December 13, 1996
ORDER REGARDING APPLICABLE LAW
In occupational disease case, insurer argued that 1995
version of the OD Act applied because claimant's last day
of employment was March 14, 1996, although her occupational
disease arose prior to the effective date of the 1995 OD Act.
Insurer relied on statements in Supreme Court decisions where
the issue was running of the statute of limitations in a
permanent total disability case, not the issue here.
Where claimant's right to compensation accrued at the
time she filed her occupational disease claim, the law in
effect at that time controls. This is consistent with the
general rule in workers' compensation cases that the law
in effect at the time of injury controls the case.
Occupational Disease: Applicable law. Where
claimant's right to compensation accrued at the time she
filed her occupational disease claim, the law in effect at
that time controls. This is consistent with the general rule
in workers' compensation cases that the law in
effect at the time of injury controls the case.
Statutes and Statutory Interpretation: Applicable
law. Where claimant's right to compensation
accrued at the time she filed her occupational disease claim,
the law in effect at that time controls. This is consistent
with the general rule in workers' compensation cases that
the law in effect at the time of injury controls the case.
a conference with claimant, Ms. Theda Bea Bouldin, and Mr.
Larry W. Jones, who represents Liberty Northwest Insurance
Corporation (Liberty) in this matter, Mr. Jones raised an
issue with regard to the law applicable to this case.
Specifically, he contends that the Occupational Disease Act
(ODA) as amended by the 1995 legislature is
controlling even though claimant filed her claim prior to the
effective date of the 1995 amendments. The amendments
adversely impact the payment of claimant's medical
expenses by incorporating the medical expense limitations
found in the 1995 Workers' Compensation Act. §
39-72-704, MCA (1995). Those limitations are not present in
the 1993 ODA. § 39-72-704, MCA (1993).
effective date of the 1995 amendments to the Montana ODA was
July 1, 1995. 1995 Montana Laws, ch. 243, §29. In
workers' compensation cases, the Montana Supreme Court
has consistently held that the law in effect on the date of
the worker's industrial injury governs his or her
entitlement to benefits. Buckman v. Montana Deaconess
Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Liberty argues, however, that in the case of an occupational
disease the governing date is the last day of employment. It
says that claimant's last day of employment was March 14,
1996, thus the 1995 version of the ODA applies.
(Respondent's Memorandum Re: Determination of Governing
Occupational Disease Act at 1.)
relies on Grenz v. Fire and Casualty of Connecticut,
924 P.2d 264 (Mont. 1996), which stated, "The Montana
Occupational Disease Act (MODA) statutes in effect on an
employee's last day of work govern the resolution of an
occupational disease claim." Grenz cited
Lockwood v. W.R. Grace & Co., 272 Mont. 202,
205, 900 P.2d 314, 316 (1995) as authority for the statement.
In turn, Lockwood cited Gidley v. W.R. Grace
& Co., 221 Mont. 36, 38, 717 P.2d 21, 22 (1986), for
the identical proposition.
Gidley the husband of the claimant had retired from
W.R. Grace in July 1977, was diagnosed with cancer in June
1981, and died in May 1992. Claimant, as her husband's
beneficiary, filed an occupational disease claim in July
1982. One of the issues on appeal was which version of the
ODA applied to the claim. The Supreme Court ultimately
concluded, as it did in Lockwood and Grenz,
that the law in effect on the last day of employment governed
the claim. However, the Gidley
decision provides the following analysis on the point:
Our initial question is which MODA statutes control the
claim; those in effect on Mr. Gidley's last actual day of
work in July 1977, or those in effect at the alleged time of
discovery of the disease in June 1981, or those in effect
when the claim was originally filed in July 1982? As to MODA,
this issue is novel. However, it has been considered
a number of times in workers' compensation cases and the
Court has concluded that the statute in effect at the date of
accident or injury controls. See Iverson v.
Argonaut Insurance Company (1982), 198 Mont. 340, 342,
645 P.2d 1366, 1367; Yurkovich v. Industrial Accident
Board (1957), 132 Mont. 77, 86, 314 P.2d 866, 872;
Chisholm v. Vocational School for Girls (1936), 103
Mont. 503, 510, 64 P.2d 838, 842-43. We conclude that
the same rationale should be applied in MODA claims.
Here, Mr. Gidley's last actual day of work was in July
1977. We therefore conclude that MODA statutes in effect on
his last actual day of work are controlling.
Mont. at 38-39, 717 P.2d at 22 (emphasis added).
three cases, the core issue involved the statute of
limitations applicable to MODA claims. In Gidley and
Lockwood the statute provided that a claim had to be
filed within one year of when the "claimant knew or
should have known that his total disability
condition resulted from an occupational disease
claim." § 39-72-403(1), MCA (1977-1983) (emphasis
added). The statute at issue in Grenz ...