Occupational Disease Act: Apportionment

Hand v. UEF [11/30/04] 2004 MT 336 (No. 03-346) Where appeal was still open for review when Schmill v. Liberty Northwest Ins. Corp., 2003 MT 80, 315 Mont. 51, 67 P.3d 290, was decided, claimant is entitled to 100% of his total disability benefits if he suffers a wage loss as a result of his occupational disease, not the apportioned share determined in litigation prior to Schmill.
Schmill v. Liberty NW Ins. [4/10/03] 2003 MT 80 Section 39-72-706, MCA (1997), of the Occupational Disease Act, which requires reduction of disability benefits for non-occupational disease factors, violates the equal protection provisions of the United States and Montana Constitutions where an employee with the same injury, but incurred on a single day or work shift, would receive benefits without apportionment under the Workers' Compensation Act. WCC correctly ordered that claimant receive impairment award without apportionment for non-occupational factors where there would be no reduction under the WCA.
Polk v. Planet Insurance Co., 287 Mont. 79, 951 P.2d 1015 (1997) In light of the occupational disease proximate cause requirement, set out at section 39-71-408, MCA, and the aggravation statute, section 39-71-706, MCA, occupational aggravations of preexisting non-occupational diseases are compensable, as are occupational diseases which are aggravated by non-occupational factors. The test for compensability under the OD Act is whether occupational factors significantly aggravated a preexisting condition, not whether occupational factors played the major or most significant role in causing a particular disease. As long as an occupational exposure substantially aggravated a pulmonary condition, claimant is entitled to pro rata compensation for his disease. The DOL hearing examiner, and the WC Court, erred in basing their decision on medical opinions by physicians who operated under the mistaken assumption that occupational irritants had to be the major factor causing a pulmonary condition for claimant to receive compensation.
Polk v. Planet Ins. [8/17/01] 2001 MTWCC 44 Since the post-1987 apportionment provision of the Occupational Disease Act is unconstitutional, a claimant's benefits cannot be reduced on account of the contribution of non-occupational factors to his occupationally related condition.
Schmill v. Liberty NW Ins. [6/22/01] 2001 MTWCC 36 Occupational Disease Act provision which requires reduction of benefits based upon non-occupational factors ( 39-72-706, MCA (1989-1999)) violates the Equal Protection clauses of the United States and Montana Constitutions since there is no equivalent provision in the Workers' Compensation Act. Therefore, workers with occupational disease are entitled to full benefits without reduction for non-occupational factors. Affirmed. See Schmill v. Liberty NW Ins. [4/10/03] 2003 MT 80
Baumgartner v. Liberty NW [4/14/97] 1997 MTWCC 19 Although it would take little more than three years for occupational disease claimant's wage loss to reach $10,000, meaning he would ordinarily qualify for the maximum indemnity award under section 39-72-405, MCA (1995), the Court applied the apportionment provisions of section 39-71-706, MCA (1995) to an award under section 405. Where medical evidence attributed only 60% of the causation of claimant's low back condition to work, he was awarded $6,000.
State Fund v. Town Pump, Inc. and Richard Olesky [5/21/96] 1996 MTWCC 36 The Department erred in adopting one physician's attribution of 10% of a shoulder-related occupational disease to non-occupational factors where the physician conceded he was "not aware of any specific nonoccupational disease or infirmity which contributes to his current symptoms." Reference to a family history of arthritis which "may" contribute to his condition is not sufficient.
State Fund v. Town Pump, Inc. and Richard Olesky [5/21/96] 1996 MTWCC 36 Apportionment of medical benefits is contrary to law, see, Davis v. Liberty Northwest Insurance Corp., [9/6/94] 1994 MTWCC 78 even if this were a proper case for apportionment.

Kastella v. Plum Creek Timber Company [06/30/95] 1995 MTWCC 54 Where the medical opinion on which the hearing officer relied attributed 90% of the claimant’s back condition to occupational factors, the hearing examiner erred by assigning respondent liability only for that portion of occupational exposure attributed to employment with respondent. While section 39-71-706(1), MCA (1987) allows apportionment between occupational and non-occupational factors, the statutes do not provide for apportionment between employers. Indeed, section 39-72-303(1), MCA (1987) liability for occupational exposure rests with “the employer in whose employment the employee was last injuriously exposed to the hazard of such disease.” As the last employer, respondent is responsible for 90% of the claimant’s occupational disease. Note: in Schmill v. Liberty Northwest, 2003 MT 80, the Montana Supreme Court held the apportionment provisions of the Occupational Disease Act unconstitutional.