MILLER v CITY OF BILLINGS

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No. 13204 I N THE SUPREME COURT OF WE STATE OF M N A A OTN 1976 GEORGE MILLER, Claimant and Respondent, C I T Y OF BILLINGS and STATE INSURANCE FUND, Defendants and A p p e l l a n t s . Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable R o b e r t Wilson, J u d g e p r e s i d i n g . Counsel of Record: For Appellants : H a r r i s , Jackson & U t i c k , Helena, Montana Andrew J. U t i c k a r g u e d , Helena, Montana F o r Respondent: Joseph P. Hennessey a r g u e d , B i l l i n g s , Montana Submitted: Decided: September 1 0 , 1976 3 g 12 ~ ;c?;fj M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court. Defendants appeal from t h e decision of t h e d i s t r i c t c o u r t , Yellowstone County, overturning t h e Workmen's Compensation Division of t h e I n d u s t r i a l Accident Board d e n i a l of b e n e f i t s under t h e Workmen's Compensation Act, T i t l e 92, R.C.M. 1947. Claimant George M i l l e r was employed by t h e City of B i l l i n g s s a n i t a t i o n department f o r s e v e r a l y e a r s , and was assigned t o t h e B i l l i n g s l a n d f i l l dump i n 1963 t o operate a dozer covering garbage. On A p r i l 5 , 1966, claimant was "gassed1' by d i e s e l fumes from equipment and smoke from burning t r a s h while working a t t h e dump. He was taken home by a co-worker and h i s wife then took him t o t h e emergency room of t h e B i l l i n g s Deaconess Hospital where he was t r e a t e d and r e l e a s e d . The following day he was t r e a t e d by a physician and he returned t o work t h e next week. N claim o r o n o t i f i c a t i o n of t h i s accident was given t o h i s employers o r t o t h e Workmen's Compensation Division, Claimant continued t o work a t t h e c i t y dump u n t i l h i s d i s m i s s a l i n October 1970. On J u l y 21, 1971 [ 5 years and 2 months a f t e r t h e gassing i n c i d e n t ] claimant consulted D r . A. Movius, a B i l l i n g s physician, complaining of a severe cough and g e n e r a l d e b i l i t a t i o n he claimed began a t t h e time of t h e gassing i n c i d e n t a t t h e B i l l i n g s l a n d f i l l . The diagnosis: pulmonary f i b r o s i s , s c a r r i n g of t h e tubes c a r r y i n g a i r i n t o t h e l u n g ' s smaller c e l l s . On June 5 , 1972, claimant f i l e d a claim f o r recovery under t h e Workmen's Compensation Act. H i s claim was a d m i n i s t r a t i v e l y denied. O January 31, 1973, claimant requested a hearing t o a d j u d i c a t e n t h e l i a b i l i t y of t h e City of B i l l i n g s under t h e "Occupational Disease Act, R.C.M. Section 92-1304." A t a Division hearing on March 22, 1973, c l a i m a n t ' s a t t o r n e y e l e c t e d " t o proceed under t h e Occupational Disease Act, R.C.M., Section 92-1304." Following t h e hearing, claimant was r e f e r r e d t o a pulmonary s p e c i a l i s t , D r . Harry Power, pursuant t o t h e provisions of t h e Occupational Disease Act. By r e p o r t s dated May 11, 1973 and June 5, 1973, D r . Power s t a t e d he was unable t o r e l a t e c l a i m a n t ' s condition t o employment r a t h e r than t o h i s c i g a r e t t e smoking without f u r t h e r s t u d i e s , including an open lung biopsy. Claimant n o t i f i e d t h e Division he would n o t submit t o t h e open lung biopsy. He was r e f e r r e d t o a second pulmonary s p e c i a l i s t , D r . J. P. Byorth, i n an e f f o r t t o r e s o l v e t h e matter. D r . Byorth concurred i n D r . power's opinions and recommended a lung biopsy be performed t o determine i f t h e pulmonary d i s e a s e of claimant w a s work r e l a t e d . P r i o r t o a d e c i s i o n by t h e Division, claimant changed t h e s t a t u s of h i s claim from occupational d i s e a s e t o t h a t of an I n an i n d u s t r i a l accident under t h e Workmen's Compensation Act. - o r d e r dated A p r i l 26, 1974, t h e Division denied t h e claim both a s an occupational d i s e a s e and a s an i n d u s t r i a l a c c i d e n t . Claimant appealed t o t h e d i s t r i c t c o u r t which reversed t h e Division order and awarded compensation on t h e b a s i s of an i n d u s t r i a l accident a t 65% of t h e c l a i m a n t ' s wage l o s s . The d i s t r i c t c o u r t a l s o remanded t o t h e Division f o r determination of a c t u a l wage l o s s . D r . Movius, c l a i m a n t ' s physician was t h e only witness t e s t i f y i n g a t t h e d i s t r i c t c o u r t hearing. H i s testimony was p r i m a r i l y a r e c a p i t u l a t i o n of t h e testimony given before t h e Division--that c l a i m a n t ' s condition was caused by many years of exposure t o smoke and fumes a t t h e l a n d f i l l . The Division c a l l e d no witnesses and o f f e r e d o b j e c t i o n t o t h e claim e i t h e r a s an o c c u p a t i o n a l d i s e a s e o r a s a n i n d u s t r i a l a c c i d e n t because t h e c l a i m was f i l e d long a f t e r t h e e x p i r a t i o n of t h e c l a i m f i l i n g period s e t f o r t h i n t h e respective a c t s . The f i n d i n g s and d e c i s i o n of t h e Workmen's Compensation D i v i s i o n a r e presumed t o b e c o r r e c t and i f supported by c r e d i b l e evidence must be a f f i r m e d . S e c t i o n 92-822, R.C.M. 1947 ( s i n c e r e p e a l e d ) ; B i r n i e v . United S t a t e s Gypsum Co., 134 Mont. 39,44, 328 P.2d 133; Hurlbut v . V o l l s t e d t Kerr Co., 538 P.2d 344,347, 32 S t . Rep. 752,755. affirm the - . Mont -9 The d i s t r i c t c o u r t must D i v i s i o n o r d e r i f t h e evidence does n o t c l e a r l y preponderate a g a i n s t i t s f i n d i n g s . Becktold v. Ind.Acc.Bd., 137 Mont. 119, 125, 350 P.2d 383; S t o r d a h l v. Rush Implement Co., 148 Mont. 1 3 , 417 P.2d 95; 3 L a r s o n ' s Workmen's Compensation Law, 580.20. S e c t i o n 92-834, R.C.M. 1947, ( i n e f f e c t i n 1966, b u t s i n c e r e p e a l e d ) provided t h e d i s t r i c t c o u r t may, upon good cause shown admit a d d i t i o n a l evidence. S e c t i o n 92-835, R.C.M. 1947 ( i n e f f e c t i n 1966, b u t s i n c e r e p e a l e d ) , provided t h a t i f t h i s a d d i t i o n a l evidence i s s u b s t a n t i a l , t h e d i s t r i c t c o u r t may be j u s t i f i e d i n r e v e r s i n g t h e D i v i s i o n even though t h e evidence adduced b e f o r e t h e D i v i s i o n c l e a r l y preponderates i n f a v o r of i t s o r d e r . Murphy v. I n d u s t r i a l Accident Board, 93 Mont. 1, 16 P.2d 705; Hurlbut v. V o l l s t e d t Kerr Co., supra. Where t h e a p p e a l t o t h e d i s t r i c t c o u r t i s heard only on t h e D i v i s i o n ' s c e r t i f i e d record o r when t h e d i s t r i c t c o u r t p e r m i t s a d d i t i o n a l evidence t o be introduced t h a t i s n o t important o r adds nothing new t o t h e c a s e , t h e c o u r t i s bound by t h e same r u l e of a p p e a l which a p p l i e s where t h e a p p e a l i s heard only on t h e c e r t i f i e d r e c o r d and t h e D i v i s i o n i s e n t i t l e d t o a presumption t h e c a s e w a s decided c o r r e c t l y . K e l l y v . West Coast Const. Co., 106 Mont. 463, 78 P.2d 1078; McAndrews v. Schwartz, 164 Mont. 402, 523 P.2d 1379; Erhart v. Great Western Sugar Co., Mont . 9 546 P.2d 1055, 33 St. Rep. 302. In the instant case, the only testimony at the district court hearing was from Dr. Movius, which added nothing new or important to the evfdence adduced at the Division hearing. Defendants are entitled to a presumption before this Court that the Division decision was correct. The Division's denial of claimant's claim on the basis that no work-related injury or accident was established is justified. Claimant asserts the 1966 "gassing" was an accident which resulted in an injury and that subsequent daily exposures were also "accidents" which resulted in his disease. The definition of "Injury or injured" in 1966 (before amendment in 1967 and 1973) as it appeared in section 92-418, R.C.M. 1947, was: "* * * a tangible happening of a traumatic nature from an unexpected cause, resulting in either external or internal physical harm, and such physical condition as a result therefrom and excluding disease not traceable to injury." In Miller v. Sundance Recreation, Inc., 151 Mont. 223, 230, 441 P.2d 194, the Court said the test as established in Lupien v. Montana Record Publishing Co., 143 Mont. 415, 419, 390 P.2d 455, is "whether or not there was something unusual or out of the ordinary (unexpected) as it pertained to the performance of the task which brought about an unexpected result of disability." In the instant case claimant was doing his usual work in the expected way at all times. His exposure to dust and smoke was a normal incident of employment at the landfill dump. His pulmonary fibrosis falls outside the definition of injury provided in section 92-418, R.C.M. 1947. Profitt v. J. G. Watts Construction Co., 143 Mont. 210, 387 P.2d 703. Dr. Movius, claimant's witness, testified the condition developed over a long period of time and was "of insidious onset with gradual building up of the irritation" and was not triggered by any single episode. This is not an injury as contemplated by the statute. It is also clear claimant's pulmonary fibrosis is a disease, progressive in nature, and is not "traceable to injury" and not within the requirement of the statute. Claimant is also barred from recovery by his failure to file a claim for compensation within one year of the date of his alleged accident, as required by section 92-601, R.C.M. 1947, This claim was filed 5 years and 2 months after the alleged accidental injury of April 1966, and 1 year and 7 months after claimant's employment was terminated by the City of Billings. The filing requirements of section 92-601, R.C.M. 1947, are mandatory in nature and compliance is essential to the existence of a right to have proceedings to compel payment of compensation. Williams v. Anaconda Copper Mining Co., 96 Mont. 204, 29 P.2d 649; Klein v. Independent Wholesale Associated Grocers, 167 Mont. 341, 538 P.2d 1358, 32 St. Rep. 738. In this case, neither the employer nor the Division was apprised of the ''gassing" of April 1966 until over 5 years after it occurred and over 1 year after termination of claimant's employment. Claimant although plagued from the time of the gassing to the present day by shortness of breath, weakness, coughing and other symptoms of chronic disease, failed to file a timely claim. This is not a case where we are dealing with a latent injury. For the reasons discussed in this opinion, the decision of the district court is reversed. We Concur:

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