Eastman v. Atlantic Richfield Co.

• Decision Date: 31 August 1989
• Docket Number: No. 88-452,88-452
• Citation: 237 Mont. 332,777 P.2d 862
• Parties: Paul B. EASTMAN, Claimant and Appellant, v. ATLANTIC RICHFIELD COMPANY, Employer, Defendant and Respondent.
• Court: Montana Supreme Court

Page 862

777 P.2d 862

237 Mont. 332

Paul B. EASTMAN, Claimant and Appellant, v. ATLANTIC RICHFIELD COMPANY, Employer, Defendant and Respondent.

No. 88-452.

Supreme Court of Montana.

Submitted on Briefs March 9, 1989.

Decided May 10, 1989.

Rehearing Denied Aug. 31, 1989.

[237 Mont. 334] Paul B. Eastman, Kalispell, pro se.

Andrew J. Utick, Utick & Grosfield, Helena, for defendant and respondent.

WEBER, Justice.

The claimant, Paul Eastman, appeals from a final decision of the Workers' Compensation Court denying him benefits under the Workers' Compensation Act and affirming a compensation award of $10,000 under the Occupational Disease Act. We affirm.

Mr. Eastman appears pro se and requests this Court to review the decision of the Workers' Compensation Court in two respects. First, we are asked to determine the constitutionality of the Occupational Disease Act, and then to review the sufficiency of the evidence to support the lower court's determination. We phrase the issues as follows:

1. Does the treatment of employees suffering work-related diseases under the Occupational Disease Act violate equal protection or deny a claimant's right to full legal redress?

2. Did the Workers' Compensation Court err in determining that Mr. Eastman is entitled to benefits under the Occupational Disease Act rather than the Workers' Compensation Act?

3. Is claimant entitled to reasonable costs and attorney fees and a 20% penalty?

Paul Eastman began working for Atlantic Richfield Company (ARCO) at its Columbia Falls Aluminum plant in June 1977. He was employed as a welder, and continued in that position until he was laid off on April 26, 1985, following the closure of the Columbia Falls plant. Two weeks prior to the lay off, Mr. Eastman was exposed to an unusually large and concentrated dose of fumes while welding at the plant. He was working with a heavy metal pot in which aluminum ore is refined, when the welding debris dripped onto plastic and tar below the area and ignited those materials. The smoke and fumes from the burning materials were much more intense and concentrated than normal.

Following the incident, Mr. Eastman left work and drove himself to the emergency room at Kalispell Regional Hospital for treatment. He was hospitalized for three days, during which time he was given large doses of steroids. Following hospitalization, Mr. Eastman returned to work until he was laid off two weeks later.

Mr. Eastman had a history of asthma prior to the incident of April 8, 1985. He first began to experience shortness of breath in 1973 during periods of heavy exercise. He continued to experience shortness of breath during exertion while employed with ARCO between 1978 and 1980, during which time he also experienced recurring bouts of bronchitis. By 1983, Mr. Eastman's condition had developed into full-blown, severe asthma, which was medically diagnosed as Chronic Obstructive Pulmonary Disease. He was first treated with antibiotics and steroid medication in April, 1983, under the care of Dr. Rosetto. The steroid treatments have continued on and off since that time. Dr. Rosetto described Mr. Eastman as "steroid dependent," meaning that the claimant is unable to go off the medication without his asthma flaring to the point where he either couldn't do anything or would end up in the hospital. Dr. Rosetto testified that the claimant's steroid dependency had existed prior to the incident which occurred in April, 1985. The medication he must take to control his asthma has severe physical and emotional side effects, which the claimant testified affects his ability to find and perform work.

Since his layoff in April, 1985, Mr. Eastman has conducted an extensive job search through the Montana Department of Social and Rehabilitative Services. Despite applying for 20 to 30 jobs, Mr. Eastman has failed to find steady employment. He worked as a retail clerk in 1986, but had to quit after one day because the job required him to lift and carry 10 pound boxes which exacerbated his breathing problems and precipitated an asthma attack. A vocational counselor for the Career Exploration and Development Center testified that Mr. Eastman has the work habits, grooming, and aptitudes of competitive employment and has many transferable skills. With the exception of one day of employment, the claimant did not work at all between April 1985 and June 1987.

Mr. Eastman filed a claim for compensation with the Division of Workers' Compensation on May 21, 1985. The Division designated the claim as one for benefits under the Occupational Disease Act, although the claimant later filed a petition alleging that he was entitled to benefits under the Workers' Compensation Act because of his April 8, 1985 "injury." The determination of "injury" was consolidated with the claimant's appeal from the Division's final decision regarding compensation under the Occupational Disease Act. In that order, the Division determined that Mr. Eastman suffered from a nondisabling occupational disease and was awarded the maximum statutory allowance of $10,000 pursuant to Sec. 39-72-405(2), MCA.

The Workers' Compensation Court affirmed the decision of the Division that the claimant's occupational disease was nondisabling. The court also addressed the "injury" issue, noting that the claimant did not elect to pursue either form of compensation, but instead presented both theories of recovery for determination. The court held that the unexpected occurrence of abnormally dense fumes at work on April 8, 1985, caused an aggravation of the claimant's preexisting asthma condition, and therefore qualified as an "injury." However, the court then concluded that,

... the medical evidence from claimant's treating physician Dr. Rosetto clearly indicates that the claimant's medication during his three days of hospitalization returned him to his pre-exacerbation state. The claimant was then released from the hospital to return to his full-time work which he continued until he was laid off some two weeks later. Although the claimant's incident is technically an "injury," his asthma condition returned to its pre-injury state with no loss of wages or impairment being established.

Having satisfied the statutory criteria for an injury, the Court's function has not ended. The overwhelming medical evidence is that claimant's April 8, 1985 exposure was disabling only for a few days and upon receiving medication he was essentially restored to his pre-April 8, 1985 condition. That condition, as well as his health after the three-day hospital stay, was a product of an occupational disease exposure as found by the Division.

Although the court determined that Mr. Eastman suffered an injury on April 8, 1985, it concluded that the injury was noncompensable under the Workers' Compensation Act. The court also concluded that the claimant was not entitled to a 20% increase in award pursuant to Sec. 39-71-2907, MCA, nor was he entitled to reasonable costs and attorney fees under Sec. 39-71-612, MCA. It is from this judgment that Mr. Eastman appeals.

I

Does the Occupational Disease Act violate equal protection or deny a claimant's right to full legal redress?

The employer argues that this Court should not address the claimant's constitutional arguments because he failed to present them before the lower court. It is a general rule that new issues may not be raised for the first time on appeal. Bauer v. Kar Products, Inc. (Mont.1988), 749 P.2d 1385, 1388, 45 St.Rep. 322, 326. However, this Court "reserves to itself the power to examine constitutional issues that involve broad public concerns," and even if raised for the first time on appeal, this Court can hear the issue if the alleged error affects the substantial right of a litigant. Cottrill v. Cottrill Sodding Service (Mont.1987), 744 P.2d 895, 896, 44 St.Rep. 1762, 1763. Claimant has not briefed his constitutional contentions in detail. Nonetheless, considering the nature of such contentions as well as his pro se status, we will consider his constitutional challenges.

EQUAL PROTECTION

Mr. Eastman first challenges the State's classification of diseased workers under the Occupational Disease Act as arbitrary and discriminate and in violation of the Equal Protection Clauses of the U.S. and Montana Constitutions. In determining what level of scrutiny is to be applied to this legislation under an equal protection analysis, it is necessary to determine what rights are involved and whether the legislation infringes upon the rights of any suspect class. Cottrill, 744 P.2d at 897.

We have held that the right to receive Workers' Compensation benefits is not a fundamental right. Cottrill, 744 P.2d at 897, citing Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. This same rule applies to benefits under the Occupational Disease Act, which are also a form of disability benefits, so that no fundamental right is at stake here. The classification does not affect the rights of a suspect class, which would include race, nationality, alienage and wealth. Cottrill, 744 P.2d at 897. We conclude that the Act is not subject to strict scrutiny. As a result ARCO need not show a compelling state interest. We conclude that the Act should be analyzed under the rational basis test. That test requires a legitimate governmental objective which bears some identifiable rational relationship to the classification in question. Cottrill, 744 P.2d at 897.

Mr. Eastman argues that there is no rational basis upon which to distinguish an employee who suffers from an occupational disease from an employee who suffers an injury. We disagree. A historical inquiry into the subject reveals a legislative purpose for this differentiation.

Historically workers' compensation was enacted to compensate victims of industrial accidents and injuries. It was not set up to respond to workers suffering occupational disease. That distinction was partially explained by the...