Occupational Disease: Subsequent Injury

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.
Fuss v. Ins. Co. of North America and Valor Ins. Co., Inc. [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.

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 .]

Ostwald v. Plum Creek Manufacturing [12/05/95] 1995 MTWCC 102 Although DOL previously found claimant to suffer from an occupational disease, neither res judicata nor collateral estoppel bar his claim for workers’ compensation benefits where Workers’ Compensation Act and Occupational Disease Act are not the same. Court may determine in this proceeding that claimant suffered a compensable injury aggravating his back condition.