Whittington v. Ramsey Construction & Fabrication

No. 87-117
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
JAMES 0 WHITTINGTON,
.
Claimant and Appellant,
-vs-
RAMSEY CONSTRUCTION AND FABRICATION,
Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lynaugh, Fitzgerald, HFngle & Eiselein; Michael G.
Eiselein, Billings, Montana
For Respondent :
-
Crowley Law Firm; William J. Mattix, Billings, Montana
Submitted on Briefs: Aug. 27, 1987
Decided: govember 5, 1987
Filed : N O V 5 - 1982
*,&
Clerk
I
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The family of James 0 Whittington continues his appeal
.
of the Workerst Compensation Court's decision not to award
compensation benefits under § 39-71-119, MCA, for the injury
Mr. Whittington said he suffered when he inhaled welding
fumes and smoke while working for Ramsey Construction. Mr.
Whittington was awarded Occupational Disease benefits. We
affirm.
It should be noted that Mr. Whittington died of cardiac
standstill on January 23, 1987 before this case was decided
by the Workerst Compensation Court. His family continues in
the claim for compensation benefits.
The claimant was a 52-year-old man who had worked as a
welder for some 28 years when he undertook a four-day welding
assignment at the Exxon Refinery in Billings, Montana, in
September 1982 for Ramsey, a Plan 3 employer. He was not a
permanent employee of Ramsey; he got the job as a welder on
call through his local union. The claimant had a history of
pulmonary difficulties. Three weeks before he undertook the
welding job for Ramsey, Whittington saw Dr. Terrance J.
Fagan, a Billings pulmonary specialist. Dr. Fagan noted that
Whittington had been a two-pack-a-day cigarette smoker and on
at least three occasions in the past twenty years had
suffered breathing difficulties while either welding or
cutting metal. These incidents included zinc oxide poisoning
induced by his cutting of galvanized metal in Wyoming in
1964. The second incident occurred in Utah in 1972 after he
had spent thirty to forty minutes welding inside an
eighteen-inch pipe with no ventilation. In 1976, Whittington
suffered smoke inhalation while he was air arcing and welding
on stainless steel in Illinois. He received a workers'
compensation award of $22,500, less $4,500 for attorneys1
fees and $18 for medical reports, for reduced lung capacity
from the Illinois Industrial Commission for this last
incident.
Dr. Fagan conducted an FEV 1, a test measuring the
volume of air exhaled, on September 3, 1982. Whittington
registered .7 while a healthy person of his age would have
registered about 3.4. Whittington's lung capacity was about
20% of normal. Dr. Fagan diagnosed Whittington as having a
"severe" case of airways obstructive disease. This meant
that Whittington had a decreased lung capacity because his
airways were scarred or abnormal; this condition could result
from asthma, bronchitis, emphysema, or any combination of the
three. Dr. Fagan said this condition made it inadvisable for
Whittington to work as a welder, and referred him to Dr.
Bruce Anderson, an allergist. Approximately one week before
the welding job for Ramsey, Whittington saw Dr. Anderson. He
told Dr. Anderson that he had begun wheezing while working as
a welder in Illinois in 1976. He further related that while
all welding made him wheeze, the problem was particularly
acute when he worked with stainless steel because its fumes
contained a higher percentage of chromium and nickel. Dr.
Anderson determined that Whittington was not allergic to the
fumes; but he felt Whittington had developed asthma.
Whittington claimed he learned that he would be working
with stainless steel only after he entered the job site on
September 20, 1982. He contended that he was welding inside
a furnace that did not afford adequate ventilation for the
fumes and the smoke. He testified that because of this, he
suffered from shortness of breath and coughing. Both
Whittington and his wife, Laura, testified that when
Whittington drove home following that shift, he remained in
his vehicle for fifteen minutes or so after he had parked it
because he was experiencing "an awful hard time" breathing,
but that he refused immediate medical attention. Whittington
claimed he did not get immediate medical care because he
already had a doctor's appointment scheduled for later that
day. He claimed that at the appointment, Dr. Anderson
prescribed a Proventil inhaler, which would allow him to
breath easier while working. At his deposition, Dr. Anderson
stated that he saw Whittington only once, on September 14,
and that he has no record of seeing Whittington after
Whittington began the job at the Exxon Refinery or of
prescribing an inhaler.
Whittington worked four ten-hour shifts beginning at
6:00 p.m. and ending at 4:00 a.m. the following morning.
These shifts started the evenings of September 18, 20, 21,
and 22, 1982, according to Ramsey's payroll records.
Whittington testified that his welding produced about "as
much [smoke] as a barbecue would put out. " However, he
claimed that he was forced to lean directly over his welding
rod because the nature of the scaffolding and the ventilation
was poor. He testified that the foreman on the job was Gary
Wiech, whom he said he knew, and that it was Wiech he
confronted when he discovered that he was welding on
stainless steel. Further, he said FJiech instructed him to
redo the welds and refused to reassign him away from the
stainless steel. Whittington also denied that he had ever
been a heavy tobacco smoker. He said he had smoked one year
as a teenager and then off and on since 1969, figuring that
he smoked perhaps thirty cigarettes per week. He
acknowledged that he was smoking in 1982 and that even at the
time of the hearing he still would smoke occasionally if
anybody offered him a cigarette.
Ramsey employees also testified by deposition. Terry
Mammenga, Ramseyls cost accountant and payroll supervisor,
stated that Whittington had worked for Ramsey on two other
occasions that summer at another refinery. He also testified
that Gary Wiech, whom Whittington claimed was foreman at the
Exxon job, was never assigned to Exxon and indeed had
supervised Whittington on the two occasions he worked at the
other refinery. Mammenga stated that no Workers'
Compensation claim had been filed through his office. Hank
Cantrill testified that he had been Ramseyls night shift
supervisor and that he remembered Whittington because he had
caught Whittington smoking while working inside the furnace,
which he said was a serious infraction of work rules at a
refinery. He also said that work crews had cut holes in the
walls of the furnace to provide ventilation and that there
was no need for a welder to bend directly over his welding
rod.
Whittington sought Workers1 Compensation benefits on
the theory that his exposure to nickel and chromium fumes
from welding stainless steel constituted an injury that
aggravated his pulmonary obstructive disease to the point
that he could not take part in anything more strenuous than
walking a limited distance in his yard, playing cards,
reading, or watching television. He was forced to resort to
oxygen often since overexertion easily winded him.
Whittington filed his claim for benefits on July 29,
1983. The Workers' Compensation Division determined the
claim to be in the nature of one for Occupational Disease
benefits. An Occupational Disease Medical Panel composed of
Dr. Fagan, Dr. John W. Strizich of Helena, and Dr. Thomas
Schimke, then of Missoula, reported its findings on September
It is agreed that Mr. Whittington is
totally disabled and suffering from
severe obstructive lung disease. [we]
feel that the basic fundamental problem
producing his obstructive lung disease is
a long history of substantial cigarette
smoking.
However, it is felt by all of us that his
welding of stainless steel probably
contributed significantly to the
progression of his underlying lung
disease.
It is agreed by all of us that his
occupation contributed 40 percent to his
current disability.
On November 14, 1984, the Division determined
Whittington was entitled to 40 percent total disability
benefits and awarded him $105.20 per week (40 percent of the
$263 per week applicable in September 1982 when Whittingtonls
job ended). Whittington's benefits were reduced to $77.90
per week when Social Security offset was figured. On May 1,
1985, Whittington filed his petition for Workers'
Compensation benefits.
The Workers1 Compensation hearings officer, Robert J.
Campbell, considered medical testimony introduced by
deposition along with the live testimony of Whittington and
his wife. Dr. Fagan, the Billings internist who originally
saw Whittington, testified that Whittington's exposure to the
welding fumes may have caused him a temporary irritation, but
he testified to a reasonable degree of medical certainty that
Whittington would have recovered from any effects of those
fumes within the month. He stated that welding fumes, even
those from stainless steel, are not associated with permanent
pulmonary disease and said Whittingtonls condition was
attributable to his smoking:
Q. [By Mr. Mattix] What was the effect
of smoking? What would be the effect of
smoking in a gentleman with Mr.
FJhittington's condition?
A. Well, I considered this disease to be
largely smoking induced. So, to be
consistent, one would have to say that
continued smoking would lead to continued
worsening, and the literature does
support the fact that patients with
airways obstructive disease who continue
to smoke will decline at a faster rate
than if they would quit.
Q. What was your estimate of [welding's]
role in Mr. Whittington's case [in 1 9 8 2 ] ?
A. Well, at that time I thought it
probably played some role, but certainly
not the major role. And the only
important feature really was that he not
do any more of it because it was such an
obvious irritant.
Q. What is your opinion now? How has it
changed?
A. I think probably that I would say
that the vast majority of his problem is
smoking related, and if there was an
effect from welding per set it is an
irritant and probably not as the cause of
permanent change, and that I have not
seen anything to make me change that
position at this point.
Q. When you say that opinion, Doctor,
are you stating it with a reasonable
degree of medical certainty?
A. Yes, I think so.
The allergist, Dr. Anderson, agreed somewhat when he
testified that Whittington's sensitivity to the stainless
steel fumes caused his winded condition, but could not
testify to a medical certainty that such fumes would cause
irreversible pulmonary problems. He also could not state as
a medical certainty that the September 1982 exposure to the
fumes aggravated the preexisting condition into one of
constant discomfort.
Dr. Schimke, a specialist in pulmonary disease,
diagnosed irreversible chronic airway disease, which he said
was most likely caused by a history of cigarette smoking.
At Dr. Schimke's deposition, this exchange occurred:
Q. [By Mr. Mattix] Was there anything
other than the welding and the work
experience that Mr. Whittington related
to you? Is there anything else in his
history that you found significant with
regard to the particular medical problem
that you were examining him with regard
to?
A. He was a two pack per day smoker for
many years during his adult life, but he
reported that he had stopped smoking
during the past few years when his
bronchitis was so bothersome.
Q. Why is that significant?
A. It is common to see patients who are
two pack per day smokers to have some
symptoms of such as Mr. Whittington
complained of by the age of 53, and
therefore, that historical item leads me
to suspect that it was at least, in part,
responsible for his complaints.
Q. All right, do you have an opinion,
then, as to the cause or causes of Mr.
Whittington's chronic obstructive
pulmonary disease, again, within a
reasonable degree of medical certainty?
A. Yes.
Q. And what is that opinion?
A. The most likely cause of his advanced
chronic obstructive pulmonary disease is
cigarette smoking. A contributing cause
may be the industrial smoke exposure that
he sustained during a 20-year period of
welding.
Q. You say may be, that may be a
contributing cause. Are you able to
state that it is a contributing cause to
a reasonable degree of medical certainty?
A. No.
Q. And why is that, Doctor?
A. In evaluating this case for the
Workers' Compensation Division, I have
reviewed the medical literature in an
attempt to find substantiation for lung
disease of this severity based on welding
fume exposure, and in my search, I found
articles which suggested a possible minor
aggravation of the bronchitis or lung
disease, but I found nothing that would
indicate to me that welding fume exposure
could be the sole or a significant cause
of his present condition.
Dr. Schimke testified the condition was a progressive one and
said the exposure to these fumes was only a minor
irritant--and only one in a series of such irritants.
The hearings examiner denied Workers' Compensation
benefits. He stated that no such benefits were appropriate
since Whittington had not sustained an injury as defined by
5 39-71-119 (1), MCA, which, before its amendment on July 1,
1987, required the claimant to prove he had suffered a
"tangible happening of a traumatic nature from an unexpected
cause ... " He concluded:
None of the three medical specialists in
this case would testify to a reasonable
degree of medical certainty that the
incident of inhaling fumes from stainless
steel welding on September 21, 1982,
accentuated the claimant's preexisting
COPD [chronic obstructive pulmonary
disease] or had anything more than a
temporary effect on his lungs. Avoiding
all types of irritants to the lungs was
advised, but no medical evidence has been
submitted that the incident triggered a
progressively [sic] worsening of his
condition. Likewise, no medical evidence
was introduced that without this incident
he may have been able to continue to work
under those conditions or that it
resulted in any permanent damage. The
evidence presented does not support the
claimant's contention that an "injury"
resulted in disability under the Workers'
Compensation Act.
The Workers' Compensation Court accepted the hearings
examiner's findings of fact and conclusions of law on March
On review of the Workers' Compensation Court decision,
this Court must determine if there is substantial credible
evidence to support the decision. Courser v. Darby School
District No. 1 (Mont. 1984), 692 P.2d 417, 419, 41 St.Rep.
2283, 2285. In this review we have carefully examined the
record and have read the testimony by Whittington and his
wife as well as the depositions of the various physicians and
Ramsey employees.
The Whittington estate argues that one who has received
an award of Occupational Disease benefits is not
automatically precluded from receiving Workers' Compensation
benefits. Ridenour v. Equity Supply Co. (19831, 204 Mont.
473, 665 P.2d 783. However, in Ridenour, this Court said an
employee has no right to elect his benefits unless he fits
the definition of both occupational disease and injury.
Ridenour, 665 P.2d at 786. Section 39-72-408, MCA, says that
an occupational disease arises from employment if:
(1) there is a direct causal connection
between the conditions under which the
work is performed and the occupational
disease;
(2) the disease can be seen to have
followed as a natural incident of the
work as a result of the exposure
occasioned by the nature of the
employment;
(3) the disease can be fairly traced to
the employment as the proximate cause;
Section 39-71-119, MCA, defines an injury as:
(1) a tangible happening of a traumatic
nature from an unexpected cause or
unusual strain resulting in either
external or internal physical harm and
such physical condition as a result
therefrom and excluding disease not
traceable to injury, except as provided
in subsection (2) of this section;
(2) cardiovascular or pulmonary or
respiratory diseases contracted by a paid
firefighter employed by a municipality
. . . which diseases are caused by
overexertion in times of stress or danger
in the course of his employment
... Nothing herein shall be construed
to exclude any other working person who
suffers a cardiovascular, pulmonary, or
respiratory disease while in the course
and scope of his employment.
(3) death resulting from injury.
In Ridenour, the claimant was injured by a massive
inhalation of grain dust while he was making repairs at the
top of a grain bin. He had not known an unloading operation
was in process beneath him when he left one area to go to
another to receive the proper tools. He breathed in such a
quantity of this grain dust that he was rushed immediately to
a doctor. Like Whittington, the claimant in Ridenour
suffered from chronic obstructive pulmonary disease, had a
history of cigarette smoking, and eventually was forced to
retire. Unlike Whittington, he was able to convince the
Workers' Compensation Court that a tangible happening of an
unexpected cause occurred on a specific date, December 18,
1978, and caused him harm. Ridenour met this Court's
distinction between occupational disease and industrial
injury. "The two crucial points of distinction are time
definiteness and unexpectedness." Wise v. Perkins (1983),
202 Mont. 157, 166, 656 P.2d 816, 820. If the claimant fails
to show time definiteness and unexpectedness, there is no
injury under 5 39-71-19 ( 1 , MCA. Phillips v. Spectrum
Enterprises (Mont. 19861, 730 P.2d 1131, 1134, 43 St-Rep.
2288, 2291.
Our distinction between occupational disease and injury
is consistent with that developed by Professor Arthur Larson:
What set occupational disease apart from
accidental injuries was both the fact
that they could not honestly be said to
be unexpected, since they were recognized
as inherent hazard of continued exposure
to conditions of the particular
employment, and the fact that they were
gradual rather than sudden in onset.
Thus, what would ordinarily be an
occupational disease might be converted
to an accident by an unusual and sudden
dosage of the same kind of dust or fumes
that, absorbed gradually over a long
period, would produce typical industrial
disease.
Larson, Workmen' s Compensation Law, Vol. 1B 5 41.31, (1987).
The fact that Whittington, like the claimant
Ridenour, had chronic obstructive pulmonary disease, smoked,
and breathed fumes and dust at work does not mean he suffered
an injury that would qualify him for Workers' Compensation
benefits. He failed to identify an unexpected tangible
happening that occurred on one specific date. He claimed
that the amount of smoke a.nd fumes from the welding job was
unusual and unexpected. However, the Workers' Compensation
Court made no such finding of fact. We uphold that court's
findings when they are based on sufficient credible evidence.
Coles v. 7-11 Stores (Mont. 1985), ?04 P.2d 1048, 1050, 42
St.Rep. 1238, 1240. Thus, we will not determine if the
evidence is sufficient to support a contrary finding. Davis
v. Jones (Mont. 1985), 701 P.2d 351, 353, 42 St.Rep. 840,
843.
Whittington argued that he did not expect to work on
stainless steel. Yet one physician already had told him he
should do no more welding of any kind because of his
pulmonary condition. And Whittington had told another
physician that all welding made him cough and wheeze, but
that stainless steel only made it more acute. He also cannot
specify a time definite. In his petition he said the
incident occurred on September 20 and said this was his first
work shift. Yet Ramsey employment records indicate September
18 was his first shift.
In fact, Whittington's own testimony indicated that he
had been welding for more than 28 years, had smoked a good
deal of his life, and had experienced similar reactions on at
least three occasions in his work history. Because
Whittington could have expected to have an adverse reaction
to welding and because the reaction appears to have been
developing over years of welding, Whittington could neither
establish this illness as unexpected nor could he assign a
definite date to its onset. This malady was an occupational
disease rather than an injury. It is difficult to establish
a bright-line barrier between long-term disease and instant
injury. A carpal tunnel syndrome that arose over the course
of two months was held to constitute an injury since it arose
from a chain of physical incidents, i.e. stacking of lumber.
Hoehne v. Granite Lumber Co. (1980), 189 Mont. 221, 225, 615
P.2d 863, 865. But when a claimant had worked inside a
copper refinery for 22 years and had been exposed to sulfuric
acid, arsenic, asbestos and other compounds in his work
environment, this Court held that his chronic obstructive
lung disease and related physical and mental problems were
diseases, not injuries. McMahon v. Anaconda Co. (Mont.
1984), 678 P.2d 661, 663, 41 St.Rep. 480, 482.
In Greger v. United Presstech, Inc. (1979), 180 Mont.
348, 590 P.2d 1121, we held that a concrete worker who
suffers allergic reactions to chromium and nickel compounds
in concrete has suffered an occupational djsease but not an
injury.
We find that the prevailing and most
convincing view is that such allergies
are to be considered occupational
disease. This is especially important
[because] the purpose - - occupational
of the
disease - - - compensate workers who
act is to
contract a disease - -
or have inert diseases
. .. when there is no "injury" - as
defined in section 92-418 - -
RCM 1947, now
5 39-71-119,MCA. ( E m p h a s i s added.)
Greger, 590 P.2d at 1124.
In Phillips, we held that an employee who claimed
respiratory illness because he splashed solvent in his face
would be denied Workerst Compensation benefits because he had
been exposed to various chemicals as a welder and his
bronchitis was due to continued exposure to chemicals rather
than the specific instance the claimant cited!. Since the
claimant had had breathing difficulty before his alleged
injury and had been hospitalized at times for that bronchial
condition, "it is not unexpected he should suffer recurring
attacks of bronchitis," and the claimant's exposure did not
constitute an injury. Phillips, 730 P.2d at 1134. By the
same reasoning Whittingtonts illness was not an injury. He
had suffered with breathing difficulties for years and had
suffered harsh bronchial attacks when he welded. It was not
unexpected that he should suffer breathing problems when he
chose to weld again in September 1982 even though one doctor
had advised him against any more welding and Whittington had
told another doctor that his welding caused him breathing
trouble.
Section 39-71-119(2) was interpreted in Schieno v. City
of Billings (Mont. 1984), 683 P.2d 953, 41 St.Rep. 1157, to
require that a firefighter who claimed his 26 years of
exposure to smoke, toxic gases and fumes contributed to, or
aggravated, his coronary heart disease must prove it is
"medically probable" that the occupation caused the disease.
In Schieno, the medical testimony was that the claimant's
smoking, high blood pressure and family history of heart
disease would have been sufficient to cause heart disease.
Since he failed to prove by a medical probability that his
heart disease was caused by his employment, he was denied
permanent total disability. Schieno, 683 P.2d at 955.
In the present case, Whittington failed to prove that
his disease was caused by his occupation. The physicians
testified that Whittington's distress was more than likely
caused by his history of cigarette smoking. Because the
doctors did not tie the cause of his disease to his work by a
medical probability he did not qualify for compensation under
$
$ 39-71-119 (2), MCA.
The Workers' Compensation Court decision is supported
by sufficient credible evidence. The claimant's welding job
was neither the instantaneous, unexpected happening that
disabled the worker nor was it the cause of his disease. As
such, Montana law provides him and his family benefits under
the Occupational Disease Act, S 39-73-101 et seq., MCA. His
request for Workers' Compensation benefits under § 39-71-119,
MCA, was properly denied.
Affirmed.
We concur:
Mr. Justice William E. Hunt, Sr., dissenting:
I dissent. The majority is incorrect when they say that
Ridenour is not controlling in this case. Although the
majority correctly distinguishes between occupational disease
and injury, it fails to realize that this is indeed a case
where "an occupational disease [has been] converted to an
accident by an unusual and sudden dosage of" welding dust.
Larson, Workmen's Compensation Law, Vol. lB, S 41.31. The
majority states that Whittington failed to identify an
unexpected tangible happening that occurred on a specific
date. In so stating, the majority ignores key testimony from
both the claimant and his wife that the claimant experienced
severe difficulty breathing immediately after several shifts
of working on welding stainless steel. The majority ignored
claimant's testimony that he became nearly housebound
immediately after the attack. This is not a case when the
claimant has gradually had to give up his activities due to
increasing severity of his pulmonary disease. This is a case
where the exposure to several days of toxic fumes resulted in
such pulmonary distress as to limit the claimant to the
confines of his house and yard.
The majority contends that the claimant was not able to
fix his injury to a definite time. Yet it is clear that
Whittington's difficulties began directly after his
September, 1982, welding shifts. The majority quotes
Professor Larson as stating that:
What set occupational disease apart from
accidental injuries was both the fact
that they could not honestly be said to
be unexpected, since they were recognized
as inherent hazard of continued exposure
to conditions of the particular
employment, and the fact that they were
gradual rather than sudden in onset.
Thus, what would ordinarily be an
occupational disease might be converted
to an accident by an unusual and sudden
dosage of the same kind of dust or fumes
that, absorbed gradually over a long
period, would produce typical industrial
disease.
Larson, Workmen's Compensation Law, Vol 1B § 41.31, (1987).
Professor Larson has also stated:
As to suddenness of cause: the tendency has been
to recognize episodes or exposures of several
hours' or even several days' duration, since for
all practical purposes, including those mentioned
at the outset of this section, identification of
the time of accident within a matter of a few days
is sufficiently precise.. ..
Put negatively, this is merely to say that injury,
to be accidental, need not be instaneous.
Larson, Workmen's Compensation Law, Vol. lB, S 39.20.
Professor Larson also states this about the time
definiteness of the result of an accident.
[I]n various situations an otherwise-gradual kind
of deterioration may culminate in an obvious and
sudden collapse and structural change whose
incidence can fix the date of accident clearly.
Larson, Vol. 1B at § 39.30.
As an example, Professor Larson mentions that years of
inhaling welding fumes that results in a sudden inability to
breath satisfies the definition of accident. -Id.
Whittington's pre-existing disease does not preclude
Workers' Compensation for an aggravation or acceleration of
the disease by an industrial injury or accid.ent. Ridenour,
665 P.2d at 787-88. This case squarely fits within the
Ridenour analysis and claimant should not have been forced to
accept a lower compensation award under the Occupational
/
Disease Act.