Montana State Fund v. Grande

2012 MT 67, 274 P.3d 728, 364 Mont. 333, 2012 WL 928143, 2012 Mont. LEXIS 69
CourtMontana Supreme Court
DecidedMarch 20, 2012
DocketDA 11-0492
StatusPublished
Cited by4 cases

This text of 2012 MT 67 (Montana State Fund v. Grande) 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
Montana State Fund v. Grande, 2012 MT 67, 274 P.3d 728, 364 Mont. 333, 2012 WL 928143, 2012 Mont. LEXIS 69 (Mo. 2012).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

¶1 The Montana State Fund (MSF) appeals a decision of the Workers’ Compensation Court (WCC) concluding that Clarence Grande’s job duties as a truck driver for City Service Valcon (Valcon) are the major contributing cause of his arthritic condition, thus he is suffering from an occupational disease. We affirm.

¶2 MSF raises the following three issues on appeal:

¶3 1. Whether the WCC erred in concluding that Grande is suffering from a compensable occupational disease arising out of and in the course and scope of his employment.

¶4 2. Whether the WCC erred in ordering payment of temporary total disability benefits and medical benefits.

¶5 3. Whether the WCC erred in ordering payment of costs.

¶6 MSF’s entire argument on Issues 2 and 3 consists of one sentence in the conclusion section of its initial brief wherein MSF states: ‘Upon reversal of the threshold issue regarding the compensability of the claim, the award of benefits and costs should likewise be reversed disposing of the two remaining issues on appeal.” Since we are affirming on the threshold issue, we do not address MSF’s second and third issues.

FACTUAL AND PROCEDURAL BACKGROUND

¶7 Grande has been a truck driver his entire life. Prior to his employment with Valcon, he was self-employed as an over-the-road truck driver. He also drove a dump truck for one season.

¶8 Grande began working for Valcon in October 2005, as a long-haul propane truck driver. He worked up to 15 hours per day, 60 hours per week driving throughout the northwest and into Canada obtaining and delivering propane in a truck that consisted of a tanker and a pup (a second tanker hooked behind the first). Grande’s job required that he hook up several large hoses to the tanker and the pup as well as the propane storage tanks. Some of the hoses were four inches in diameter with a heavy brass end. Grande had to unscrew the caps covering the valves of the truck, the pup and the storage tanks before connecting the hoses. Grande testified that there were as many as 12 valves that needed to be opened and closed during the loading and unloading [335]*335processes.

¶9 In addition, Grande was constantly shifting amongst the 18 gears on his truck. And, during the winter, Grande would have to chain up his truck as often as three times a week depending on the weather. A set of triple chains, which went on both sides of the truck, weighed 75 pounds. Grande also had to install sets of single chains on the back of the truck and on the pup.

¶10 Janet Schroeder of Vocational Management Services, Inc., described Grande’s job duties as follows:

Operates tractor/trailer to transport propane over the road in western Montana, Idaho, and eastern Washington: Performs pretrip inspection. Drives tractor/trailer to pick up propane in Canada and delivers to customers. Drives truck into position to load at filling rack. Opens valves or starts pumps to fill tank. Reads gauges or meters and records quantity loaded. Drives truck and delivers propane to customer’s businesses. Pulls hose from a storage tube along side of tank. Pulls hose from a storage tube on side of truck. Opens valves to drain tank. Records amount delivered. Returns hose to hose tubes. Maay [sic] have to chain up during adverse weather conditions. Maintains driver’s log according to DOT regulations.... Employee reaches wai[s]t to chest height on a continual basis to steer vehicle; use of clutch and break [sic] as well as accelerator is used continuously. Employee must use right arm to shift truck.... Employee uses grip/grasp to steer and shift truck, pull self into/out of truck, and to pull hose, etc.

¶11 Dr. John Schumpert, who specializes in occupational and environmental medicine, conducted an independent medical examination of Grande for a prior back injury on January 9,2007. Dr. Schumpert later noted that at the time of that evaluation, Grande did not exhibit symptoms of arthritis.

¶12 Grande was referred to Dr. Bernadette Van Belois in August 2007, for suspicion of arthritis in his hands. Dr. Van Belois is board certified in both rheumatology and internal medicine. She diagnosed Grande as having osteoarthritis with the possibility of an additional diagnosis of inflammatory arthritis, possibly rheumatoid arthritis. Dr. Van Belois noted that there is a genetic predisposition for a person to develop osteoarthritis and rheumatoid arthritis. Grande has a family history of arthritis with his parents, grandparents, a brother and a cousin all suffering from various forms of the disease.

¶13 Grande had a number of follow-up visits with Dr. Van Belois [336]*336between January 2008 and July 2009. Dr. Van Belois changed Grande’s medications several times, but without any significant improvement in his condition. On July 16,2009, Grande called Dr. Van Belois’ office complaining of pain and swelling in his hands to such a degree that it made it difficult for him to work. After a visit on July 27, 2009, Dr. Van Belois noted in Grande’s medical chart that Grande was unable to continue working as a truck driver because of the significant swelling and pain in his right hand in particular “that would make any occupation, including a sedentary one, difficult for him.”

¶14 In a letter dated August 3, 2009, ‘To Whom it May Concern,” Dr. Van Belois stated that Grande’s arthritis, which caused significant pain and swelling in his right hand in particular, ‘impaired his ability to safely drive a truck.” Dr. Van Belois also noted in the letter that the pain medication Grande was taking may make him drowsy and impair his senses, thus she had advised him to stop working.

¶15 Grande resigned from his employment with Valcon effective August 7, 2009. He had worked for Valcon for almost four years. In addition to Dr. Van Belois’ recommendation that he stop working, Grande was unable to pass the physical examination necessary to renew his commercial drivers license (CDL). Grande later testified that if it wasn’t for his arthritic condition, he would still be driving truck. Grande filed a claim for compensation with MSF on August 13, 2009. He alleged in his claim that he suffered from an occupational disease in the form of rheumatoid arthritis and osteoarthritis as a result of his employment with Valcon.

¶16 In response to questions from Grande’s counsel, Dr. Van Belois wrote a letter dated August 26, 2009, wherein she opined that Grande’s job duties, which involved repetitive use of his hands with repetitive firm gripping, had aggravated his arthritis to such an extent that he was unable to continue working. She pointed out that Grande’s job aggravated his arthritis rather than causing it. Dr. Van Belois stated that, in her medical opinion, Grande’s arthritis is an occupational disease.

¶17 Dr. Schumpert reviewed Grande’s medical records at the request of MSF. In a report dated February 18, 2010, Dr. Schumpert stated that he believed that Grande could continue to work as a truck driver. He also stated that he did not feel that Grande was suffering from an occupational disease or that Grande’s employment was the major contributing cause of his condition. Instead, Dr. Schumpert stated that in his opinion, Grande is suffering from rheumatoid arthritis, an autoimmune disorder that is unrelated to his employment as a truck [337]*337driver. Dr.

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2014 MT 242 (Montana Supreme Court, 2014)
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Montana State Fund v. Grande
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Cite This Page — Counsel Stack

Bluebook (online)
2012 MT 67, 274 P.3d 728, 364 Mont. 333, 2012 WL 928143, 2012 Mont. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montana-state-fund-v-grande-mont-2012.