Occupational Disease: Last Injurious Exposure

MONTANA SUPREME COURT DECISIONS

Banco v. Liberty Northwest Ins. Corp., [01/10/12] 2012 MT 3 Although Petitioner argued that the last injurious exposure rule should not apply because she worked two jobs concurrently and was exposed to conditions giving rise to her occupational disease at both places of employment, the WCC made an express finding that she was last injuriously exposed at one of the two concurrent jobs; this finding precludes an imposition of liability on the other employer.
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 Workers’ Compensation Court’s determination of liability was supported by substantial credible evidence where the objective medical evidence established that while claimant’s work with his second employer was not the major contributing cause of his OD, it was of the same type and kind which led to the development and eventual diagnosis of that OD.  Thus, this exposure could have caused the claimant’s OD.
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.
Kratovil v. Liberty Northwest Ins. Corp. [12/29/08] 2008 MT 443 The insurer for the claimant’s employer at the time of the claimant’s last injurious exposure is liable for the claimant’s occupational disease.
Lanes v. Montana State Fund, 2008 MT 306, 346 Mont. 10, 192 P.3d 1145 The aggravation provision is a reflection of the long-standing rule that employers take their workers as they find them and that a traumatic event or unusual strain which lights up, accelerates, or aggravates an underlying condition is compensable. However, case law has established that an aggravation must be “significant” before it will be considered the last injurious exposure. Where Petitioner and his treating physician both testified that his job duties as a minister only temporarily aggravated his pre-existing knee condition, this does not constitute the last injurious exposure.
Nelson v. CENEX, Inc., 2008 MT 108, 342 Mont. 371, 181 P.3d 619 Claimant worked for the employer during two different time periods separated by almost 13 years. It was only during the first period of employment that he was exposed to asbestos. Since the claimant’s exposure occurred only during his first period of employment, his injury occurred only during his first period of employment with the employer. Therefore, the last injurious exposure was the last day of his first period of employment with that employer, and this is the date which controls the statutory year to apply.
Travelers Indemnity Company of Illinois v. Nationwide Mutual Fire Insurance Company (Abfalder), 2003 MT 180 Section 39-72-303, MCA, codifies the "last injurious exposure doctrine." Under that rule, when an employee has been disabled due to an occupational disease, and suffers a second injury or disability, the first insurer is liable for the claim only if the disability or injury is a recurrence of the initial disability or injury. Subsection (2) of the statute, added by the Legislature in 1993, concerns the situation of more than one insurer but only one employer. In that context, under subsection (2), liability rests with the insurer providing coverage at the earlier of the time the occupational disease was first diagnosed or the time the employee knew or should have known that the condition was the result of an occupational disease.
Romero v. Liberty Mutual Fire Ins. [12/28/01] 2001 MT 303N In non-citeable opinion, Supreme Court affirmed Workers' Compensation Court's conclusion that where claimant's left shoulder condition was already symptomatic when she began an employment, that condition was a natural progression of a prior injury and, under the "last injurious exposure rule," was not the liability of the new employer. Substantial evidence supported the lower court's finding that claimant's left shoulder problems were causally related to her prior injury.
Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997) Supreme Court affirmed WCC determination that cause of claimant's current back-related disability was 1984 injury and not occupational disease insurer claimed arose after claimant returned to work. Claimant met his burden of establishing a clear connection between his current condition and the 1984 injury through physician's testimony. Insurer did not prove causation through occupational disease where doctor could not determine with any precision what effect claimant's resumed work had on his condition, testified claimant's low back condition would have deteriorated even if he had not resumed his UPS duties, and testified that post-injury work was not a substantial cause of the degeneration.
WORKERS' COMPENSATION COURT DECISIONS

Carlock v. Liberty NW Ins. Corp. [10/21/15] 2015 MTWCC 19 In a last injurious exposure case, the claimant’s answer to an interrogatory that he had a “significant asbestos exposure” while employed with the City of Libby, the last employer where he was injuriously exposed to asbestos, is, by itself, insufficient to prove that the City’s insurer is liable for his alleged OD.

Wommack v. National Farmers Union Property & Casualty Co., et al. [04/28/15] 2015 MTWCC 7 Where a claimant continued to be exposed to asbestos under the type and kind of conditions that could have caused his asbestos-related disease after a particular insurer ceased covering the employer, the insurer was entitled to summary judgment since it was not the insurer at risk during Petitioner’s last injurious exposure.

Wommack v. National Farmers Union Property & Casualty Co., et al. [04/14/15] 2015 MTWCC 5 While § 39-72-303(1), MCA, is written in terms of “employer” liability, it is the employer’s insurer that is actually liable for the payment of benefits.  Since Petitioner was never injuriously exposed to asbestos when CHS was at risk as a self-insured employer, CHS is not liable for Petitioner’s asbestos-related disease as a matter of law.

Wommack v. National Farmers Union Property & Casualty Co., et al. [04/14/15] 2015 MTWCC 5 Section 39-72-303(2), MCA, does not apply here, and: CHS cannot be liable for Petitioner’s disease. Although it was the insurer when Petitioner was diagnosed with asbestosis, CHS’ coverage and Petitioner’s diagnosis occurred after Petitioner quit working.  Interpreting subsection (2) of the statute to make an insurer liable for an OD that was contracted years before it became the insurer at risk would be an absurdity. 

Baeth v. Liberty NW Ins. Corp. [05/05/14] 2014 MTWCC 10 Under the last injurious exposure rule, there is no question that Petitioner’s  exposure to asbestos during the approximately five months she worked under the last owner of the plywood mill was of the same type and kind of exposure under the previous mill owner since there was no discernible difference in her working conditions during the ownership transition.  Because her treating physician testified that six months working in the mill constituted a very significant exposure to asbestos, the Court concluded that Petitioner’s time working for the last mill owner was significant enough to have contributed to her OD.

Monroe v. MACO Workers Comp Trust [03/17/14] 2014 MTWCC 7 Petitioner’s husband was injuriously exposed to the hazard of his OD, asbestos-related disease, while working for two different employers: W.R. Grace and then Lincoln County.  Petitioner’s husband was first diagnosed with his OD years before he was last injuriously exposed, however, there was no prior OD claim for which liability had either been accepted or otherwise determined.  Therefore, in accordance with In re Claim of Mitchell, the potentially causal standard applies in this case.  Pursuant to § 39-71-407(10), MCA, since Petitioner’s husband was last injuriously exposed to asbestos while employed with the Lincoln County Road Dept., that employer is liable for his OD.

Peterson v. Liberty NW Ins. Corp. [12/31/13] 2013 MTWCC 26 Where a Libby lumber mill worker was exposed to asbestos at work while the mill was owned by successive owners but his asbestos-related disease was not diagnosed until after the mill closed, the last owner of the mill is liable for the worker’s OD since it was during its ownership that the worker was last injuriously exposed to the occupational hazard.

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.
Johnson v. Liberty Northwest Ins. Corp. [07/01/09] 2009 MTWCC 20 Where Stimson owned the mill on Petitioner’s last day of work and the evidence overwhelmingly demonstrates that Petitioner was exposed to asbestos from multiple sources during his eight-year employment with Stimson, and Petitioner’s treating physician testified that a person’s lungs are immediately injured by the inhalation of asbestos fibers and that additional exposure is damaging to the lungs and worsens the disease, the Court concludes that Petitioner’s exposure to asbestos at Stimson constitutes his last injurious exposure to the hazard of the disease.
Liberty Mutual Ins. Corp. v. Montana State Fund/Re Claim of Mitchell [12/23/08] 2008 MTWCC 54 The plain meaning of § 39-71-407(9), MCA, contains no requirement that the “employment” which is the major contributing cause of a claimant’s occupational disease derive from a particular employer. The statute calls for a comparison between occupational and non-occupational factors as part of the determination as to whether the OD is considered to “arise out of employment or be contracted in the course and scope of employment.” If such a determination is made, then the analysis moves forward to § 39-71-407(10), MCA, to assign liability to the employer of last injurious exposure.
Liberty Mutual Ins. Corp. v. Montana State Fund/Re Claim of Mitchell [12/23/08] 2008 MTWCC 54 Where the claimant carried lumber, performed concrete work, repaired fences and performed security work from August through October 2005, and testified that his back condition worsened during this period of time, and where his physicians agreed that this employment contributed to some degree to his present low-back condition, the Court concludes that the claimant was last injuriously exposed to the hazard of his OD during this period of time.
Kratovil v. Liberty Northwest Ins. Corp. [07/17/07] 2007 MTWCC 30 Where Petitioner testified that he began experiencing problems with his hands and wrists more than 30 years ago, but began to experience more serious pain in his wrists and numbness in his fingers 12 to 15 years ago; Petitioner and his supervisor testified that on a demanding job for Respondent’s insured, Petitioner repeatedly complained about pain in his hands and wrists; Petitioner testified that during his final few jobs the numbness in his fingers progressed to a point where it did not alleviate with rest; and Petitioner’s treating physician testified that his hand and wrist difficulties developed gradually over time, Respondent is liable for Petitioner’s occupational disease under the last injurious exposure rule.
Fleming v. International Paper [07/08/05] 2005 MTWCC 34 In applying the last injurious exposure rule, difficulty may arise in determining the degree of exposure necessary to find the exposure injurious. Montana courts have not addressed this problem and have not adopted a standard for determining the degree of exposure necessary. According to Larson’s Workers’ Compensation Law treatise, “[t]raditionally, courts applying the last injurious exposure rule have not gone on past the original finding of some exposure to weigh the relative amount or duration of exposure under various carriers and employers.” § 153.02[7][a] at 153-19. However, some courts have adopted more stringent requirements.
Fleming v. International Paper [07/08/05] 2005 MTWCC 34 The last injurious exposure rule applicable to sequential injuries or diseases is different from the last injurious exposure rule applicable where the claimant suffers a single disease from long-term exposure to fumes, dust, or chemicals. Caekaert v. State Compensation Mut. Ins. Fund, 268 Mont. 105, 111, 885 P.2d 495, 499 (1995) and Liberty Northwest Ins. Corp. v. Champion Int’l. Corp., 285 Mont. 76, 945 P.2d 433 (1997), are distinguished.
Fleming v. International Paper [07/08/05] 2005 MTWCC 34 Where a claimant is exposed to asbestos which gives rise to lung disease, the exposure occurred over a period of years, and the exposure involved more than one employer, the insurer for the employment at which the claimant was “last injuriously exposed” is solely liable for his disease.
Fuss v. Ins. Co. of NA and Valor [4/8/04] 2004 MTWCC 34 Where a claimant is diagnosed with an occupational disease, the insurer at risk at the time of that diagnosis is liable for, and continues to be liable for, the disease even though the disease is materially aggravated by the claimant's continued work for the same employer.
Fuss v. Ins. Co. of NA and Valor [11/25/03] 2003 MTWCC 68 Where a claimant is diagnosed with an occupational disease, the insurer at risk at the time of that diagnosis is liable for, and continues to be liable for, the disease even though the disease is materially aggravated by claimant's work for the same employer, at least where the aggravation occurs during a subsequent insurer's watch.
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.
Abfalder v. Nationwide Mutual Fire Ins. [5/30/02] 2002 MTWCC 29 Subsequent aggravations of an occupational disease do not relieve the insurer responsible for an occupational disease from further liability where the subsequent aggravations do not increase claimant's physical restrictions and claimant is able to continue working with the same restrictions. Under those circumstances the aggravations are not "material and substantial." [Note: The Supreme Court affirmed this decision in Travelers Indemnity Company of Illinois v. Nationwide Mutual Fire Insurance Company (Abfalder), 2003 MT 180.]
Liberty Mutual v. Griner [11/09/01] 2001 MTWCC 58 In cases where claimant suffered a prior work-related injury or occupational disease involving the condition, a subsequent insurer is liable for an aggravation of the prior condition if and only if the subsequent work exposure was different from or in excess of ordinary, everyday activities typically occurring outside the job. § 39-72-408(4), MCA (1997).
Romero v. Liberty Mutual & State Fund [1/29/01] 2001 MTWCC 5 Where condition develops over a period of years as a natural progression and result of an earlier workers' compensation injury, the insurer for the earlier injury is liable even though part of the progression occurred during subsequent employment. [Note: The Supreme Court affirmed the WCC decision in Romero v. Liberty Mutual Fire Ins. Co., 2001 MT 303N (a non-citeable decision.)]
American Alernative Ins. Group v. Sung Sorenson & MSGIA [9/19/00] 2000 MTWCC 60 Two successive insurers of school district moved for summary judgment arguing that janitor's 1997 OD claim was barred by doctrine of collateral estoppel or res judicata where OD claim filed in 1996 was denied by DOL based on OD panel examination and claimant did not request a hearing on that denial. Court denied motion for summary judgment where claimant raised triable issues of material fact regarding whether her work following her 1996 claim materially aggravated her condition or she suffers from a new condition.
Burglund v. Liberty Mutual Fire Insurance Co. [8/29/96] 1996 MTWCC 60 UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)
Liberty NW Ins. v. Champion International [6/25/96] 1996 MTWCC 45 Based on the "last injurious exposure" language of section 39-72-303(1), MCA, in Caekaert v. State Compensation Insurance Fund, 268 Mont. 105, 885 P.2d 495 (1994), the Montana Supreme Court extended the subsequent injury rule to a subsequent occupational disease for which the initial insurer was liable. This case turns on whether claimant, a millwright who injured his back in 1992, materially and significantly aggravated his condition by subsequent work at the same mill under a different employing entity, with a different insurer. If his current condition were merely a recurrence resulting from his 1992 injury, or merely the result of a natural progression of his preexisting condition, then the first insurer would remain liable. The Court was persuaded, however, by testimony of two doctors and the claimant, that his subsequent work caused material and significant deterioration of his low-back condition and caused his disability. (Note: this decision was affirmed by the Montana Supreme Court in Liberty Northwest v. Stimson Lumber Company, 285 Mont. 76, 945 P.2d 433 (1997).
State Fund v. Town Pump, Inc. and Richard Olesky [5/21/96] 1996 MTWCC 37 Substantial evidence supports Department's determination that State Fund is liable for occupational disease benefits where the medical record (with one exception) consistently points toward development of claimant's right shoulder condition while he worked at Pizza Hut, with the subsequent work at Town Pump not representing a material or substantial aggravation of his condition. The one physician attributing the problem to work at Town Pump based his determination on a detailed statement of claimant about that work, the focus of which was not consistent with the bulk of the information in the medical record. While section 39-71-303, MCA, places liability for an occupational disease on "the employer in whose employment the employee was last injuriously exposed to the hazard of the disease," the proper inquiry is whether the risks of the second employment in fact caused further injury of a non-trivial nature, not whether that employment could have impacted his condition.
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.