Limitations Periods: Claim Filing: Occupational Disease

MONTANA SUPREME COURT DECISIONS

Dvorak v. Montana State Fund [07/30/13] 2013 MT 210 The Montana Supreme Court held that the question of when Petitioner knew or should have known that she was suffering from an occupational disease was not amenable to summary disposition where Petitioner’s treating physician testified that he did not conclude that Petitioner had a specific pathological condition until December 2010 and did not conclude she had an occupational disease until March or April 2011, when he informed Petitioner of his conclusion, after which Petitioner timely filed her claim for benefits.  Although Petitioner conceded that she knew she suffered from a repetitive motion condition as far back as February 2006, the WCC failed to take the doctor’s testimony into account and incorrectly granted summary judgment where a material question of fact remained.

Kessel v. Liberty Northwest Ins. Corp. [11/27/07] 2007 MT 305 The WCC correctly held that the limitations period of § 39-71-2905, MCA, does not begin to run until after the OD evaluation report is issued. (See § 39-72-602, MCA.)

Fleming v. Int'l Paper Co. [09/23/08] 2008 MT 327, 346 Mont. 141, 194 P.3d 77 The WCC erred when it failed to apply the statute of limitation in effect on the claimant’s last day of employment. For almost 75 years, the Montana Supreme Court has held that statutes in effect on the date of the accident or injury control in injury cases. The Supreme Court has applied the same rationale to cases involving occupational disease claims. No exception has been made for statutes of limitation or other procedural statutes and the Supreme Court declines to make an exception now.
Grenz v. Fire and Casualty of Connecticut, 278 Mont. 268, 924 P.2d 264 (1996). Occupational disease claim filed in 1992 for benefits relating to degenerative arthritis was barred under the two-year statute (section 39-72-403, MCA (1985)) where substantial evidence supported hearing examiner’s determination that claimant knew or should have known as early as 1988, if not earlier, that his condition met the criteria for an OD.
 
WORKERS' COMPENSATION COURT DECISIONS

Dvorak v. Montana State Fund [05/05/14] 2014 MTWCC 11 Where neither Petitioner nor her treating physician put any thought into the cause of her symptoms, and Petitioner’s treating physician did not question whether a more aggressive approach to diagnosis and treatment was warranted, the Court held that Petitioner first knew or should have known that she suffered from an occupational disease on the day that her treating physician referred her to a specialist and took her off work.

Dvorak v. Montana State Fund [05/05/14] 2014 MTWCC 11 Since the Montana Supreme Court has held that the use of pain mediation “cuts both ways” in considering whether a claimant should have known she had an occupational disease, the Court found little, if any, probative value in the fact that Petitioner used Tylenol 3 to reduce her work-related pain for years prior to her formal diagnosis.

Romine v. Northerwestern Energy [10/17/12] 2012 MTWCC 35 Where Petitioner received both diagnoses and treatment for his shoulder and low-back complaints, the Court concluded that he should have known by that time that these conditions resulted from an occupational disease, thereby triggering the statute of limitations under § 39-71-601(3), MCA.  Conversely, since Petitioner did not receive a diagnosis or treatment for his cervical condition until nearly a year later, the statute of limitations for that condition did not start to run until diagnosis or treatment triggered it.
Shelly v. American Home Assurance Co. [12/06/07] 2007 MTWCC 52 Where Petitioner argued that under Corcoran v. Montana Schools Group Ins. Authority, 2000 MTWCC 30, the one year statute of limitation period was not triggered until he required treatment, the Court held that § 39-71-601, MCA, does not require the presence of symptoms to commence the statute of limitations. Petitioner’s complaint filed in district court in 2001 alleging that he suffered from an asbestos-related condition as a result of his employment with Respondent’s insured triggered the statute of limitations because this establishes that Petitioner knew he suffered from an occupational disease as of that date.
Evans v. Liberty [06/20/07] 2007 MTWCC 23 Arm and shoulder symptoms which manifested themselves as “normal aches and pains” which alleviated with rest gave Petitioner no reason to suspect he suffered from a medical condition requiring diagnosis and treatment. Therefore, it was not until the symptoms progressed to a point where the symptoms were no longer improving with rest and Petitioner became unable to perform his job duties that Petitioner knew or should have known he was suffering from an occupational disease.
Evans v. Liberty [06/20/07] 2007 MTWCC 23 Although Petitioner had some idea that he might have carpal tunnel syndrome, where he did not have a medical diagnosis or opinion that his condition was work-related and he seemed unaware that his work aggravated his condition, Petitioner does not meet the statutory definition of “knew or should have known.” In this case it was only when Petitioner received a formal diagnosis from a doctor did he meet the statutory definition of “knew or should have known.” While a claimant may know or should have known he has an occupational disease without a formal diagnosis, in the present case, a lay person’s idle speculation is insufficient to support a finding that Petitioner knew or should have known he was suffering from an occupational disease.
Cardwell v. UEF [06/15/07] 2007 MWCC 22 Where Petitioner filed his claim for benefits as a specific injury using the Department of Labor’s form entitled “First Report of Injury and Occupational Disease,” and Respondent argues that Petitioner’s occupational disease claim is untimely, the Court need look no further than the caption of the form to determine whether Petitioner has presented a written claim for benefits pursuant to § 39-72-403(1), MCA. Nowhere on the form does it require Petitioner to elect whether his condition resulted from an injury or an occupational disease.
Cardwell v. UEF [04/28/06] 2006 MTWCC 20 Where Petitioner filed a Petition alleging an injury and later filed an Amended Petition alleging, in the alternative, an occupational disease, the Amended Petition was filed timely within the one year statute of limitation where all of the documentary evidence indicates that Petitioner neither knew nor should have known that he may be suffering from an occupational disease until Petitioner’s chiropractor stated in a deposition that Petitioner’s medical condition may be a “repetitive use injury, which happens over a period of time.”
Fleming v. International Paper Co. [07/08/05] 2005 MTWCC 35 Where an occupational disease claim is filed in March 2004, section 39-72-403, MCA (2003), which was in effect on the date of filing, applies in determining the timeliness of the claim.
Fleming v. International Paper Co. [07/08/05] 2005 MTWCC 35 The limitations period in effect on the date the claim is filed governs the timeliness of the claim.
Dickerman v. Transportation Ins. Co. [04/12/05] 2005 MTWCC 19 Under section 39-72-403(3), MCA (1983), an occupational disease claim for asbestosis is barred unless a claim is filed within three years after the worker retired and ceased working for the employer. The section is a statute of repose and cannot be tolled for any reason. Hardgrove v. Transportation Ins. Co., 2004 MT 340, 324 Mont. 238.

Stewart v. Atlantic Richfield Co. [04/12/05] 2005 MTWCC 17 Under section 39-72-403(3), MCA, of the 1983 version of the Occupational Disease Act, an occupational disease claim not filed within three years of retirement is extinguished and barred. The limitations period cannot be tolled since the section is a statute of repose.
DeWitt v. Continental Ins. and Old Republic Ins. [2/19/04] 2004 MTWCC 10 Section 39-71-403(1), MCA (1995-2001), requires a claimant to file an occupational disease claim "within 1 year from the date the claimant knew or should have known that the claimant's condition resulted from an occupational disease." The period may be waived for an additional two years but no more. § 39-71-403(2), MCA (1995-2001).
DeWitt v. Continental Ins. and Old Republic Ins. [2/19/04] 2004 MTWCC 10 Schmill v. Liberty Northwest Ins. Corp., 2003 MT 80, 315 Mont. 51, 67 P.3d 290, which held the apportionment provision of section 39-72-706, MCA, unconstitutional did not affect the statute of limitations prescribed by section 39-72-403, MCA.
Baker v. Transportation Ins. Co. [1/15/04] 2004 MTWCC 5 Under the 1983 Occupational Disease Act, a claim which is not filed within three years of cessation of employment with the employer where the occupational exposure took place is barred even though the disease caused by the exposure does not manifest itself and is not discovered until after the limitations period has run. § 39-72-403(3), MCA (1983).
Baker v. Transportation Ins. Co. [1/15/04] 2004 MTWCC 5 Subsection (3) of 39-72-403, MCA (1983), which provides that a claim for an occupational disease must be brought within three years after the employee ceases employment with the employer where the occupational exposure took place, is not tolled by the fact that the disease did not manifest itself and the claimant did not discover it until after the limitations period had run. The limitation is a statute of repose not subject to tolling. Moreover, the subsection expressly overrides the latent disease doctrine which is part of the previous two subsections.

Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 Under the 1983 Occupational Disease Act a claim which is not filed within three years of cessation of employment with the employer where the occupational exposure took place is barred even though the disease caused by the exposure does not manifest itself and is not discovered until after the limitations period has run. § 39-72-403(3), MCA (1983). [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678).]
Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 Subsection (3) of 39-72-403, MCA (1983), which provides that a claim for an occupational disease must be brought within three years after the employee ceases employment with the employer where the occupational exposure took place, is not tolled by the fact that the disease did not manifest itself and claimant did not discover it until after the limitations period had run. The limitations is a statute of repose not subject to tolling. Moreover, the subsection expressly overrides the latent disease doctrine which is part of the previous two subsections. [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678).]
Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 The repealer of a statute of repose in the Occupational Disease Act which is expressly made applicable to exposures occurring after the enactment of the repealer by its plain terms does not apply to exposures occurring before the enactment. Thus, the 1985 repeal of subsection 39-72-403(3), MCA, is inapplicable to an occupational disease claim where the occupational exposure ceased prior to the repeal. [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678).]
Grenz v. Fire and Casualty of Connecticut [8/24/95] 1995 MTWCC 63, aff’d Grenz v. Fire and Casualty of Connecticut, 278 Mont. 268, 924 P.2d 264 (1996) Substantial evidence supported DOL hearing examiner’s conclusion that 1992 occupational disease claim relating to degenerative arthritis was barred under the two-year statute (section 39-72-403, MCA (1985) where claimant testified that in 1985 and 1986 a doctor felt the type of work he was performing aggravated his condition and had diagnosed arthritis.