Daniels v. Kalispell Regional Hosp.

• Decision Date: 18 February 1988
• Docket Number: No. 87-368,87-368
• Citation: 750 P.2d 455,45 St.Rep. 310,230 Mont. 407
• Parties: Michelle M. DANIELS, Claimant and Appellant, v. KALISPELL REGIONAL HOSPITAL, Employer, and EBI/Orion Group, Defendant and Respondent.
• Court: Montana Supreme Court

Page 455

750 P.2d 455

230 Mont. 407

Michelle M. DANIELS, Claimant and Appellant, v. KALISPELL REGIONAL HOSPITAL, Employer and EBI/Orion Group, Defendant and Respondent.

No. 87-368.

Supreme Court of Montana.

Submitted Jan. 12, 1988.

Decided Feb. 18, 1988.

Terry N. Trieweiler argued, Whitefish, for claimant and appellant.

Paul C. Meismer argued, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.

HARRISON, Justice.

Michelle Daniels, age 32, suffers from anaphylactic reactions that first occurred while she was wearing latex surgical gloves and working as a nurse's aide at the Kalispell Regional Hospital, a Plan II employer. The Workers' Compensation Court determined that Ms. Daniels was permanently and totally disabled and entitled to $128.35 in compensation per week after adjustment for Social Security offsets. It denied conversions to lump sum totalling nearly $140,000 to allow her money to purchase a house and also to start a backhoe excavation business. Ms. Daniels appeals the denial of the lump sum request. The insurer likewise appeals claiming Ms. Daniels suffers from an occupational disease not an injury.

On April 2, 1985, Ms. Daniels wore surgical gloves for the first time as a nurse's aide. The gloves are coated with a fine talc powder to ease in wearing and removing them. Ms. Daniels' hands immediately began to burn and itch so she removed the gloves. She then rubbed her eyes, which also became inflamed. Dr. Marise Johnson saw the claimant, believed her to be suffering an allergy attack, and controlled the problem with administration of Benadryl. On May 21, 1985, Ms. Daniels completed her workshift and then saw Dr. Johnson about cramps and nausea. Dr. Johnson conducted a pelvic-rectal examination, including a barium enema. As the enema began, Ms. Daniels became anxious and her pulse increased while her blood pressure dropped. Dr. Johnson diagnosed this as anaphylactic shock, which is a potentially life-threatening physiological condition caused when the patient comes into contact with an element to which she is sensitive, causing the patient's blood vessels to dilate and leaving the heart with less blood to pump to the lungs, kidneys, brain and other vital organs.

Dr. Johnson and specialists in Missoula and at the University of Washington Medical School have concluded the talc powder on surgical gloves triggered Ms. Daniels' initial reactions. Ms. Daniels has since left the hospital job, but her exposure to the talc on the observation gloves harmed her immune system resulting in an increased tendency to have anaphylactic reactions. She attended training for certain clerical jobs, the stress of which caused reactions forcing her to give up the retraining.

She and her family live thirty miles from Kalispell and the nearest medical help. The area is not served by ambulance. She contends that because neither she nor her husband has a job they cannot afford a telephone. Husband claims he is unable to leave the house to look for work since Ms. Daniels then would have no access to medical care.

Ms. Daniels sought to convert $39,000 of her award to a lump sum to finance the start-up of an excavation business in which she would do office work out of the home and her husband would operate the backhoe. She also sought $100,000 in lump sum for purchase of a house nearer to Kalispell--but not in town--that would be large enough for the couple's home and the business office and would have a shop with sufficient space for storing a backhoe and equipment.

The Workers' Compensation Court considered the two aspects of the lump sum request separately. It ruled that the $39,000 business request was not justified:

Claimant's business proposal fails in two respects. First, claimant's involvement in the business is so marginal that this is more of a passive investment than a business venture. Second, ... the court is unconvinced that the business has a chance of success reasonable enough to justify risking a substantial portion of claimant's entitlement.

It noted that the $100,000 housing request could not be severed from the business request:

The proposed utilization of a lump sum to purchase living quarters to suit the very unique needs of this claimant and her family would be appropriate under different evidence. At bar, the housing acquisition was dependent on the business to replace the lost compensation money when the advance was credited. Since we are convinced that the business had little likelihood of success, the financing of the home would reduce claimant's family income to the point where they could not afford to pay for groceries, utilities and other basic needs. Thus, the use of funds to buy a home would not be in claimant's best interests since the family would not be able to keep it.

While this court is very sympathetic toward claimant and appreciates the dilemma she has, the court cannot increase her entitlement beyond that allowed by law. Under the facts presented here, the court has no options, but if suitable housing could be located and found at a price which would allow a lump sum advance, but still retain sufficient monthly income to sustain claimant's family, the court would encourage the parties to come to an agreement. Or--if need be--to return to court.

Basically, four issues are presented for review:

(1) Did Ms. Daniels suffer an injury or an occupational disease?

(2) Is Ms. Daniels' condition stable enough to be designated permanent and total, thus allowing a determination of disability and an award of benefits?

(3) Does substantial credible evidence support the Workers' Compensation Court's denial of a $39,000 lump sum for the business?

(4) Does substantial credible evidence support that court's denial of a $100,000 lump sum for more adequate housing?

We affirm the court's judgment as it was issued.

ANAPHYLACTIC CONDITION AS INJURY

Section 39-71-119, MCA (1983), defined an injury as "a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm ..." An injury is distinguished from disease by time definiteness and unexpectedness. Wise v. Perkins (1983), 202 Mont. 157, 166, 656 P.2d 816, 820. When a worker is exposed to a harmful substance at one instant or during one distinct period, the result may be an injury. In Wise, the claimant was a bartender who was suddenly rescheduled to operate a tavern by herself during the New Year's holidays. This entailed working double shifts to clean the bar during the day, open the bar in the early evening and lastly to close the bar. Subsequently, she contracted phlebitis. Two doctors testified that the amount of standing required by this situation contributed to her phlebitis, which provided a time definite and qualified the condition as an injury. The presence of an underlying disease does not preclude recovery under the Workers' Compensation Act. Wise, 656 P.2d at 820.

The insurer claims that no time definite can be found here because Dr. Johnson testified that Ms. Daniels suffers from an underlying disease that lay dormant until she first wore the surgical gloves. We rejected that argument in Bremer v. Buerkle (Mont.1986), 727 P.2d 529, 43 St.Rep. 1942. There we concluded that an auto body repairman who had worked with certain chemicals for nine years had suffered both an occupational disease and an injury when one exposure to the chemicals produced allergic contact dermatitis. Because it was both an occupational disease and an injury, this Court said he could choose his remedy. Bremer, 727 P.2d at 533, citing Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 665 P.2d 783.

It appears in Bremer that the claimant's condition could not have been expected since he had worked with the chemicals for nine years with no difficulties until February 17, 1983. This is in contrast with Greger v. United Prestress, Inc. (1979), 180 Mont. 348, 590 P.2d 1121. In Greger, a cement company changed the chemical additives it used. The claimant noticed an allergic reaction on his hands but continued to work until being laid off. When he was called back to work the allergic contact dermatitis began again at which point he saw a doctor. The doctor diagnosed claimant's allergic reaction to the chemical additives. We held that the claimant qualified only for occupational disease benefits since he had suffered from the condition previously and the condition was not totally unexpected. Greger, 590 P.2d at 1124.

Like the claimant in Bremer, Ms. Daniels meets the requirements of Wise. It is undisputed that her first reaction occurred on April 2, 1985. Furthermore, her reaction was unexpected since she had been around the hospital for several months as a trainee, had learned how to wear and to remove the gloves during her training, and had not suffered any ill effects. She also has a history of at least two surgeries by gloved surgeons that produced no reactions. We find that there is substantial evidence for the decision of the Workers' Compensation Court and refuse to reverse it. Ms. Daniels' anaphylactic condition is marked by a time definite and was unexpected, thus qualifying as an injury under the Workers' Compensation Act.

MEDICAL STABILITY AND BENEFITS

The Workers' Compensation Court found that Ms. Daniels has been unable to undergo further training because of her anaphylactic condition and that Dr. Johnson testified the condition could not be cured. The insurer argues this is an inadequate basis for...