Occupational Disease: Last Injurious Exposure

MONTANA SUPREME COURT DECISIONS
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
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.