Greger v. United Prestress, Inc., 14195

• Decision Date: 14 February 1979
• Docket Number: No. 14195,14195
• Citation: 590 P.2d 1121,180 Mont. 348,36 St.Rep. 268
• Parties: Ronald L. GREGER, Claimant and Appellant, v. UNITED PRESTRESS, INC., Employer, and State Insurance Fund, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1121

590 P.2d 1121

180 Mont. 348

Ronald L. GREGER, Claimant and Appellant, v. UNITED PRESTRESS, INC., Employer and State Insurance Fund, Defendant and Respondent.

No. 14195.

Supreme Court of Montana.

Submitted on Briefs Dec. 29, 1978.

Decided Feb. 14, 1979.

Robert L. Kelleher, Billings, for claimant and appellant.

Tim Reardon, Helena, for defendant and respondent.

HARRISON, Justice.

This is an appeal by claimant from an order of the Workers' Compensation Court denying workers' compensation benefits but granting occupational disease compensation to claimant.

Claimant is a 36 year-old man who began working for United Prestress, Inc. (hereinafter employer) on August 8, 1975. From that date through December 26, 1975, claimant was primarily engaged in welding, cutting and setting up forms for concrete structures. He did not work in cement.

Claimant returned to work for employer on a regular basis on March 1, 1976, at which time he began working in concrete. In the fall of 1976 claimant began to have problems with his legs and hands, shortly after an additive was put in the cement in an effort to make the cement dry faster.

Claimant continued working until December 31, 1976, when he was laid off. After terminating his work, his hands cleared up. He returned to work for employer in March 1977. Claimant terminated his employment on April 17, 1977.

Claimant was examined by Dr. Orman on April 14, 1977, and indicated to the doctor that he had had problems with his skin for some six months. Dr. Orman diagnosed claimant's problem as contact dermatitis and found claimant to be allergic to chromium and nickel. Claimant, according to the doctor, must avoid materials that cause an allergic reaction. Dr. Orman testified that the contact dermatitis from his point of view was both an injury and an occupational disease.

Claimant filed a claim for compensation in May 1977. The insurer treated the claim as an occupational disease and awarded benefits from April 14, 1977 to July 6, 1977, the period claimant was totally disabled. Claimant petitioned the Workers' Compensation Court, seeking an adjudication that the claim was an "injury" under the Workers' Compensation Act and not a proper claim for the Occupational Disease Act. The Workers' Compensation Court found that claimant was suffering from an occupational disease and from that decision claimant appeals.

The principal issue presented for this Court's review is whether the Workers' Compensation Court erred in concluding that claimant's contact dermatitis falls within the Occupational Disease Act rather than the Workers' Compensation Act.

More specifically, claimant raises the following secondary issues:

1. Did the Court err by failing to find that claimant's contact dermatitis is an industrial injury because either (a) it is "a tangible happening of a traumatic nature from an unexpected cause . . . resulting in . . . external . . . physical harm . . ." or (b) is a "disease . . . traceable to injury"?

2. Did the Court err by refusing to find that claimant is entitled to compensation under both sections 92-715 and 92-703.1, R.C.M.1947, now sections 39-71-741 and 39-71-703 MCA?

3. Did the Court err in its Conclusion of Law No. 3(5) and Decree No. 2 by concluding that contact dermatitis is "incidental to the character of the business" as defined in section 92-1305, R.C.M.1947, now section 39-72-408 MCA?

4. Did the Court err by refusing to find that claimant, because he can no longer work with chrome or nickel compounds or petroleum products, had suffered permanent partial disability of 41.3 percent?

5. Did the Court err by refusing to award attorney fees to claimant under section 92-619, R.C.M.1947, now section 39-71-613 MCA?

The issue raised in the instant case requiring a determination under the facts set forth of the Occupational Disease Act of 1959 is an issue of first impression as far as Montana is concerned. The question is whether someone who has an allergy which is aggravated by work exposure should be treated as having an occupational disease under the Occupational Disease Act or an injury under the Workers' Compensation Act.

Section 92-1304, R.C.M.1947, now section 39-72-102(11) MCA, defines occupational disease:

"The term 'occupational disease' shall mean all diseases arising out of or contracted from and in the course of employment."

There is no dispute here that claimant's problem is that he has an allergy and hence cannot work around cement or petroleum products due to the fact they contain chromate or nickel ions. When he works in cement his skin breaks out. Since cement is incidental to his employer's business and since it is his job to work in cement, it appears the condition clearly arose out of and in the course of his employment.

Dr. Orman, the treating physician, characterized the claimant as suffering from both an "injury" and an "occupational disease". In his deposition he stated:

"Q. Now, then, could contact dermatitis be described medically both as an occupational disease and as an injury? A. I would say from my point of view, as not in the legal field, I would say yes, that you could apply that disease you could apply that condition, using it both as an injury and it is a disease."

Claimant argues that as far as the doctor is concerned the contact dermatitis or allergy cannot be singled out as being just one of two conditions. The doctor says it is both, and it was up to the presiding judge to decide which it was. He decided it was an occupational disease.

The trial court considered the causation requirements and found claimant's petition had met those criteria. The applicable law is section 92-1305, R.C.M.1947, now 39-72-408 MCA, proximate causation. It states:

"Occupational diseases shall be deemed to arise out of the employment only if:

"1. There is a direct causal connection between the conditions under which the work is performed and the occupational disease.

"2. 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.

"3. The disease can be fairly traced to the employment as the proximate cause.

"4. The disease does not come from a hazard to which workmen would have been equally exposed outside of the employment.

"5. The disease is incidental to the character of the business and not independent of the relation of employer and employee."

We must first look to see if claimant fits within the confines of section 92-1305. First, it is clear that exposure to the cement during his regular work triggered the allergic reaction. Thus, there is a "direct causal connection" between the job performed and the disease. Second, is a disease a "natural incident" of the work? Obviously, working in cement is a nature of the job and anyone who is allergic to the chromate ions will have the same allergic reaction. Dr. Orman testified to this fact in his deposition stating: "Yes, people who are sensitive to a certain chromate ion and most of these little ions do penetrate the skin, yes, naturally they will penetrate the skin, and if the person is allergic it does penetrate and of course then it does set up this reaction." Here, the disease can be traced to the employment, for the only exposure complained of was to the cement work. Third, claimant obviously contends that the employment is the source of his problems regardless of whether this is compensation claim or an occupational disease claim. The employment is the source and the eruption on claimant's hands and legs is incidental to the work and not from a source other than work.

While Dr. Orman testified that skin eruptions suffered by claimant was an injury, the doctor is not the trier of fact and not qualified to make a determination legally as to whether the claimant suffered an injury within the meaning of the Workers' Compensation Act. The distinction between occupational disease and injury is a legal one.

Speaking to this point, Professor Larson in his treatise, Larson, Workmen's Compensation, Desk Edition, states at page 7-61:

"Jurisdictions having the general coverage of occupational disease, as distinguished from the scheduled coverage of listed diseases, now usually define the term to include any disease arising out of exposure to harmful conditions of the employment when those conditions are present in a peculiar or increased degree by a comparison with the employment generally. Thus, even a disease which is rare and which is due to the claimant's individual allergy or weakness combining with the employment conditions will usually be held to be an occupational disease if the increased exposure occasioned by employment in fact brought about the disease."

Montana's occupational disease act does have general coverages opposed to a list of coverages. However, claimant's allergy was made symptomatic due to exposure to cement. Factually it fits the general rule laid out by Larson. The employment is the source, because once removed from the work environment his problem cleared up.

As stated in 1B, Larson, Workmen's Compensation Law, § 41.62 (1973), the majority of the rule throughout the United States is:

"The majority of jurisdictions, however, have held that individual allergy or weakness is immaterial, if the particular conditions of employment in fact caused the disability."

In § 41.63, Larson states:

"Closely related to the question of preexisting allergy is that of the preexisting weakness, disease, or susceptibility. Most courts treat this problem the same as that of allergies, and hold that when a distinctive employment hazards act upon these preexisting conditions to produce a disabling disease, the result is an occupational disease."

The question now before the Court is whether to follow the majority rule which holds that when an individual allergy is aggravated by work experience in the ordinary course of work, the result is an occupational disease. We find that the...