Occupational Disease: Insurer Liable

MONTANA SUPREME COURT DECISIONS
Liberty Northwest Ins. Corp. v. Montana State Fund/Re: Mitchell, Gary [11/12/09] 2009 MT 386 In cases where an OD has already been diagnosed, liability for the OD has been determined, and the question is whether a recurrence of the OD condition is attributable to the original employer or is attributable to a second employer based on an intervening exposure to the hazard of the OD, the Caekaert and Lanes approach will continue to apply.
Liberty Northwest Ins. Corp. v. Montana State Fund/Re: Mitchell, Gary [11/12/09] 2009 MT 386 The Montana Supreme Court concluded that the last injurious exposure rule in Montana will be the “potentially causal” standard.  Under this approach, a claimant who has sustained an occupational disease and was arguably exposed to the hazard of an OD among two or more employers is not required to prove the degree to which working conditions with each given employer have actually caused the OD in order to attribute initial liability.  Instead, the claimant must present objective medical evidence demonstrating that he has an OD and that the working conditions during the employment at which the last injurious exposure was alleged to occur, were the type and kind of conditions which could have caused the OD.  This rule applies only in those situations where an OD is being diagnosed for the first time.
Montana State Fund v. Murray, 2005 MT 97 (No. 04-576) Where two insurers have been on risk during a claimant’s occupational exposure with a single employer, section 39-72-303(2), MCA (1999) requires liability to be placed on the second insurer if claimant was not diagnosed with an occupational disease, nor “knew or should have known that the condition was the result of an occupational disease,” under the first insurer’s watch. The statutory rule so operates even if the duration of exposure was longer under the first insurers’ coverage.
 
WORKERS' COMPENSATION COURT DECISIONS
Banco v. Liberty Northwest Ins. Corp. [06/02/11] 2011 MTWCC 13 Where a claimant worked two physically demanding jobs seven days a week and quit one of them, under In re Mitchell, the insurer for the employer with whom the claimant continued to work is liable for her occupational disease, since the claimant was last exposed on that job to working conditions of the same type and kind which gave rise to the disease even though both jobs contributed to it.
Peck v. Int'l Paper Co. [12/16/10] 2010 MTWCC 35 The control test may be used to determine who the employer is, in a given situation.  An employee will have been transferred from one employer to another when the right to control the details of his work has passed from one to another.  Where the right to control the details of an injured worker’s work never transferred from one employer to another, the first employer is still considered his employer for an occupational disease claim.

Brown v. Hartford Ins. Co. [12/16/09] 2009 MTWCC 38 Where a PA-C and a physician both found objective medical evidence that a claimant suffered from a bilateral strain or overuse condition related to her employment, the insurer presented no contrary medical evidence, and the claimant’s uncontroverted testimony is that she used her hands and wrists continuously at work, and that her symptoms developed and then worsened in proportion to an increase in haircutting duties during her work shifts, the Court concluded that the insurer was liable for the claimant’s occupational disease claim.

In Re Telles; Travelers Property & Casualty Co. of America v. Royal Ins. Co. of America [04/22/05] 2005 MTWCC 21 Section 39-72-303(2), MCA (2001-2003), which governs liability between two insurers for the same employer, is inapplicable to an insurer which did not insure the employer while the claimant was employed. It has application only where the employer was insured by two or more different insurers while the claimant was employed.

State Fund v. Carl Murray [4/6/04] 2004 MTWCC 33 Under the last injurious exposure rule, the insurer at risk during the claimant's last injurious exposure at work prior to the first diagnosis of an occupational disease or the date the claimant knew or should have known he was suffering from an occupational disease is liable for the disease. The length of time the insurer was at risk is irrelevant to determining its liability. Affirmed Montana State Fund v. Murray, 2005 MT 97

MacNeeley v. Everest National [6/12/02] 2002 MTWCC 35 Under the last injurious exposure rule, where an occupational disease is diagnosed the insurer for the employer for whom claimant last worked and was last exposed to repetitive trauma contributing to his occupational disease is liable for the disease.