Rosling v. Exchange

• Decision Date: 21 March 2019
• Docket Number: WCC No. 2015-3623
• Parties: JAMIE L. ROSLING, as Personal Representative of the Estate of David Lee McMillan Petitioner v. ASSOCIATED LOGGERS EXCHANGE Respondent/Insurer.
• Court: Montana Workers Compensation Court

2019 MTWCC 5

JAMIE L. ROSLING, as Personal Representative of theEstate of David Lee McMillan Petitioner v. ASSOCIATED LOGGERS EXCHANGE Respondent/Insurer.

WCC No. 2015-3623

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: August 2, 2017

March 21, 2019

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

Summary: The decedent was exposed to Libby asbestos for most of his life and diagnosed with asbestos-related disease almost seven years before working for Respondent's insured. However, his condition was stable and he continued to work as a logger. After beginning to work for Respondent's insured, where he suffered a significant exposure to Libby asbestos, decedent's ARD significantly and rapidly worsened and he ultimately had to quit his job because he could no longer physically perform it. Prior to his death, he filed an OD claim, contending that his ARD was an OD and that he was last injuriously exposed to the hazard of his OD while employed at Respondent's insured. Respondent asserts that Petitioner did not timely file his claim. In the alternative, Respondent asserts that Petitioner's employment for its insured did not cause his OD.

Held: The decedent timely filed his claim. The decedent's ARD was an OD because his exposure to Libby asbestos during his lifetime of employment was the major contributing cause of his ARD and because his exposure while working for Respondent's insured was the major contributing cause of the rapid acceleration of his ARD, which resulted in his inability to work. Respondent is liable for Petitioner's OD because it was the insurer at risk at the time decedent was last injuriously exposed to Libby asbestos. Thus, Respondent is liable for OD benefits.

¶ 1 The trial in this matter began on November 23, 2015, in Kalispell. On December 17, 2015, counsel delivered closing arguments. On August 2, 2017, Respondent Associated Loggers Exchange (ALE) filed a post-trial supplemental brief by leave of Court and this Court deemed the matter submitted for decision. Laurie Wallace, Ethan Welder, Dustin Leftridge, and Jon L. Heberling represented Petitioner (McMillan).¹ Larry W. Jones represented ALE.

¶ 2 Exhibits: This Court admitted Exhibits 2, 16, and 17 without objection. This Court admitted Exhibits 1 and 3 through 13 over the parties' respective relevancy objections. ALE withdrew Exhibits 14 and 15.

¶ 3 Witnesses and Depositions: This Court admitted the depositions of McMillan, Brad Black, MD, Dale and Suzanne Riggles, and Gregory Michael Loewen, MD. McMillan, Kerri Wilson, and Terry Spear, PhD, were sworn and testified at trial.

¶ 4 Issues Presented: Based upon the parties' statement of "Issues to be Determined by Court" and their contentions in the Pretrial Order, and their arguments at trial, this Court considers the following issues:

Issue One: Did McMillan timely file his occupational disease claim?

Issue Two: Did McMillan sustain an occupational disease?

Issue Three: If McMillan sustained an occupational disease, is Associated Loggers Exchange liable for it?

Issue Four: If Associated Loggers Exchange is liable for McMillan's occupational disease, is McMillan entitled to medical benefits and an impairment award?

Issue Five: If Associated Loggers Exchange is liable for McMillan's occupational disease, is McMillan entitled to permanent total disability benefits pursuant to § 39-71-702, MCA?

Issue Six: Is McMillan entitled to costs, attorney fees and/or a penalty?

FINDINGS OF FACT

¶ 5 The following facts are established by a preponderance of the evidence.

History of Asbestos in the Libby Area

¶ 6 From the 1920s to 1990, Zonolite Company and then W.R. Grace operated a vermiculite mine, which was seven miles northeast of Libby. The vermiculite contained a unique, amphibole-type asbestos, called "Libby amphibole" or "Libby asbestos."

¶ 7 The open pit mining, and the processing and transportation of the vermiculite, released dust containing many tons of Libby asbestos into the atmosphere each day. Libby asbestos fibers are microscopic and remain airborne for hours once introduced into the air.

¶ 8 The dust contaminated the air in Libby and the town had a hazardous "background" level of asbestos when the mine operated. The residents of Libby suffered a "community exposure" to asbestos.

¶ 9 The dust drifted and was blown, oftentimes for miles, until it settled and contaminated whatever it landed upon, including the forest, duff, and soil in the area surrounding the mine. Studies conducted from 2005 through 2013 showed that the areas closer to the W.R. Grace mine had the highest concentrations of Libby asbestos contamination, but that Libby asbestos was detected in forest duff as far as 16.9 miles from the mine.

¶ 10 In the time between 2009 and 2014, researchers discovered that logging activities, such as falling trees, hooking, skidding, and processing, that disturb the contaminated tree bark, duff, or soil released Libby asbestos into the air and exposed those in the area.

¶ 11 All types of asbestos are hazardous, but Libby asbestos is more toxic than other types, i.e., it takes a much lower quantity of Libby asbestos to cause asbestos-related disease (ARD) or "asbestosis," umbrella terms that describe several conditions in which lung tissue is damaged and scarred, including pleural thickening, pleural plaques, and interstitial fibrosis. The scar tissue is inelastic, which causes decreased respiratory function that worsens over time.

McMillan's Exposures to Asbestos, Employment History, and Diagnosis of ARD

¶ 12 McMillan grew up in Libby and lived most of his life in Libby. McMillan's family has been particularly hard hit by ARD, as McMillan's father, who worked for a time at the W.R. Grace mine and had direct contact with vermiculite, died of ARD. In addition, his three brothers and his sister died from ARD. McMillan was exposed to Libby asbestos at his home and to the Libby background asbestos while residing in Libby.

¶ 13 In 1973, when he was 17 years old, McMillan worked for Bothman Logging, which logged in the Kootenai National Forest. He was exposed to Libby asbestos during this work.

¶ 14 From 1974 to 1976, McMillan served in the Army. He was not exposed to asbestos during his service.

¶ 15 In 1976, McMillan returned to Libby, and returned to logging, primarily in the Kootenai National Forest, in areas contaminated with Libby asbestos. He was exposed to Libby asbestos during this work.

¶ 16 From 1980 to 1983, he worked in the oil business. He was not exposed to asbestos during this work.

¶ 17 McMillan returned to Libby in 1983 and, for the next 28 years, worked in the logging industry for several employers. He worked as a skidder operator, a sawyer, and worked the landings. McMillan also helped build logging roads, including installing culverts.

¶ 18 During this time, McMillan primarily worked in the areas within 10 miles of the former W.R. Grace mine. When he worked for Owens Ventures, he worked near the vermiculite loading facility. McMillan and his coworkers had to push piles of vermiculite left by dump trucks out of the way to access logs used to make a landing. He consistently worked in the dust created by this work, which was contaminated with Libby asbestos.

¶ 19 On September 24, 2001, McMillan underwent an asbestos screening at the Center for Asbestos Related Disease (CARD) Clinic in Libby. As part of the screening process, McMillan filled out a questionnaire which asked him questions about past employments, residences, and recreational activities - including questions about logging.

¶ 20 Brad Black, MD, the medical director of the CARD clinic, found pleural changes in McMillan's lungs. A follow-up CT scan revealed findings consistent with ARD, and Dr. Black recommended more diagnostic testing.

¶ 21 On December 3, 2001, Alan C. Whitehouse, MD, a physician at the CARD clinic with significant experience treating patients with ARD caused by Libby asbestos, reviewed a chest x-ray, which showed "some minimal pleural thickening," and a CT scan, which showed "one small area of irregular, what appears to be pleural plaque." Dr. Whitehouse stated, "These do appear to be consistent with asbestos related disease."

¶ 22 Dr. Black testified that to diagnose ARD, one factor is the "latency period," which is the time that passes between an exposure of Libby asbestos and objective medical findings of ARD, such as a chest x-ray or a CT scan. Dr. Black testified that the latencyperiod for ARD from Libby asbestos is 10-20 years, although he explained that with technological advances in scanning, the latency period is getting shorter.

¶ 23 On May 17, 2006, Dr. Black saw McMillan for a follow-up visit. Dr. Black noted, "David has been short of breath but continues to work in the woods." Dr. Black noted that McMillan had not smoked for a year and had had less shortness of breath since then. He also noted that McMillan's ARD was relatively stable. Dr. Black noted that McMillan's pulmonary function tests (PFTs), which are objective medical findings, were "virtually identical" to his 2005 tests and in the normal range. Dr. Black also noted, "I reviewed his 2005 CT scan and he has very obvious findings of sub-pleural interstitial fibrosis along with pleural thickening scattered throughout much of his chest."

¶ 24 On July 25, 2007, a physician at the CARD clinic examined McMillan and found him radiographically and functionally unchanged but noted concern that his PFTs had declined. The physician noted that McMillan continued to work in the woods as a sawyer and that he was able to keep up "[f]or the most part," with some episodic shortness of breath with exertion.

¶ 25 McMillan started working for P&S Contracting (P&S) on August 1, 2008. McMillan built and maintained logging roads and worked as a logger. He operated heavy machinery, including a skidder. For much of this time, he worked in areas within 10 miles of the vermiculite mine. This work was extremely dusty; at times, McMillan had to wear a mask.

¶ 26 McMillan was...