ORDER ON APPEAL
an occupational disease case. The question presented is
whether Krystyna Krzan's varicose veins were caused or
aggravated by her employment as a motel maid. A hearing
examiner of the Department of Labor and Industry (Department)
found they were not. Ms. Krzan appeals.
and Procedural Background
Krzan (Krzan) worked as a motel maid at the War Bonnet Inn in
Butte, Montana from 1975 until September 26, 1991. During
that time she suffered from varicose veins in both of her
legs. In 1977, Dr. Carl A. Birkelo, a surgeon, stripped the
veins of the left lower leg. (Claimant's Ex.
In 1988, Dr. P. Giacomini and Dr. T.V. Stonger performed a
second vein stripping of the left leg. (Claimant's Ex.
B.) In 1991, Krzan experienced worsening pain in her legs due
to her varicosities. She returned to Dr. Birkelo, who
prescribed Naprosyn and referred her to Dr. Michael Trimble
for venous injections aimed at symptomatic relief.
(Claimant's Ex. A.) On September 26, 1991, she quit her
job and has not worked since then. On September 30, 1991,
Krzan reported that "she is unable to work because of
discomfort in her legs LT > RT."
after Krzan quit work she filed a claim for occupational
disease benefits based on her varicose veins. In December of
1991 and January of 1992, two of her physicians -- Dr.
Birkelo and Dr. Michael R. Trimble -- submitted letters to
the State Compensation Insurance Fund on her
behalf (Claimant's Exs. C and E.) The State
Fund contested the claim and the Department thereafter
initiated the medical panel procedures prescribed by Title
39, chap. 72, part 6.
Department designated Dr. John Diggs, a member of the
Department's Occupational Disease Panel, to examine
Krzan. Dr. Diggs conducted his examination on May 12, 1993.
Following his examination, Dr. Diggs submitted his report to
the Department. He found no relationship between Krzan's
job and her varicose veins:
The cause of her history of chronic and recurrent varicose
veins in the legs, especially the left leg, is unrelated to
her history of work as a motel maid. The physical demands of
her job at the War Bonnet Inn would have had a beneficial
effect because she was not required to stand in one position
for very long. Movement and the activity required for motel
room cleaning would not be the cause of her chronic venous
problem. There is no reasonable medical indication that her
history of leg swelling or varicose veins treated with vein
stripping and sclerosing injections was a result of working
as a motel maid. . . .
(Birkelo Dep. Ex. 6 at 3.)
the physicians who treated Krzan over the years have weighed
in on behalf of Krzan. Dr. Birkelo wrote a letter to the
State Fund on January 22, 1992:
Krzan has been a patient of mine for many years. She has long
been known to have venous insufficiency in her lower
extremities. I believe that these symptoms have been
aggravated by prolonged standing. She tells me that her work
involves standing over long periods and I believe that this
has aggravated the symptoms in her legs.
Ex. C; emphasis added.) In a June 14, 1993 letter to
Krzan's attorney, Dr. Birkelo attributed "60
percent" of her varicose vein problem to her work based
"on the fact that more of her prolonged standing was
done at work than would be done on her own time."
(Defendant's Ex. G.) Dr. Michael Trimble, who purchased
Dr. Birkelo's practice in 1989 (Birkelo Dep. 5),
treated claimant in 1991 with sclerosing injections of the
veins (Birkelo Dep. 10; Claimant's Ex. E). On December 2,
1991, Dr. Trimble wrote to the State Fund:
Ms. Krzan has a problem with pain in her legs, secondary to
chronic venous insufficiency. She has had previous vein
stripping. She has had episodes of phlebitis. She has also
had sclerotherapy of the veins to decrease her symptoms. The
patient still has symptoms of discomfort in her leg when
standing for prolonged periods. This may be related
to her work, as the patient does stand for long periods of
time on her feet at work. . . . I do not know what percent
her work contributes to her leg problems, but I do think that
prolonged standing would aggrevate [sic] her
(Claimant's Ex. E; emphasis added.)
deposition Dr. Birkelo testified that he related Krzan's
varicose veins to her employment based on Krzan's report
that she stood in one place for long periods of time. His
testimony was in response to a question asking him to comment
on Dr. Diggs' report:
Q. Have you seen the report from Dr. Diggs?
A. Yes, I saw that.
Q. In that he indicates that he doesn't think the
varicose veins can be attributed to her job because of the
walking she does, activity she does. Do you have any response
to his statements?
A. The only response I have to that -- I thought he did a
good work up from what I saw. I thought it was a complete
evaluation. I was impressed that it was well done. The only
thing I can say in response to that is most of what I stated
was based on her statement to me, that she did a lot of
standing, and I based it on that. And I assume that she
walked around a lot, you know, from what I've seen when
I've been in motels. I see the maids walking around. But
she also indicated to me she did a lot of standing. I guess
if you have the problem, I suppose the optimal position to be
in is lying down with your legs elevated, if you have
varicose veins and you're going to talk about the most
optimal position you can assume for varicose veins -- not
talking about leading your life, talking about optimal
position for that -- I don't think many people would
argue with that.
The second most beneficial position would be upright with
elastic support and moving. The worst position you could be
in would be upright and standing still. And I suppose what
would be worse would be upright, standing still without
external support. The next worse would be upright standing
still with elastic support, and next worse would be sitting
down with your feet dependent. And that's not a
beneficial position at all for somebody with varicose veins.
A recliner isn't a beneficial position because then your
bottom is the lowest point where gravity seeks its level and
your heart is at the level of your ankles or your feet or
something and your bottom is lower in between. So that's
not beneficial, either, I guess. Does that answer make sense
(Birkelo Dep. at 26-27.) Dr. Birkelo also conceded that his
assignment of sixty percent (60%) of Krzan's disability
to her employment was conjecture on his part:
. . . That was a pure guess on my part. I have no parameters
to go by. I'm not a guy that reviews Workman's [sic]
(Id. at 20-21.)
. . . So it was an attempt at an educated guess with a smile
on my face as I said it because it is -- it's guess work.
(Id. at 24.)
the Occupational Disease Act either the claimant or the
insurer may ask for a further evaluation by a second member
of the Occupational Disease Panel. § 39-72-602(2)(b),
MCA. Neither Krzan nor the State Fund did so in this case.
Therefore, on June 24, 1993, the Department issued an order
determining that Krzan was not suffering from an occupational
disease. See § 39-72-602(2)(c), MCA. Krzan then
requested a hearing pursuant to section 39-72-611, MCA.
hearing was held on December 16, 1993. Krzan and a former
co-worker testified. Dr. Birkelo's deposition testimony,
along with a number of exhibits, were also submitted for
consideration. Dr. Diggs' report was among the exhibits
introduced at hearing. It was attached to Dr. Birkelo's
deposition as Exhibit 6.
April 19, 1994, the Department's hearing examiner issued
his Findings of Fact; Conclusions of Law; Order. He affirmed
the Department's Initial Order denying benefits.
filed her Notice of Appeal on May 19, 1994. On June 1, 1994,
she filed an Amended Notice of Appeal in which she alleges
that "the decision issued by the Department of Labor
& Industry is clearly erroneous in view of the reliable,
probative and substantial evidence in the entire record and
characterized by an abuse of discretion or an unwarranted
abuse of discretion."
matter has been fully briefed. Oral argument was held on
October 27, 1994, and the matter was deemed submitted at that
39-72-612(2), MCA, provides for a direct appeal to the
Workers' Compensation Court from the Department's
final order in an occupational disease case. The section
. . . The judge may overrule the department only on the basis
that the department's determination is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of ...