§ 39-72-403, MCA

MONTANA SUPREME COURT DECISIONS
Fleming v. Int'l Paper Co. [09/23/08] 2008 MT 327, 346 Mont. 141, 194 P.3d 77 The WCC erred when it failed to apply the statute of limitation in effect on the claimant’s last day of employment. For almost 75 years, the Montana Supreme Court has held that statutes in effect on the date of the accident or injury control in injury cases. The Supreme Court has applied the same rationale to cases involving occupational disease claims. No exception has been made for statutes of limitation or other procedural statutes and the Supreme Court declines to make an exception now.

[1983] Hardgrove v. Transportation Ins. Co. [12/01/04] 2004 MT 340 (No. 03-678) A legislature can make clear it intends a statute of repose if the statutory period for bringing the claim can lapse before the cause of action accrues.
[1985] Grenz v. Fire and Casualty of Connecticut, 278 Mont. 268, 924 P.2d 264 (1996). Occupational disease claim filed in 1992 for benefits relating to degenerative arthritis was barred under the two-year statute where substantial evidence supported hearing examiner’s determination that claimant knew or should have known as early as 1988, if not earlier, that his condition met the criteria for an OD.
 
WORKERS' COMPENSATION COURT DECISIONS

Peterson v. Liberty NW Ins. Corp. [12/31/13] 2013 MTWCC 26 Where there have been numerous litigated claims for asbestos exposure at the Libby lumber mill, one of which was filed by a co-worker who trained and worked with Petitioner, for Petitioner to maintain that he did not know of asbestos clean-up at the mill, that he did not know of fellow co-workers who had filed claims, and that he did not know he could file a claim until informed by his attorney almost five years after being diagnosed with asbestos-related disease (ARD), is incongruous with Petitioner’s admitted knowledge of asbestos in and around the areas where he worked at the mill.  The Court concluded that Petitioner knew or should have known that his ARD was related to an OD within one year of it being diagnosed.  His claim is time-barred pursuant to § 39-72-403(1), MCA.
Cardwell v. UEF [06/15/07] 2007 MWCC 22 Where Petitioner filed his claim for benefits as a specific injury using the Department of Labor’s form entitled “First Report of Injury and Occupational Disease,” and Respondent argues that Petitioner’s occupational disease claim is untimely, the Court need look no further than the caption of the form to determine whether Petitioner has presented written claim for benefits pursuant to § 39-72-403(1), MCA. Nowhere on the form does it require Petitioner to elect whether his condition resulted from an injury or an occupational disease.
Cardwell v. UEF [04/28/06] 2006 MTWCC 20 Where Petitioner filed a Petition alleging an injury and later filed an Amended Petition alleging, in the alternative, an occupational disease, the Amended Petition was filed timely within the one year statute of limitation where all of the documentary evidence indicates that Petitioner neither knew nor should have known that he may be suffering from an occupational disease until Petitioner’s chiropractor stated in a deposition that Petitioner’s medical condition may be a “repetitive use injury, which happens over a period of time.”

[1983] Dickerman v. Transportation Ins. Co. [04/12/05] 2005 MTWCC 19 Under section 39-72-403(3), MCA (1983), an occupational disease claim for asbestosis is barred unless a claim is filed within three years after the worker retired and ceased working for the employer. The section is a statute of repose and cannot be tolled for any reason. Hardgrove v. Transportation Ins. Co., 2004 MT 340, 324 Mont. 238.

[1983] Stewart v. Atlantic Richfield Co. [04/12/05] 2005 MTWCC 17 Under section 39-72-403(3), MCA, of the 1983 version of the Occupational Disease Act, an occupational disease claim not filed within three years of retirement is extinguished and barred. The limitations period cannot be tolled since the section is a statute of repose.
[1999] State Fund v. Carl Murray [4/6/04] 2004 MTWCC 33 Under the 1999 version of the Montana Occupational Disease Act, the period for filing a written claim for compensation does not commence running until the claimant is aware that his medical condition is attributable to his work. § 39-72-403, MCA (1999-2003). Affirmed Montana State Fund v. Murray, 2005 MT 97
[1983] Baker v. Transportation Ins. Co. [1/15/04] 2004 MTWCC 5 Section 39-72-403(3), MCA (1983), which is a statute of repose with respect to occupational disease claims, does not violate the Full Redress Clause of the Montana Constitution, Art. II, section 16.
[1983] Baker v. Transportation Ins. Co. [1/15/04] 2004 MTWCC 5 Under the 1983 Occupational Disease Act, a claim which is not filed within three years of cessation of employment with the employer where the occupational exposure took place is barred even though the disease caused by the exposure does not manifest itself and is not discovered until after the limitations period has run. § 39-72-403(3), MCA (1983).
[1983] Baker v. Transportation Ins. Co. [1/15/04] 2004 MTWCC 5 Subsection (3) of 39-72-403, MCA (1983), which provides that a claim for an occupational disease must be brought within three years after the employee ceases employment with the employer where the occupational exposure took place, is not tolled by the fact that the disease did not manifest itself and the claimant did not discover it until after the limitations period had run. The limitation is a statute of repose not subject to tolling. Moreover, the subsection expressly overrides the latent disease doctrine which is part of the previous two subsections.

[1983] Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 A statute of repose barring occupational disease claims filed more than three years after the claimant terminates the employment where the exposure occurred does not violate the Equal Protection Clause of the Montana Constitution since the bar applies to all occupational disease claims and claimants. [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678).]
[1983] Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 The repealer of a statute of repose in the Occupational Disease Act which is expressly made applicable to exposures occurring after the enactment of the repealer by its plain terms does not apply to exposures occurring before the enactment. Thus, the 1985 repeal of subsection 39-72-403(3), MCA, is inapplicable to an occupational disease claim where the occupational exposure ceased prior to the repeal. [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678).]
[1983] Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 Section 39-72-403(3), MCA (1983), which is a statute of repose with respect to occupational disease claims, does not violate the Full Redress Clause of the Montana Constitution, Art. II, section 16. [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678), though the Supreme Court reserved the question of whether a claimant barred from recovery by § 39-72-403, MCA (1983) may sue in tort.]
[1983] Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 Subsection (3) of 39-72-403, MCA (1983), which provides that a claim for an occupational disease must be brought within three years after the employee ceases employment with the employer where the occupational exposure took place, is not tolled by the fact that the disease did not manifest itself and claimant did not discover it until after the limitations period had run. The limitations is a statute of repose not subject to tolling. Moreover, the subsection expressly overrides the latent disease doctrine which is part of the previous two subsections. [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678).]
[1983] Hardgrove v. Transportation Ins. Co. [8/13/03] 2003 MTWCC 57 Under the 1983 Occupational Disease Act a claim which is not filed within three years of cessation of employment with the employer where the occupational exposure took place is barred even though the disease caused by the exposure does not manifest itself and is not discovered until after the limitations period has run. § 39-72-403(3), MCA (1983). [Affirmed in Hardgrove v. Transportation Ins. Co., 2004 MT 340 (No. 03-678).]
[1995] Corcoran v. Montana Schools Group Ins. Authority [5/23/00] 2000 MTWCC 30 Under section 39-72-403, MCA (1995), which requires a written claim within one year from the date "the claimant knew or should have known that the claimant's condition resulted from an occupational disease," awareness of pain, and awareness that the pain is a result of work, does not constitute knowledge that one suffers from an "occupational disease," as defined in section 39-72-102(10), MCA (1995-1999). The key words in the section are "harm" and "damage," meaning something more significant than suffering pain after a hard days' work. The limitations period commences when the worker has some specific knowledge of a specific pathological condition stemming from employment and requiring diagnosis or treatment.
[1985] Manweiler, et al. v. The Travelers Insurance Company [6/6/96] 1996 MTWCC 41) Under the 1985 laws, a claim for death benefits is separate from an occupational disease claimant’s own claim for benefits. In particular, section 39-72-403(1), MCA (1985), makes clear that claims for death benefits may, and must, be presented after a decedent’s death, providing a separate and distinct claim by death benefit beneficiaries. If any amount of monies already paid as the result of the occupational disease are attributable to periods of time after decedent’s death, the insurer would be entitled to a credit for such monies pursuant to section 39-72-711, MCA (1985).
[1985] Grenz v. Fire and Casualty of Connecticut [8/24/95] 1995 MTWCC 63, aff’d Grenz v. Fire and Casualty of Connecticut, 278 Mont. 268, 924 P.2d 264 (1996) Substantial evidence supported DOL hearing examiner’s conclusion that 1992 occupational disease claim relating to degenerative arthritis was barred under the two-year statute where claimant testified that in 1985 and 1986 a doctor felt the type of work he was performing aggravated his condition and had diagnosed arthritis.