Ford v. Sentry Casualty Company, 2012 MT 156 Although the Legislature incorporated a “more probable than not” standard into § 39-71-407, MCA, the courts cannot control how doctors phrase their opinions and testimony on those issues.  The probative force of a doctor’s opinion is not to be defeated by semantics if it is reasonably apparent that the doctor intends to signify a probability supported by some rational basis.

Ford v. Sentry Casualty Company, 2012 MT 156 The Montana Supreme Court held that it must read §§ 39-71-407 and -119, MCA, together, “not only because the former expressly references the latter, but also because when interpreting statutes we view them as part of a whole statutory scheme and construe them so as to forward the purpose of that scheme.”

Montana State Fund v. Grande [03/20/12] 2012 MT 67 There was no evidence presented that by enacting § 39-71-407(13), MCA, the 2005 Legislature intended to revoke statutorily-created OD benefits.  The new statutory language contemplates that the employer is liable for an OD if the employee had the disease before working for the employer and the employee’s work is the major contributing cause not of the onset of the disease but of “the result,” which here is the disease’s progression to the point where the claimant could no longer work.

Montana State Fund v. Grande [03/20/12] 2012 MT 67 An employer cannot ignore the impact of work-related factors on pre-existing conditions.  Only by finding that the statute requires consideration of pre-existing conditions on the development of an OD can courts give meaning to the statutory requirement to determine the “major contributing cause” of the claimant’s condition, including permanent aggravations of pre-existing conditions resulting in an OD.  Only the “leading cause contributing to the result” must be related to the employment when considering “all other contributing causes,” including pre-existing conditions. 

Hopkins v. Uninsured Employers' Fund, 2011 MT 49 Although the claimant used marijuana on the day of his industrial accident, where the parties presented no evidence regarding the claimant’s level of impairment, the Montana Supreme Court held that this Court correctly concluded that the marijuana use was not the major contributing cause of the injuries the claimant suffered when he was mauled by a grizzly bear.

[1993] Paterson v. Montana Contractor Compensation Fund, 1999 MT 158 Substantial evidence supported WCC's determination that construction worker seeking TTD had reached maximum medical healing prior to non-work related aggravation of back condition, relieving the insurer of liability for compensation or medical benefits caused by the nonwork-related aggravation pursuant to section 39-71-407(5), MCA (1993). WCC relied on physician's testimony that MMI was reached if certain facts were established and Court's own finding that those facts existed, to wit: that claimant resumed work after the first injury and engaged in heavy labor for extended periods of time without exhibiting apparent back problems or complaining, that claimant was not fearful of losing employment through complaining, and that affordable medical care was available to claimant.

[1991] Carrillo v. Liberty Northwest Insurance, 278 Mont. 1, 922 P.2d 1189 (1996). The 1987 amendments to the statute codify exceptions to the general workers’ compensation rule that actions occurring when employees are going to or coming from work are not within the course and scope of employment. The statute does not control analysis of whether an employee on break remains within the course and scope of employment where she briefly leaves the employer’s premises as allowed by employer’s policies. 39-71-407(3), MCA (1991).

Barnhart v. Liberty Northwest Ins. Corp. [09/13/16] 2016 MTWCC 12 Where the claimant had an extensive history of neck injuries, this Court concluded that the insurer was liable for medical benefits after an accident – in which the claimant turned his head quickly to the side while kneeling and tugging on a latch – permanently aggravated his pre-existing condition.

McNamara v. MHA Workers' Compensation Reciprocal [05/25/16] 2016 MTWCC 5 Reliance on cases decided under the pre-2005 standard for determining the compensability of an occupational disease is misplaced, since they did not require a claimant to satisfy the “leading cause” test.

McNamara v. MHA Workers' Compensation Reciprocal [05/25/16] 2016 MTWCC 5 Claimant’s treating physician testified that her work may have accelerated her degenerative knee condition “a little bit,” but she would have required a knee replacement regardless, and an old injury was the leading cause of her need for surgery when compared to all other contributing causes, including her occupation.

Holtz v. Indemnity Ins. Co. of North America [04/06/16] 2016 MTWCC 4 Section 39-71-407(2)(a), MCA (2013), applies to all breaks, regardless of duration.  This Court ruled that a flight attendant’s full-day layover constituted a “break” within the meaning of the statute because it was an interval within her scheduled work time in which she was not required or expected to perform job duties, and could attend to personal matters.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 The Court held that the legislative history did not support the insurer’s argument that the Legislature intended to abolish the travel allowance exception to the going and coming rule for remote jobsites.  Rather, the statutory amendments provided a mechanism by which employers could exclude employees from the course and scope of employment while traveling so long as the employer pays the travel allowance pursuant to a written document which designates the payment as an incentive to work at a particular jobsite.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 Where the employer did not designate its per diem payment as an incentive nor identify a particular jobsite in any written document, the Court held that the claimant’s motor vehicle accident, which occurred while he was traveling to the jobsite prior to the start of the workweek, was not excluded from coverage under the plain language of § 39-71-407(3)(b), MCA.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 An employer need not pay a travel allowance under the terms of a written contract for the travel allowance exception to apply, where the claimant received per diem payments under the terms of an unwritten employment agreement.

Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 A worker who received a per diem payment for each full day worked but was not paid a wage for travel time, and whose employer hired workers from throughout Montana for employment on jobsites in various locations in three states, was within the course and scope of his employment when he suffered a fatal motor vehicle accident while traveling from his home in Bozeman to a jobsite in Ekalaka at the beginning of his workweek.

Carlock v. Liberty NW Ins. Corp. [10/21/15] 2015 MTWCC 19 In a last injurious exposure case, the claimant’s answer to an interrogatory that he had a “significant asbestos exposure” while employed with the City of Libby, the last employer where he was injuriously exposed to asbestos, is, by itself, insufficient to prove that the City’s insurer is liable for his alleged OD.

Olson v. Montana State Fund [02/03/15] 2015 MTWCC 2 Under the plain language of § 39-71-407(4)(b), MCA (2011), a payment for travel falls under the travel reimbursement exception to the going and coming rule unless the written document designates the payment as an “incentive” and sets forth the particular jobsite.  In this case, the contract did not meet those requirements.  Therefore, the worker was in the course and scope of his employment when he was in an automobile accident on the way to work prior to the start of his shift.

Olson v. Montana State Fund [02/03/15] 2015 MTWCC 2 A worker who received a payment of $61.50 per day subsistence “in lieu of any travel allowance” pursuant to the terms of a collective bargaining agreement received reimbursement for travel expenses within the meaning of § 39-71-407(4)(a), MCA (2011).  Although the “subsistence pay” was based neither on the actual miles traveled to and from work, nor the amount spent on travel expenses, this is unimportant.

Kramlich v. The Montana Municipal Interlocal Authority [12/17/14] 2014 MTWCC 21 Where no medical providers opined that COPD was the major contributing cause of Petitioner’s other medical problems, but several opined that obstructive sleep apnea led to Petitioner’s condition, the Court concluded that Petitioner had not proven that his employment caused him to develop COPD, which in turn caused his other medical problems.

Myles v. Sparta Insurance Company [05/30/14] 2014 MTWCC 19 The opinions of two treating physicians that Petitioner’s hip condition resulted from a work-related injury were more persuasive than the opinion of the IME physician who never asked Petitioner about the onset of symptoms but relied instead on a review of Petitioner’s medical records.  Although these records consistently referred to a popping sound and sudden onset of hip pain from stepping up into a semi-truck, the IME physician never referenced this history in his report and concluded Petitioner’s hip condition was not a result of a work-related injury.

Boland v. Montana State Fund [03/21/14] 2014 MTWCC 8 After reviewing Petitioner’s treating physician’s medical records, the Court found that the physician did not have full knowledge of the facts regarding Petitioner’s subsequent employment, a non-work-related fall, and chiropractic treatment.  The Court further found that an IME physician believed that Petitioner’s subsequent employment lasted for six weeks when it actually lasted for several months, and that the IME physician made no objective medical findings.  The Court therefore concluded that Petitioner did not meet his burden of proving that this particular employment was the major contributing cause of his back condition, and therefore he did not prove that he suffers from an occupational disease under the statute.

Boland v. Montana State Fund [03/21/14] 2014 MTWCC 8 Although the statute requires that an occupational disease be established by objective medical findings, the Court was unable to determine which objective medical findings Petitioner’s treating physician and an IME physician relied upon in reaching their respective opinions.  This, in part, led to the Court concluding that Petitioner had not met his burden of proving that he suffered from an occupational disease arising out of certain employment.

Monroe v. MACO Workers Comp Trust [03/17/14] 2014 MTWCC 7 Petitioner’s husband was injuriously exposed to the hazard of his OD, asbestos-related disease, while working for two different employers: W.R. Grace and then Lincoln County.  Petitioner’s husband was first diagnosed with his OD years before he was last injuriously exposed, however, there was no prior OD claim for which liability had either been accepted or otherwise determined.  Therefore, in accordance with In re Claim of Mitchell, the potentially causal standard applies in this case.  Pursuant to § 39-71-407(10), MCA, since Petitioner’s husband was last injuriously exposed to asbestos while employed with the Lincoln County Road Dept., that employer is liable for his OD.

Starkey v. ACE American Ins. Co. [03/17/14] 2014 MTWCC 6 Petitioner established that she suffered an injury by the objective medical findings of a fractured metatarsal. Respondent is liable for the injury that arose out of and in the course of her employment.  Petitioner’s treating physician opined on a more-probable-than-not basis that Petitioner putting weight on the outside of her foot on a slanted table leg caused an inversion-type injury, resulting in a fractured metatarsal. 

Hartford Ins. Co. of the Midwest v. Montana State Fund, In re McKirdy [02/11/13] 2013 MTWCC 4 The Court concluded that Respondent was equitably estopped from raising an affirmative defense under § 39-71-603(2), MCA, after Petitioner relied upon Respondent’s representation that the only issue of liability was to determine which insurer was liable, and Petitioner therefore paid the claimant under § 39-71-407(5), MCA.

Hardie v. Montana State Fund [11/20/12] 2012 MTWCC 44 An injured worker who slipped on ice and fell onto her buttocks in a parking lot at work, who limped for days afterwards and complained of low back pain until the pain dissipated, and who reported the incident to her employer, failed to relate a sudden onset of low back five months later to the slip and fall.  However, with no intervening event that could account for her torn annulus and bulging disk in her lumbar spine, and with her treating physician opining that the fall more probably than not caused her back condition, Petitioner sustained her burden of proving that her condition was traceable to her industrial accident.

Gary v. Montana State Fund [10/26/12] 2012 MTWCC 38 A conclusory statement from a treating physician that a cause and effect relationship exists between an industrial accident and a condition occurring five years later, without explaining the mechanism of causation, is insufficient to establish a causal connection between the condition and the injury under § 39-71-407(2)(a), MCA.

Tuttle v. First Liberty Insurance Corp. [10/23/12] 2012 MTWCC 37 The Court concluded Petitioner had met her burden of proof regarding her entitlement to benefits.  The Court found that Petitioner offered ample factual and historical information to correlate the objective medical findings of two herniated disks to Petitioner’s work-related injury.

Tuttle v. First Liberty Insurance Corp. [10/23/12] 2012 MTWCC 37 While it is true that a temporal relationship between an injury and herniated disks appearing two years later is insufficient to sustain Petitioner’s burden, Petitioner sustained her burden under § 39-71-407(7), MCA, by showing a direct causal link between her injury and her immediate complaints of low- and mid-back pain with positive sciatic tests noted by her post-injury providers, and the same clinical findings seen two years later by her treating physician who correlated those findings to herniated disks discovered on an MRI of her thoracic and lumbar spine.

Clapham v. Twin City [10/16/12] 2012 MTWCC 34 Where Petitioner’s treating physician opined that his work was the fourth in importance of five factors which contributed to his degenerative disk disease, the Court concluded that Petitioner’s work was not the “leading cause” as set forth in § 39-71-407(13), MCA.

Jacobsen Ranch Co. v. Dix, et al. [10/05/12] 2012 MTWCC 33 Petitioner is neither a self-insured employer nor an insurer but an uninsured employer; therefore, the remedy it seeks of reimbursement or indemnification is not available to it under § 39-71-407(5), MCA, as that remedy applies only between insurers.

Cornelius v. Lumbermen's Underwriting Alliance [08/07/12] 2012 MTWCC 29 While Respondent believes it should escape its duty to pay benefits under § 39-71-407(5), MCA, by suggesting it is possible that an argument might be made that Petitioner’s condition is not work-related and therefore neither insurer would be liable, Respondent cannot escape such a duty if it did not mount an effective defense as to why it did not pay Petitioner’s benefits and then seek indemnification from the other insurer.

Koch v. Employers' Ins. Group [04/30/12] 2012 MTWCC 14 Under § 39-71-407(2)(a)(i), MCA, an insurer is liable for an injury if the injury is established by objective medical findings and if the injured worker establishes that it is more probable than not that the claimed injury occurred.  The weight of the evidence preponderates towards Petitioner’s contention that the objective medical finding of a disk herniation was caused by her IA where a diagnostic radiologist opined that the herniated disk should have appeared on a CT scan that predated the Petitioner’s IA if it was present then, and a spinal surgeon testified that the mechanism of Petitioner’s IA was more probably than not the cause of her herniated disk.

Cornelius v. Lumbermen's Underwriting Alliance [04/27/12] 2012 MTWCC 13 Petitioner previously suffered an industrial injury, and later filed an occupational disease claim for an alleged permanent aggravation of her condition under a new employer.  Since Petitioner’s claim was either compensable under her previous industrial injury claim or her new occupational disease claim, the subsequent insurer had a duty to pay her benefits under § 39-71-407(5), MCA, and its failure to do so was unreasonable.

Grande v. Montana State Fund [06/17/11] 2011 MTWCC 15 In order to qualify as a compensable OD, the leading cause contributing to the result, when compared to all other contributing causes, must be related to the claimant’s employment pursuant to § 39-71-407(13), MCA.  Here, Petitioner’s treating physician is board-certified in rheumatology and testified that Petitioner’s pre-existing osteoarthritis was permanently aggravated by his work driving a truck, and on a more probable than not basis, his job duties were the leading cause of the worsening of Petitioner’s osteoarthritis.

[1993] Leger v. Liberty Mutual Fire Ins. Co. [11/05/04] 2004 MTWCC 74 § 39-71-407(5). Where a claimant suffers a subsequent nonwork-related injury to the same body part and the injury materially and permanently aggravates the preexisting condition involving that body part, the insurer liable for a prior injury to that same part is relieved from further liability for disability and treatment involving the body part.

[1993] Leger v. Liberty Mutual Fire Ins. Co. [11/05/04] 2004 MTWCC 74 § 39-71-407(5). Where a nonwork-related incident satisfies the injury and accident definitions of section 39-71-119, MCA (1993), the incident constitutes a subsequent nonwork-related injury for purposes of section 39-71-407(5), MCA (1993)

[1995] Bain v. Liberty Mutual Fire Ins. [5/27/04] 2004 MTWCC 45 Section 39-71-407, MCA (1995-2003), provides for compensation for injuries “arising out of and in the course and scope of employment.” In Pinyerd v. State Compensation Ins. Fund, 271 Mont. 115, 119-120, 894 P.2d 932, 935 (1995), the Supreme Court parsed the requirement, holding as follows:

 “The language ‘in the course of employment,’ generally refers to the time, place and circumstances of an injury in relation to employment. . . . The phrase ‘arising out of’ is related to the concept of causation.”

[1993] Paterson v. Montana Contractor Compensation Fund [6/22/98] 1998 MTWCC 55 Where claimant reached MMI on a minor back injury prior to suffering a permanent aggravation of his back condition in a nonwork-related incident, section 39-71-407(5), MCA (1993) relieved the insurer of liability for compensation and medical benefits following the nonwork aggravation. [Note: WCC decision affirmed in Paterson v. Montana Contractor Compensation Fund, 1999 MT 158.]

Moore v. State Compensation Ins. Fund [04/17/95] 1995 MTWCC 29 Where insurer is unable to point to any specific injury occurring when claimant’s house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).