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Smart v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 19, 1994

JOHN SMART Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for THE MONTANA HISTORICAL SOCIETY Employer.

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          MIKE MCCARTER JUDGE

         This matter arises under the Occupational Disease Act, Title 39, ch. 72, MCA, and involves a question of statutory interpretation. The matter is presented by way of a Motion for Summary Judgment filed by petitioner, John Smart (Smart).

         Factual Background

         The following facts are set forth in the Petition for Hearing and admitted by the Response:

1. On October 29, 1992, a claim was filed by Petitioner for an injury arising out of and in the course of employment as an archival photographer with The Montana Historical Society. Petitioner is 46 years old and was employed by the Society for eleven years. Petitioner suffered numerous injuries that had been building up over the years, due to the toxicity of the dark room. He experienced nausea, headaches, chronic respiratory irritation, disorientation, memory loss and depression.
2. Petitioner suffered these injuries in the County of Lewis and Clark.
3. The Division of Worker's Compensation Fund accepted the claim under the Occupational Disease Act.[1]

         Smart also alleges that he is "disabled" within the meaning of the Occupational Disease Act, a contention that the State Fund denies. However, in its brief the State Fund states: "Respondent agrees that the Petitioner is unable to return to his previous position as an archival photographer for the Montana Historical Society." (Reply Brief to Petitioner's Motion for Summary Judgment at 1.)

         Smart, further contends that he is not only disabled from returning to his time-of-job injury but "that he cannot perform any job within his profession as he cannot be exposed to photographic chemicals." (Motion for Summary Judgment at 3.) The State Fund apparently does not dispute this contention since it responds, "Petitioner is capable of regular employment even though it is outside of his previous employment in photography." (Reply Brief to Petitioner's Motion for Summary Judgment at 3; italics added.)

         Discussion

         In seeking summary judgment Smart does not contend that he is incapable of returning to any sort of employment. Rather, he argues that his entitlement to benefits is not limited to the $10, 000 maximum benefit amount available under section 39-72-405 (2), MCA, because his inability to return to his time-of-injury profession satisfies the definition of "disablement," section 39-72-102 (4), MCA (1991), and entitles him to total disability benefits. His argument is premised on the words "worker's job pool" found in section 39-72-102 (4), MCA (1989). The section provides:

(4) "Disablement" means the event of becoming physically incapacitated by reason of an occupational disease from performing work in the worker's job pool. Silicosis, when complicated by active pulmonary tuberculosis, is presumed to be total disablement. "Disability", "total disability", and "totally disabled" are synonymous with "disablement", but they have no reference to "permanent partial disability".

         Smart argues that "worker's job pool," which is not otherwise defined within the Occupational Disease Act, refers to the worker's usual profession at the time of his injury and does not encompass other jobs for which the worker may be qualified and capable of performing. He argues that since he cannot return to photography he meets the definition of disablement and is entitled to total disability benefits, presumably under section 39-72-701 (1), MCA, although he does not identify a specific section.

         The State Fund disagrees. It urges the Court to a construe the term "worker's job pool" consistently with the definition of that term found in the Workers' Compensation Act, section 39-71-1011 (7) (a), MCA (1987), a definition ...


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