William Polk

Summary: Mill worker appealed decision of Department of Labor Hearing Examiner that he was not suffering from an occupational disease. Hearing Examiner found conclusions of medical panel entitled to a presumption of correctness and that the analysis of physicians finding him not suffering from an occupational disease was the better analysis.

Held: The WCC affirmed the DOL decision. The WCC found the medical panel failed to follow statutory provisions by failing to meet as a whole to make a final determination, but found that error both harmless and not properly considered on appeal when not raised below. The WCC declined to find the presumption in favor of the panel report unconstitutional. Finally, the WCC found the decision below not clearly erroneous and supported by substantial evidence. [Note: the WCC decision was reversed by the Supreme Court in William Polk v. Planet Insurance Co., 287 Mont. 79, 951 P.2d 1015 (1997), on the ground that physicians rendering an opinion on occupational disease causation misunderstood the appropriate standard.]

(Dr. Headapohl; Tr. at 12.) Dr. Merchant explained that the chronic form of the disease may be difficult to diagnose but "radiographically you see scar tissue development." (Merchant Dep. at 18.)

Bronchiectasis: A "chronic dilatation of the bronchi marked by fetid breath and paroxysmal coughing, with the expectoration of mucopurulent matter. It may affect the tube uniformly, or occur in irregular pockets, or the dilated tubes may have terminal bulbous enlargements." Dorland's Illustrated Medical Dictionary 236 (27th ed. 1988). Dr. Merchant described it as "a condition where you actually have destruction not of the air sacs that you have in emphysema, but of the peripheral airways. And these airways get very dilated up, . . . the major problem is that you can't clear out secretions out of them." (Merchant Dep. at 35.) Dr. Merchant explained that there are various causes of bronchiectasis, for example, a severe pneumonia, particularly one that is not treated promptly. (Id. at 35.) Dr. Anderson described bronchiectasis as "kind of a chronic dilatation of the air space" often associated with "excessive mucus production." (Tr. at 57.) He identified aspergillosis, a fungus commonly found in grain dust, as one possible causative agent. (Tr. at 58, 61.)

Facts

1. Claimant's employment history and occupational exposure.

Claimant is 51 years old. After graduating from high school, he spent eight years in the United States Air Force. For ten years thereafter he worked for the Great Falls Gas Company as a meter reader and a laborer. He then worked at Holman Aviation as a janitor for three years. Finally, he worked for Evans Grain & Elevator Company and its successor company, Koch Agriculture, Inc., from 1985 until November 1993. It was during his employment with Koch that claimant allegedly contracted an occupational lung disease. (Tr. at 257-59.)

Koch processes rape, flax and mustard seeds into flour and vegetable oil. During his employment with Koch, claimant sacked flour in 100-pound bags and cleaned machinery. He was regularly exposed to dust and oil mist. In addition, he was exposed to moldy grain. In 1992 he began wearing a mask at work to reduce his inhalation of dust and mist. (Tr. at 266-71, 281-82.)

2. Onset of respiratory troubles.

Prior to 1991, claimant's only history of respiratory problems was a bout with a respiratory infection and pneumonia in 1976. However, he was heavy a smoker. Between 1962 and 1993, inclusive, he smoked one and one-half packs of cigarettes a day. (Tr. at 267.) Since 1993 he has smoked only intermittently, and now limits his smoking to four cigarettes a day at most.

In April 1991 claimant experienced fever, chills, and diarrhea for approximately ten days. (Tr. at 285.) Thereafter, in February of 1992, he was admitted to Columbus Hospital in Great Falls with primary complaints of fever, chills, and diarrhea, symptoms which were similar to those he had experienced the previous April. (Ex. 5 at 147.) He also had a "slight cough." (Id.) The admitting physician noted in his history that "the patient had an almost identical illness approximately 9 months ago." (Id.) A chest x-ray disclosed "reticular nodular infiltrate in both lung fields which was faint." (Id. at 146.) Dr. Addison, who treated claimant during this hospitalization, diagnosed claimant as suffering from infectious diarrhea, dehydration and reticular nodular infiltrate of the lungs. (Id.)

In July 1993 the claimant sought medical care at the Great Falls Immediate Care Center for respiratory and cold-like symptoms, including a cough with productive green phlegm, fever, and nasal congestion. (Ex. G at 1.) The examining physician diagnosed "[b]acterial respiratory upper infection." (Id.)

Thereafter, the claimant continued to experience periodic coughing and congestion. (Id. at 2.) In October he experienced an "increasing cough." (Id. at 3.) On October 12, 1993, he again sought medical care. (Id.) At that time he was diagnosed as having bronchitis and "[p]robable early chronic obstructive pulmonary disease." (Id.) The treating physician prescribed medication, rest and fluids, and encouraged claimant to stop smoking. (Id.)

On November 9, 1993, claimant was hospitalized at the Columbus Hospital with fever, cough, shortness of breath, hypoxia,⁽²⁾ and respiratory distress. (Ex. 5 at 141.) His blood oxygen saturation level at the time of admission was 87%. (Id.) According to Dr. Strong, a saturation level of less than 90% warrants the use of supplemental oxygen . (Tr. at 75.)

Dr. Holly Strong, who specializes in pulmonary and critical care, treated claimant during his November 1993 hospitalization. She concluded that claimant suffers from hypersensitivity pneumonitis, occupational asthma, bronchiectasis, and emphysema. (Tr. at 74-77.) She indicated that the various conditions were the result of a combination of claimant's inhalation of grain dust and smoking. (Ex. 6 at 292.)

Following claimant's November 1993 hospitalization, Dr. Strong concluded that claimant should not return to his job at Koch. (Id.) Claimant has not worked since then and continues to experience shortness of breath, becoming winded even with light activity. (Tr. at 291, 294.)

3. The medical evidence.

This case involves conflicting expert medical opinions. Of the doctors testifying at hearing and by deposition, Drs. Strong, Anderson, and Headapohl opined that claimant's lung condition is occupationally related, while Drs. Merchant and Demeter concluded that his condition is not occupationally related. Dr. Kessler was also unable to relate claimant's lung condition to occupational factors. Three other doctors who examined claimant, but who did not testify, provided written opinions that claimant does not suffer from an occupational disease. Finally, Dr. Patterson, who did a biopsy of lung tissue, found "minimal alveolar fibrosis of undetermined etiology" and "inflammatory infiltrate" of the bronchus which he characterized as "suggestive of possibly a hypersensitivity." (Ex. D at 1.)

Dr. Holly Strong

Dr. Holly Strong practices pulmonary medicine. She received her M.D. degree from the University of Guadalajara and completed residencies in internal medicine (three years), pulmonary medicine (two years), and critical care (one year). (Tr. 71.) At the time of hearing, she had been practicing pulmonary and critical care medicine for three years, was board certified in internal medicine, and was board eligible but not certified in pulmonary medicine. (Id. 71, 79.)

Dr. Strong treated claimant during his November 1993 hospitalization and has been his treating physician since that time. In her opinion claimant is suffering from (1) hypersensitivity pneumonitis; (2) bronchiectasis, which she characterized as "a type of chronic bronchitis, which is much more severe"; (3) a small element of emphysema; and (4) asthma. (Id. at 74-76.) She testified that the hypersensitivity pneumonitis is related to claimant's exposure to grain dust while working at the Koch mill. (Id. at 74.) She said the bronchiectasis could have been caused by prior pneumonia, early hypersensitivity pneumonitis, or some sort of syndrome:⁽³⁾ she was unable to specifically attribute any of it to occupational factors. (Id. at 75, 80.) She attributed claimant's emphysema to smoking. (Id. at 75.) Finally, she attributed claimant's asthma to his exposure to organic grain dust. (Id. at 77.)

Dr. Strong noted that hypersensitivity pneumonitis is often called "farmers' lung" because of its incidence among persons who "work in grains, granaries and millers." (Id.) She said that organisms occurring in grain are thought to cause the condition, however, not all persons working with grain or exposed to the organisms contract the disease. (Id.) According to Dr. Strong, smokers appear to be more susceptible to the disease. (Id. at 77, 82.)

According to Dr. Strong, claimant's most debilitating symptom is hypoxia, which is a lack of sufficient oxygen in his blood.⁽⁴⁾ (Id. at 75.) Because his blood is insufficiently oxygenated, "[h]e is unable to walk across a room without getting very short of breath." (Id.) After brief exercise claimant's oxygen saturation drops to between 70% and 80%. (Id.) Dr. Strong noted that claimant "cannot walk across a room without probably needing more oxygen -- supplemental oxygen." (Id. at 76.) Claimant obviously cannot return to his work at the mill, however, Dr. Strong indicated that he could work in a sedentary position. (Id. at 80.)

Dr. Strong attributed claimant's hypoxia primarily to hypersensitivity pneumonitis. (Id. at 75.) She agreed that emphysema can cause desaturation of blood oxygen (id. at 81) but felt that claimant's emphysema was neither advanced nor severe (id. at 75, 83). Her opinion concerning the "small" degree of emphysema (id. at 75) was based on a high-resolution CT scan performed on June 20, 1995 (id. at 82-83, 89), which she interpreted as "rather diagnostic of hypersensitivity pneumonitis" and as showing "a small amount of emphysema" (id. at 83). She indicated, however, that a radiologist is more qualified than she is to read and interpret the CT scan. (Id. at 82-83.)

Dr. David Anderson

Dr. David Anderson is a member of the occupational disease panel designated by the Department pursuant to section 39-72-601, MCA. He completed a residency in internal medicine and a fellowship in pulmonary diseases at the Mayo Clinic. (Tr. at 42.) He has practiced medicine in the State of Montana since 1979. (Id.) He is board certified in internal medicine but not in pulmonary medicine.⁽⁵⁾ (Id. at 43.) Approximately 80% of his outpatient practice involves the treatment of pulmonary diseases and a "good percentage" of his hospital practice involves critical care of patients suffering from pulmonary diseases or conditions. (Id.) In the course of his practice he often treats people who work in the grain industry. (Id.)

Dr. Anderson performed an occupational disease evaluation of claimant in February 1994. He reported his findings to the Department in a letter of February 24, 1994:

My impression is that William does have severe obstructive airway disease with reversible airway obstruction consistent with asthma as well as emphysema and possible pulmonary fibrosis. To me it appears that this came on when he was working for the Montana Vegetable Oil Company probably as a result of exposure to toxic organic dust in his work that involved unloading grain and often having to clean out the inside of grain bins, shoveling grain into an auger. He also assisted other people in welding during his employment and this might have also have been a contributing factor to his lung disease.

Although some of his obstructive airway disease is likely related to his history of smoking 1½ packs a day of cigarettes for 20 years, I believe the asthmatic component is more likely related to his exposure to toxic organic dusts that he was exposed to.

(Ex. 6 at 280.)

Dr. Anderson testified at the hearing that claimant suffers from asthmatic bronchitis, emphysema, and hypersensitivity pneumonitis. (Tr. at 58.) In his opinion the asthma and the hypersensitivity pneumonitis were caused by claimant's exposure to grain dust and mold at the Koch mill. (Id. at 58-59). He explained the role of mold found in grain and grain dust.

People can become hypersensitized to the mold, and they can develop several things. They can develop asthma from exposure to the same, they can develop a syndrome that's called toxic organic dust syndrome; or they can develop a syndrome that's called hypersensitivity pneumonitis, where they actually develop what looks like pneumonia on chest x-ray, but is actually a hypersensitivity reaction to the pneumonia. So they can develop several different syndromes associated with that exposures [sic] to mold, especially mold that's growing with grain.

(Id. at 45.)

Dr. Anderson testified that claimant's history of smoking contributed to his asthma (id. at 58-59) and apportioned claimant's overall disability at 60% to occupational factors and 40% to smoking and other factors. (Id. at 59.) He apportioned the hypersensitivity pneumonitis at 100% to occupational factors. (Id.)

Dr. Anderson's diagnosis of asthma was based on claimant's response to bronchodilators⁽⁶⁾ during pulmonary function testing. (Id. at 53-54.) After administration of bronchodilators claimant's lung function tests increased significantly. (Id.) Dr. Anderson said that the increase was diagnostic for asthma. (Id.)

Dr. Anderson identified several facts supporting his diagnosis of hypersensitivity pneumonitis. First, claimant's blood oxygen saturation did not remarkably improve with the administration of bronchodilators. (Id. at 53-54.) Significant improvement would be expected if claimant's hypoxia was primarily due to asthma. (Id.) Thus, the lack of significant improvement suggested another cause for the hypoxia. Second, claimant's defusion capacity, which "measures the disappearance of carbon monoxide from air that you breathe," was significantly reduced, indicating the possible "presence of interstitial lung disease or the presence of emphysema." (Id. at 54.) Third, an enhanced CT scan of the lungs, taken June 29, 1995, revealed (1) "some evidence of emphysema, but not a very severe emphysema"; (2) evidence of interstitial lung disease or fibrosis "predominantly in the upper lobes and . . . kind of towards the periphery of the lung"; and (3) "evidence of bronchiectases in the lower lobes."⁽⁷⁾ (Id. at 56-57.) In Dr. Anderson's opinion, the degree of emphysema identified by the scan was insufficient to explain claimant's hypoxia. (Id. at 57, 67.)

Dr. Anderson concluded that the primary condition disabling claimant is "pulmonary fibrosis related to the hypersensitivity pneumonia." (Id. at 59.) He pointed out that asthma is treatable and that if asthma were claimant's only problem he could still perform a number of other occupations. (Id.) Considering claimant's overall condition, Dr. Anderson concluded that he is still capable of performing a "desk job." (Id. at 64.)

Dr. J. Michael Sadaj

Dr. J. Michael Sadaj practices internal and pulmonary medicine. (Ex. B at 10.) After receiving his medical degree from the University of Nebraska Medical Center, he was a resident in internal medicine for three years and a fellow in pulmonary disease for two years. (Id.) He has been in private practice in Butte, Montana, since 1979 and, in addition to his private practice, served as the Medical Director for the Department of Respiratory Care Services at St. James Community Hospital in Butte from 1979 to 1990. (Id.) He has been a member of the occupational disease panel since 1987. It does not appear that the doctor is board certified in any specialty.⁽⁸⁾

At the request of the Department, Dr. Sadaj performed the second panel evaluation on May 5, 1994. (Ex. B at 1.) Based on his examination and review of claimant's spirometry results with regard to the claimant's pulmonary functions, he concluded that claimant has "chronic obstructive pulmonary disease and chronic respiratory insufficiency as a result of long term heavy smoking." (Id. at 1.) He wrote, "The only way that I could say the occupation was a major part of his problem was if he has evidence of hypersensitivity pneumonitis." (Id.) He ordered a hypersensitivity pneumonitis blood panel to ascertain if claimant had been exposed to antigens known to cause the condition. The results of that assay were negative. (Id. at 8.) (Apparently, Dr. Headapohl was referring to the results from this test when she testified that the presence or absence of antibodies does not prove or disprove that a particular antigen is the agent responsible for hypersensitivity pneumonitis.) In his report to the Department he concluded, "In my opinion, he [claimant] has no occupational lung disease." (Id. at 1.)

Dr. Thomas Thigpen

On September 6, 1994, Dr. Thomas Thigpen reviewed claimant's medical records and the reports of Drs. Sadaj and Anderson. (Ex. C at 1.) He talked to Dr. Sadaj but not to Dr. Anderson. His failure to speak with Dr. Anderson, who supported claimant's occupational disease claim, is unexplained. In any event, he concluded that claimant did not suffer from an occupational disease. (Id.) In his written report to the Department, which is the sole document we have from him, he wrote:

I believe this patient has emphysema which is attributable to his cigarette smoking. The patient's records that I have been provided show a gradual onset of symptomatology over a number of years and his symptoms seem to be more consistent with the presentation of emphysema and chronic bronchitis than the more intermittent types of problems that I would think was a hypersensitivity type reaction related to his work (or some other type of asthmatic reaction). I am not aware of the medical records that point towards intermittent type medical attention over the years that would support a diagnosis of asthma. It is important to note that he has had negative hypersensitivity testing done also. This certainly does not exclude his problem being a hypersensitivity problem but less that [sic] likelihood, I would think.

. . . .

It should be noted Dr. Anderson and Dr. Sadaj had diverging opinions in regards to this case, but it is my opinion from reviewing the information at hand that the problem is more consistent with lung disease related to cigarette smoking than any type of occupational disease process. I think there is no question that if one does have any type of underlying lung disease (and that includes emphysema and chronic bronchitis) that exposure to various types of dust and other irritants will aggravate this condition. Again, in this particular case, however, I do believe there is not enough positive information to support a diagnosis of a work related lung disorder.

(Id. at 1-2.)

Dr. Thigpen did not testify and his curriculum vitae was not supplied to the hearing officer. I therefore have no information concerning his education, any board certifications, or his expertise in the diagnosis and treatment of hypersensitivity pneumonitis.

Dr. Bruce Patterson

Dr. Bruce Patterson, a pathologist, performed a bronchoscopic biopsy on claimant's left lower lung on January 24, 1995. (Ex. D at 1.) In his written report he commented as follows:

Clinical information received with this case indicates that the patient has severe chronic obstructive pulmonary disease with a history of grain dust exposure and rapidly progressive disease. I see no evidence of interstitial pneumonitis. There is focal very minimal alveolar fibrosis of undetermined etiology. The most striking features in this biopsy material are in the bronchus which exhibits a chronic inflammatory infiltrate with eosinophilia. The eosinophils are suggestive of possibly a hypersensitivity.

(Ex. D at 1, emphasis added)

Dr. Patterson did not testify. Information concerning his medical education, certifications, and experience was not supplied to the hearing officer.

Dr. Walker Smith

On January 26, 1995, Dr. Walker Smith, another pathologist, reviewed Dr. Patterson's biopsy slides and report, and stated: "I see no evidence of a pure or predominantly interstitial process and I see no direct evidence for an occupational lung disease including hypersensitivity disease associated with grain dust exposure." (Ex. E at 1.) He diagnosed claimant with acute and chronic bronchitis. (Id. at 2.)

Dr. Smith did not testify. Information concerning his medical education, certifications, and experience was not supplied to the hearing officer.

Dr. Jeffrey Kessler

Dr. Jeffrey Kessler is a diagnostic radiologist specializing in imaging for diagnostic purposes. (Tr. at 85.) He received his medical degree from the Medical College of Wisconsin and completed an internship and diagnostic radiology residency at St. Joseph's Hospital in Milwaukee. (Id.) Thereafter, he completed a fellowship in body imaging at the University of Colorado in Denver. (Id.) He did not indicate whether he is board certified in radiology.

Dr. Kessler performed a high-resolution CT scan of claimant's lungs on June 20, 1995. (Id. at 89.) Upon reviewing the CT images, Dr. Kessler noted "a lot of prominent markings on the periphery of the lung; linear, kind of reticular branching structures on the periphery of the lung which aren't supposed to be there." (Id. at 90.) He went on to say, "What we're looking at here are thickened interstitial structures surrounding the bronchial and the vascular structures out on the periphery of the lung." (Id.) He said that the thickened interstitial spaces "suggest that there is some scarring or fibrosis in those areas." (Id.) He noted that the "bronchial walls are also thickened" and that the thickened walls could be due to bronchitis. (Id.) He also found clear evidence of severe bronchiectasis in the lower lobes of the lungs (id. at 93-94) and evidence of mild emphysema (id. at 92, 99).

With regard to the interstitial markings, Dr. Kessler said that they are consistent with mild interstitial lung disease. (Ex. 2 at 13; Tr. at 91, 98.) He testified they are "suspicious for hypersensitivity pneumonitis" but said "[y]ou can't make a definite diagnosis on the film." (Tr. at 90, 97.) He also indicated that interstitial lung disease has a number of different causes. (Tr. at 91, 96.)

Dr. Dana Headapohl

Dr. Dana Headapohl specializes in occupational and environmental medicine. (Tr. at 3.) She has a master's degree in public health from the Medical College of Wisconsin and a master's degree in environmental engineering from Stanford University. (Id. at 4.) She received her medical degree from the University of Washington and completed a residency in occupational medicine at the University of California in San Francisco (UCSF). (Id.) She is an assistant clinical professor in occupational medicine at UCSF and is a professor at the Department of Pharmacy at the University of Montana. (Id. at 4-5.) She is board certified in preventive and occupational medicine. (Id. at 4.) She is a designated member of the occupational disease panel. (Id. at 5.)

Dr. Headapohl examined claimant on March 6, 1995, at the request of his attorney. (Ex. 6 at 202.) At the time of her examination she concluded that claimant had COPD and asthma. (Id. at 208.) She related the COPD to smoking and the asthma to his occupation. (Id.)

At trial Dr. Headapohl testified that a pulmonary function test administered at the time of her examination was consistent with "mixed obstructive and restrictive disease." (Tr. at 14.) At the time of the examination she did not make a positive diagnosis of hypersensitivity pneumonitis, however, upon her review of the radiology report of the high-density CT scan done on July 29, 1995, she did make that diagnosis. (Id. at 15, 21-22, 33.) She testified, "The fact that he had fibrotic changes in the upper lungs I found to be quite significant because both the tissue changes and the location were where one would expect them to be with the chronic form of hypersensitivity pneumonitis." (Id. at 15) She also noted that the reticular nodular infiltrates noted in claimant's 1992 hospital records (ex. 3 at 20) was consistent with an acute stage of hypersensitivity pneumonitis. (Tr. at 40.) In her opinion claimant's hospitalizations in 1992 and 1993 "were most likely acute phases [of hypersensitivity pneumonitis]." (Id. at 34-35.)

Dr. Headapohl attributed the hypersensitivity pneumonitis to claimant's exposure to mold and organic dust while working at Koch. (Id. at 17.) Her opinion was based on claimant's exposure to antigens (proteins) known to be causative agents in hypersensitivity pneumonitis and known to be present in molds and fungus occurring in grain. (Id. at 11, 37.) She also based her opinion on the absence of any history of exposure to causative agents in other settings. (Id. at 17.) Referring to claimant's negative test results for known antigens, she said that the presence or absence of antibodies does not either prove or disprove that a particular antigen is responsible for the condition. (Id. at 30.) She testified that results of a lung biopsy done on January 24, 1995, did not rule out the presence of hypersensitivity pneumonitis. (Id. at 36-37.)

Dr. Headapohl testified that claimant suffers from COPD involving occupational asthma, emphysema and bronchiectasis. She attributed his asthma to occupational factors based upon his occupational exposure and the fact that it first occurred during his adulthood. (Id. at 18, 23.) She said that asthma occurring for the first time during adulthood is typically due to a "sensitizing agent." (Id. at 23.) She conceded that smoking can exacerbate the asthma and attributed the emphysema to smoking. (Id. at 26, 30.) She testified that the bronchiectasis may be attributable to chronic asthma, emphysema, or chronic bronchitis. (Id. at 15, 30.) Overall, she attributed 90% of claimant's COPD to his occupational asthma and 10% to his smoking and emphysema. (Ex. 6 at 209; Tr. at 31.)

Finally, it was her opinion that despite his respiratory impairment the claimant can perform sedentary work. (Tr. at 40.)

Dr. Robert Merchant

Dr. Robert Merchant is a pulmonary critical care physician. He attended medical school at New York Medical College. He completed an internal medicine residency and a pulmonary fellowship at University of Iowa Hospitals and Clinics. (Merchant Dep. at 40.) After finishing his fellowship, he was on the faculty at University of Iowa Hospitals and Clinics. (Id.) While there he worked in the occupational medicine clinic, as well as in the pulmonary clinic. He performed research concerning lung diseases, including interstitial lung diseases, silicosis, and related conditions. (Id.) He is board certified in internal medicine, pulmonary medicine, and critical care medicine. (Id. at 41)

Dr. Merchant examined claimant on February 23, 1995, at the request of claimant's attorney. (Ex. A at 1.) He took a history and reviewed clinical and toxilogical records, including the 1994 pulmonary function test, a chest x-ray taken January 24, 1995, the pathology slides from the transbronchial biopsy, and the high-density CT scan taken on June 20, 1995. (Id.; Tr. 19, 32.)

Dr. Merchant reviewed claimant's biopsy reports and concluded that they "are certainly not particularly suggestive of hypersensitivity pneumonitis, although they clearly do not exclude it." (Ex. A at 4). He explained that the biopsy samples may not be "completely representative of what's going on." (Merchant Dep. at 33.) Thus, "a small area of pulmonary fibrosis or interstitial fibrosis is, generally speaking, ignored when reviewing biopsies, at least people who are experienced in looking at interstitial lung disease specimens. (Id. at 55.) He agreed "that the findings from Drs. Walker and Patterson included no general diffuse interstitial process, no granulomas, and no direct evidence of occupational lung disease." (Id. at 23.)

Dr. Merchant personally reviewed claimant's high-resolution CT scan and did not see "significant interstitial changes" consistent with hypersensitivity pneumonitis. (Id. at 34.) He testified that he has special expertise in reading high-resolution CT scans of the lung:

CAT scans, high-resolution CAT scans, like I said, are relatively new. The interpretation of them is tricky. You need a fair amount of experience looking at them, and you also need a fair understanding of what's going on in the lung tissues. And while I'm not a certified radiologist, I probably have had more experience looking at high-resolution CAT scans than any radiologist in the state, especially with respect to interstitial lung disease. That was part of our research program at Iowa, was using high-resolution CAT scans to that end. In addition, the radiologists are not certified in pulmonary medicine, which is an important area to be able to interpret the scans.

(Id. at 56-57, emphasis added.)

In reviewing the CT scan, Dr. Merchant did see evidence of emphysema and bronchiectasis. (Merchant Dep. Ex. at 12-13.) He testified that the causes of bronchiectasis include certain immunodeficiencies, tuberculosis, and anything causing extensive inflammation in the air sacs, such as severe pneumonia. (Merchant Dep. at 35-36.) He identified ammonia as the only occupational exposure that has been causally linked to bronchiectasis. (Id. at 37.)

Dr. Merchant characterized claimant's chief complaint as shortness of breath or "dyspnea."⁽⁹⁾ He diagnosed claimant's primary problem as COPD. (Ex. A at 4; Merchant Dep. at 14.) He identified chronic and untreatable asthma, chronic bronchitis, and emphysema as conditions encompassed within COPD but opined that emphysema was the major component of claimant's COPD. (Ex. A at 4; Merchant Dep. at 12-14.) He attributed claimant's emphysema to smoking but acknowledged that dusts at claimant's work site "...undoubtedly would act as irritants and cause exacerbation of his underlying emphysema and make it very difficult for him to work in a dusty work environment." (Ex. A at 4.)

Dr. Merchant confirmed that grain dusts and oils can trigger hypersensitivity pneumonitis. (Merchant Dep. at 5-6.)

Dr. Stephen Demeter

Dr. Stephen Demeter is board certified in internal medicine, pulmonary medicine and occupational medicine. (Tr. at 103; Ex. F at 3.) After attending medical school at Ohio State University, he completed a three year internship and residency in internal medicine at Mount Carmel Medical Center and a two year fellowship at the Cleveland Clinic Foundation in pulmonary diseases. (Ex. F at 1.) He has a master's degree in public health. (Id.) He has been a reviewer for four medical periodicals and the associate editor of two medical journals. (Id. at 2.) Currently, he is a professor of internal medicine and head of the pulmonary medicine section at Northeastern Ohio Universities College of Medicine, the chief of occupational medicine at Akron General Medical Center, and a member of the boards of directors of the International Registry of Toxic Inhalation and the American Academy of Disability Evaluating Physicians. He has authored and coauthored over 60 articles and abstracts. (Id. at 11-16.) He was the editor of a textbook entitled Environmental Respiratory Disease. (Tr. at 103.) He has treated patients with hypersensitivity pneumonitis. (Id. at 124, 131.)

At the request of the insurer, Dr. Demeter reviewed claimant's radiologic films, including the CT scan, laboratory reports, several depositions,⁽¹⁰⁾ medical records maintained by Drs. Strong, Anderson, Sadaj, Patterson, Smith, Thigpen, and Merchant, the records of the Immediate Care Center, the records of Columbus Hospital, including the records of claimant's 1976 and 1992 hospitalizations, and the list of substances to which claimant was exposed when working at Koch.⁽¹¹⁾ (Id. at 106-08.) Before arriving at his opinions, he also did a medical literature search and considered the medical articles he identified in the search. (Id. at 124.)

Dr. Demeter testified that claimant suffers from emphysema caused by cigarette smoking. (Id. at 110.) He said that the presence of emphysema may be evidenced by up to nine specific findings on chest x-ray. (Id. at 111.) In claimant's case, Dr. Demeter identified five of those findings and testified that "there's no question in my mind that he had emphysema on a chest x-ray." (Id. at 112.) He disagreed with the doctors who characterized claimant's emphysema as "mild." (Id. at 113.) He testified that the medical findings show that claimant's COPD, consisting of emphysema and chronic bronchitis, is "very severe COPD." (Id. at 115.)

Based on x-rays, the CT scan and physiological changes, Dr. Demeter also diagnosed claimant with bronchiectasis. (Id. at 119-20.) He testified that there was evidence that the bronchiectasis existed in 1976. (Id. at 121, 153.) He was unable to say to what degree the condition contributed to claimant's symptoms, pointing out that "it's generally 20 to 30 years after a person develops bronchiectasis that they start developing their symptomatic problems with it." (Id. at 121.) He could not determine "how much of the physiological changes [experienced by claimant] are caused by bronchiectasis and how much are caused by the COPD, or a combination thereof." (Id.) He opined that the bronchiectasis is probably due to infection, not occupational factors. (Id. at 120.)

In arriving at his opinions concerning the bronchiectasis, Dr. Demeter relied in part on a search of medical literature. (Id. at 119-20.) That search disclosed congenital factors and infection as the predominant causes of the condition and failed to disclose any substantial support for an occupational cause of the condition. (Id. at 120.)

Dr. Demeter reviewed the CT scan and found no evidence of interstitial infiltrates in the upper lobes of claimant's lungs. (Id. at 119.) Similarly, he saw no evidence of interstitial changes on other x-rays taken of claimant. (Id.)

Dr. Demeter disagreed with the physicians who diagnosed asthma and hypersensitivity pneumonitis. He testified, "I find no evidence at the present time to believe that this individual has any occupationally induced lung diseases." (Tr. 123-24, 131-32.)

In addition to the CT scan and x-rays, Dr. Demeter reviewed other tests that might be indicative of hypersensitivity pneumonitis. He reviewed the pulmonary function tests but did not find them to be diagnostic of hypersensitivity pneumonitis. (Id. at 123-25.) He testified that the results of the blood panel administered by Dr. Sadaj did not support the diagnosis. He noted that 80-90% of persons suffering from acute hypersensitivity pneumonitis test positive on the panel, although those percentages begin to drop three years after an acute episode.⁽¹²⁾ (Id. at 125.)

He also found no support for acute hypersensitivity pneumonitis in his review of claimant's hospitalizations. (Id. at 126.) He noted that in 1992 the claimant had green phlegm and in 1993 he had yellow phlegm. (Id.) He testified that phlegm is infrequently seen in acute hypersensitivity pneumonitis, and when seen it is not colored. He also noted that there was no evidence of rales (abnormal breath sounds), which are expected in acute hypersensitivity pneumonitis, and no x-ray evidence of interstitial infiltrates in the lower lobes of the lung, which are also expected. (Id.) Claimant's levels of eosinophils⁽¹³⁾ also did not support a diagnosis of hypersensitivity pneumonitis. Dr. Demeter summarized:

So he didn't have radiographic findings, he didn't have physical findings, and every time that he had a febrile illness, he had a cough and phlegm; and those certainly are not findings we would expect with hypersensitivity pneumonitis.

(Tr. at 126.) He attributed claimant's 1976, 1992 and 1993 hospitalizations to acute infections. (Id. at 157-58.)

At another point in his testimony, Dr. Demeter reiterated that claimant's history was inconsistent with the typical history of either acute or chronic hypersensitivity pneumonitis:

that I do not believe he had hypersensitivity pneumonitis for a variety of reasons, but one of those was that his history was inconsistent. I further defined that in terms of acute system you would expect to see acute symptoms shortly after the onset of exposures, which certainly is not the case here. Secondly, with respect to chronic hypersensitivity pneumonitis, while this is generally a diagnosis that lies dormant for a period of time then slowly creeps up on you, there were other features that were inconsistent with that diagnosis, including the lack of the weight loss, the loss of appetite, radiographic abnormalities, etc.

(Id. at 142, underlining indicates unintelligible portions.) He again summarized the case against the diagnosis:

He [claimant] only has one or two of the symptoms associated with either the acute or the chronic phase [of hypersensitivity pneumonitis]. But he doesn't have the bulk of the symptoms, nor the physiological changes, nor does he have the radiographic changes. But certainly from a statistical standpoint, he could be that one person out of a thousand.

(Id. at 150.)

Dr. Demeter was asked to explain the claimant's fever, chills, and shortness of breath, if not due to hypersensitivity pneumonitis. He replied:

Well, in terms of the fever, the phlegm, the shortness of breath, those are all manifestations that you find in people with either COPD or have bronchiectasis. It is not at all unusual to have recurrent infections and acute bronchitis in either one of those two groups. And I find no problems whatsoever explaining either one of those -- or those symptoms based upon either one of those disease processes. In terms of the weight loss, again, this is a manifestation of chronic hypersensitivity pneumonitis, not the acute form. I didn't find much evidence for this. Now, certainly there was a weight loss problem. Looking at his weights, though, in November of 1993 he started at 164 lbs. Later that month he was 179, and basically his weight continued to increase between 180 and 200 lbs between December of 1993 and January of 1995. If he had chronic hypersensitivity pneumonitis, I would have expected his weight to continue to drop. Number two, he was hospitalized in [sic] February 28 of 1992 with acute ? He had had a problem prior to that time, 10 months prior to that time, which would have put it, what, about April of 1991; and it was indicated at that time that he lost 34 lbs and had regained 9 lbs of it, and his weight at that time, in 1992, was 164 lbs. So I would have, it's my opinion that his weight loss was a problem caused by the diarrheal illnesses, and these were documented in his hospitalization at that time.

(Id. at 131.) He pointed out that emphysema and bronchiectasis fully explained claimant's symptoms "without having to look for alternative or exotic diagnoses." (Id. at 157.) He attributed "all the radiographic and physiological changes, as well as the signs and symptoms" suffered by claimant to "[e]mphysema and chronic bronchitis, which is COPD, and bronchiectasis." (Id. at 159.)

The Decision Below

The hearing officer's Findings of Fact; Conclusions of Law; and Order summarily resolve the conflicting medical testimony. That resolution is set forth in conclusions of law 3, 4 and 5, which are in essence findings of fact rather than conclusions of law. Those paragraphs read:

3. The panel physician report from Drs. Anderson, Sadaj, and Tigpen [sic] concluded the Claimant is not suffering from an occupational disease. The medical information offered at hearing included analysis from several additional physicians. Dr. Demeter, who has studied, practiced, and written extensively on pulmonary diseases, concluded the Claimant does not suffer from hypersensitivity pneumonosis. Dr. Demeter agreed that some of the Claimant's symptoms are indicators found in patients suffering from hypersensitivity pneumonosis. Because, however, only a few of the Claimant's symptoms would support such a finding and the normal constellation of other symptoms were not found, Dr. Demeter concluded the Claimant does not suffer from hypersensitivity pneumonosis. This conclusion is also supported, according to Dr. Demeter, by not only statistics which identify hypersensitivity pneumonosis as a very rare disease but also by radiologic and physiologic records he examined.

4. Drs. Strong, Headapohl, and Anderson concluded the Claimant is suffering from an occupational disease. This conclusion was based in large part upon the finding that the Claimant's condition includes hypersensitivity pneumonosis. These doctors also concluded the Claimant suffers from occupational asthma and emphysema. In reaching this diagnosis, the doctors' analysis is reasonable and supported by the many factors which they identified. Their conclusion, however, seems to disregard or not appropriately balance other elements identified by the panel doctors Tigpen [sic] and Sadaj, as well as the analysis and supporting factors identified by Dr. Demeter and Dr. Merchant which do not support an occupational disease finding in the Claimant's case.

5. The record in this case involves a denial of occupational disease benefits by the Occupational Disease Panel. Examination and analysis of the Claimant's condition as well as the cause of that condition by numerous doctors resulted in one group of doctors concluding the Claimant suffers from an occupational disease and another group of doctors concluding the Claimant does not suffer from an occupational disease. The law favors the panel determination. In this case the claimant has not provided sufficient medical information to overcome the presumption in favor of the panel. Additionally the analysis and conclusion reached by the group of doctors who agree with the panel is found to be the better analysis. The doctors in this group are more highly qualified in pulmonary medicine and their analysis of the medical records including both radiologic and physiologic records is found more credible.

The hearing officer further found that the claimant failed to establish that he is totally disabled.

Standard of Review

Section 39-72-612(2), MCA (1993), provides for a direct appeal to the Workers' Compensation Court from the Department's final order in an occupational disease case. The section provides:

The judge may overrule the department only on the basis that the department's determination is:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Under the clearly erroneous standard of subparagraph (e), the hearing officer's findings of fact must be overturned on judicial review where they are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." State Compensation Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 286, 289, 827 P.2d 85 (1992) (quoting section 2-4-704(2)(a)(v), MCA). The standard of review for conclusions of law is whether the Department's interpretation of the law is correct. Steer, Inc. v. Department of Revenue, 245 Mont. 470, 474-75, 803 P.2d 601 (1990).

Issues on Appeal

On appeal the petitioner raises numerous issues. I summarize and restate those issues as follows:

1. Did the medical panel procedure in this case comply with statutory provisions? If not, was such non-compliance prejudicial to the petitioner?

2. Did the medical panel procedure and the presumption of correctness afforded to the panel's report violate the petitioner's constitutional rights to substantive due process, procedural due process, and/or equal protection?

3. Were the hearing officer's findings that claimant does not suffer from an occupational disease and is not totally disabled clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record?

Discussion

1. Petitioner's Arguments Concerning Medical Panel Statute.

Claimant's first argument concerns the medical panel provisions. He argues that the 1993 version of those provisions should have been, but were not, followed by the Department. The insurer contends that the 1995 version applied.

In EBI/Orion Group v. Blythe, 54 St.Rptr. 54, 55 (January 7, 1997), the Supreme Court held that a provision in the Workers' Compensation Act for an independent medical examination is procedural in nature, thus the version of the statute in effect at the time of the trial was controlling. Blythe arguably requires the application of the 1995 version of the medical panel provisions since the hearing in this case was held after the effective date of the 1995 amendments. However, the decision must be read in the specific context of that case. The IME in Blythe was ordered by this Court shortly before trial. In this case the medical panel examinations were ordered by the Department pursuant to its statutory powers. Under this circumstance, the law in effect at the time of the Department's Order governs. Thus, the medical panel procedures set out by the 1993 version of the ODA apply.

The panel procedures specified in 1993 are in most respects identical to those specified by the 1995 act. The 1993 ODA, as does the 1995 ODA, provides for the evaluation of the claimant by an independent medical panel. § 39-72-601 and -602, MCA (1993, 1995). The examination must be conducted by one or more physicians designated from a "list of physicians" compiled by the Department. (Id.) Section 39-72-601(1), MCA (1993, 1995). A designated physician "must be certified by his specialty board or be eligible for certification in the specialty area appropriate to the claimant's condition . . . ." (Id.) The final panel report is presumptively correct. § 39-72-610, MCA (1993, 1995).

The controversy over the panel procedure arises as the result of differences in the 1993 and 1995 statutes concerning the final panel report when two examinations are requested. Both the 1993 and 1995 acts require appointment of a third panel member whenever a second examination is requested and done. § 39-72-702, MCA. However, the two acts differ with respect to the manner in which the final report is to issue. Section 39-72-702(2)(b), MCA (1993), requires submission of the first two reports to a three-member panel consisting of the two examining physicians and one other physician. The section then provides that the "three panel members" shall issue a final report. In 1995, however, the legislature amended section 39-72-702(2)(b), MCA (1995), to provided in relevant part:

The reports from the two examining physicians must be sent by the department to the presiding officer of the panel. The presiding officer shall issue a report concerning the claimant's physical condition and whether the claimant is suffering from an occupational disease.

In this case Dr. Thigpen issued the final report without consulting with Dr. Sadaj. Claimant construes the 1993 Act as requiring Dr. Thigpen to consult with both of the examining physicians, thus he argues that his failure to do so violated the 1993 provision

Claimant's argument has merit. Under the 1993 statute, section 39-72-602(2)(b), MCA (1993), required the three panel members, not merely the chair of the panel, to issue the final report. Moreover, the Department was required to base it's final Order on the "report of the three members of the medical panel." § 39-72-602(c), MCA (1993). The panel as a whole was required to make the final determination. Thus, the procedure followed by Dr. Thigpen in this case did not comport with the statute. While the report reflected the determination of a majority of the panel, it is possible that Dr. Anderson, if consulted, would have persuaded Dr. Thigpen and/or Dr. Sadaj that his opinion was the better one.

The error, however, is of no aid to the claimant. He did not raise the issue in the proceeding below and, as a general rule, courts will not consider issues raised for the first time on appeal. Bengala v. Conservative Sav. Bank, 250 Mont. 101, 108, 818 P.2d 371, 375 (1991). Moreover, section 2-4-702(1)(b), MCA, expressly precludes consideration of issues raised for the first time on judicial review, providing:

A party who proceeds before an agency under the terms of a particular statute may not be precluded from questioning the validity of that statute on judicial review, but the party may not raise any other question not raised before the agency unless it is shown to the satisfaction of the court that there was good cause for failure to raise the question before the agency. [Emphasis added.]

Claimant argues, however, that he had no realistic opportunity to raise the issue in the proceeding below because he did not have notice that the medical panel report by Dr. Thigpen would be afforded a presumption of correctness. Claimant also argues that the insurer never gave notice that it intended to rely on the panel report or the panel presumption.

Claimant's contentions are disingenuous. The presumption regarding the medical panel report is found at section 39-72-610, MCA (1993):

Report of and examinations conducted by medical panel. (1) At a hearing held before the department or the workers' compensation judge, there is a rebuttable presumption that the report of the medical panel and any medical examination reports by members of the medical panel are correct.

(2) The claimant or the insurer may present additional medical information in order to rebut the medical examination report of a panel member or a panel report. [Emphasis added.]

This statute was in effect in 1993 and unchanged by the 1995 legislature. It provided clear warning to claimant and his counsel that the panel report issued by Dr. Thigpen would be considered by the hearing officer and afforded a presumption of correctness. Indeed the hearing was triggered by the Department's adoption of the report and claimant's objection to it. The report was listed among the respondent's list of proposed exhibits and admitted into evidence as Exhibit C.

Moreover, the error was harmless. In his final decision the hearing officer indicated that irrespective of the presumption, the evidence preponderated against a finding of occupational disease. After stating that the presumption of correctness of the panel report had not been overcome, the hearing officer went on to say:

Additionally the analysis and conclusion reached by the group of doctors who agree with the panel is found to be the better analysis. The doctors in this group are more highly qualified in pulmonary medicine and their analysis of the medical records including both radiologic and physiologic records is found more credible.

(Findings of Fact; Conclusions of Law; and Final Order at 8.) Thus, he would have reached the same result regardless of the final panel report.

The error was also harmless because the presumption did nothing more than require claimant to meet his usual burden of proof. The proponent of a claim for relief ordinarily bears the burden of persuasion with respect to the facts essential to prove his or her claim. Section 26-1-402, MCA, provides:

Except as otherwise provided by law, a party has the burden of persuasion as to each fact the existence or nonexistence of which is essential to the claim for relief or defense he is asserting.

Since the claimant is seeking benefits, he initially bears the burden of persuading the fact finder that he suffers from an occupational disease. The presumption of correctness afforded by section 39-72-610, MCA, has the same effect. Rule 301 (2), Mont. R. Evid., provides that a presumption may be overcome or rebutted by "a preponderance of evidence contrary to the presumption."⁽¹⁴⁾ Thus, by satisfying his initial burden of persuasion, the claimant would have at the same time rebutted the presumption afforded the panel report.⁽¹⁵⁾

2. Petitioner's Constitutional Claims.

Claimant argues that the decision below must be reversed because the medical panel procedure followed in this case violated his constitutional rights. He argues that (1) the 1995 amendment granted the presiding officer of the panel sole discretion to make the final determination and that such authority violates his right to substantive due process because it posits irrational, unconstrained authority in a doctor who did not even examine him; (2) numerous aspects of the panel procedure, including the application of the statutory presumption favoring the panel report, violate his right to procedural due process; and (3) the presumption of correctness afforded the medical panel report violates his right to equal protection.

Substantive Due Process

Claimant's substantive due process argument is based on Dr. Thigpen, rather than the entire panel, making the final panel determination. However, on appeal the claimant has correctly urged that the panel procedure followed in this case was erroneous under the statutes which govern the procedure. Thus, any error that was committed was in failing to follow the statute and does not rise to constitutional dimensions. Claimant could have challenged the panel procedure on statutory grounds during the Department proceedings but failed to do so. He cannot now bootstrap his failure to object on non-constitutional grounds into a constitutional issue.

Moreover, as already said, any error in the panel procedure was harmless.

II.

Procedural Due Process

Claimant relies on Matthew v. Eldridge, 424 U.S. 319, 335 (1976), as supporting his procedural due process contentions. In Matthew the United States Supreme Court held that the following factors should be considered in determining whether the process is sufficient.

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requisites would entail.

Id.

Claimant urges that the admission and consideration of the medical panel report in the proceeding below presented a grave risk of "erroneous deprivation" of his interests, thereby rendering use of the panel report unconstitutional. He urges that the process afforded in this case was deficient in four respects.

First, he argues that the "absolute discretion and the automatic presumption of correctness invested in the presiding officer raises a manifest risk of erroneous, capricious denials of benefits." (Appellant's Brief at 25.) His argument is premised on his assertion that the 1995 procedure governing the issuance of the final panel report was followed. He concedes, indeed he argues, that the 1993 procedure provides a "reasonable safeguard" regarding the final report.⁽¹⁶⁾

As with his substantive due process argument, this contention is barred by his failure to object to the medical panel procedure during the Department's proceedings. Moreover, for the reasons previously iterated, any error is harmless. Furthermore, the claimant had notice of the statutory presumption, was afforded an opportunity to rebut it, and in fact mounted a vigorous evidentiary attack on the panel report.

Second, the claimant argues that a lack of any means to update the panel report also denied him due process. (Id. at 26.) He correctly notes that neither Dr. Thigpen nor Dr. Sadaj ever addressed medical evidence developed after their evaluations, especially the high-density CT scan.

Although neither Dr. Thigpen's nor Dr. Sadaj's opinions were updated in light of the later information, that failure did not deprive claimant of a fair hearing or a fair opportunity to rebut their determinations. Claimant had ample opportunity to present his own medical evidence, including evidence of the importance of the later information, and in fact did so. He obviously understood that he could call the medical panel doctors to cross-examine them concerning their opinions.⁽¹⁷⁾ In fact he did call one of the panel members, Dr. Anderson. In soliciting Dr. Anderson's favorable opinions, he provided the doctor with medical information developed subsequent to Dr. Anderson's initial report.

Claimant's argument also fails because any error in applying the panel presumption was harmless.

Third, claimant urges that he was misled because "[t]he statute does not clearly indicate whether the medical panel report must be introduced into evidence by a party for the presumption to apply." (Id.) He states that he would have objected to the report had it been offered in evidence.

The argument is without merit. According to the hearing officer's Findings of Fact; Conclusions of Law; and Final Order, and the Department file, the medical panel doctors' reports were admitted into evidence. (See Exs. B, C, and 6 at 280-82.) Moreover, on its face, section 39-72-610(1), MCA (1993), provides that at any hearing "there is a rebuttable presumption that the report of the medical panel and any medical examination reports by members of the medical panel are correct." [Emphasis added.] Subsection (2) of that section also states that the claimant may offer medical information rebutting the reports. Indeed, it is astonishing that claimant now asserts that the hearing officer's consideration of the reports came as a surprise to him.

Fourth, and finally, claimant argues that admission of the panel report denied him his right to cross-examination. He cites Hert v. J.J. Newberry Co., 178 Mont. 355, 584 P.2d 656 (1978), reh'g denied, 179 Mont. 160, 587 P.2d 11 (1979), but recognizes that the Hert decision has been superseded by the more recent decision in Miller v. Frasure, 264 Mont. 354, 871 P.2d 1302 (1994).

In Hert the Montana Supreme Court held that findings of fact made by this Court cannot be sustained where the only medical evidence supporting the findings consists of physicians' letters which have neither been exchanged in accordance with the rules of the Court nor offered into evidence. The letters in question were part of the file of the Division of Workers' Compensation, of which this Court had taken judicial notice. The Supreme Court noted that the letters were hearsay, were not matters the Workers' Compensation Court may judicially notice, and deprived claimant of an opportunity to cross-examine the authors.

In Miller the Court reached a different result because claimant had notice that the medical records in question would be offered at trial and had an opportunity to depose the authors. At the time of Miller this Court's rules allowed, as they do now, the admission of medical records without the necessity of foundation testimony. The records must, however, be exchanged and offered into evidence. The rules also afford both parties the opportunity to depose the authors of the records or subpoena them to testify at trial.

The facts of the present case are analogous to Miller. Claimant was provided a copy of the panel examinations and reports. He had notice that those reports and examinations would be afforded a presumption of correctness, and would thus be admitted at hearing. The insurer's list of proposed exhibits, provided to claimant in advance of the hearing, listed the records of the panel members as exhibits. (DLI File: Insurer's Witness and Exhibit List, October 5, 1995.) Under the Department's rules the claimant could have either deposed the authors or subpoenaed them to testify at hearing. ARM 24.29.201(12), 1.3.217(2), 24.2.101(a). His right to procedural due process was not compromised.

III.

Equal Protection

Claimant's equal protection argument focuses once more on the statutory presumption afforded the panel report. He notes that the WCA does not contain any similar presumption and urges that "it is arbitrary to burden workers under one Act with adverse presumptions and difficulties of proof which are not imposed by the other Act." (Appellant's Brief at 27.)

Initially, claimant's contentions must be rejected for the reason recited previously in this decision: any error arising from an application of the presumption was harmless. Moreover, the presumption passes muster under the Equal Protection Clauses of both the United States Constitution and the Montana Constitution, U.S. Const., amend. IV, § 1; Mont. Const. art. II, § 4. The clauses of the two constitutions protect persons against arbitrary and discriminatory state action. McKamey v. State, 268 Mont. 137, 145, 885 P.2d 515, 521 (1994). The guarantee of equal protection does not preclude the classification and different treatment of persons. However, it requires that a classification have at least some rational basis. State v. Sanders, 208 Mont. 283, 289, 676 P.2d 1312, 1315 (1984).

The right to workers' compensation benefits is not a fundamental right, thus the minimal "rational relationship test" of equal protection applies in analyzing the statutes governing workers' compensation benefits. Cottrill v. Cottrill Sodding Service, 229 Mont. 40, 43, 744 P.2d 895, 897 (1987); Stratemeyer v. Lincoln County, 259 Mont. 147, 151, 855 P.2d 506, 509 (1993). The rational relationship test similarly applies to occupational disease benefits. Eastman v. Atlantic Richfield Co., 237 Mont. 332, 338, 777 P.2d 862, 865 (1989).

The rational relationship test requires the Court to determine whether the classification at issue is rationally related to a legitimate or proper government purpose. Cottrill, 229 Mont. at 43, 744 P.2d at 897; Eastman, 237 Mont. at 338, 777 P.2d at 865. The Court need not look further than the medical panel provisions themselves to discern a rational basis for those provisions. Section 39-72-601(1), MCA, requires that physicians designated as panel members have special expertise in the diagnosis and treatment of occupational diseases. At a minimum, a physician designated by the Department must be board certified or board eligible in a specialty. In addition, the expertise of a panel member who examines a claimant must be "in the specialty area appropriate to the claimant's condition in relation to this chapter." § 39-72-601(1), MCA (1993). The obvious purpose of these provisions is to ensure that physicians most knowledgeable in occupational diseases diagnose claimants and determine whether they are suffering from occupational diseases.

Another obvious purpose of the provisions is to provide impartial evaluations of claimants. Examining physicians are designated by the Department. Thus, they answer to neither the claimant nor the insurer. The presumption afforded by section 39-72-610, MCA, may be seen as a measure of the legislature's confidence in the panel members' ability to render objective, unbiased opinions.

The fact that the legislature has not enacted similar procedures for workers' compensation claims does not render the occupational disease provisions unconstitutional. Eastman, 237 Mont. at 339, 777 P.2d at 866. There are obvious differences between occupational injuries and occupational diseases. A cause and effect relationship between work and an injury is typically and immediately evident: the relationship between a disease and work may not be so evident. Disease may be caused by pathological agents which may have been contracted either on or off the job. An occupational disease specialist may be required to trace the source of the pathogen. The disease may arise over time, raising questions concerning its origin. In some cases, such as the present one, even the diagnosis of the disease may require special expertise.

The apparent purposes of the medical panel provisions are unassailably legitimate ones. The provisions themselves are rationally related to those purposes. Thus, they do not deny claimant his right to equal protection of the laws.

3. The Hearing Officer's Findings of Fact.

Finally, the claimant attacks the hearing officer's findings of fact. He argues that in making his ultimate findings the hearing officer improperly relied on the presumption of correctness afforded the panel report. He further argues that the findings are clearly erroneous.

Application of the Presumption

Claimant argues that the hearing officer erred in affording the panel report the presumption of correctness because Drs. Thigpen and Sadaj failed to use the proper causation standard and did not consider subsequent medical evidence. He also argues that the panel report was directly rebutted by other evidence.

However, the presumption was not the sole basis for the hearing officer's decision. Other credible medical testimony was presented to counter the medical testimony supporting claimant's occupational disease allegation. In determining whether the claimant rebutted the presumption, the hearing officer properly considered all of the evidence and affirmatively indicated that he was more persuaded by the evidence indicating that claimant does not suffer from an occupational disease.

Moreover, as discussed earlier, the presumption did nothing more than require claimant to persuade the hearing officer, by a preponderance of the evidence, that he suffers from an occupational disease. That basic burden of proof existed without the presumption. Thus, on appeal the claimant must show that the hearing officer's determination that claimant failed to satisfy his burden was clearly erroneous.

II.

The Clearly Erroneous Argument

Claimant argues that to prevail in his occupational disease claim he must prove only that he suffers from an occupational disease that aggravates, or is aggravated by, a non-occupational condition. The Court agrees. The criteria for proving causation in occupational disease cases are specifically spelled out in section 39-72-408, MCA, which provides :

Proximate causation. Occupational diseases shall be deemed to arise out of the employment only if:

(1) there is a direct causal connection between the conditions under which the work is performed and the occupational disease;

(2) the disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;

(3) the disease can be fairly traced to the employment as the proximate cause;

(4) the disease does not come from a hazard to which workmen would have been equally exposed outside of the employment;

(5) the disease is incidental to the character of the business and not independent of the relation of employer and employee.

The section must be read together with section 39-72-706, MCA, which provides for apportionment between occupational and non-occupational causes.⁽¹⁸⁾ Thus, occupational aggravations of preexisting non-occupational diseases are compensable, as are occupational diseases which are aggravated by non-occupational factors.

The claimant urges that he met his burden of proof and that the hearing officer's conclusion to the contrary was clearly erroneous, § 39-72-612(2)(e), MCA. Under the clearly erroneous standard of review, this Court must apply the three-part test set forth in the case of In re Marriage of Griffin, 275 Mont. 37, 44, 909 P.2d 707, 711 (1996), wherein the Supreme Court said:

We have adopted a three-part test to determine whether findings are clearly erroneous. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The test provides that: (1) the Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court will determine if the district court has misapprehended the evidence; and (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find that a finding is "clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed." DeSaye, 820 P.2d at 1287 (citing United States v. United States Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746).

Applying the three-part test, I find that the hearing officer's findings were not clearly erroneous. The medical evidence in this case was conflicting. The diagnoses made by the various physicians were conflicting. The opinions concerning the causation of claimant's basic symptom -- shortness of breath due to hypoxia -- were conflicting. Certainly, there was sufficient evidence to support a finding in claimant's favor. But two highly competent physicians with special expertise, training, and knowledge -- Drs. Merchant and Demeter -- testified in rebuttal of that evidence and opined that non-occupational factors were responsible for his disease. Their opinions were supported by reports from other non-testifying doctors who had examined claimant or evaluated radiologic imaging and biopsies.

Hypersensitivity pneumonitis was the potential lung disease most probably related to claimant's occupational exposure. In rendering her opinion that claimant suffers from that disease, Dr. Headapohl relied on Dr. Kessler's interpretation of a high-density CT scan of claimant's lungs. Dr. Kessler, a radiologist, saw evidence of interstitial markings suggesting interstitial scarring or fibrosis which he characterized as consistent with mild interstitial lung disease and "suspicious for hypersensitivity pneumonitis." (Tr. at 90-91, 97-98.) Dr. Merchant, however, disagreed with Dr. Kessler's interpretation of the CT scan. After personally reviewing the actual scan, Dr. Merchant testified that there was no significant interstitial changes which would be consistent with hypersensitivity pneumonitis. (Merchant Dep. at 34.) Dr. Merchant further testified that he had special expertise in reading high-resolution CT scans of the lung, "probably have had more experience looking at high-resolution CAT scans than any radiologist in the state, especially with respect to interstitial lung disease." (Id. at 57.) He noted that he had been part of a research program involving high-resolution CT scans. Dr. Merchant's claim of greater expertise in reading and interpreting high-resolution CT scans was unrebutted. If the hearing officer believed his testimony, which he apparently did,⁽¹⁹⁾ part of the foundation for Dr. Headapohl's, as well as Dr. Anderson's and Dr. Kessler's, opinions concerning hypersensitivity were discredited. Both Drs. Merchant and Demeter provided strong testimony undermining claimant's assertion that he suffers from occupationally related hypersensitivity pneumonitis and supporting a finding that claimant's lung disease is due to non-occupational factors, especially smoking.

Claimant further argues that the hearing officer erred in assessing five factual matters underlying the occupational disease determination. (Appellant's Brief at 16-21.) In assessing his contentions, this Court may not re-weigh the evidence presented at hearing, Kelly v. State Compensation Ins. Fund/Belt Public Schools, 254 Mont. 200, 203, 835 P.2d 774, 776 (1992), or look for evidence which might support a finding contrary to that of the hearing officer, Nelson v. Semitool, Inc., 252 Mont. 286, 289, 829 P.2d 1, 3 (1992). Rather, the function of this Court is to determine whether there is substantial evidence in the record to support the hearing officer's findings. Id. After considering claimant's arguments, I find that his arguments are more appropriately addressed to the fact finder. I am not persuaded that the hearing officer misapprehended the evidence or left with a firm conviction that a mistake was committed. Marriage of Griffin, 275 Mont. 37, 44, 909 P.2d at 711.

Claimant initially argues that the hearing officer erred in finding that the doctors who supported the panel report are more highly qualified than the physicians supporting claimant's contentions. (Appellant's Brief at 16.) He contends that Drs. Anderson and Strong have personal experience in grain-related pulmonary disorders and that Dr. Demeter does not. However, Dr. Demeter testified that he had treated patients with hypersensitivity pneumonitis. (Tr. at 124, 131.) Although he may not have discussed his specific experience in treating grain-related pulmonary disorders, Dr. Demeter is board certified in both pulmonary and occupational medicine, is the chief of occupational medicine at a medical center, has authored and co-authored a multitude of medical articles, has edited a textbook entitled Environmental Respiratory Disease, and reviewed medical literature concerning hypersensitivity pneumonitis. Dr. Merchant, who agreed that claimant does not have an occupational disease, has experience in treating interstitial lung disease and special expertise in reading high-resolution CT scans which can disclose the disease. Dr. Merchant is also board certified in pulmonary medicine; Drs. Strong, Anderson and Headapohl are not. While all of the doctors supporting claimant are well qualified and have impressive academic backgrounds and experience, it would be difficult not to say that Dr. Demeter's and Merchant's overall background and experience, and their familiarity with hypersensitivity pneumonitis, surpass that of the other physicians.

Claimant argues that the hearing officer was required to accept Dr. Kessler's reading of the high-resolution CT scan, and specifically his findings of interstitial scarring and fibrosis "suspicious for hypersensitivity pneumonitis." (Appellant's Brief at 17.) However, his argument disregards Dr. Merchant's testimony that he saw "no significant interstitial changes" which would be consistent with hypersensitivity pneumonitis, as well as Dr. Merchant's unrebutted testimony that he has more experience and expertise in interpreting high-resolution CT scans of the lungs than any radiologist practicing in Montana. (Merchant Dep. at 56-57.) Dr. Merchant's opinion was supported by Dr. Demeter, who found no evidence of interstitial changes on the CT scans or on any of the x-rays. (Tr. at 119.)

Claimant argues that the findings fail to account for claimant's weight loss during his 1992 illness. He contends his weight loss was symptomatic of hypersensitivity pneumonitis. However, Dr. Demeter was cross-examined on this point. (Tr. at 143.) He pointed out that many of claimant's symptoms in 1992 and 1993 were consistent with many other possible conditions. He testified that overall the claimant's medical history was inconsistent with the typical history of either acute or chronic hypersensitivity pneumonitis. (Id. at 142, 150.)

Claimant argues that the "course" of his illness proves he suffers from hypersensitivity pneumonitis. (appellant's brief at 19.) Again, there was conflicting evidence. Dr. Demeter certainly did not agree with his contention.

Finally, claimant argues that the hearing officer erred in failing to find that he suffers from occupational asthma. (Id at 19-20.) Dr. Demeter, however, testified that claimant does not suffer from occupational asthma. (Tr. at 123-24, 131-32.) Dr. Merchant also did not diagnose occupational asthma.

Neither Dr. Merchant nor Dr. Demeter found any link between claimant's respiratory conditions and occupational factors. Dr. Merchant stated that while claimant was working "he could have had some problems," but said "currently I don't think there is any ongoing problems that I can identify that would have resulted from his occupational exposure." (Merchant Dep. at 37.) Similarly, Dr. Demeter testified, "I find no evidence at the present time to believe that this individual [claimant] has any occupationally induced lung diseases." (Tr. 132.)

After considering claimant's arguments, I find that the hearing officer's finding that claimant does not suffer from an occupational disease is not clearly erroneous and that it is supported by substantial evidence.

Claimant also challenges the hearing officer's finding that he is not totally disabled. (appellant's brief at 20.) Because the hearing officer's finding that the claimant does not suffer from an occupational disease is affirmed, I need not address the contention.

ORDER AND JUDGMENT

1. This Court has jurisdiction over this matter pursuant to section 39-71-2905, MCA.

2. The Department's March 1, 1996, Findings of Fact; Conclusions of Law; and Final Order are affirmed.

3. Petitioner is not entitled to attorney fees and costs.

4. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.

5. Any party to this dispute may have 20 days in which to request an amendment or reconsideration of this Order and Judgment.

DATED in Helena, Montana, this 26th day of February, 1997.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Lawrence A. Anderson
Ms. Sara R. Sexe
Ms. Christine L. Noland
Submitted Date: August 29, 1996

1. A number of documents relating to the claim and the medical panel procedure are not marked as hearing exhibits but are part of the Department's file in this matter. Documents in the file will be cited as "DLI File."

2. Hypoxia refers to a deficient level of oxygen in the blood. See Dorland's Illustrated Medical Dictionary 810 (27th ed. 1988).

3. The hearing below was recorded on audio tape and the transcriptionist was unable to discern the name of the syndrome. (Tr. at 75.) There are numerous other places in the transcript where the transcriptionist was unable to discern the words used by witnesses and counsel.

4. Dorland's Illustrated Medical Dictionary 810 (27th ed. 1988).

5. "Pulmonary medicine" involves the study and treatment of diseases of the chest, primarily the lungs. (Tr. at 43.)

6. A bronchodilator is a drug that dilates or expands the bronchi and bronchioles. See Dorland's Illustrated Medical Dictionary 237 (27th ed. 1988).

7. As noted earlier at page 8, Dr. Anderson testified that one possible cause of bronchiectasis is aspergillosis due to aspergillus fungus found in grain. (Tr. at 58, 60-61.) However, the doctor was unable to say on a more probable than not basis that claimant's bronchiectasis was caused by the fungus. (Id.)

8. His curriculum vitae indicates that in 1977 he became eligible for board certification in internal medicine.

9. "Dyspnea" is "difficult or labored breathing." Dorland's Illustrated Medical Dictionary 520 (27th ed. 1988).

10. Apparently Dr. Demeter identified the depositions but his list is recorded as "inaudible" in the transcript.

11. These were Material Safety Data Sheets. These sheets were also supplied to Dr. Headapohl, who testified that they are customarily used in evaluating occupational exposures. (Tr. at 11, 28-29.)

12. Thus, had claimant suffered acute episodes of hypersensitivity pneumonitis in 1992 and 1993, as suggested by Dr. Headapohl, there was an 80 to 90% probability that the blood panel administered by Dr. Sadaj would have been positive.

13. Eosinophils are a type of white blood cells within the polymorphonuclear leukocytes group. (Tr. at 129-30.) Elevated levels may indicate an allergic response to an antigen. (Id. at 129.)

14. Rule 301 provides in relevant part:

RULE 301. PRESUMPTIONS IN GENERAL

(a) Presumption defined. A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action or proceeding.

(b) Classification and Effect of Presumptions.

(1) Conclusive presumptions are presumptions that are specifically declared conclusive by statute. Conclusive presumptions may not be controverted.

(2) All presumptions, other than conclusive presumptions, are disputable presumptions and may be controverted. A disputable presumption may be overcome by a preponderance of evidence contrary to the presumption. Unless the presumption is overcome, the trier of fact must find the assumed fact in accordance with the presumption.

15. On the other hand, a claimant may benefit from the presumption since a panel report favorable to the claimant shifts the burden of persuasion to the insurer to disprove an occupational disease.

16. In his brief he says:

This risk [of erroneous deprivation], moreover, obviously can be reduced by employing fairly modest procedural safeguards. The former procedure (involving exchange of reports and deliberation among all three of the members of the panel) was a reasonable safeguard. Under that procedure, arbitrary conduct was far less likely than under the present formless procedure.

(Appellant's Brief at 26.)

17. Rule 13 of the Attorney General's Model Rules, which have been adopted by the Department, ARM 24.29.201(2), permits discovery in accordance with Rules 26, 28 through 37 (except 37(b)(1) and 37(b)(2)(d)) of the Montana Rules of Evidence. 1.3.217(2), ARM. Rule 30, Mont. R. Civ. P. permits depositions. Furthermore, claimant could have subpoenaed the doctors to testify at hearing pursuant to ARM 24.2.101(a).

18. The section provides in relevant part:

39-72-706. Aggravation. (1) If an occupational disease is aggravated by any other disease or infirmity not itself compensable or if disability or death from any other cause not itself compensable is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable under this chapter must be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease as a causative factor bears to all the causes of such disability or death.

19. While the hearing officer made no specific finding concerning the conflict in testimony concerning the CT scan, and indeed made no findings concerning other specific conflicts in testimony, he did find that the physicians who concluded that claimant does not suffer from an occupational disease were, as a group, more qualified and more persuasive than the physicians who supported claimant's occupational disease allegation. Conclusion of Law 5. (Conclusion of law 5 sets forth a factual determination and would have more appropriately been set out as a finding of fact.) Dr. Merchant was among the group the hearing officer characterized as more qualified and persuasive.