The opinion of the court was delivered by: James Jeremiah Shea Judge
ORDER GRANTING 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 she knew or should have known that she was suffering from an occupational disease more than one year prior to the filing of her workers' compensation claim.
Held: The undisputed facts demonstrate that although she may not have had a formal diagnosis, Petitioner understood that her condition was caused by "repetitive motion" in her job duties and she received medical treatment, including prescription medication, for approximately five years before she filed her first report of injury or occupational disease. By the time Petitioner began taking prescription medication to alleviate her symptoms, she knew or should have known that she was suffering from an occupational disease. Her claim is therefore untimely under § 39-71-601(3), MCA, and Respondent is entitled to summary judgment.
¶ 1 Respondent Montana State Fund (State Fund) moves this Court for summary judgment in its favor. State Fund contends that Petitioner Dianne Dvorak's claim for workers' compensation benefits was untimely filed under § 39-71-601(3), MCA, because she knew or should have known that she was suffering from an occupational disease more than one year prior to the filing of her claim.*fn1 Dvorak objects to State Fund's motion, arguing that her 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 Romine v. Northwestern Energy, 2011-2754.*fn3
¶ 3 Dvorak worked as a sandwich maker at Wheat Montana from sometime in 2002 until May 6, 2011.*fn5
¶ 4 On February 28, 2006, Terry Reiff, D.O., saw Dvorak and noted upper thoracic and cervical restrictions. The note reflects that Dvorak reported "at work she has to lift up over her head on a regular basis and [t]his causes quite a bit of back pain." Dr. Reiff's notes reflect pain complaints and an inability to move.*fn6
¶ 5 Dr. Reiff submitted paperwork to Blue Cross Blue Shield which indicated that Dvorak's condition was work-related and had begun in February 2006.*fn7
¶ 6 In March 2006, Dvorak sought pain medication because of pain at work.*fn8
¶ 7 In April 2006, Dr. Reiff's clinic began prescribing Tylenol 3 for Dvorak's pain and continued to renew the prescription on a monthly basis. Dr. Reiff acknowledged that in November 2007, the prescription was for back and shoulder pain. Dr. Reiff increased Dvorak's prescription by January 20, 2009. He attributed the increase to persistent pain induced by muscle spasm and noted that Dvorak took more medication when she worked ten-hour shifts.*fn9
¶ 8 Prior to December 2010, Dvorak's back pain was relieved by treatment and she was able to work without restrictions. After December 2010, Dvorak's pain intensified and became incapacitating at work.*fn10
¶ 9 Prior to March or April 2011, Dr. Reiff had not talked to Dvorak about filing an ...