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Monroe v. Maco Workers Comp Trust

Court of Workers Compensation of Montana

March 17, 2014

KAREN MONROE, Individually and as Personal Representative of the Estate of Dwane Monroe Petitioner
v.
MACO WORKERS COMP TRUST Respondent/Insurer.

Submitted: August 26, 2013

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

JAMES JEREMIAH SHEA, JUDGE.

Summary: Petitioner alleges her late husband, a W.R. Grace & Co. employee for over twenty years, was exposed to asbestos while later working with the Lincoln County Road Department in the Libby area for over ten years. Petitioner's husband was diagnosed with asbestos-related lung disease in 2001 and died in 2010. The decedent's claim for compensation with W.R. Grace was settled on a disputed liability basis. Petitioner alleges Lincoln County is liable for her husband's death under the last injurious exposure rule. Respondent denies liability on the grounds that Petitioner's claim is untimely pursuant to § 39-71-601, MCA, and that Petitioner's husband developed asbestos-related disease as a result of his work with W.R. Grace and not Lincoln County.

Held: Respondent is liable for Petitioner's claim under the "potentially causal" standard enunciated in In re Claim of Mitchell. Because no one at the Lincoln County Road Department had filed for asbestos-related disease at the time Petitioner submitted her claim, the Court concluded that Petitioner neither knew nor should have known that her husband's work for the county was directly related to his asbestos-related disease until informed by her attorney. Petitioner's claim is not time-barred, and she is entitled to widow's benefits and burial expenses. Petitioner is not entitled to PPD benefits based on a 100% impairment.

¶ 1 Trial in this matter was held March 20, 2013, in the Flathead County Justice Center, 920 South Main, Kalispell, Montana. Petitioner Karen Monroe was present and represented by Laurie Wallace, Jon Heberling, and Ethan Welder. Respondent MACo Workers' Compensation Trust (MACo) was represented by Norman H. Grosfield.

¶ 2 Exhibits: I admitted Exhibits 1 through 20 without objection.

¶ 3 Witnesses and Depositions: The deposition of David J. Hewitt, M.D., and the videoconference depositions of Karen Monroe and Arthur Frank, M.D., Ph.D., were admitted without objection and are considered part of the record. Petitioner Karen Monroe, Terry Spear, Ph.D., and Dale Lee Byrer were sworn and testified.

¶ 4 Issues Presented: The Pretrial Order sets forth the following issues:[1]

Issue One: Whether Dwane Monroe suffered and died from an occupational disease arising out of and in the course and scope of his employment with Lincoln County.
Issue Two: Whether the claim for the Estate of Dwane Monroe is precluded for consideration based on the claim filing time as set forth in Section 39-71-601, MCA.
Issue Three: Whether the Estate of Dwane Monroe is entitled to permanent partial disability benefits in the form of 100% impairment.
Issue Four: Whether the Petitioner is entitled to widow's benefits and reasonable burial expenses related to the death of Dwane Monroe.
Issue Five: Whether the Petitioners are entitled to reasonable costs.

FINDINGS OF FACT

¶ 6 Dwane Monroe (Dwane) worked for W.R. Grace & Co. (W.R. Grace) from June 1967 to June 1990, and with the Lincoln County Road Department from June 1997 to March 2008. Dwane died on September 29, 2010, as a result of asbestos-related lung disease (ARD).[2] On June 20, 2012, Karen Monroe (Karen) filed two claims for compensation with MACo; one on her own behalf for widow's benefits and one on behalf of Dwane's estate. Both claims were denied by MACo.[3]

¶ 5 Dwane had also filed a claim dated July 28, 2001, for lung disease with W.R. Grace "caused by years of exposure to tremolite asbestos dust."[4] This claim was settled on a disputed liability basis.[5] Claims were pursued against some 12 entities on behalf of the Estate of Dwane Monroe, not including the current claim against Lincoln County.[6]

¶ 6 Terry Spear, Ph.D. (Spear), testified at trial. I found Spear to be a credible witness. Spear holds a doctorate in industrial hygiene and is a Professor Emeritus of industrial hygiene at Montana Tech of the University of Montana. Spear formerly taught courses at Montana Tech in industrial hygiene and has served as the department chair of the Safety, Health, and Industrial Hygiene Department.[7] Spear has authored or co-authored seven peer-reviewed publications on the Libby amphibole since 1996, conducted extensive research on Libby asbestos, interviewed hundreds of W.R. Grace employees, and reviewed thousands of pages of documents pertaining to Libby asbestos.[8]

¶ 7 According to Spear, asbestos has been a known causative agent for ARD since the 1920s, and by the 1950s, asbestosis, lung cancer, and mesothelioma were all attributed to exposure to asbestos.[9]

¶ 8 Some of Spear's research on this case included interviewing Dwane's co- workers with the Lincoln County Road Department, interviewing Dwane's widow, Karen, and reviewing maps, Environmental Protection Agency (EPA) documents, and Dwane's equipment use logs.[10]

¶ 9 Spear testified that the equipment logs[11] reflected that Dwane's work for the county mostly consisted of working on road construction, mowing, and brush cutting in the Libby area. He loaded, hauled, and dumped gravel; ran sweeper, mower, and roller machines; and operated a chainsaw to clear ditches. Spear opined that the majority of Dwane's work for the county, according to the equipment logs and what Karen told him, involved soil and vegetation disruption and disturbance, which Spear stated accounts for most of the exposure to asbestos in the Libby area today.[12]

¶ 10 Spear estimated from the equipment logs that Dwane worked approximately 946 hours mowing and brush cutting for the county.[13] Spear testified that the mowing and brush cutting was dusty work, that it was reported as dusty work, and that there are EPA studies showing mowing and brush cutting in the Libby area entrained asbestos particles into the air.[14]

¶ 11 According to Spear, Dwane did quite a bit of street sweeping while on the road crew. Spear testified that in at least one log entry, Dwane reported that he had to stop sweeping because it got too dusty. Karen told Spear that Dwane had become concerned about the dusty conditions, particularly when emptying the sweeper machine, which Dwane did several times a day. Based on the equipment logs, Spear estimated that Dwane spent about 400 work hours sweeping streets.[15]

¶ 12 Dwane also used a front-end loader to scoop up gravel and haul it to various sites and return with a haul of debris to the gravel pits. Some of Dwane's activities involved working on culvert systems, which put him around heavy equipment and soil disturbance. There was evidence of asbestos contamination at the two pits used by the county to haul sand and gravel to construction sites. Dwane's duties on the county road crew included hauling and dumping sand and gravel. Based on his investigation, interviews, and review of the equipment logs, Spear estimated that Dwane spent approximately 100 hours in work involving heavy equipment and heavy soil disturbance.[16]

¶ 13 Spear opined that Dwane was engaged in work for the county from 1997 to 2007 that involved heavy soil disturbance that, in turn, exposed him to airborne asbestos fibers far above the background levels for the Libby area. Spear noted two occasions when Dwane encountered vermiculite on or near the roads and reported it to the authorities.[17]

¶ 14 During the time Dwane worked for Lincoln County, the EPA came into Libby and began cleaning up asbestos contamination. Dwane's work on the road crew exposed him to greater amounts of asbestos due to its transportation by the EPA out of the Libby area. Spear opined that Dwane was exposed to harmful levels of asbestos while working for Lincoln County sufficient to cause ARD, including mesothelioma.[18]

¶ 15 Spear's conclusions following his investigation into Dwane's work for the county road crew are contained in a 48-page report, including exhibits and attachments.[19] In this report, Spear concluded: "[W]hen we view all of Mr. Monroe's activities while working for the Lincoln County Road Department as a whole, it is more probable than not that Mr. Monroe's asbestos exposure far exceeded acceptable levels."[20]

¶ 16 Spear's report also noted:

There were multiple sources [of] asbestos[-]contaminated materials present in and around the County Roads where Mr. Monroe worked. This work placed him in close proximity to these asbestos-contaminated materials, where friable asbestos was present, and where his work activities and the work activity of others disturbed asbestos-containing ...

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