No. 86-328 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

TRULY W. COCKING, 

Claimant and Respondent, 

-vsTHE HILLHAVEN CORPORATION, 

Employer, 

and 

RANGER INSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marra, Wenz, Johnson & Hopkins; Thomas A. Marra, 

Great Falls, Montana 

For Respondent: 

Burgess, Joyce & Whelan; Thomas J. Joyce, Butte, 

Montana 

Submitted on Briefs: Dec. 11, 1986 

Decided: February 19, 1987 

Filed: FEB 1 9 1987 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendants appeal the award by the Workers' Compensation 

Court granting claimant occupational disease benefits plus 

costs and attorneys' fees. We reverse and remand. 

Claimant began work as a janitor in February, 1983, at 

Butte Convalescent Center, owned by defendant Hillhaven 

Corporation. Claimant's duties included washing windows, 

cleaning furniture and stripping floors. During 1983, 

claimant began taking allergy shots to treat his allergic 

reaction to horses, dogs, and cats, to which he was exposed 

away from work. In June, 1984, claimant began breaking out 

with sores on his side, ankles, face, ears, and eyelids. 

Claimant attempted to identify the cause by removing all pets 

from his home, the wood stove, changing his diet, and trying 

different types of clothing and detergents. 

Claimant visited several doctors during July and August 

of 1984, but none of the doctors were able to diagnose or 

adequately treat claimant's condition. Claimant took an 

extended leave of absence from work August 21, 1984, through 

October 14, 1984. Claimant's supervisor was aware of his 

medical problems, yet claimant did not inform the supervisor 

that his skin infections were work related nor did he file an 

incident report. 

The record is unclear as to claimant's work attendance 

during the last 3 months of 1984. In November of 1984, 

claimant began treatment with a certified dermatologist, Dr. 

Ballinger. Dr. Ballinger concluded claimant had contact 

dermatitis but was unable to positively correlate it with any 

of the products claimant used at work. 
On December 21, 1984, claimant filed a claim for 

workers' compensation alleging an industrial injury in July, 

1984. Defendant Ranger Insurance Company denied liability by 

letter dated February 4, 1985. Claimant continued to have 

outbreaks and began treatment with another certified 

dermatologist, Dr. Robert Neill. Dr. Neill applied topical 

medications to claimant's eruptions and within two weeks 

claimant's condition had improved substantially. To 

determine the cause of claimant's sores and rashes, Dr. Neill 

suggested claimant return to work. 

Claimant returned to work February 28, 1985, and within 

two weeks experienced a recurrence of his skin condition 

after using certain cleaning compounds. Claimant filed an 

incident report alleging an injury on March 4, 1985, and did 

not return to work upon Dr. Neill's advice. A workers' 

compensation claim was filed and defendant denied coverage. 

Defendant contacted the Division of Workers' Compensation 

(Division) regarding the claim and requested the Division 

appoint a physician to examine claimant. The Division 

appointed a physician and scheduled an examination to 

determine whether claimant was eligible for occupational 

disease benefits. 

Meanwhile, on May 20, 1985, claimant filed a petition 

for hearing before the Workers' Compensation Court. 

Defendant filed a motion to dismiss on July 10, 1985, 

contending the proceedings before the Division deprived the 

Workers' Compensation Court of jurisdiction. The motion to 

dismiss was denied. On July 31, 1985, the Division entered 

its order referring copy of medical report to the parties 

which contained a preliminary finding that claimant was not 

entitled to occupational disease benefits. On August 19, 
1985, the Division entered its order suspending proceedings 

pending the outcome of industrial injury proceedings before 

the Workers' Compensation Court. 

Following hearing, the hearing examiner found claimant 

had not suffered an injury under § 39-71-119 of the Workers' 

Compensation Act, but was suffering from an occupational 

disease and was entitled to temporary total disability 

benefits as well as costs and attorneys' fees. Workers' 

Compensation Judge Reardon adopted the findings and 

conclusions of the hearing examiner and awarded claimant 

occupational disease benefits retroactive to July 1, 1984, 

plus costs and attorneys' fees pursuant to § 39-71-612, MCA. 

Defendant appeals and raises the following issues: 

1) Whether the Workers' Compensation Court properly 

awarded claimant occupational disease benefits? 

2) Whether the Workers' Compensation Court properly 

awarded attorneys' fees and costs to claimant? 

The claimant has conceded on appeal that the Workers' 

Compensation Court exceeded its jurisdiction in finding 

claimant suffered from an occupational disease. 

This Court has previously held that a claimant may elect 

to pursue benefits under the Workers' Compensation Act or the 

Occupational Disease Act. Ridenour v. Equity Supply Co. 

(Mont. 1983), 665 P.2d 783, 40 St.Rep. 1012. 

The procedure for obtaining benefits differs under the 

two acts. The Occupational Disease Act provides that a 

physician shall be appointed to examine the claimant when the 

insurer has not accepted liability. Section 39-72-602(2)(a), 

MCA. If either party is dissatisfied with the results of the 

first examination, a second examination may be requested. 

The results are then reviewed by a medical panel which 
submits a report to the Division indicating whether claimant 

is suffering from an occupational disease. 

Prior to the time the Division issues its determination 

whether the claimant is entitled to occupational disease 

benefits, the claimant, insurer, or the Division may request 

a hearing. Section 39-72-611, MCA. Following issuance of 

the Division's determination a rehearing may be requested. 

Appeals from a final determination of the Division shall be 

made to the workers' compensation judge within 30 days from 

the date of the Division's final determination. Section 

39-72-612 (2) , MCA. These provisions make it clear that the 

workers' compensation judge has appellate jurisdiction to 

award occupational disease benefits. 

In the present case, claimant filed a petition for 

hearing under the Workers' Compensation Act alleging an 

industrial injury. The Workers' Compensation Court had 

jurisdiction to determine whether or not claimant was 

entitled to workers' compensation benefits. The court did 

not have jurisdiction to make a finding that claimant 

suffered from an occupational disease and was entitled to 

occupational disease benefits. That is a matter to be 

decided on appeal following final determination by the 

Division. In this instance, the Division did not make such a 

determination. 

The award of attorneys' fees and costs pursuant to S 

39-71-612, MCA, was improper. The Workers' Compensation 

Court exceeded its jurisdiction in awarding occupational 

disease benefits. The award being improper, claimant is not 

entitled to attorneys' fees and costs. 

The Workers' Compensation Court is reversed and this 

case is remanded to the Division of Workers' Compensation for 
a determination of claimant's entktlement to occupational 

disease benefits. 

We concur: