39-72-408 MCA

MONTANA SUPREME COURT DECISIONS
Kratovil v. Liberty Northwest Ins. Corp. [12/29/08] 2008 MT 443 Insurer’s argument that a claimant must establish that his work was responsible for at least 51% of his condition is explicitly rejected. The correct standard, as applied by the Workers’ Compensation Court, is whether a claimant’s employment significantly aggravated or contributed to his occupational disease.
[1993] Polk v. Planet Insurance Co., 287 Mont. 79, 951 P.2d 1015 (1997) In light of the occupational disease proximate cause requirement, set out at section 39-71-408, MCA, and the aggravation statute, section 39-71-706, MCA, occupational aggravations of preexisting non-occupational diseases are compensable, as are occupational diseases which are aggravated by non-occupational factors. The test for compensability under the OD Act is whether occupational factors significantly aggravated a preexisting condition, not whether occupational factors played the major or most significant role in causing a particular disease. As long as an occupational exposure substantially aggravated a pulmonary condition, claimant is entitled to pro rata compensation for his disease. The DOL hearing examiner, and the WC Court, erred in basing their decision on medical opinions by physicians who operated under the mistaken assumption that occupational irritants had to be the major factor causing a pulmonary condition for claimant to receive compensation.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Baeth v. Liberty NW Ins. Corp. [05/05/14] 2014 MTWCC 10 Where both treating physicians testified that they had treated a number of patients who were exposed to significant levels of asbestos and developed ARD after working in the same plywood plant as Petitioner, the Court concluded that Petitioner’s ARD met the definition of an OD and that claimant’s employment was the direct and proximate cause of her OD under Kratovil v. Liberty Northwest Ins. Corp. after both physicians testified that her employment was a significant factor in her development of ARD.

Johnson v. Liberty Northwest Ins. Corp. [07/01/09] 2009 MTWCC 20 Where the Court found that Petitioner’s employment exposure to asbestos clearly exceeded his non-employment exposure, and the Court found the treating physician’s opinion that Petitioner’s exposure to asbestos during his years at Stimson was sufficient to cause his asbestos-related disease, the Court concluded that Petitioner suffers from an occupational disease as a result of his employment under the proximate causation test as set forth in Kratovil and pursuant to § 39-72-408, MCA.

Johnson v. Liberty Northwest Ins. Corp. [07/01/09] 2009 MTWCC 20 Where Petitioner’s non-work-related exposure to asbestos was essentially limited to being a Libby resident, and Petitioner was exposed to copious amounts of asbestos during his employment at the lumbermill in Libby – including the eight years that Stimson owned the mill – the Court found that his work-related exposure to asbestos exceeded his non-work-related exposure and therefore Petitioner’s condition was an occupational disease arising out of his employment under § 39-72-408, MCA.
Lanes v. Montana State Fund [09/10/07] 2007 MTWCC 39 In Romero v. Liberty Mut. Fire Ins. Co., 2001 MTWCC 5, ¶ 61 (aff’d 2001 MT 303N), this Court determined that even a significant aggravation or contribution would not satisfy § 39-72-408, MCA, because a physician’s testimony established that the claimant’s left arm condition would inevitably deteriorate regardless of her employment because any activity she engaged in required her to use the arm. The same circumstances are present in the instant case, where Petitioner’s treating physician opined that Petitioner overloads his right knee to compensate for the left and the activities which Petitioner performed as a minister are the activities of daily living. Like Romero, Petitioner had to overuse his other limb to compensate for the injured limb, and therefore the overloading would have caused the development of problems in that limb, regardless of whether he engaged in subsequent employment.
Kratovil v. Liberty Northwest Ins. Corp. [07/17/07] 2007 MTWCC 30 The legal standard for determining proximate causation under § 39-72-408, MCA, is whether a claimant’s employment significantly aggravated or contributed to his alleged occupational disease. Even if a nonwork-related motorcycle accident contributed to Petitioner’s hand and wrist conditions, the Court concludes that Petitioner’s employment significantly aggravated or contributed to his occupational disease and did so both before and after the motorcycle accident.
Vallance v. MCCF [07/05/06] 2006 MTWCC 26 Occupational diseases are considered to arise out of employment if there is a direct causal connection between the conditions under which the work is performed and the occupational disease, the disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, the disease can be fairly traced to the employment as the proximate cause, and the disease comes from a hazard to which workers would not have been equally exposed outside of the employment. In Petitioner’s case, he is simply unable to prove that his back condition was caused by an occupational disease rather than by a specific trauma or industrial accident.

[1997] Liberty Mutual v. Griner [11/09/01] 2001 MTWCC 58 Where medical testimony establishes that heavy labor caused harm the proximate cause requirement of the Occupational Disease Act is satisfied. § 39-72-408 (1997).
[1997] Liberty Mutual v. Griner [11/09/01] 2001 MTWCC 58 In cases where claimant suffered a prior work-related injury or occupational disease involving the condition, a subsequent insurer is liable for an aggravation of the prior condition if and only if the subsequent work exposure was different from or in excess of ordinary, everyday activities typically occurring outside the job. § 39-72-408(4), MCA.

[1997] LaFournaise v. State Fund [8/14/01] 2001 MTWCC 42 In evaluating medical opinions concerning causation under the Occupational Disease Act, § 39-72-408, MCA (1997), the Department of Labor must consider the substance of the opinions rather than the use of precise, statutory language, and determine whether the substance of the opinions satisfy the statutory criteria even though not couched in the precise terms of the statute.