No. 87-368

IN THE SUPREME COURTOF THE STATEOF MONTANA
1988

MICHELLE M. DANIELS, Claimant and Appellant,-vsRALISPELL 2EGIOiJAL HOSPITAL, Employer, and ERJ/ORION GROUP,
Defendant and Respondent.

APPEAL FROM: TheWorkers' Compensation Court,TheHonorable Timothy Reardon,Judge presiding.

COUNSEL OF RECORD:

ForAppellant: TerryN. Trieweiler argued, Whitefish,Montana

ForRespondent:
PaulC. Meismer argued; Garlington,Lohn & Robinson, Missoula, Montana

Submitted: January 12,1988 Decided: February 18, 1988Mr. Justice JohnConway Harrison delivered the Opinion of the Court.

Michelle Daniels, age 32, suffers from anaphylactic reactions that first occurred while she was wearing latex surgical gloves and working as a nurse's aide at the Kalispell Regional Hospital, a Plan I1 employer. The Workers' Compensation Court determined that Ms. Daniels was permanently and totally disabled and entitled to $128.35 in compensation per week after adjustment for Social Security offsets. Itdenied conversions to lump sum totalling nearly $140,000 to allow her money to purchase a house and also to startabackhoe excavationbusiness. Ms. Daniels appeals the denial of the lump sumrequest. The insurer likewise appeals claimingMs. Daniels suffers froman occupational diseasenot

an injury. On April 2, 1985,Ms. Daniels wore surgical gloves for the first time as anurse's aide. The gloves are coatedwith

a fine talc powder to ease in wearing and removing them. Ms. Daniels' hands immediately began to burn and itch so she removed the gloves. She then rubbed her eyes, which also became inflamed. Dr. Marise Johnson saw the claimant, believed her to be suffering an allergy attack, and controlled the problem with administration of Benadryl. On May 21, 1985,Ms. Daniels completed her workshift and then

saw Dr. Johnson about cramps and nausea. Dr. Johnson conducted a pelvic- rectal examination, including a barium

enema. As the enema began, Ms. Daniels became anxious and her pulse increased while her blood pressure dropped. Dr. Johnson diagnosed this as anaphylactic shock, which is a potentially life-threatening physiological condition caused when the patient comes into contact with an element towhich she is sensitive, causing the patient's blood vessels todilate and leaving the heart with less blood to pump to the lungs, kidneys,brain and othervital organs. Dr. Johnson and specialists in Missoula and at the University of Washington Medical School have concluded the talc powder on surgical gloves triggeredMs. Daniels' initial reactions. Ms. Daniels has since left the hospital job,but her exposure to the talc on the observationgloves harmed her immune system resulting in an increased tendency to have anaphylactic reactions. She attended training for certain clerical jobs, the stress of which caused reactions forcing her to giveup the retraining. She and her family live thirtymiles fromKalispelland the nearest medical help. The area is not served by ambulance. She contends that because neither she nor her husband has a job they cannot afford a telephone. Husband claimshe is unable to leave the house to look for work since Ms. Daniels then would have no access tomedical care. Ms. Daniels sought to convert $39,000 ofher award to a lump sum to finance the start-upof an excavation business in which she would do office work out of the home and her husband would operate the backhoe. She also sought $100,000 in lump sum forpurchase of a house nearer to Kalispell--but not in town--that would be large enough for the couple'shome and the business office andwould have a shop with sufficient space for storing abackhoe and equipment. The Workers' Compensation Court considered the two aspects of the lump sum request separately. It ruled that the $39,000 business request was not justified: Claimant's business proposal fails in two respects. First, claimant's involvement in the business is somarginal that this is more of a passive investment than a business venture. Second, 

# ... the court is unconvinced that the business has a chance of success reasonableenoughto justify risking a substantialportion of claimant'sentitlement.

It noted that the $100,000 housing request could not be severed from thebusiness request: Theproposed utilizationof a lump sum to purchase livingquarters to suit the very unique needs of this claimant and her family would be appropriate under different evidence. At bar, the housing acquisitionwasdependenton the business to replace the lost compensation money when the advance was credited. Sincewe are convinced that the business had little likelihood of success, the financing of the home would reduce claimant's family income to the point where they could not afford to pay for groceries, utilities and other basic needs. Thus, the use of funds to buy a home would not be in claimant's best interests since the family would not be able to keep it. While this court is very sympathetic toward claimant and appreciates the dilemma she has, the court cannot increase her entitlement beyond that allowed by law. Under the facts presented here, the court has no options, but if suitablehousing could be located and found at a pricewhichwould allow a lump sum advance, but still retain sufficient monthly income to sustain claimant's family, the court would encourage the parties to come to an agreement. Or--if need be--to return to court. Basically, four issuesarepresented forreview:



### (1) Did Ms. Daniels suffer an injury or an occupationaldisease? (2) Is Ms. Daniels' condition stable enough to be designatedpermanent and total,thus allowing adetermination of disabilityand an award ofbenefits?(3) Does substantial credible evidence support the Workers' Compensation Court's denial of a $39,000 lump sum for thebusiness? 

### (4) Does substantial credible evidence support that court's denial of a $100,000 lump sum for more adequate housing? We affirm the court's judgment as itwas issued.

ANAPHYLACTIC CONDITIONAS INJURY Section 39-71-119, MCA (1983),defined an injury as "a tangible happening of a traumatic nature from an unexpected

cause or unusual strain resulting in either external or internal physical harm 

# . . ." An injury is distinguished from disease by time definiteness and unexpectedness. Wise

v. Perkins (1983), 202 Mont. 157, 166, 656 P.2d 816, 820. When a worker is exposed to a harmful substance at one instant or during one distinctperiod, the resultmay be an injury. In Wise, the claimant was a bartender who was suddenly rescheduled to operate a tavern by herself during theNew Year'sholidays. Thisentailedworking double shifts to clean the bar during the day, open the bar in the early evening and lastly to close the bar. Subsequently, she contracted phlebitis. Two doctors testified that the amount of standing required by this situation contributed to her phlebitis, which provided a time definite and qualified the condition as an injury. The presence of an underlying disease does not preclude recovery under the Workers' CompensationAct. Wise, 656P.2d at 820. The insurer claims that no time definite can be found here because Dr. Johnson testified that Ms. Daniels suffers from an underlying disease that lay dormant until she first

wore the surgical gloves. We rejected that argument in Rremer v. Buerkle (Mont. 1986), 727 P.2d 529, 43 St.Rep.1942. There we concluded thatan autobody repairman who had worked with certain chemicals for nine years had suffered both an occupational disease and an injurywhen one exposure to the chemicals produced allergic contact dermatitis. Because it was both an occupational disease and an injury, this Court saidhe could choose his remedy. Bremer, 727 P.2d at 533, citing Ridenour v. Equity Supply Co. (19831, 204 Mont. 473, 665P.2d 783. It appears in Bremer that the claimant's condition could not have been expected since he had worked with the chemicals for nine years with no difficulties until February 17, 1983. This is in contrast with Greger v. United Presstress, Inc. (1979), 180 Mont. 348, 590 P.2d 1121. In Greger, a cement company changed the chemical additives it used. The claimantnoticed anallergic reactiononhis hands but continued to work until being laid off. When he was called back to work the allergic contact dermatitis began again at which point he saw a doctor. The doctor diagnosed claimant1 s allergic reaction to the chemical additives. F7e held that the claimant qualified only for occupational disease benefits since he had suffered from the condition previously and the condition was not totally unexpected. Greger, 590 P.2d at 1124. Like the claimant in Bremer, Ms. Daniels meets the requirements of Wise. It is undisputed that her first reaction occurred on April 2, 1985. Furthermore, her reaction was unexpected since she had been around the hospital for severalmonths as a trainee,had learned how to

wear and to remove the gloves during her training, and had not suffered any ill effects. She also has a history of at least two surgeries by gloved surgeons that produced no reactions. We find that there is substantial evidence for the decisionof theWorkers' Compensation Court and refuse toreverse it. Ms. Daniels' anaphylactic condition ismarked by

a time definite and was unexpected, thus qualifying as an injuryunder theWorkers' CompensationAct.

MEDICAL STABILITYAND BENEFITS The Workers' Compensation Court found thatMs. Daniels has been unable to undergo further training because of her anaphylactic condition and that Dr. Johnson testified the condition could notbe cured. The insurer argues this is an inadequate basis for permanent total disability since the physician did not testify that Ms. Daniels had attained medical stability. Section 39-71-116(13), MCA (1983), defined permanent totaldisability as: [A] condition resulting from injury as defined in [the Workers' Compensation Act] that results in the loss of actual earnings or earning capability that exists after the injuredworker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labormarket

# .. . The claimant must prove by a preponderance of medical evidence that she has no reasonable prospect of re-entering the normal labor market to qualify as permanently totally disabled. Bundtrockv. DuffChevrolet (1982),199 Mont. 128, 131, 647P.2d 856, 857-58. Because Ms. Daniels could notbe cured, Dr. Johnson testified that she could not return to a jobwhere shecould not controlher environment. Ms. Daniels has worked as a bartender, a convenience store clerk, and as
a nurse's aide. Because a worker in such jobs typically cannotcontrolthe job environment,Ms. Daniels cannot return to them. That being so, the Workers' Compensation Court didnot err in designating the claimant as permanently and totally disabled. Wise, 656 P.2d at 819. The court then properly made the award of the weekly rate that the parties had agreed to.

PARTIAL CONVERSION OF BENEFITS TOLUMP SUM Although benefits generally are to be paid on a periodic basis, S 39-71-741, MCA (1983) allows lump sum awards if they would be to the claimant's best interests. Utick v. Utick (1979),181Mont. 351, 355, 593P.2d 739, 741. Lump sums also may be made to clear up a claimant's outstanding debts or to satisfy her pressing needs. Belton

v. Carlson Transport (Mont. 1986), 714 P.2d 148, 150, 43 St.Rep. 286, 288; Willoughby v. Arthur McKee & Co. (1980), 187Mont. 253, 257, 609 P.2d 700, 702. This Court will not, however,disturb adenial of lump sumunless the claimant can show an abuse of discretion. Krause

### v. Sears Roebuck & Co. (1982), 197 Mont. 102, 107, 641 P.2d 458, 460; ~uple 

### v. Peterson Logging Co. (Mont. 1984), 679 P.2d 1252, 1254, 41

Was the refusal toprovide a $39,000 lump sum for the business an abuse of discretion? A vocational counselor, whose husband coincidentally

ran a backhoe operation, drew up the Danielses' plan relying

on the experience of the counselor's husband. The plan estimated start-up costs of between $34,000and $39,500,and net income of more than $11,000 for the Danielses in the first year increasing to as much as $22,000 by the third year. However, the tax records for consultant's husband showed his operation, which had been inbusiness for several years, had a net income of $7,472 in 1985. Ms. Daniels' husband, who had worked as a diesel mechanic for Anaconda Minerals Company in Butte, acknowledged thathe had operateda backhoe only occasionally and had never bid on an excavation job. A University of Montana business and economic analyst considered the plan on behalf of the insurer. He testified by deposition that the data used in the plan were not the most recent and that the construction industry had since declined. He further noted that already there are some thirty backhoe businesses in the Flathead Valley and also that the Danielses'plan made no provisions for either labor costs or depreciation. The court denied a lump sum on this evidence reasoning that the plan was too speculativeand Ms. Daniels' role too tangential to justify risking a substantial portion of her benefits. The Workers' Compensation Court is in a much betterposition than arewe to acquaint itself with the needs of the claimant and to rule accordingly. Where the evidence does not clearly preponderate against its decision, we will not reverse it. Krause, 641 P.2d at 461. The claimant has the burden to prove that her business proposal has a reasonablechance of succeeding. Bundtrock, 647P.2d at 858. The record before us does not show such evidence. We hold that the Workers' Compensation Court properly exercised its discretion. Was the refusal toprovide as much as $100,000ina lump sum forhousing an abuse of discretion? TheWorkers' Compensation Courtmay award lump sums for purchase of housing if, considering the claimant's age and health, such an award would be in her best interests. Belton, 714 P.2d at 150; Polich v. Whalen's O.K. Tire Warehouse (Mont.1981), 634P.2d 1162, 1165, 38 St.Rep. 1572, 1575, aff'd on remand, (1983), 203 Mont. 280, 661 ~.2d 38; Garmann 

### v. E.R. Feqgert Co. (Mont. 19871, 736 P.2d 123, 125,44 St.Rep. 781, 784. The courtnoted Dr. Johnson's testimony about claimant'shousing needs: 38. Dr. Johnson testified that claimant needs to live "inaplace where the roads will he reasonably accessible in all weather circumstances so that she

(claimant)or ambulancepersonnel canget her the treatment she needs if she's in a desperate situation." 

# . . .However,Dr. Johnson does not want claimant to be exposed to the city on a daily basis and prefers claimant live in a rural surrounding 

# .

# ..Claimant should also have telephone access to medical assistance

# ... The courthad no evidenceas to the costof appropriate housing. The claimant's real estate broker testified about four specific properties that fit the claimant's needs but also were properties large enough to run the excavation business and store the backhoe and equipment. These prices ranged from $89,500 to $105,000. The witness had no idea what appropriate housing without the business aspects might cost except to say it "probably"would costat least $75,000. It is the claimant's burden to introduce evidence substantial enough to justify a lump sum. Belton, 714 P.2d at 150; Garmann, 736 P.2d at 125. The Workers' Compensation Court concluded that there was insufficient evidence to justify a lump sum award for the backhoe excavationbusiness; it also concluded that claimant's evidence included costs forahouse large enough to operate the backhoe excavation business. Despite the extremely pressing nature of Ms. Daniels' condition it had no evidence on which to base a lump sum for appropriate housing. To award the $100,000 would be to waste some portion of Ms. ~aniels' rightful benefits. The denial of a lump sum for housing, considering the nature of the evidence and the court's invitation to reconsider therequest on more appropriate evidence, is not an abuse of discretion. Affirmed.

We concur:



# @E 52% Justices