No. 96-710

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

CLINTON LOSS,

Petitioner and Appellant,

v.

LUMBERMENS MUTUAL CASUALTY COMPANY,

Respondent,

NABISCO BRANDS, INC.,

Employer.

APPEAL FROM:
Workers' Compensation Court, State of Montana,
The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Norman H. Grosfield
Utick & Grosfield,
Helena, Montana

For Respondent:

Thomas A. Marra
Marra, Wenz, Johnson & Hopkins
Great Falls, Montana

Submitted on Briefs: February 27, 1997

Decided: March 24, 1997
Filed:

__________________________________________
Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

Clinton Loss appeals from the Workers' Compensation Court's
grant of summary judgment to insurer Lumbermens Mutual Casualty
Company on the question of whether rehabilitation benefits are
available under the Occupational Disease Act (ODA). We affirm the
decision of the Workers' Compensation Court.

Clinton Loss suffers from carpal tunnel syndrome. In November
of 1991 he became disabled as a result of his carpal tunnel
condition and filed an occupational disease claim. The claim was
accepted and Lumbermens paid both wage loss and medical benefits.
In 1994, Loss also sought an award of $10,000 pursuant to  39-72-
405(2), MCA (1991), and the Workers' Compensation Court awarded the
$10,000 in a lump sum. Loss also sought reinstatement of total
disability benefits which the court denied. Neither party appealed
the court's ruling. Subsequently, Loss requested total
rehabilitation benefits pursuant to  39-71-2001, MCA (1991).
Lumbermens denied the request and Loss submitted a petition to the
Workers' Compensation Court seeking total rehabilitation benefits.
The court granted Lumbermens' motion for summary judgment.
The standard of review for an appeal from the Workers'
Compensation Court's grant or denial of a motion for summary
judgment is the same as that used by a district court.
We determine whether there is an absence of genuine
issues of material fact and whether the moving party is
entitled to judgment as a matter of law. Our review of
the court's conclusions of law is plenary; we simply
determine whether its legal conclusions are correct.

Clarke v. Massey (1995), 271 Mont. 412, 415, 897 P.2d 1085, 1087.
It is undisputed that Loss suffers from an occupational
disease. Since that is the only fact relevant to the legal
question posed, the matter was ripe for summary judgment.
Loss contends that the statutory provision allowing for
rehabilitation benefits to injured workers,  39-71-2001, MCA
(1991), was enacted as a "stand alone" section which, although
coincidentally codified in Title 39, Chapter 71 (Workers'
Compensation Act), applies as well to occupational disease claims
under Title 39, Chapter 72.

The statutory provision for rehabilitation benefits,  39-71-
2001, MCA (1991), was enacted by the 1991 legislature, which
directed that it be "codified as an integral part of Title 39,
chapter 71, part 20, and the provisions of Title 39, chapter 71,
apply to [the new section]." 1991 Mont. Laws, ch. 574,  12. The
Workers' Compensation Court concluded that it was clear that the
legislature intended the new section to be an "integral part of the
Workers' Compensation Act (WCA) and applicable to workers'
compensation claims." We agree.

Loss contends that the provision for rehabilitation benefits
should be read into the ODA since the legislature did not expressly
preclude rehabilitation benefits in occupational disease cases. It
is not our prerogative, however, to infer such breadth of intent
from legislation which does not reference the ODA nor is codified
within the ODA.

The role of the Court in interpreting statutory language
is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been
omitted or to omit what has been inserted.

EBI/Orion Group v. Blythe (Mont. 1997), 931 P.2d 38, 41, 54 St.Rep.
54, 56; see also Murer v. State Comp. Mut. Ins. Fund (1994), 267
Mont. 516, 520, 885 P.2d 428, 430.
Loss relies on our decision in Ingbretson v. Louisiana Pacific
Corp. (1995), 272 Mont. 294, 900 P.2d 912, for the proposition that
the provisions of the WCA apply to occupational disease claims.
Loss' reading of Ingbretson is too broad. As Loss points out, we
held that the penalty and attorney fee provisions of the WCA
applied to Ingbretson's occupational disease claim. However, it is
imperative to put that holding in its proper context.

The Occupational Disease Act provides that "practice
and procedure prescribed in the Workers' Compensation Act
applies to all proceedings under this chapter." Section
39-72-402(1), MCA. The penalty statute,  39-71-2907,
MCA, was not a part of the original Workers' Compensation
Act, and therefore its application is not limited to
cases under the Workers' Compensation Act. In this
instance, we agree with the Workers' Compensation Court
that the "practice and procedure" of penalty imposition
applies through  39-72-402(1), MCA.
We affirm the decision of the Workers' Compensation
Court in its entirety. [Emphasis added.] Ingbretson, 900 P.2d at 917.

Clearly in Ingbretson, we relied on the fact that the ODA
incorporates by reference the "practice and procedure" provisions
of the WCA. Section 39-72-402(1), MCA. We held that the penalty
provisions of the WCA are part of the "practice and procedure" of
the WCA and, therefore, are incorporated into the ODA. The same
reasoning does not apply to the case at hand. Here, we are dealing
not with "practice and procedure" but rather with rehabilitation
benefits. The two acts have separate provisions as to benefits.
For instance, unlike the WCA, the ODA contains no permanent partial
disability benefits provision. The WCA does not provide, as does
the ODA,  39-72-405, MCA, for an award of up to $10,000 for a non-
disabling occupational disease.

It is apparent from a review of the ODA that the legislature
did not intend that rehabilitation benefits be incorporated into
that Act. First of all, the legislature has been very explicit in
spelling out those instances in which it intends that the ODA
incorporates provisions from the WCA. By way of example, each of
the following sections of the ODA specifically reference the WCA:

The definitions set forth in  39-72-102(5) through (11), (14) and
(15), MCA;  39-72-305(2), MCA, pertaining to uninsured employers
and benefits due uninsured claimants;  39-72-310(2), MCA,
pertaining to the three compensation plans under the WCA;  39-72-
402, MCA, pertaining to incorporation of the "practice and
procedure" of the WCA;  39-72-405(2), MCA, pertaining to mediation
procedures;  39-72-704, MCA, pertaining to medical and hospital
expenses; and  39-72-705, MCA, pertaining to burial expenses.

Furthermore, the ODA specifically defines the benefits which are
payable under the ODA: Section 39-72-509, MCA, (benefits for
pneumoconiosis);  39-72-405, MCA, (limitations on payment of
compensation);  39-72-701, MCA, (compensation for total disability
or death due to occupational disease other than pneumoconiosis); 
39-72-704, MCA, (medical and hospital expenses);  39-72-705, MCA,
(burial expenses);  39-72-706, MCA, (aggravation);  39-72-707
(Silicosis);  39-72-709, MCA, (diminution of compensation); and
 39-72-711, MCA, (lump-sum and compromise settlements).

Rehabilitation benefits are not among the benefits enumerated in
this rather extensive list of ODA benefits.
It is clear from a reading of the two acts in question that
the legislature did not intend that rehabilitation benefits
provided for in the WCA be incorporated into the ODA. Accordingly,
we hold that rehabilitation benefits under  39-71-2001, MCA
(1991), are not available to claimants proceeding under the
Occupational Disease Act.

AFFIRMED.

/S/ W. WILLIAM LEAPHART

We concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
Justice William E. Hunt, Sr., specially concurs.

The majority has properly applied the law, and on that basis
I agree with the majority opinion. I write separately, however, to
express my concern with the law that occupational disease is
segregated from our scheme of workers' compensation which has been
applicable in Montana since the Anaconda Company was at its zenith.

The law in Montana that distinguishes occupational disease
from compensable injuries under the Workers' Compensation Act is a
hangover from the days when the Anaconda Company strongly
influenced legislation. Simply, the distinction was made so that
the Anaconda Company would not have to compensate miners suffering
from silicosis and other lung diseases according to the workers'
compensation scheme.

It is silly to segregate occupational disease from the
workers' compensation system to the point where a person suffering
from an occupational disease is not entitled to rehabilitation
benefits. The basis for such segregation has disappeared, and so
should the segregation. Montana should join the many other states
that include occupational disease within the definition of an
injury covered by workers' compensation.

/S/ WILLIAM E. HUNT, SR.