McMahon v. Anaconda Co.

678 P.2d 661, 208 Mont. 482
CourtMontana Supreme Court
DecidedMarch 28, 1984
Docket81-034
StatusPublished
Cited by11 cases

This text of 678 P.2d 661 (McMahon v. Anaconda Co.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMahon v. Anaconda Co., 678 P.2d 661, 208 Mont. 482 (Mo. 1984).

Opinions

MR. JUSTICE MORRISON

delivered the Opinion of the Court.

George D. McMahon (claimant) appeals from orders of the Workers’ Compensation Court denying benefits under the Occupational Disease Act and the Workers’ Compensation Act. Claimant sought benefits under both Acts simultaneously in separate proceedings. The two cases have been consolidated for purposes of appeal. We remand for further proceedings.

Claimant worked at the Anaconda Company’s copper refinery in Great Falls from 1956 through December 6, 1978 as an inspector. During this period, claimant was continuously exposed to moderate levels of sulphuric acid, organic arsenic, zinc, lead, copper, tellurium, asbestos, silver, dust and other compounds in the refinery environment.

[484]*484Claimant complains of throat and lung problems secondary to the exposure to the environment at work, and resulting aggravation of psychological problems. Claimant was diagnosed as having “chronic obstructive lung disease,” “laryngeal irritation,” “leukoplakia of the vocal cords,” “severe anxiety” and other psychological problems.

Examining physicians agree that claimant’s physical ailments result more from claimant’s one to two pack a day cigarette habit than from the exposure to fumes, etc. at his work. However, the Occupational Disease Panel concluded that the disability attributable to the physical ailments was “about 15 percent related to his occupation.”

The level of disability due to Claimant’s physical ailments is sketchy. With regard to the chronic obstructive pulmonary disease, panel members noted that 90% of persons with the same degree of physical impairment could nonetheless “elk hunt” and “jog” and that if claimant had been young, “he might have even got stuck in the army.” Panel members also state that claimant could return to work if he would quit smoking. Dr. French testified that claimant’s laryngeal problems would not “disable you in the conventional sense of the word that you can’t work, unless you are perhaps a singer or something.”

There is no testimony that claimant’s job was particularly strenuous so that the degree of physical impairment he suffered would prevent him from performing his job. There is evidence that claimant is totally disabled because of his psychological problems.

The following issues are dispositive of this appeal:

1. Whether claimant’s ailments are “injuries” within the meaning of the Workers’ Compensation Act.

2. Whether claimant is totally disabled as a result of his physical and/or psychological ailments.

3. Whether psychological disability stemming from work-related physical diseases is compensable under the Occupational Disease Act.

4. Whether claimant’s psychological disorders were proxi[485]*485mately caused or contributed to by his employment and resulting physical disorders.

Workers’ Compensation Act

With regard to the Workers’ Compensation Act, we find the following issue to be determinative: Are claimant’s physical and psychological ailments, resulting from years of exposure to noxious fumes and particulates in his work environment, “injuries” as defined in Section 39-71-119, MCA?

The Workers’ Compensation Act only provides for liability of insurers when an employee “received an injury arising out of and in the course of his employment.” Section 39-71-407, MCA (emphasis added). Injury is defined in Section 39-71-119, MCA as “a tangible happening of a traumatic nature from an unexpected cause . . . and such physical condition as a result therefrom excluding disease not traceable to injury . . . .”

Despite the detailed definition, it remains a difficult task to satisfactorily describe and define injury to the exclusion of disease. See LaPlant, Opp, Workers’ Compensation and Occupational Disease, 43 Mont. L.Rev. 75, 92-100(1982). Professor Larson identifies two crucial points of distinction: “unexpectedness,” and “time-definiteness.” IB A. Larson, The Law of Workmen’s Compensation Section 41.31 at 7-357. We find the second point to be the critical factor in this case. The fact that claimant’s ailments were so very gradual in onset excludes them from the definition of injury.

We hesitate to attempt to locate the line between long-term, gradual trauma or disease, and short-term, accidental trauma, exposure or strain. In Hoehne v. Granite Lumber Co. (Mont. 1980), 615 P.2d 863, 37 St.Rep. 1307, claimant was held to have an “injury”, though the onset of his carpal tunnel syndrome took place over a period of two months. However, we feel it is safe to conclude that where laryngeal and pulmonary disorders and resulting psychological impairment are occasioned by exposure to a hostile en[486]*486vironment for a period of years, the disorders fall within the meaning of the legislatively defined term “disease.”

We uphold the Compensation Court’s conclusion that claimant has suffered no compensable injury.

Occupational Disease Act

The first issue under the Occupational Disease Act is whether claimant is totally disabled, temporarily or permanently, so as to entitle him to benefits under the Act.

Section 39-72-703, MCA provides that no compensation is payable to an employee who is “partially disabled from an occupational disease.”

After reviewing all of the evidence in this matter, the Division of Workers’ Compensation of the Department of Labor and Industry found that substantial, credible and overwhelming evidence establishes that claimant is not permanently, totally disabled as a result of his physical impairment. On appeal this conclusion was found by the special master to be supported by reliable probative and substantial evidence on the record. We agree with the special master and affirm the Compensation Court’s adoption of this portion of the master’s report. Claimant may be impaired and disabled but he is certainly not totally incapacitated from performing work in the normal labor market because of his physical ailments. Section 39-72-102(3), MCA.

The only remaining route by which claimant would be entitled to benefits is where he is totally disabled by reason of his psychological impairment, and such disorder was caused by claimant’s employment and/or the resulting physical diseases.

A threshold question to such a route to disability benefits is whether psychological disability, stemming from work-related physical diseases, is compensable under the Occupation Disease Act. This Court has held that psychological disability stemming from a work-related injury is compensable under the Workers’ Compensation Act. Schumacher v. Empire Steel Manufacturing Co. (1977), 175 Mont. 411, 574 P.2d 987. Whether such disorders are com[487]*487pensable under the Occupational Disease Act is a question of first impression. This question was addressed in a Colorado case where the claimant developed a disabling emotional reaction to a mild case of silicosis. The Colorado court focused on the definition of “disablement” as “physically incapacitated by reason of an occupational disease” and concluded that the claimant did not show that he was “ ‘physically’ incapacitated.” Romero v.

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McMahon v. Anaconda Co.
678 P.2d 661 (Montana Supreme Court, 1984)

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678 P.2d 661, 208 Mont. 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmahon-v-anaconda-co-mont-1984.