Submitted: September 20, 2017
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY
M. SANDLER JUDGE.
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.
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
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.
2 Lunday worked for Columbia Grain in Plentywood.
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
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
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. 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.
9 Lunday returned to Kjono on May 14, 2012. 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
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 ...