No. 87-368 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

MICHELLE M. DANIELS, 

Claimant and Appellant, 

-vsRALISPELL 2EGIOiJAL HOSPITAL, 

Employer, 

and 

ERJ/ORION GROUP, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry N. Trieweiler argued, Whitefish, Montana 

For Respondent: 

Paul C. Meismer argued; Garlington, Lohn & Robinson, 

Missoula, Montana 

Submitted: January 12, 1988 

Decided: February 18, 1988 
Mr. Justice John Conway 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. It denied conversions to lump sum totalling nearly 

$140,000 to allow her money to purchase a house and also to 

start a backhoe excavation business. Ms. Daniels appeals the 

denial of the lump sum request. The insurer likewise appeals 

claiming Ms. Daniels suffers from an occupational disease not 

an injury. 

On April 2, 1985, Ms. Daniels wore surgical gloves for 

the first time as a nurse's aide. The gloves are coated with 

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 to which 

she is sensitive, causing the patient's blood vessels to 
dilate and leaving the heart with less blood to pump to the 

lungs, kidneys, brain and other vital organs. 

Dr. Johnson and specialists in Missoula and at the 

University of Washington Medical School have concluded the 

talc powder on surgical gloves triggered Ms. Daniels' initial 

reactions. Ms. Daniels has since left the hospital job, but 

her exposure to the talc on the observation gloves 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 give up the retraining. 

She and her family live thirty miles from Kalispell and 

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 

claims he is unable to leave the house to look for work since 

Ms. Daniels then would have no access to medical care. 

Ms. Daniels sought to convert $39,000 of her award to a 

lump sum to finance the start-up of 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 for purchase of a house nearer to Kalispell--but 

not in town--that would be large enough for the couple's home 

and the business office and would have a shop with sufficient 

space for storing a backhoe 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 so marginal 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 reasonable enough 
to justify risking a substantial portion 

of claimant's entitlement. 

It noted that the $100,000 housing request could not be 

severed from the business request: 

The proposed utilization of a lump sum to 

purchase living quarters to suit the very 

unique needs of this claimant and her 

family would be appropriate under 

different evidence. At bar, the housing 

acquisition was dependent on the business 

to replace the lost compensation money 

when the advance was credited. Since we 

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 suitable housing could be located 

and found at a price which would 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 issues are presented for review: 

(1) Did Ms. Daniels suffer an injury or an 

occupational disease? 

(2) Is Ms. Daniels' condition stable enough to be 

designated permanent and total, thus allowing a determination 

of disability and an award of benefits? 
(3) Does substantial credible evidence support the 

Workers' Compensation Court's denial of a $39,000 lump sum 

for the business? 

(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 it was issued. 

ANAPHYLACTIC CONDITION AS 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 distinct period, the result may be an 

injury. In Wise, the claimant was a bartender who was 

suddenly rescheduled to operate a tavern by herself during 

the New Year's holidays. This entailed working 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' 

Compensation Act. Wise, 656 P.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 that an auto body repairman who had 

worked with certain chemicals for nine years had suffered 

both an occupational disease and an injury when one exposure 

to the chemicals produced allergic contact dermatitis. 

Because it was both an occupational disease and an injury, 

this Court said he could choose his remedy. Bremer, 727 P.2d 

at 533, citing Ridenour v. Equity Supply Co. (19831, 204 

Mont. 473, 665 P.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 claimant noticed an allergic reaction on his 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 several months 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 decision of the Workers' Compensation Court and refuse to 
reverse it. Ms. Daniels' anaphylactic condition is marked by 

a time definite and was unexpected, thus qualifying as an 

injury under the Workers' Compensation Act. 

MEDICAL STABILITY AND BENEFITS 

The Workers' Compensation Court found that Ms. Daniels 

has been unable to undergo further training because of her 

anaphylactic condition and that Dr. Johnson testified the 

condition could not be 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 

total disability 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 injured worker 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 

labor market . . . 

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. Bundtrock v. Duff Chevrolet (1982), 199 Mont. 128, 

131, 647 P.2d 856, 857-58. Because Ms. Daniels could not be 

cured, Dr. Johnson testified that she could not return to a 

job where she could not control her 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 

cannot control the job environment, Ms. Daniels cannot return 

to them. That being so, the Workers' Compensation Court did 
not 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 TO LUMP 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), 181 Mont. 351, 355, 593 P.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), 

187 Mont. 253, 257, 609 P.2d 700, 702. This Court will not, 

however, disturb a denial of lump sum unless 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 to provide 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 $34,000 and $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 in business 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 that he had operated 
a 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 speculative and Ms. Daniels' role too 

tangential to justify risking a substantial portion of her 

benefits. The Workers' Compensation Court is in a much 

better position than are we 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 

reasonable chance of succeeding. Bundtrock, 647 P.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 to provide as much as $100,000 in a 

lump sum for housing an abuse of discretion? 

The Workers' Compensation Court may 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), 634 P.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 court noted Dr. Johnson's testimony 

about claimant's housing needs: 

38. Dr. Johnson testified that claimant 

needs to live "in a place where the roads 

will he reasonably accessible in all 

weather circumstances so that she 

(claimant) or ambulance personnel can get 

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 court had no evidence as to the cost of 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 cost at 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 excavation business; it also 

concluded that claimant's evidence included costs for a house 

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 the 
request on more appropriate evidence, is not an abuse of 

discretion. 

Affirmed. 

We concur: 

@E 52% 

Justices