The opinion of the court was delivered by: James Jeremiah Shea Judge
ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
Summary: Respondent moved for summary judgment, arguing that Petitioner's occupational disease claim is untimely under § 39-71-601(3), MCA, because he knew or should have known that he was suffering from an occupational disease more than one year prior to the filing of his workers' compensation claim.
Held: The undisputed facts demonstrate that Petitioner received a diagnosis and treated for shoulder and back complaints in August 2009 and therefore he should have known he was suffering from an occupational disease at that time. His December 2010 claim was untimely filed for these conditions. However, Petitioner did not receive a diagnosis or treatment for his cervical condition until July 2010; therefore, his occupational disease claim for his cervical condition was timely` filed. The Court granted Respondent's motion for summary judgment regarding Petitioner's occupational disease claim for his shoulder and low back, and denied the motion regarding Petitioner's cervical condition.
¶ 1 Respondent Northwestern Energy moves this Court for summary judgment in its favor. Northwestern Energy contends that Petitioner Russell Romine's claim was untimely filed under § 39-71-601(3), MCA, because he knew or should have known that he was suffering from an occupational disease more than one year prior to the filing of his claim.*fn1 Romine objects to Northwestern Energy's motion, arguing that his claim is timely under the applicable statute.*fn2
¶ 2 On April 16, 2012, the parties presented oral argument on this motion in conjunction with a similar motion filed in Dvorak v. Montana State Fund, 2011-2793.*fn3
¶ 3 On August 17, 2009, Romine went to Express Care because he was working a shift and could not pick up his arm and it hurt. Romine stated that he had been working a ten-day shift and that his arm got progressively worse.*fn5
¶ 4 On August 21, 2009, Romine saw Nicholas Blavatsky, M.D., and reported a chief complaint of tenderness of the right shoulder and lumbar spine. Romine told Dr. Blavatsky that he got stiffer over the course of each day as he performed his job duties. Romine reported a long history of right shoulder and lumbar spine discomfort and to some degree the cervical spine, with hypesthesia and tingling in the right arm. Dr. Blavatsky found Romine to have limited range of motion in his cervical and lumbar spine, limited range of motion in his shoulder, and mild impingement and prominence of the AC articulation. Three views of the right shoulder revealed fairly pronounced adaptive changes of the AC joint. Images of the lumbar spine revealed mid-lumbar spondylosis with discal narrowing, anterior osteophyte formation, and facet hypertrophy at most levels. Dr. Blavatsky diagnosed Romine with right AC joint arthrosis, right rotator cuff irritation, and symptomatic lumbar spondylosis. He recommended a subacromial injection for the shoulder and prescribed Mobic.*fn6
¶ 5 On September 11, 2009, Romine saw Dr. Blavatsky and complained of right shoulder tenderness. Dr. Blavatsky noted that Romine had generalized aches and pains from work-related activities. Romine initiated physical therapy and continued taking his anti-inflammatory medication.*fn7 At his initial physical therapy evaluation, Romine reported that he had difficulty performing his job duties due to pain.*fn8
¶ 6 On September 25, 2009, Dr. Blavatsky took Romine off work at Romine's request. Romine testified that his low back hurt and that he associated the pain with his job duties. He asked Dr. Blavatsky to take him off work so he could rest and get better.*fn9
¶ 7 On October 14, 2009, Romine saw Dr. Blavatsky and reported tenderness in his right shoulder, neck, and back. He did not see Dr. Blavatsky again for several months.*fn10
¶ 8 On July 15, 2010, Romine treated with Steven M. Martini, M.D. Romine reported headaches and back, shoulder, thoracic, lumbar, and right hip pain. Romine reported that he experienced several "aggravations" of his pain from work-related activities. Dr. Martini diagnosed Romine with cervical and lumbar mechanical syndromes, rotator cuff tendinitis, and acromioclavicular arthritis. Romine returned to physical therapy and reported that he had been having cervical pain for the past six to seven years.*fn11
¶ 9 Romine testified that he has had shoulder pain for a number of years while at work, and that working ten-day shifts made his overall condition worse. Romine testified that the physical aspect of his life is all work-related.*fn12
¶ 10 On December 8, 2010, Romine filed a claim for an occupational disease with a date of ...