping wheelchair bound patients into and out of their wheelchairs. In January 2001, Hanks, then 65 years old, felt a "krik" or "twinge" in her back while helping an Alzheimer's patient dress. Hanks described the event as causing a "pop-type sound" and "a little pain." She did not report the incident to her supervisor at the time.
4 Prior to the "krik"
incident, Hanks had never experienced back problems. Following the "krik"
incident, Hanks continued to experience pain. Two or three days after
the incident, Hanks began having difficulty getting into and out of her
car due to pain radiating into her right leg. On February 8, 2001, Hanks
visited Dr. Susan Selbach, her family physician. Dr. Selbach's office
notes for that visit state that Hanks "complains that she has been
having some right-sided lower back pain that goes down into her buttocks,
has doubled her over on occasion." When considering possible etiologies
of the pain, Dr. Selbach noted only, "She does not remember any recent
6 Hanks was seen by Dr. Beck on April 3, 2001. He reviewed her MRI, which he read as showing "lumbar stenosis at L4-5 where there is bilateral neural foraminal stenosis and subarticular recess stenosis." On May 9, 2001, he performed a bilateral L4-5 laminotomy and foraminotomy with partial mesial facetectomy.
7 Liberty, the insurance provider
for Partners, denied Hanks benefits on account of her failure to report
the "krik" incident to her employer within 30 days of its occurrence
as required by the Workers' Compensation Act.
9 The Workers' Compensation Court granted Hanks' petition for an emergency trial, which was conducted on December 10, 2001. On March 22, 2002, it issued a judgment dismissing Hanks' claim with prejudice based on its findings that although Hanks had suffered an injury under the Workers' Compensation Act, she had failed to comply with the Act's 30-day notice requirement. Hanks appeals from this judgment. We affirm.
10 Did the Workers' Compensation Court err in concluding that Hanks had suffered an injury under the Workers' Compensation Act and in turn denying her occupational disease claim?
11 A claimant has the burden
of proof that he or she is entitled to benefits under the Workers' Compensation
Act. King v. TTC Illinois, Inc., 2000 MT 260, 11, 301 Mont. 527, 11, 11
P.3d 1199, 11. This Court reviews the Workers' Compensation Court's findings
to determine whether they are supported by substantial credible evidence
and reviews its conclusions of law to determine whether they are correct.
See Schimmel v. Montana Uninsured Employers Fund, 2001 MT 280, 5, 307
Mont. 344, 5, 38 P.3d 788, 5.
13 The 30-day notice requirement of the Workers' Compensation Act is located at § 39-71-603, MCA, and provides as follows:
This provision of the Act is
mandatory, and compliance with the notice requirement is indispensable
to maintaining a claim for compensation. Reil v. Billings Processors,
Inc. (1987), 229 Mont. 305, 309-10, 746 P.2d 617, 619. The purpose of
the notice requirement is to enable the employer to protect itself by
prompt investigation of the claimed accident and prompt treatment of the
injury to minimize its effect. Larson v. Barry Smith Logging, Inc. (1994),
267 Mont. 444, 448, 884 P.2d 786, 788-89; Bender v. Roundup Mining Co.
(1960), 138 Mont. 306, 313, 356 P.2d 469, 473. 14 Because it is undisputed
that Hanks failed to report the "krik" incident to Partners
within 30 days of its occurrence, the threshold question in this case
is whether the "krik" incident qualifies as an "injury"
under the Workers' Compensation Act. If it does, Hanks' failure to meet
the mandatory requirements of the Act, specifically her failure to timely
notify her employer, bars her from receiving workers' compensation benefits.
17 Hanks maintains that the
Workers' Compensation Act and its 30-day notice requirement do not apply
to her because she did not suffer an injury, but rather she suffers from
an occupational disease. To that end, Hanks contends that her work-related
activity preceding and following the "krik" incident caused
her back problems. Therefore, Hanks argues that she is entitled to benefits
under the Occupational Disease Act. Instead of a 30-day notice requirement,
the Occupational Disease Act requires employer notification within one
year of the claimant actually or constructively learning that his or her
condition results in an occupational disease. Section 39-72-403, MCA.
19 Finally, Hanks urges this
Court to reverse the ruling of the Workers' Compensation Court because
denying her benefits is contrary to public policy. While one "objective
of the Montana workers' compensation system [is] to provide, without regard
to fault, wage supplement and medical benefits to a worker suffering from
a work-related injury or disease," § 39-71-105, MCA, the general
intent expressed in that statute is qualified by the particular intent
of the 30-day notice requirement of § 39-71-603, MCA. Our precedent
clearly states that "[n]otice under the statute is mandatory, and
compliance is indispensable to maintaining a claim for compensation."
Larson v. Barry Smith Logging, Inc. (1994), 267 Mont. 444, 449, 884 P.2d
786, 789; Reil v. Billings Processors, Inc. (1987), 229 Mont. 305, 309,
746 P.2d 617, 619.
/S/ KARLA M.
21 I dissent from the majority Opinion. I would reverse the judgment of the Workers' Compensation Court.
22 The result in this case is unconscionable and far from compelled by even the blindest adherence to the law.
The important facts are without dispute. Edna Hanks was a sixty-five year
old widow working as a home care aid in 2001 when she developed symptoms
of low back disease. She had been employed as a home care aid by Partners
in Home Care, Inc., for five and a half years. She continued to work in
that occupation, in spite of her age, because the social security benefits
to which she is entitled through her deceased husband did little more
than make her house payments. Without employment, she would not have been
able to feed herself or pay for her transportation.
25 Up until March 27, 2001, Hanks had continued to perform all of her duties, including lifting people up and out of bed and in and out of wheelchairs. She testified that when she originally experienced the back pain, she had assumed it was due to an arthritic condition since her mother had suffered from disabling arthritis.
26 No one questions that Edna Hanks' condition from which she is now disabled is related to her employment. No one questions the severity of her condition nor the extent of her permanent disability. Finally, no one disputes that Hanks notified her employer that her disability is work related immediately after learning that she would need medical treatment and be unable to return to her normal employment duties. In spite of these undisputed facts, and with the blessing of this Court, Edna Hanks has been denied any compensation for her substantial medical expenses or her lifetime of disability based on catch 22 provisions in the Workers' Compensation Act.
27 The Workers' Compensation
Court and this Court have concluded that Hanks' condition could not be
an occupational disease because it first became symptomatic during a single
lifting incident. Yet, because she sustained an "injury" during
that incident, she is not eligible for benefits because she did not notify
her employer about the "injury" that she did not know she had
sustained for a period of more than thirty days.
29 First, I disagree with the majority's conclusion in 16 that "Hanks' own testimony that severe pain followed the "krik" incident within a couple of days precludes the tolling of the thirty days." Hanks actually testified as follows:
30 There were only two witnesses in this case. Edna Hanks gave the foregoing testimony at the hearing before the Workers' Compensation Court. Dr. Randale Sechrest testified by deposition. Hanks' testimony as set forth above was uncontroverted. Therefore, I disagree with the majority's conclusion that based on her own testimony, severe pain followed the "krik" incident within a couple of days which precludes the tolling of the thirty-day report period. I would apply Killebrew v. Larson Cattle Co. (1992), 254 Mont. 513, 830 P.2d 1260, to toll the thirty-day period even if it had been established that Hanks had sustained an occupational "injury" rather than an "occupational disease."
31 However, I also disagree with the majority's observation in 18 that Hanks has not offered testimony that her underlying pre-existing back disease was incidental to her work at Partners and, therefore, has not established an occupational disease.
32 It is true that Dr. Sechrest testified that the lifting incident in January contributed to her disability. However, Sechrest also testified that there is a relationship between the frequency of low-back problems and healthcare work because of the lifting, bending and twisting that is done over a period of time. She testified that injury to the lumbar spine occurs primarily from axial loading, flexion and twisting-all factors that are present for the healthcare worker. She testified that in addition, healthcare workers are typically lifting patients in abnormal positions where they cannot apply good body mechanics. She stated that the longer a person is a healthcare worker, the more cumulative stress and strain is applied to the back.
33 Dr. Sechrest testified that she believed there was a direct causal connection between healthcare work and Edna's ultimate physical condition. Most importantly, she gave the following testimony:
34 Based on the quoted testimony
from Dr. Sechrest, I would conclude that the Workers' Compensation Court
was clearly erroneous when it found that "lacking in his [Dr. Sechrest's]
testimony and report is any indication that her underlying, pre-existing
back disease was in whole or in part an occupational disease." I
would conclude that the Workers' Compensation Court was also clearly erroneous
when it found that Dr. Sechrest's testimony established that Hanks' condition
was made symptomatic by a single incident. Dr. Sechrest actually testified
that she was unable to distinguish between a single incident and the nature
of Hanks' employment for purposes of determining what made Hanks' back
36 Although Dr. Sechrest was unable to distinguish between the single incident in January and the long-term nature of Hanks' work for purposes of determining which more significantly contributed to her symptoms, I would conclude that when, as in this case, it is undisputed that her condition is work related, the uncertainty must be resolved in favor of providing workers' compensation coverage to the injured employee. Otherwise, the public policy set forth at § 39-71-105, MCA, to provide wage supplement and medical benefits to a worker suffering from a work-related injury or disease is frustrated.
37 This case is just the most
recent example of a trend, which began in this state in 1987, to write
and interpret laws for the benefit of employers and insurers without regard
to the terrible human consequences that work-related injuries and diseases
have on working people. I sometimes wonder if, collectively, the citizens
of this state have lost sight of the fact that injured workers are real
human beings with families, frequently substantial medical expenses and
bills to pay for food, housing and transportation. I am sometimes concerned
that as a society we have become so self centered that no one cares.
39 The state of the workers' compensation laws in Montana have become so unfair and one-sided that I have concluded employees would be better off if the whole system was scrapped and they were given back their common rights to sue employers who cause them injury by employer negligence. Why should employers be protected from liability for unsafe workplaces when employees get nothing in return? The assumed quid pro quo is simply no longer there.
40 For these reasons, I dissent from the majority Opinion. I would reverse the judgment of the Workers' Compensation Court.
/S/ TERRY N. TRIEWEILER
Use Back Button to return to Index of Cases