39-71-303, MCA


[1993] Travelers Indemnity Company of Illinois v. Nationwide Mutual Fire Insurance Company (Abfalder), 2003 MT 180 This statute codifies the "last injurious exposure doctrine." Under that rule, when an employee has been disabled due to an occupational disease, and suffers a second injury or disability, the first insurer is liable for the claim only if the disability or injury is a recurrence of the initial disability or injury. Section 39-72-303(2), MCA, added by the Legislature in 1993, concerns the situation of more than one insurer but only one employer. In that case, under subsection (2), liability rests with the insurer providing coverage at the earlier of the time the occupational disease was first diagnosed or the time the employee knew or should have known that the condition was the result of an occupational disease.

[1989] State Fund v. Town Pump, Inc. and Richard Olesky [5/21/96] 1996 MTWCC 37 Substantial evidence supports Department's determination that State Fund is liable for occupational disease benefits where the medical record (with one exception) consistently points toward development of claimant's right shoulder condition while he worked at Pizza Hut, with the subsequent work at Town Pump not representing a material or substantial aggravation of his condition. The one physician attributing the problem to work at Town Pump based his determination on a detailed statement of claimant about that work, the focus of which was not consistent with the bulk of the information in the medical record. While section 39-71-303, MCA, places liability for an occupational disease on "the employer in whose employment the employee was last injuriously exposed to the hazard of the disease," the proper inquiry is whether the risks of the second employment in fact caused further injury of a non-trivial nature, not whether that employment could have impacted his condition.