Swan v. Mont. State Fund
| Decision Date | 11 September 2020 |
| Docket Number | WCC No. 2019-4545 |
| Parties | STEPHEN J. SWAN Petitioner v. MONTANA STATE FUND Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Petitioner claims he suffered a compensable lung injury when he inhaled crystalized mineral dust in the course of his mining job on February 1, 2017. In the alternative, Petitioner claims he has a compensable occupational disease as a result of his occupation as a miner and that his last injurious exposure to the hazard of his lung disease occurred when he was working for Respondent's insured. Respondent argues that Petitioner failed to prove a compensable injury because he lacks both objective medical evidence of an injury and an expert medical opinion that an exposure on February 1, 2017, was the primary cause of his lung condition. Respondent also argues that Petitioner failed to prove a compensable occupational disease because he lacks an expert medical opinion that his lifetime of occupational exposure was the major contributing cause of his lung condition and because its insured is not the employer of last injurious exposure.
Held: Petitioner does not have a compensable injury because, although he has objective medical evidence of a lung condition, he did not carry his burden of proving by a preponderance of the evidence that an alleged exposure to crystalized mineral dust on February 1, 2017, was the primary cause of his cumulative lung condition. Petitioner does not have a compensable occupational disease because he did not carry his burden of proving by a preponderance of the evidence that his lifetime of occupational exposure was the major contributing cause of his lung condition. Moreover, Petitioner, who was exposed to dust while working for a subsequent employer, did not carry his burden of proving that his employment with Respondent's insured involved any exposure to a noxious substance, let alone his last injurious exposure.
¶ 1 The trial in this matter was held on September 26, 2019, in Helena, Montana. Petitioner Stephen J. Swan was present and was represented by Bernard J. Everett. Charles G. Adams represented Respondent Montana State Fund (State Fund). Kevin Wallace, claims adjuster, was also present on behalf of State Fund.
¶ 2 Exhibits: The Court admitted Exhibits 1 through 13 without objection. State Fund withdrew Exhibit 14.
¶ 3 Witnesses and Depositions: This Court admitted the depositions of Swan and Gyorgy Mundruczo, MD, into evidence. Swan and his wife, Corrine Swan, were sworn and testified at trial.
¶ 4 Issues Presented: This Court restates the issues set forth in the Pretrial Order as follows:1
¶ 5 This Court finds the following facts by a preponderance of the evidence.
¶ 6 Over the course of his 30-plus-year career as a miner,2 Swan has worked in the presence of a number of different types of rock dust. Sometimes he inhaled this dust because he was not wearing his respirator.
¶ 7 Before the incident giving rise to his claim, Swan's wife never observed him having lung problems. Swan would mention a cough to N.M. Campbell, MD, his family doctor, about once a year, almost always in conjunction with a sinus infection. However, according to his medical records, Swan had not reported other problems with his lungs to his doctors.
¶ 8 In early 2017, Swan was working for Groundhog Mining and Milling, LLC (Groundhog), rehabbing an old copper mine in Madison County. He was not having any breathing or sinus problems.
¶ 9 On February 1, 2017, Swan was working in an escape raise that was full of a blue substance resembling crystallized minerals. At his deposition, Swan testified about his respirator use:
When asked whether there were days before that that he did not have his respirator on all day, Swan testified that he did not wear a respirator every time he walked into the mine; just the day before, he had not worn a respirator when putting together a drill deck for the core drillers, or when going into the escape raise to see what he would have to do to make it safe. Swan explained, "You can't avoid dust at all times unless you were to wear a respirator at all times and that is not something that you do."
¶ 10 State Fund's attorney revisited Swan's respirator use at trial. However, Swan's testimony was not congruous with his deposition testimony; he testified:
In sum, Swan agreed that he would "have a respirator on when the conditions warrant[ed] it, but it wasn't always possible."
¶ 11 As the day of February 1, 2017, went on, Swan developed back, neck, and shoulder pain while he was working and left before the end of his shift. That night, Swan began experiencing shortness of breath and tightness in his chest.
¶ 12 Although he still was not feeling well, after several weeks of treatment in Montana for what his doctors thought was an infection, Swan was released to return to work.
¶ 13 He began working on a retaining wall project for a hydroelectric plant in Utah. Swan worked on the project through late February 2017 with Groundhog and from early March 2017 with a company doing the same type of work, called Interwest Specialties (Interwest). During this time with Interwest, Swan was working, at least half-the-time, in dusty conditions, although he continued wearing his respirator and knew it was working because "[he] was not coughing up dirt materials or blowing it out of [his] nose." Simultaneously, Swan was weaning off Prednisone. However, the condition of Swan's lungs only got worse.
¶ 14 On March 22, 2017, Swan was working in an area that was not dusty. His boss at Interwest sent him home because he was feeling poorly. That evening, Swan was taken to the hospital by ambulance and admitted for hypoxic respiratory failure. During his hospitalization, Swan was intubated for several days. He was discharged on March 27, 2017, with instructions to get pulmonary function testing due to the hazards inherent in his occupation.
¶ 15 On April 3, 2017, Swan had a chest CT, which suggested ground-glass opacities (GGOs), fibrosis, and reticulonodular infiltrates in an upper lobe predominant distribution, all characteristics of interstitial lung disease.
¶ 16 Pulmonologist Gyorgy Mundruczo, MD, first saw Swan on April 20, 2017, documenting in his history that Swan had been a miner for decades, that his exposures included "various hard rock dust that is mined for gold, silver, zinc, lead and copper," and that he "has been wearing a respirator at work (but not throughout his career)." Dr. Mundruczo further noted in his assessment that Swan had "likely occupational lung disease and an acute event leading to severe hypoxic respiratory failure." Swan's chest x-ray that day showed increased markings but no other parenchymal abnormalities. His pulmonary function tests were normal, "though [Swan's] FEV1/FVC ratio [was] increased," which can indicate restriction. Dr. Mundruczo characterized the examination as benign and diagnosed Swan with "dyspnea on exertion." He prescribed Prednisone to reduce inflammation in Swan's lungs.
¶ 17 On April 24, 2017, Swan filed a First Report of Injury or Occupational Disease with State Fund. He identified a February 1, 2017, injury to his lungs, in the nature of an "illness" from dust and crystallized minerals, and attached a description, reading, in pertinent part, as follows:
Due to the [February 1, 2017,] incident listed below and after speaking with my physician, all the Utah Physicians and Respiratory Therapist[s] (on my case in the hospital) and the pulmonary specialist, it is believed that my working in the mine is what caused the chronic inflammation in my lungs which lead to hospitalization . . . .
¶ 18 Over the following weeks, Swan's condition improved, but his symptoms came back when he reduced his Prednisone. After this happened several times, and in concert with Swan's pulmonary function tests, Dr. Mundruczo determined that Swan had obstructive lung disease.
¶ 19 On his June 1, 2017, medical note, Dr. Mundruczo revised his assessment that Swan had "likely" occupational lung disease to "possible" occupational lung disease, which he kept in his records for the rest of Swan's treatment. Swan had a repeat chest CT that day, which showed "[n]o evidence of pulmonary fibrosis" but "[s]everal tiny pulmonary nodules."
¶ 20 On June 28, 2017, State Fund denied Swan's claim. State Fund contended that Swan suffered an occupational disease rather than an injury, and that it was not the insurer for the employer in whose employment Swan was last injuriously exposed.
¶ 21 Swan continued working for Interwest until December of 2017. Between March and December, he supervised a hospital project in Richfield, Utah, which did not expose him to dust, and was a...
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