39-72-303, MCA

MONTANA SUPREME COURT DECISIONS
Kratovil v. Liberty Northwest Ins. Corp. [12/29/08] 2008 MT 443 The insurer for the claimant’s employer at the time of the claimant’s last injurious exposure is liable for the claimant’s occupational disease.
Lanes v. Montana State Fund, 2008 MT 306, 346 Mont. 10, 192 P.3d 1145 The aggravation provision is a reflection of the long-standing rule that employers take their workers as they find them and that a traumatic event or unusual strain which lights up, accelerates, or aggravates an underlying condition is compensable. However, case law has established that an aggravation must be “significant” before it will be considered the last injurious exposure. Where Petitioner and his treating physician both testified that his job duties as a minister only temporarily aggravated his pre-existing knee condition, this does not constitute the last injurious exposure.
Lanes v. Montana State Fund, 2008 MT 306, 346 Mont. 10, 192 P.3d 1145 A temporary aggravation of a pre-existing degenerative condition does not result in an injurious exposure pursuant to § 39-72-303, MCA.
[1999] Montana State Fund v. Murray, 2005 MT 97 (No. 04-576) Where two insurers have been on risk during a claimant’s occupational exposure with a single employer, section 39-72-303(2), MCA (1999) requires liability to be placed on the second insurer if claimant was not diagnosed with an occupational disease, nor “knew or should have known that the condition was the result of an occupational disease,” under the first insurer’s watch. The statutory rule so operates even if the duration of exposure was longer under the first insurers’ coverage.

[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.

 
WORKERS' COMPENSATION COURT DECISIONS

Wommack v. National Farmers Union Property & Casualty Co., et al. [04/28/15] 2015 MTWCC 7 Where a claimant continued to be exposed to asbestos under the type and kind of conditions that could have caused his asbestos-related disease after a particular insurer ceased covering the employer, the insurer was entitled to summary judgment since it was not the insurer at risk during Petitioner’s last injurious exposure.

Wommack v. National Farmers Union Property & Casualty Co., et al. [04/14/15] 2015 MTWCC 5 Section 39-72-303(2), MCA, does not apply here and CHS cannot be liable for Petitioner’s disease. Although it was the insurer when Petitioner was diagnosed with asbestosis, CHS’ coverage and Petitioner’s diagnosis occurred after Petitioner quit working.  Interpreting subsection (2) of the statute to make an insurer liable for an OD that was contracted years before it became the insurer at risk would be an absurdity. 

Baeth v. Liberty NW Ins. Corp. [05/05/14] 2014 MTWCC 10 Under the last injurious exposure rule, there is no question that Petitioner’s  exposure to asbestos during the approximately five months she worked under the last owner of the plywood mill was of the same type and kind of exposure under the previous mill owner since there was no discernible difference in her working conditions during the ownership transition.  Because her treating physician testified that six months working in the mill constituted a very significant exposure to asbestos, the Court concluded that Petitioner’s time working for the last mill owner was significant enough to have contributed to her OD.
Johnson v. Liberty Northwest Ins. Corp. [07/01/09] 2009 MTWCC 20 Where Stimson owned the mill on Petitioner’s last day of work and the evidence overwhelmingly demonstrates that Petitioner was exposed to asbestos from multiple sources during his eight-year employment with Stimson, and Petitioner’s treating physician testified that a person’s lungs are immediately injured by the inhalation of asbestos fibers and that additional exposure is damaging to the lungs and worsens the disease, the Court concludes that Petitioner’s exposure to asbestos at Stimson constitutes his last injurious exposure to the hazard of the disease.
Kratovil v. Liberty Northwest Ins. Corp. [07/17/07] 2007 MTWCC 30 Where Petitioner testified that he began experiencing problems with his hands and wrists more than 30 years ago, but began to experience more serious pain in his wrists and numbness in his fingers 12 to 15 years ago; Petitioner and his supervisor testified that on a demanding job for Respondent’s insured, Petitioner repeatedly complained about pain in his hands and wrists; Petitioner testified that during his final few jobs the numbness in his fingers progressed to a point where it did not alleviate with rest; and Petitioner’s treating physician testified that his hand and wrist difficulties developed gradually over time, Respondent is liable for Petitioner’s occupational disease under the last injurious exposure rule.

[2001-2003] In Re Telles; Travelers Property & Casualty Co. of America v. Royal Ins. Co. of America [04/22/05] 2005 MTWCC 21 Section 39-72-303, MCA (2001-2003), which governs liability between two insurers for the same employer, is inapplicable to an insurer which did not insure the employer while the claimant was employed. It has application only where the employer was insured by two or more different insurers while the claimant was employed.

[1999] State Fund v. Carl Murray [4/6/04] 2004 MTWCC 33 Under the last injurious exposure rule, the insurer at risk during the claimant's last injurious exposure at work prior to the first diagnosis of an occupational disease or the date the claimant knew or should have known he was suffering from an occupational disease is liable for the disease. The length of time the insurer was at risk is irrelevant to determining its liability. Affirmed Montana State Fund v. Murray, 2005 MT 97

[1999] MacNeeley v. Everest National [6/12/02] 2002 MTWCC 35 Under the last injurious exposure rule, where an occupational disease is diagnosed the insurer for the employer for whom claimant last worked and was last exposed to repetitive trauma contributing to his occupational disease is liable for the disease.
[1993] Abfalder v. Nationwide Mutual Fire Ins. [5/30/02] 2002 MTWCC 29 Where an occupational disease is based upon repetitive trauma, the occupational disease is continuing. A "new" occupational disease based on a continuation of the same sort of repetitive trauma does not begin merely because claimant may have been pronounced at maximum medical improvement. [Note: The Supreme Court affirmed this decision in Travelers Indemnity Company of Illinois v. Nationwide Mutual Fire Insurance Company (Abfalder), 2003 MT 180.]