Ridenour v. Equity Supply Co., 82-320

• Citation: 204 Mont. 473,40 St.Rep. 1012,665 P.2d 783
• Decision Date: 30 June 1983
• Docket Number: No. 82-320,82-320
• Parties: Darel R. RIDENOUR, Claimant and Respondent, v. EQUITY SUPPLY COMPANY, and Glacier General Assurance Company, Defendants and Appellants.
• Court: United States State Supreme Court of Montana

Page 783

665 P.2d 783

204 Mont. 473

Darel R. RIDENOUR, Claimant and Respondent, v. EQUITY SUPPLY COMPANY, and Glacier General Assurance

Company, Defendants and Appellants.

No. 82-320.

Supreme Court of Montana.

Submitted on Briefs April 25, 1983.

Decided June 30, 1983.

Garlington, Lohn & Robinson, Missoula, for defendants and appellants.

James E. Vidal, Kalispell, for claimant and respondent.

HARRISON, Justice.

In this case we are asked to review an order granting workers' compensation benefits to respondent, Darel R. Ridenour. Appellants claim that benefits should have been awarded under the Occupational Disease Act rather than the Workers' Compensation Act. We find that benefits were properly awarded, therefore we affirm.

Claimant had worked for Equity Supply Company for about twelve years. He worked primarily within the fertilizer department, but he also worked as a handyman. Claimant had smoked cigarettes since 1944. Smoking, combined with twelve years of work in a dusty environment had resulted in Chronic Obstructive Pulmonary Disease (COPD). COPD is a medical term describing a spectrum of lung diseases, including asthma, bronchitis, and emphysema. With the COPD, claimant was able to perform his job, although at times he experienced shortness of breath. Prior to the injury date, claimant had visited a family physician. Claimant complained of tiredness and shortness of breath. The doctor noted that his breath sounds were quite distant, which could be a result of COPD which can be secondary to a smoking history.

On December 18, 1978, claimant was asked to repair a mechanism on top of a grain bin. Upon receiving instructions, he ascended on a man-lift in the grain elevator section. He left the man-lift and proceeded through a small shed and on to an eighty-foot catwalk. When he reached the repair site he decided he needed additional tools. He went back across the catwalk in order to take the man-lift to the ground level. He entered the shed and was overcome by a high concentration of grain dust produced by an unloading operation which was taking place below. He could hardly see but he made his way to the man-lift and descended to the main floor. As he proceeded down, he experienced extreme breathing difficulties. The claimant was immediately taken to a physician. The treating physician prescribed epinephrine to relieve bronchial spasm, and diagnosed Ridenour's condition as acute asthmatic bronchitis. After this incident, claimant could not perform his usual job. He attempted to perform less demanding chores, yet was unsuccessful. He finally ceased employment on May 20, 1979.

The medical evidence consists primarily of testimony from three physicians; Dr. Maloney, a family practitioner, and two pulmonary specialists, Dr. Power and Dr. Schimke. Dr. Maloney had seen respondent prior to and immediately after the incident on December 18. Dr. Maloney testified that the single grain dust inhalation of December 18 would not have caused respondent's COPD. In other words, there was clearly a pre-existing condition. Dr. Maloney indicated that even if the inhalation incident had not occurred, it was probable that respondent, if he continued to smoke and work in the same environment, would eventually become disabled as a result of his COPD. However, the time frame could not be predicted, he may have made it to retirement age.

Dr. Schimke testified that respondent's chest x-rays indicated the development of emphysema for at least ten to fifteen years prior to examination and that there was no new disease traceable to the incident on December 18. He described the inhalation as a "severe but temporary illness and disability" however, the one episode "may have resulted in more asthma and more bonchitis, which could flare up more readily in the ensuing months and years." Dr. Power agreed that there was a preexisting condition that could not have been caused by the single inhalation of grain dust. He described the incident as a triggering mechanism. According to Dr. Power, people with this kind of condition experience reduction in lung function over a period of time without being keenly aware that they have a major problem other than shortness of breath. Then an incident occurs "which is really the last straw that kind of breaks the camel's back" that causes disability.

Ridenour's claim for benefits was treated as a claim under the Occupational Disease Act. The Division of Workers' Compensation computed Ridenour's benefits to be $3.93 per week. On May 26, 1981, Ridenour refiled his claim to indicate his desire to seek benefits under the Workers' Compensation Act for total disability due to an accident. A hearing was held in the Workers' Compensation Court on July 16, 1981, Judge Hunt presiding. Prior to decision, Judge Hunt left the bench. The newly-appointed judge, Timothy Reardon, disqualified himself. Jurisdiction was assumed by District Judge Gordon Bennett who appointed Roger Tippy as a hearing examiner. Mr. Tippy reviewed the record and entered findings of fact and conclusions of law and judgment; ruling that claimant was entitled to permanent total disability benefits under the Workers' Compensation Act at the rate of $145.33 per week. Thereafter, Judge Bennett adopted in full, and without exception, the findings and conclusions of the hearings examiner. The insurer and employer then brought this appeal.

We are asked to address two issues; first, whether it was error to allow election by the claimant between the provisions of the Occupational Disease Act and the Workers' Compensation Act, and second, whether it was error to conclude that claimant suffered an injury as defined in section 39-71-119, MCA. We address these issues in turn.

The focus of appellants' argument in relation to the first issue is that claimant suffered from an occupational disease, therefore, his exclusive remedy occurs under the Occupational Disease Act. Appellants cite the definition of occupational disease found in section 39-72-102(11), MCA, " 'Occupational disease' means all diseases arising out of or contracted from and in the course of employment." Appellants also cite the statutory causation section which refines "arising out of ... employment;" section 39-72-408, MCA:

"Proximate causation. 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."

Appellants argue that claimant's condition fits the above statutory definitions, therefore claimant's remedy can only be with the Occupational Disease Act, as specified in section 39-72-305, MCA, "The right to recover compensation pursuant to the provisions of this chapter for occupational diseases ... is the exclusive remedy therefor against an employer ..."

We disagree. We hold that although claimant may have had a compensable disease under the Occupational Disease Act, that status did not preclude eligibility under the Workers' Compensation Act. In other words, a particular claimant could meet the requirements of both acts, thus he would be allowed to choose his remedy. To allow an election between the two acts does not violate the exclusive remedy language of section 39-72-305, MCA. The legislature only intended that an employee not have a common law action against his employer.

Appellants cite three cases in support of their position. The earliest case is Summer v. Victor Chemical Works (9th Cir.1961), 298 F.2d 66. In Summer the employee instituted an action for personal injuries in state court which was later transferred to federal court. The Federal District Court dismissed the action on the ground that the employee's disability was the result of an accident, thus his remedy was under the Montana Workers' Compensation Act. Upon review, the ninth circuit court of appeals held that an employee who allegedly suffered an industrial accident could maintain an action against his employer who had not elected to be covered by the Occupational Disease Act. The court relied upon a section of the act which specifically prohibited common law actions against employers, except in those cases where employees were not eligible for benefits under the Act or in those cases where employees rejected coverage of the Act. This section was repealed in 1979. Summer dealt with a different statutory scheme, and while the case may be helpful, it is certainly not controlling. In fact, the case stands for liberal selection of remedies; a philosophy not beneficial to appellants.

Next, we are cited to Anaconda Co. v. District Court (1973), 161 Mont. 318, 506 P.2d 81, where the claimant brought an action against his employer for injuries suffered in an underground mine. The District Court allowed the action to proceed, contrary to the employer's assertion that the lawsuit was barred by the provisions of the Workers' Compensation Act and the Occupational Disease Act. The employer then petitioned this Court for a writ of supervisory control. This Court granted the writ and directed the District Court to order summary judgment in favor of the employer. It is clear that the claimant brought his personal injury action after his claim for occupational disease benefits had been rejected. In ordering summary judgment for the employer, we cited section 92-1308, RCM, 1947, (now section 39-32-305, amended) which precludes a common law action against an employer, even where a claimant has...