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Lunday v. Northwest

Court of Workers Compensation of Montana

December 6, 2017

MARC LUNDAY Petitioner
v.
LIBERTY NORTHWEST Respondent/Insurer.

          Submitted: September 20, 2017

          ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT.

          DAVID M. SANDLER JUDGE.

         Summary: Respondent moves for summary judgment on the grounds that Petitioner does not have sufficient evidence to prove that his workplace exposure to grain dust caused his lung condition, nor sufficient evidence to prove that his work caused his hernias.

         Held: The Court denied Respondent's motion. Petitioner met his burden of establishing there is an issue of material fact as to his lung condition by introducing medical evidence that his workplace exposure to grain dust caused his lung condition. An inference can be made from one of the records Respondent attached to its brief that one of Petitioner's medical providers is of the opinion that Petitioner's work caused his hernias. Thus, Respondent has not met its burden of establishing that there are no issues of material fact. Therefore, Respondent is not entitled to summary judgment.

         ¶ 1 Respondent Liberty Northwest (Liberty) moves for summary judgment on the grounds that Petitioner Marc Lunday does not have evidence to prove that his workplace exposure to grain dust caused any injury, and that Lunday does not have evidence to prove that his work caused bilateral hernias. Lunday asserts that the opinion of his physician assistant (PA) is sufficient to create an issue of fact as to whether his lung condition was caused by his exposure. Lunday also asserts that Liberty's summary judgment motion is "premature" because he is awaiting his surgeon's opinion as to the cause of his hernias.

         STATEMENT OF FACTS[1]

         ¶ 2 Lunday worked for Columbia Grain in Plentywood.

         Lunday's Lung Claim

         ¶ 3 On November 11, 2011, Lunday cleaned out a bin and was exposed to grain dust and mold. Lunday avers that before this exposure, he "had no problems with aspiration" and that his exposure resulted in respiratory symptoms which "were none like I had before."

         ¶ 4 On November 23, 2011, Lunday saw Thomas Weiner, MD, who has been Lunday's treating physician for throat cancer, for a yearly checkup. Dr. Weiner noted that while Lunday still had problems from the treatment of his throat cancer, Lunday had no chest pain, and no cough.

         ¶ 5 On December 15, 2011, Lunday saw Ruth Wyckoff, MD, at the Emergency Room (ER) at the Sheridan Memorial Hospital in Plentywood, for complaints of overall weakness. Lunday reported that several of his coworkers had been sick. A chest x-ray did not show any evidence of "acute infiltrate, pleural effusion or pneumothorax." Dr. Wyckoff diagnosed Lunday with dehydration and weakness likely due to a viral infection.

         ¶ 6 On March 16, 2012, Lunday saw Justin L. Knowles, MD, at the ER at St. Peter's Hospital in Helena. Lunday complained of lightheadedness, shortness of breath, heart palpitations, trouble breathing, and coughing. A chest x-ray showed right, lower lobe pneumonia. Dr. Knowles noted that Lunday was "critically ill, " and admitted him to the Intensive Care Unit.

         ¶ 7 On March 30, 2012, Lunday saw William Batey, MD, who has a family practice in Helena, for follow-up for "multiple problems, " including bilateral pneumonia. Dr. Batey thought Lunday's pneumonia was "possibly secondary to repeated episodes of aspiration versus a fungal infection."

         ¶ 8 On April 20, 2012, Lunday saw Jason Kjono, PA-C, at Big Sky Pulmonary and Critical Care Associates in Great Falls, for cough with frequent pneumonias.[2] Kjono's differential diagnoses included aspiration, asthma, postnasal drip, and hypersensitivity pneumonitis, commonly known as "farmer's lung, " a lung disease caused by an allergic response after inhalation of a variety of organic dusts, including grain dusts and mold.[3]

         ¶ 9 Lunday returned to Kjono on May 14, 2012.[4] Kjono noted that Lunday's pneumonia symptoms started after he cleaned out an old grain bin. Kjono's assessment included eosinophilic pneumonitis, most likely hypersensitivity, which Kjono linked to Lunday's exposure to grain dust. Kjono took Lunday off work.

         ¶ 10 On June 12, 2012, Liberty denied liability for Lunday's lung claim. It explained: "At this time, we have not received any healthcare information related to the treatment you received clearly demonstrating a direct relationship to your diagnosed conditions to your work exposure."

         ¶ 11 On June 25, 2012, Lunday returned to Kjono for "evaluation of chronic hypersensitivity pneumonitis." Kjono noted Lunday "did see an allergist in Billings, Montana, who did agree with the diagnosis [of] chronic hypersensitivity pneumonitis." Kjono noted that Lunday's "original exposure was November 2011, " and opined, "I do think this was an occupational exposure and will need to be turned over to Workmen's Compensation for final evaluation and, hopefully, referral to Dr. Hewitt of Occupational Health for Workmen's Compensation information."

         ¶ 12 On July 17, 2012, Lunday underwent an Independent Medical Examination (IME) with David J. Hewitt, MD, MPH. Dr. Hewitt noted a history of aspiration pneumonia and assessed Lunday as having suffered from eosinophilic pneumonia. Dr. Hewitt did not attribute Lunday's eosinophilic pneumonia to his exposure to grain dust, but could not identify a cause.

         ¶ 13 On April 3, 2013, Lunday saw Richard Blevins, MD, a pulmonologist. Dr. Blevins noted a "complicated history of gr[ain] dust exposure in August and November 2011 with some airway symptoms following that. He was hospitalized in Helena in March of 2011 with bilateral infiltrates and was thought to have aspirated." Dr. Blevins also noted: "He was thought to have a hypersensitivity pneumonitis . . . ." Dr. Blevin diagnosed, inter alia, "[p]neumonitis due to other solids and liquids." Dr. Blevins stated, "I don't know what the relationship of his grain dust exposure to current symptomology is. I know he has seen an occupational medicine doctor and I have not had a chance to review those records. I really am wondering if many of . . . his symptoms have not been airway in origin complicated by his pneumonia which may have been aspiration in March of 2011."

         ¶ 14 Lunday returned to Dr. Blevins on April 16, 2013. Dr. Blevins noted: "He still has legitimate questions about the cause of this and its relationship to his previous gr[ain] dust exposure. I told him I still could not answer that and that . . . lung biopsy when he was symptomatic and had infiltrates and off the steroids might be helpful. Fortunately he is improved again on the steroids and I do not think lung biopsy would be very beneficial at this time. I'm going to do a little bit more research including looking at his occupational medicine evaluation."

         ¶ 15 Lunday saw pulmonologist Christian H. Butcher, MD, on December 12, 2013. Dr. Butcher, stated: "This is a very complex case. His lung problems appear to ...


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