¶28 On February 4, 1997, claimant and a representative of her employer signed and submitted A"first Report of Occupational Injury or Occupational Disease." (Ex. 1 at 1.) In the information section, claimant described her condition as "TWO BONE SPURS ON LEFT FOOT." (Id., capitals in original.) In the section asking "What specific object or substance cause the injury?", claimant responded, "OCCUPATIONAL." (Id., capitals in original.) In the box for "date and time of injury," she responded: ON GOING." (Id., capitals in original.)

¶29 At the time of the claim, the Billings School District was insured by MSGIA. (Fact 2.) MSGIA accepted liability for the left foot condition. (Fact 2.)

¶30 By letter, dated February 12, 1997, MSGIA's adjuster asked Dr. O'Reilly to answer several questions regarding claimant's alleged occupational disease. (Ex. 10 at 23-24.)

Of note, the letter asked, "Is Ms. Corcoran suffering from a disease that is a result of the employment (an occupational disease)?" (Id. at 24.) The question was not limited to the left foot.

¶31 Dr. O'Reilly responded on March 5, 1997, saying in part:

I believe Ms [sic] Corcoran is suffering from a disease (plantar fasciitis, left) that is a result of the employment. The hours of standing and walking, the majority of which is done on concrete, has definitely contributed to the plantar fasciitis. I believe the employment can be traced as the proximate cause.

(Id. at 25, emphasis added.) The letter makes no mention of any condition or disease relating to the right foot.

1999 Treatment

¶32 The next mention of foot problems was on October 10, 1998, when claimant visited Dr. Shaub for "GYN care." (Id. at 41.) Dr. Shaub's "review of symptoms" includes a notation that claimant "has pain in her right great toe and right mid-metatarsal area." (Id., emphasis added.) As one of his "impressions," the doctor listed "FOOT PAIN." (Id. at 42, capitalization in original.) He recommended "she possibly see Dr. O'Reilly again or Dr. Elliott for chronic foot pain." (Id.)

¶33 On January 8, 1999, claimant visited Dr. Wolfe, who reported her chief complaint as follows:

Patient is a 59 year old white female complaining of pain underneath the front of her right foot. She states she's had this pain for approximately 4-5 years. It gets worse at the end of the day. She states that she tried orthotics built by Dr. O'Reilly x 2. However, the pain did not go away.

(Id. at 1, emphasis added.) His examination disclosed that claimant was suffering from "metatarsus primus varus and hallux adductus bilaterally, right greater than left. She also has a hyper-mobile first ray at the right foot." (Id. at 1.) His plan was to "[m]ake for the patient a functional orthotic starting as a conservative basis for treatment and consider surgical intervention only if this does not work well for her." (Id. at 2.)

¶34 Claimant returned to Dr. Wolfe on January 18, 1999, "stating that she would like to have surgery performed on her foot such as Dr. O'Reilly performed on the contra-lateral foot." (Id. at 3.) Dr. Wolfe explained the risks of surgery and indicated his preference to begin with conservative treatment. Claimant agreed to return for fitting of new orthotics. (Id.)

¶35 The next entry in Dr. Wolfe's records is dated November 2, 1999. (Ex. 10 at 4.) Claimant brought several things to the doctor's attention, all apparently involving the right foot. (Id.) Claimant reported "soreness and [a] lump on the lateral aspect of her left dorsum of the foot." (Id.) Dr. Wolfe surmised the presence of a ganglion cyst which had left scar tissue. Claimant also asked for repair of a "right bunion" but described additional symptoms which Dr. Wolfe believed might relate to a neuroma.⁽³⁾ He opted to try injection and deep ice massage, noting "[w]e will defer all surgery at this time until we get a better idea of what we're going to do with the neuroma." (Id.)

¶36 Claimant returned to Dr. Wolfe on November 9, 1999, reporting "60% reduction in her neuroma pain" and requesting surgery. (Id.) On December 8, 1999, Dr. Wolfe operated on claimant, doing the following surgical procedures:

1. BUNIONECTOMY WITH FIRST METATARSAL OSTEOTOMY AND FIXATION.

2. OSTEOTOMY WITH FIXATION PROXIMAL HALLUX PHALANX.

3. TENDON LENGTHENING PROCEDURE, EXTENSOR LUSUS LONGUS.

4. MORTON'S NEUROMA EXCISION.

5. HAMMER TOE REPAIR FIFTH DIGIT.

ALL PROCEDURES PERFORMED ON THE RIGHT FOOT.

(Id. at 6, capitalization in original.) The preoperative and postoperative diagnoses were the same, as follows:

• HALLUS ADDUCTUS.
• METATSUS PRIMUS VARUS.
• THIRD INTERMETATARSAL SPACE MORTON'S NEUROMA.
• VARUS ROTATED FIFTH DIGIT HAMMER TOE.

  ALL SURGERIES PERFORMED ON THE RIGHT FOOT.

(Id., capitalization in original.)

¶37 Claimant returned to Dr. Wolfe several times during December and January for post-operative examination and treatment. (Id. at 9.) The last entry in the records of Dr. Wolfe, dated January 10, 2000, indicates the healing process was still ongoing and that claimant would be allowed to return to work half-time in two weeks. (Id. at 10.)

¶38 In January 1999, the Billings School District prepared a "First Report of Occupational Injury or Disease." The report is on a Montana Schools Group form and is date-stamped January 28, 1999, by "RSKCo. CLAIMS." (Ex. 2.) It notes "01/21/99" as the "date employer notified." The "accident" described was: "EMPLOYEE HAS CONTINUOUS FOOT PAIN DUE TO WORKING." (Id., capitalization in original.) The part of the body affected was identified as: "FOOT/FEET." (Id., capitalization in original.) The date and time of injury was noted to be: "01/01/1996," with the letter "R" handwritten into the margin and circled. (Id.) The report was not signed by claimant because she disputed some of the contents of the report. (See Ex. 8 at 1, which is quoted in ¶ 44.)

¶39 On February 1, 1999, MSGIA denied the claim as untimely. Its claims adjuster, Rhonda McClure, wrote to claimant as follows:

Although the incident as described is not in dispute, section 39-72-403, MCA, requires that claims for benefits must be presented in writing to the employer, the employer's insurer, or the department within one year from the date the claimant knew or should have known that the claimant's condition resulted from an occupational disease. Because your claim indicates your injury date, January 1, 1996, was not reported until January 21, 1999, your claim must be denied.

(Ex. 9.)

¶40 Prompted by MSGIA's denial of her claim, claimant visited Dr. O'Reilly on February 5, 1999. He recorded:

I visited with Barb today. She relates that she had heel spur surgery and dorsiflexory osteotomy performed on the second and third metatarsals in April of 1997. She further relates that her right foot was not very symptomatic at that time. She did have some pain although it was not sufficient enough at that time to consider surgery. She relates that we had discussed working on the right foot and together agreed not to do anything to the right foot due to the mild symptoms that were present at that time.

. . . .

Review of the records does show that her March visit in 1996 described pain in the forefoot of both feet. The left heel was the only heel that was tender at that time, however, and it was also the CC at that time. I don't see any further notation regarding right foot pain.

(Ex. 10 at 39.)

¶41 On February 8, 1999, Dr. O'Reilly wrote a letter "to whom it may concern" as follows:

I have been asked to review the records of Barbara Corcoran regarding her previous foot complaints. I originally saw Barbara in August of 1986.

At that time, she was complaining of bilateral heel pain, left worse than right. The pain was exacerbated at that time by working on a concrete floor doing custodial work. The right foot was 60% as painful as the left. Orthoses were made in September of 1986. The orthoses seemed to work well at that time in relieving her heel pain.

Barbara was then seen years later, December of 1995, complaining of pain at the left heel as well as pain at the forefoot, left. The pain in the left foot ultimately led to surgery in April of 1997 for heel spur resection, left and dorsiflexory osteotomy of the second and third metatarsals.

I received a call from Barbara relating that she is scheduled for surgery on the right foot. She relates that the right foot symptoms are similar to the left foot symptoms. The surgery will be performed by Dr. Wolfe.

Barbara has asked me to verify that her original symptoms in the heel were bilateral. This letter will verify that fact. When she was seen originally in August of 1986 she did have bilateral heel pain.

(Id. at 37.) It is not clear when the letter was provided to MSGIA.

¶42 On March 2, 1999, claimant again wrote to Rhonda McClure, saying in part:

In April of 1997 I had surgery on my left foot which was a job related injury and was covered by workman's compensation. At that time I discussed with my doctor problems with both feet, the most severe problem being with my left foot. Surgery was discussed with the doctor on both feet, but was decided against because it would have made it almost impossible for me to get around during the recovery process. At that time the claim for benefits under workman's compensation was approved and the surgery on my left foot was successful.

Since that time the condition of my other foot had deteriorated to the point that I will not be able to continue my duties as a custodian for the school district. I filed a workman's compensation claim which you denied. After discussing the matter further with you, I provided reports from my doctor which mentioned the problem with both feet. After you received these reports and reviewed them you contacted me and told me you would approve the second claim under the original claim. Then, several days later you called me and told me that you had changed your mind and would deny the claim.

(Ex. 7 at 1.) The remainder of the letter referenced claimant's belief that coverage should be provided for the surgery and her intention to hire counsel, if the insurer continued to deny the claim. (Id.)

¶43 Dr. O'Reilly wrote another letter "to whom it may concern" on March 3, 1999, which stated in part as follows:

Barb had surgery on the left forefoot and the left heel in April of 1997. She relates that she had pain in the right foot prior to the left foot surgery. Because the left foot pain was significantly worse than the right foot pain, no treatment was instituted at that time. She relates that her pain has become more severe to the point where she would like to have surgery on her right forefoot by Dr. Wolfe. The patient relates that she judged her pain on a scale of 1-10 (right foot pain) prior to the left forefoot surgery. There is not a note about this in the chart, however. The problem that she is presently having is that Workers Comp. and occupational disease institutions will not pay for the right foot surgery. They have told her that they would pay for the right foot surgery is [sic] she could establish a link to an earlier notation or finding that described the right foot pain in the forefoot.

. . . I don't recall Barb having right forefoot symptoms. I believe that she probably did have the symptoms prior to the left foot surgery based on what she is telling me. Unfortunately, no notation regarding the right forefoot pain was made in the chart. We both agree that at the time her right forefoot pain was not significant enough to require treatment or x-ray. When I explained that her Work. Comp. and occupational disease claim should start from the point where her right forefoot pain became more significant, she related that she tried to do this. When she was truthful, however, relating an earlier episode of pain, the claim was apparently disallowed. She relates that it was disallowed because it had gone over a year.

(Ex. 10 at 38, emphasis added).

¶44 On March 31, 1999, claimant again wrote to the adjuster, noting:

First of all, I must inform you that I have not signed the First Report of Injury form which was mailed to me because I feel the date of injury which is handwritten on the claim form is incorrect. I had problems with both of my feet in January of 1996 and did, in fact, have surgery on my left foot. But the condition in my right foot did improve over time. The surgery and resulting recovery is well documented in the medical records.

I was able to resume my normal activities for a period of time. I then again began having pain in my right foot to a point where I would be limping on the job while trying to work. I continued to work and tried to avoid seeking medical treatment for quite some time. I did report the problems I was having to my supervisor, Mr. Greg Uhren, who was well aware that I was having increased problems. Other co-workers were also aware that the pain in my foot was increasing and the more I worked, the worse it became.

It finally got to a point where I felt I needed to seek medical treatment. I again informed Mr. Uhren that the condition was getting worse and I felt I had no alternative but to seek additional medical treatment and I did. When I was told that I needed surgery and that the condition was due to my employment, I again notified my supervisor that a claim needed to be filed.

I do admit that I have had problems with my feet over the years, but I also feel, and the doctors seem to agree, that it is the work that I do that causes the problems with my feet. It is hard to pin point a specific date of injury as I do feel it has occurred over a period of time and has continually gotten worse to a point where surgery is now required.

. . . .

Please find enclosed a new WCRRP form with a more accurate date stating that I told my supervisor Greg Uhren that my right foot was bothering me enough so that I would soon be seeking a doctor's opinion. That was in September of 1998, which Greg Uhren can verify. On September 28, 1998, my family physician Dr. Shaub recommended that I see a specialist. I took his advice and in January of 1999 I contacted doctor Andrew Wolfe a podiatrist. He has recommended surgery on my foot.

This letter is also my formal request that you reconsider your decision.

(Ex. 8 at 1, emphasis added.)

¶45 The insurer refused to change its position and claimant then filed a signed Claim for Compensation dated April 6, 1999. (Ex. 3; Statement of Uncontested Facts, ¶ 4.) The problem described was "continuous foot pain due to working all day on concrete." The described "specific body part affected" was "right foot," with the "nature of [the] injury" described as "forefoot pain." This form identified the date of injury as "10/8/98." (Id.)

¶46 The medical records show that claimant experienced right foot pain as early as 1986, when she reported right heel pain in both feet, the right heel hurting "about 60% as much as the left." (Ex. 10 at 11.) The diagnosis for both feet was planter fasciitis. That was not the condition diagnosed in 1999 for which claimant seeks compensation. Thus, even if the Court finds claimant had knowledge she was suffering from an occupational disease in 1986, that disease or condition was different from the conditions or diseases for which she now seeks compensation.

¶47 As to the 1999 conditions, even though she was suffering some degree of right foot pain in 1996, the condition was not serious enough to warrant further medical workup or treatment. No diagnosable medical condition was identified. As Dr. O'Reilly wrote on March 3, 1999, the claimant's right foot complaints of "right forefront pain was not significant enough to require treatment or x-ray." (Ex. 10 at 38.) In contrast, in early 1999, claimant had significant right foot problems, which led to a number of diagnosis, including a neuroma, none of which had been indicated previously. The conditions were surgically addressed. (Ex. 10 at 6.)

¶48 The most that can be said concerning claimant's knowledge is that in 1996 she was aware that she was experiencing foot pain and that her pain was related to her work. She was not aware that she was suffering from any particular condition or disease.

CONCLUSIONS OF LAW

I

Applicable Statute

¶49 A preliminary question before the Court is which version of section 39-72-403, MCA, applies in this case. The parties have suggested two possibilities: the statute in effect during 1986, when claimant first received medical treatment for foot problems, and the revised statute that took effect in 1995 and continues (as relevant here) to the present. Section 39-72-403, MCA (1985), provides in relevant part:

(1) When a claimant seeks benefits under this chapter, his claims for benefits must be presented in writing to the employer, the employer's insurer, or the division within 2 years from the date the claimant knew or should have known that his total disability condition resulted from an occupational disease. [Emphasis added.]

In 1995, subsection (1) was amended to read:

(1) When a claimant seeks benefits under this chapter, the claimant's claims for benefits must be presented in writing to the employer, the employer's insurer, or the department within 1 year from the date the claimant knew or should have known that the claimant's condition resulted from an occupational disease. [Emphasis added.]

This language continues in both the 1997 and the 1999 versions of the Act.

¶50 The 1986 version of section 39-72-403, MCA, is inapplicable. There is no proof that the right foot conditions identified in 1999, and for which claimant now seeks compensation, were present in 1986. The diagnosis in 1986 was plantar fasciitis. The diagnoses in 1999 were multiple, but none involved plantar fasciitis.

¶51 Therefore, I must determine whether claimant's awareness of right foot pain in 1996 constituted knowledge that the pain resulted from an occupational disease. The operative language of the 1995 version of section 39-72-403, MCA, is "the claimant knew or should have known that the claimant's condition resulted from an occupational disease."

¶52 Awareness of pain, and awareness that the pain is a result of work does not constitute knowledge that one suffers from an "occupational disease," as that term is defined in the Occupational Disease Act. Section 39-72-102(10), MCA (1995-99), defines occupational disease as follows:

(10) "Occupational disease" means harm, damage, or death as set forth in 39-71-119(1) arising out of or contracted in the course and scope of employment and caused by events occurring on more than a single day or work shift. The term does not include a physical or mental condition arising from emotional or mental stress or from a nonphysical stimulus or activity.

The key words in the section are "harm" and "damage". In the context of the Occupational Disease Act, both terms must mean something more than suffering mere pain, otherwise, every ache and pain a worker suffers after a hard day at work would constitute an occupational disease. That sort of construction of the terms would be absurd and contrary to common sense. Rather, the terms indicate something more significant, such as a condition requiring medical diagnosis and treatment. Construing the words in that manner is consistent with another of the commonly understood meanings of disease as "a particular destructive process in an organ or organism, with a specific cause and characteristic symptoms."⁽⁴⁾ (Webster's New World Dictionary and Thesaurus, CD ROM Ver. 1.0 (1997).) Moreover, lacking a working diagnosis or medical workup, it may be impossible to say whether earlier pain of the same body was due to the disease which was later diagnosed.

¶53 I therefore construe the limitations period set out in section 39-72-403, MCA (1995-99), as commencing when the worker has some specific knowledge of a specific pathological condition stemming from employment and requiring diagnosis or treatment. Applying that construction, claimant herein did not have such knowledge until 1999. Her claim was timely.

¶54 This ruling is consistent with the treatment of a somewhat analogous situation in another jurisdiction. In M. M. Sundt Constr. Co. v. Indus. Comm'n of AZ, 124 Ariz. 94, 602 P.2d 475 (1979), the employee operated heavy construction machinery for 35 years. Approximately fifteen years before filing a claim for compensation, the worker began to notice "a ringing in his ears which would disappear within an hour after leaving work." Id, 124 Ariz. at 95, 602 P.2d at 476. The Arizona court noted "[i]t is well established in this state that the right to workmen's compensation benefits accrues when the employee knows or should have known that he had a compensable injury." Id, 124 Ariz. at 96, 602 P.2d at 477. Although the Court was dealing with the compensability of an injury, much of its reasoning is similar to that adopted herein:

Although respondent was aware of ringing in his ears, it would characteristically disappear approximately one hour after work. The disability neither required him to miss work nor caused him economic loss. Except for a temporary discomfort, respondent had no basis for suspecting a permanent disability. He required no medical attention and was thus never informed of the significance of the impairment until it became immutable. Where, as here, the disorder is merely slight or trivial, but subsequently develops unexpectedly into a permanent condition, it cannot be said that the compensability of the problem became manifest until diagnosis disclosed the severity of the injury.

¶55 The attorney's fees, costs, and penalty provisions contained within the Workers' Compensation Act (§§ 39-71-611, -2907, MCA) apply to this Court's adjudication of occupational disease disputes. § 39-72-402(1), MCA; Ingbretson v. Louisiana-Pacific Corp. 272 Mont. 294, 900 P.2d 912 (1995). The award of attorney's fees and penalty requires a finding of unreasonable conduct on the part of the insured. §§ 39-71-611(c), -2907, MCA.

¶56 The insurer's denial of the claim was not unreasonable. The insurer construed the section in the broadest possible sense. While the Court has construed the section as requiring more specific knowledge than contended by the insurer, what constitutes knowledge within the meaning of section 39-72-403, MCA (1995-99), is reasonably debatable. Claimant is not entitled to attorney fees or a penalty.

¶57 Claimant is, however, entitled to costs where she has prevailed in this action. § 39-71-611, MCA.

JUDGMENT

¶58 1. Claimant's claim for occupational disease benefits on account of the right foot conditions diagnosed in 1999 is timely.

¶59 2. Claimant is entitled to costs in an amount to be determined by the Court.

¶60 3. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.

¶61 4. This Judgment is certified as final for purposes of appeal pursuant to ARM 24.5.348.

DATED in Helena, Montana, this 23^rd day of May, 2000.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Victor R. Halverson
Mr. Leo S. Ward
Submitted: April 27, 2000

1. The parties stipulated that the year on the date of two letters within exhibit 10 (beginning at pages 37 and 38) should be 1999, not 1998. The parties also stipulated that page 40 of exhibit 10 is the second page of the letter beginning at page 38. Page 39 is a separate document.

2. Osteotomy is defined as "[a] surgical operation in which a bone is divided or a piece of bone is excised (as to correct a deformity)," see www.medscape.com.

3. "A tumor or mass growing from a nerve and usually consisting of nerve fibers," see definition at www.medscape.com.

4. While one dictionary definition of disease is "any departure from health; illness in general", that is using the word in its loosest and most general sense, and does not accord with the context of the ODA. (Webster's New World Dictionary and Thesaurus, CD ROM Ver. 1.0 (1997).)