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Kastella v. Plum Creek Timber Company

Court of Workers Compensation of Montana

June 30, 1995

STEVE KASTELLA Petitioner
v.
PLUM CREEK TIMBER COMPANY Respondent.

          DECISION AND JUDGMENT ON APPEAL

          MIKE McCARTER, JUDGE

         Summary: On appeal from decision of Department of Labor Hearing Examiner, claimant argued that the hearing examiner erred by apportioning 87% of his disability to non-occupational factors and denying his request for attorneys fees and costs. Claimant also challenged conduct of insurer's attorney in writing argumentative letter to physician assigned by Department of Labor to evaluate his condition.

         Held: Where the medical opinion on which the hearing officer relied attributed 90% of the claimant's back condition to occupational factors, the hearing examiner erred by assigning respondent liability only for that portion of occupational exposure attributed to employment with respondent. While section 39-71-706(1), MCA (1987) allows apportionment between occupational and non-occupational factors, the statutes do not provide for apportionment between employers. Indeed, section 39-72-303(1), MCA (1987) liability for occupational exposure rests with "the employer in whose employment the employee was last injuriously exposed to the hazard of such disease." As the last employer, respondent is responsible for 90% of the claimant's occupational disease. Under 39-72-613(1), MCA (1987), claimant is entitled to attorneys fees and costs where he has prevailed, which he has in light of this Court's reversal of the decision below. Where medical panel provisions of the Occupational Disease Act clearly contemplate evaluation by an impartial medical panel, argumentative ex parte communication from respondent's counsel received by the physician without time for claimant to add his spin on the evidence may prejudice claimant. The Department of Labor and Industry is obligated to take steps to regulate such communications.

         Topics:

Occupational Disease: Apportionment. Where the medical opinion on which the hearing officer relied attributed 90% of the claimant's back condition to occupational factors, the hearing examiner erred by assigning respondent liability only for that portion of occupational exposure attributed to employment with respondent. While section 39-71-706(1), MCA (1987) allows apportionment between occupational and non-occupational factors, the statutes do not provide for apportionment between employers. Indeed, section 39-72-303(1), MCA (1987) liability for occupational exposure rests with "the employer in whose employment the employee was last injuriously exposed to the hazard of such disease." As the last employer, respondent is responsible for 90% of the claimant's occupational disease. Note: in Schmill v. Liberty Northwest, 2003 MT 80, the Montana Supreme Court held the apportionment provisions of the Occupational Disease Act unconstitutional.
Occupational Disease: Medical Panel. Where the medical opinion on which the hearing officer relied attributed 90% of the claimant's back condition to occupational factors, the hearing examiner erred by assigning respondent liability only for that portion of occupational exposure attributed to employment with respondent. While section 39-71-706(1), MCA (1987) allows apportionment between occupational and non-occupational factors, the statutes do not provide for apportionment between employers. Indeed, section 39-72-303(1), MCA (1987) liability for occupational exposure rests with "the employer in whose employment the employee was last injuriously exposed to the hazard of such disease." As the last employer, respondent is responsible for 90% of the claimant's occupational disease. Note: in Schmill v. Liberty Northwest, 2003 MT 80, the Montana Supreme Court held the apportionment provisions of the Occupational Disease Act unconstitutional.
Occupational Disease: Medical Panel. Where medical panel provisions of the Occupational Disease Act clearly contemplate evaluation by an impartial medical panel, ex parte communication from respondent's counsel received by the physician without time for claimant to add his spin on the evidence may prejudice claimant. The Department of Labor and Industry is obligated to take steps to regulate such communications.
Occupational Disease: Last Injurious Exposure. Where the medical opinion on which the hearing officer relied attributed 90% of the claimant's back condition to occupational factors, the hearing examiner erred by assigning respondent liability only for that portion of occupational exposure attributed to employment with respondent. While section 39-71-706(1), MCA (1987) allows apportionment between occupational and non-occupational factors, the statutes do not provide for apportionment between employers. Indeed, section 39-72-303(1), MCA (1987) liability for occupational exposure rests with "the employer in whose employment the employee was last injuriously exposed to the hazard of such disease." As the last employer, respondent is responsible for 90% of the claimant's occupational disease. Note: in Schmill v. Liberty Northwest, 2003 MT 80, the Montana Supreme Court held the apportionment provisions of the Occupational Disease Act unconstitutional.
Attorney Fees: Occupational Disease Cases. Under 39-72-613(1), MCA (1987), claimant is entitled to attorneys fees and costs where he has prevailed in a hearing requested by the insurer before the Department of Labor, which he has in light of this Court's reversal of the decision below.
Attorneys: Correspondence. Where medical panel provisions of the Occupational Disease Act clearly contemplate evaluation by an impartial medical panel, argumentative ex parte communication from respondent's counsel received by the physician without time for claimant to add his spin on the evidence may prejudice claimant. The Department of Labor and Industry is obligated to take steps to regulate such communications.
Attorneys: Conduct and Tactics. Where medical panel provisions of the Occupational Disease Act clearly contemplate evaluation by an impartial medical panel, argumentative ex parte communication from respondent's counsel received by the physician without time for claimant to add his spin on the evidence may prejudice claimant. The Department of Labor and Industry is obligated to take steps to regulate such communications.

         Claimant, Steve Kastella, appeals from Findings of Fact, Conclusions of Law, and Order entered by a hearing examiner of the Department of Labor and Industry (Department) on January 10, 1995. Respondent, Plum Creek Timber Company (Plum Creek), which is a self-insured employer does not cross-appeal.

         The decision below determined that claimant is suffering from an occupational disease and apportioned thirteen (13%) percent of his disability to occupational factors and eighty-seven (87%) percent to non-occupational factors. The hearing examiner further denied claimant's request for attorney fees and costs. After considering the hearing examiner's findings and the parties' arguments, the Court finds that the decision below was based on fundamental errors of law and must therefore be reversed.

         Conclusiveness of Findings of Fact

         On appeal the claimant challenges only two of the hearing examiner's findings of fact. However, as discussed later in this decision, the alleged errors in those findings are errors of the law rather than factual errors. In its responsive brief, Plum Creek does not take exception to any findings. Therefore, except for any legal conclusions set forth or inherent in the hearing examiner's findings of fact, those findings are controlling and are the basis for the discussion which follows.

         Factual and Procedural Background

         Claimant has been employed by Plum Creek since June 1971. (Finding 3.) He has worked as a dry chain puller, spreaderman, spec saw operator and patch line operator. (Id.)

         He began experiencing back problems, primarily muscle cramps, aches and pains, while working on the spreaders prior to 1987. (Findings 4-6.) In 1989 claimant's back condition worsened and he was unable to continue working. (Finding 7.) On July 19, 1989, he filed a workers' compensation claim alleging that he had suffered a work-related injury on March 20, 1989. (Id.) Plum Creek denied the claim but settled with claimant on a disputed liability basis. (Finding 7 and Ex. 1.) The full and final compromise settlement, in the amount of $35, 000, was approved by the Division on October 18, 1989. (Id.) The medical portion and all other aspects of the claim were closed. (Id.)

         Claimant underwent a laminectomy and diskectomy in August 1989 and returned to work after six (6) months of recuperation. (Finding 8.) He continued working but in approximately December 1992 he began experiencing low-back pain and numbness in his left leg. (Finding 9.) In March 1993 he took time off from work and then returned to work in a light-duty position. On September 1, 1993, he filed a new claim for compensation based on "repetitive trauma." (Ex. 4) On October 18, 1993, he underwent additional surgery to fuse the L4 through S1 vertebrae. (Finding 9.)

         Treating the new, September 1, 1993 claim as one for occupational disease, the Department referred claimant to Dr. Dana Headapohl for evaluation. (Ex. 7.) Dr. Headapohl specializes in occupational medicine and is a member of the Department's Occupational Disease Panel. (Headapohl Dep. at 5.)

         Dr. Headapohl examined claimant on November 18, 1993. (Finding 14; Headapohl Dep. Ex. 2.) On the day of the examination, Plum Creek's attorney, Mr. Kelly M. Wills, wrote and hand delivered a letter to Dr. Headapohl in which he outlined claimant's medical history, or at least his version of that history. (Finding 15; Headapohl Dep. Ex. 1.) The letter also stated Plum Creek's position "that Mr. Kastella's recurrent disk is the natural consequences of his earlier problem and prior laminectomy and disk incision." (Headapohl Dep. Ex. 1 at 3.) A copy of the letter was mailed to claimant's attorney, Mr. David W. Lauridsen (id.), thus precluding him from responding to Mr. Will's letter prior to Dr. Headapohl's examination.

         On January 2, 1994, Dr. Headapohl provided the Department with her report. (Headapohl Dep. Ex. 2.) In that report she stated that claimant was suffering from an occupational disease. Referring to claimant's alleged 1989 injury, she went on to say, "I believe that the original 'injury' was in fact an occupational disease. The disc protrusion recurrence is a natural progression of the original disease." (Id. at 8.) She attributed ten (10%) percent of claimant's disease to "non-occupational factors such as smoking history and genetic predisposition" and the remaining ninety (90%) percent to his occupation. (Headapohl Dep. Ex. 2 at 9; Headapohl Dep. at 44; Finding 21.)

         On January 18, 1994, the Department forwarded its Order Referring Copy of Medical Reports to Parties, along with copies of Dr. Headapohl's reports, to the parties. (Ex. 5.) In its order, the Department stated that it was its "preliminary determination concerning the claimant's claim for occupational disease benefits is 90% (NINETY PERCENT), of the claimant's DEGENERATIVE DISC DISEASE arose out of and was contracted from their [sic] employment." (Ex. 5 at 1, bold, parentheses and capitals in original.)

         Plum Creek disagreed with the finding and requested a hearing. (Ex. J-1.) A prehearing conference was held on April 14, 1994. (Ex. J-4.) The Prehearing Order filed on April 18, 1994, shows that Plum Creek continued to dispute the finding that claimant suffered from an occupational disease. It phrased the issue as follows: "Whether and to what extent Respondent's [claimant's] current disability qualifies as a new occupational disease is in dispute and should be decided by this administrative agency." (Ex. J-6 at 3.)

         A hearing was scheduled for June 1, 1994. On May 20, 1994, eleven (11) days prior to hearing, Plum Creek for the first time indicated that it was accepting liability for the claim under the Occupational Disease Act but was disputing the ninety (90%) percent apportionment. (Ex. J-9.) Plum Creek contended that only thirteen (13%) percent of claimant's disease or condition was attributable to his occupational disease. The parties agreed that the hearing set for June 1, 1994, would be limited to the apportionment issue. (Id.)

         The hearing was held as scheduled on June 1, 1994. The only witness at the hearing was claimant. However, the parties also submitted the depositions of claimant, Dr. Dana ...


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