Submitted: March 15, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
The claimant suffered a hearing loss due to workplace noise
while working for The Anaconda Company. He retired from the
Company in 1984 and was provided a hearing aid pursuant to a
collective bargaining agreement between the Company and his
union but never filed or pursued a claim for workers'
compensation or occupational disease benefits until 2002,
when he brought his present petition.
The claimant's only potential entitlement is under the
Occupational Disease Act. Under that Act, his claim is barred
by section 39-72-403(3), MCA (1983), which is a statute of
repose and is not subject to tolling for any reason.
Injury: Accident. A condition which is the
result of long-time occupational exposure and develops
gradually does not satisfy the injury and accident
definitions of the 1983 Workers' Compensation Act even
under the micro-trauma doctrine, and is not compensable under
Occupational Disease: Defined. A condition
which is the result of long-time occupational exposure and
develops gradually is a compensable occupational disease.
Limitations Periods: Claim Filing: Occupational
Disease. Under section 39-72-403(3), MCA, of the
1983 version of the Occupational Disease Act, an occupational
disease claim not filed within three years of retirement is
extinguished and barred. The limitations period cannot be
tolled since the section is a statute of repose.
Constitutions, Statutes, Rules, and Regulations:
Montana Code Annotated: 39-72-403(3), MCA (1983).
Under section 39-72-403(3), MCA, of the 1983 version of the
Occupational Disease Act, an occupational disease claim not
filed within three years of retirement is extinguished and
barred. The limitations period cannot be tolled since the
section is a statute of repose.
The trial in this matter was held in Helena, Montana, on
October 27, 2004. The petitioner was present and represented
himself. The respondent was represented by Mr. Andrew J.
Utick. Following trial, the respondent's counsel was to
consult with his client about possible settlement. The Court
learned on March 15, 2005, that no settlement occurred and
the case was deemed submitted for decision on that date.
Exhibits: Exhibits 1 through 9 were admitted without
Witnesses and Depositions: The petitioner testified.
His deposition was also submitted to the Court for
Issues Presented: The Court restates the issues as
¶4a Whether claimant's request for judgment
directing the respondent to pay for hearing aids is barred by
the statute of limitations or repose, by the doctrine of
equitable estoppel, or by the doctrine of laches.
¶4b If the claimant's request for payment of hearing
aids is not barred, whether he is entitled to such payment
under either occupational deafness provisions of the
Workers' Compensation Act, §§ 39-71-801 to
-813, MCA (1983), or the Occupational Disease Act.
Having considered the Pretrial Order, the testimony presented
at trial, the demeanor and credibility of the witness, the
deposition and exhibits, and the arguments of the parties,
the Court makes the following:
The petitioner, David Stewart (claimant), was employed by The
Anaconda Company, from 1947 to September 1, 1984, when he
retired. Atlantic Richfield Company is the successor company
to The Anaconda Company (the "Company") and