### No. 79-16 IN THE SUPREME COURTOF THE STATE OF MONTANA 1980



### - RICHARD RAYMOND HOEHNE, Claimant and Respondent,

GRANITE LUMBER CO., Employer, ALASKA PACIFIC ASSURANCE COMPANY, Defendants and Appellants.

Appeal from: Workers' Compensation Court, Hon. William Hunt, Judge presiding. Counsel of Record: ForAppellants: Utick and Grosfield, Helena,Montana For Respondent: H.L. McChesney,Missoula,Montana

Submitted on briefs: April 

### 3, 1980Mr. ChiefJustice Frank 

### I. Haswell delivered the Opinion of the Court. The Workers' Compensation Court found that claimantrespondent Richard Hoehne suffered a compensable injury arising out of and inthe course of his employment withGranite Lumber Company. Alaska PacificAssurance Company (Alaska Pacific), Granite Lumber's insurance carrier, appeals. Richard Hoehne commenced employment with GraniteLumber Company inPhillipsburg, Montana, inearly March, 1978. Hisjob consisted of removing 

### 2" by 

### 4" studs from a conveyor system and stacking them ina pile. About two weeks after commencement of the job, claimant's fingers started going numb which caused pain and resulted in sleeplessness. Hoehne continued towork and the pain inhis wrists and arms steadily increased. Mr. Hoehne had no prior history of medical problems with his hands and it is unquestioned that his condition was caused by the continual strain involved in liftingand stacking lumber. Claimant consulted with Dr. Cunningham, a local physician who inturn referred him to Dr. Cooney, a neurologist in Missoula, Montana. Dr. Cooney examined the claimant on May 10, 1978, and diagnosed the condition as a "compressive neuropathy of the median nerves inthe carpal tunnels bilaterally" (i.e. bilateral carpal tunnel syndrome). Hoehne was then referred to Dr. Gary, a Missoula neurosurgeon who performed surgery on the claimant's hands on May 16, 1978. He was able to commence working inother capacities in lateJune or earlyJuly, 1978. No permanent disability resulted from the injury and Mr. Hoehne is now able to do the same type of work as he was able to do prior to his employment withGranite Lumber.Richard Hoehne filed a claimdated May 7, 1978, with the Division of Workers' Compensation. He sought reimbursement of medical expenses and temporary total compensation benefits from March 16, 1978, through June 19, 1978. Alaska Pacific deniedliability for the injury on the basis that claimant had not suffered a compensable injury pursuant to the Montana Workers' Compensation Act. Mr. Hoehne requested a hearing before the Workers' Compensation Court which was held on October 18, 1978. On August 28, 1979, the court issued itsfindings of fact and conclusions of law inthe matter and entered judgment in claimant's favor. The findings of fact reveal: that the claimant's injury "was related to his activity on the job and that it arose out of and inthe course of his employment"; and that although claimant could not relate his condition to any specific incident or happening on the job, it "developed gradually" and "got steadily worse."The sole issue on appeal iswhether the claimant suffered
an injury as defined insection 39-71-119(1), MCA, which provides: "'Injury' or 'injured' means: (1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury, except as provided insubsection 

### (2) of this section;" The appellant does not attack the Workers' Compensation Court's findings of fact, instead 

### it iscontended that the findings do not support the legal conclusion of a compensable injury. The heart of this contention isthat a condition which arises and gradually becomes worse over a period of time, attributable to no specific incident, is not a "tangible happening of a traumatic nature from an unexpected cause or unusual strain." Respondent, on the other hand, contends that a series of "tangible happenings of a traumatic nature" and "unusual strain" related to the work activities of a lumber stacker over a two and one-half month period resulted inan injurywithin the definition of section 39-71-119(1), MCA. Thus, the sole difference between the parties on appeal isthat one believes a gradual development of job-related injurywhich is not attributable -3-to one specific incident is an "injury" and the other believes it isnot.The issue of whether an injury fitswithinthe definitional requirements of the Workers' Compensation Act has been presented to this Court innumerous cases. InJames v. V.K.V. Lumber Company (1965), 145 Mont. 466, 401 P.2d 282, a lumber stacker suffered 

### a back injurywhen he bent over to pick up a 10 to 15 pound cement block. This act was within the claimant's normal work activity. The case was decided
on the basis of section 92-418, 

### R.C.M. 1947, which provided: "Injury or injureddefined. 'Injury' or 'injured'means a tangible happening of a traumatic nature

### -- from an unexpected cause, resulting ineither external or internal physical harm, and such physical condition as a result therefrom and excluding disease not traceable to injury." (Emphasis added.) In a 3-2 decision, we found no injurywithin the previous definition, since the cause of the injurywas not unexpected. "Lifting the fifteen pound block was expected and done routinely

II 

# ... Mont. at 469, 401 P.2d at 283. A case similar toJames was presented inJones v. Bair's Cafes (1968), 152 Mont. 13, 445 P.2d 923. An employee, hired as a dishwasher, suffered a back injury from picking up a heavy tray of dishes. However, the 1967 legislature had amended section 92-418, R.C.M. 1947, to include "unexpected cause, 

### - or unusual strain." This language has not been amended since 1968 and has now been codified insection 39-71-119(1), MCA. InJones we found an "injury" within the statutory definition and stated: "Now, in1967, the legislature included the words 'or unusual strain.' What isthe meaning? How do we measure 'unusual strain.' It seems clear that the legislature intended to change and modify theJames decision. By adding the separate distinct phrase, 'or unusual strain

### ,' the legislature intended to cover just such a situation as we have here. There was no 'unexpected cause' but there was an 'unusual strain;' thus the measure would seem to be the result of a tangible happening of a traumatic naturewhich results inphysical harm, be it a rupture, a strain or a sprain. We can only rely on credible medical evidence to determine it.Here we have such medical evidence." 152 Mont. at 19, 445 P.2d at 926. We here express our agreement with the decision inJones. The legislativeamendment was intended to change the majority's decision inJames and to allow claimants relief when an injury isthe result of an "unusual strain" occurring on the job. With regard to the requirement of a "tangible happening of
a traumatic nature," this Court has stated: "Not only must claimant show an unusual strain, but that the strain must result from a tangible happening of a traumatic nature

# ..

# . Atangible happening must be a perceptible happening, Webster's Third New International Dictionary. Some action or incident, or chain of actions or incidents, must be shown which maybe perceived as a contributing cause of the resulting injury



# ..." Erhart v. Great Western Sugar company - (1976), 169 Mont. 375, 380-381, 546 P.2d 1055, 1058. (Emphasis added.

### ) Inour present case the tangible happening was not a single isolated incident, as was the situation inJones, but rather a chain of actions or incidents, i.e. the stacking of lumber on a daily basis. Under the preceding definition either situation isa "tangible happening." No attack has been made on the causal connection and the record clearly establishes that respondent's injury resulted from hiswork activities as an employee of Granite Lumber. As a result numerous cases which find no "injury" because of a failure of proof on the element of causal connection simply do not apply tothe present appeal. These cases generally arise incases involving heart conditions or mental illness. See Moen v. Decker Coal Co. (1979), Mont. 

## , 604 P.2d 765, 36 St.Rep. 2220 (myocardial infarction); Dumont v. Wickens Bros. Const. Co. (1979), Mont. 

## , 598 P.2d 1099, 36 St.Rep. 1471 (heart attack); Erhart v. Great Western Sugar Company, supra; (mental breakdown); Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 303, 538 P.2d 344 (myocardial infarction); McAndrews v. Schwartz (1974), 164 Mont. 402, 523 P.2d 1379 (arteriosclerosis). Affirmed.

### Chief Justice 

# \

We concur:



# ............................ Justices

### Mr. Justice John C. Sheehy,dissenting:

In 

### determiningwhat is an "injury" (section39-71- 119(1), MCA), under theWorkers' CompensationAct, this Court has demonstrated a quixotic ability to mount its horse and ride off in all directions. InMcAndrews

### v. Schwartz (1974),164Mont. 402, 523 P.2d 1379, compensationwas denied to a claimant with arteriosclerosis obliterans in a femoralartery principally because theAct excluded "diseasenot traceable to injury." In Erhart

### v. GreatWestern SugarCompany (1976), 169 Mont. 375, 546 P.2d 1055, compensationwas denied to a claimantwho suffered a mental breakdown because therewas
no tangible happening of a traumatic nature from an unexpected

cause or unusual strain. InNess 

### v. Diamond Asphalt Company (1964), 143Mont. 560, 393 P.2d 43,compensation was deniedwhere an employee suffered a myocardial infarctionwhile atwork,but not because of hiswork. In Greger

### v. United Prestress, Inc. (1979), -

### Mont.



### , 590 P.2d 1121,we held that contact dermatitis caused by repeated exposure to chromate ions in materials used by the claimant inhiswork was an occupationaldisease, compensable as such,and not as an industrial accident. InHurlbut

### v. Vollstedt Kerr Company (1975), 167Mont. 303, 

### 538 P.2d 344,we held thatunusually cold weather did not constitutean 

### "unusual strain"to make a myocardial infarction suffered thereby in an otherwisediseased heart compensable. In Dumont

### v. Wickens Bros. Const. Co. (1979), Mont. 

## , 598 P.2d 1099, 36 St.Rep. 1471,we held that a claimant found dead inbed had not established a heart

### condition "traceable to injury" from long hours, stresses and strainson the job,andwe denied compensation. In the recent case of Moen v. Decker Coal Co. (1979), Mont. 

## , 604P.2d 765, 36 St.Rep. 2220, themajority 

### - denied compensation in a myocardial infarction case on the basis of no tangible happening of a traumatic event. I dissented because the evidence showed that the infarction occurred on the job, afterwhich the claimant was subjected to furtherunusual strainof an unexpected nature which aggravated his conditionand led to his death. In the instantcase,we have a claimant who was doing the jobhe was hired to do, stacking lumber. While he was doing the ordinary chores of his job,his tendons swelled,pinching the nerves inhis hands. Where is the traumatic happening of a tangibleevent? Where is the unexpected cause or unusual strain, if his job is to stack lumber? These elements simplydo notexist. It is farmore likely that claimant is entitled to compensationunder the Occupational DiseaseAct of Montana.

(Sections39-72-101 et seq., MCA). The swelling of his tendons from the repeated exertions of stacking lumber is not unlike the developmentof contact dermatitis from repeated exposures to chromate, as in Greger, supra. Here is the anomaly of these decisions: Section 39-71- 119,MCA, defining a compensable "injury,"provides that "injury" excludes disease not traceable to injury,but excepts three classesof diseases: cardiovascular, pulmonary,

or respiratory. Under the decisions of this Court, ithas constantly ruled myocardial infarctions are not compensable, though they arewithin -- 

### the exception. Herewemake something akin to tendonitis cornpensable, though it is outside - 

### the exception. -8-I

### would hold that the claimant is entitled to compensation under the Occupational DiseaseAct of Montana. His benefits would be the same, but hewould not be entitled tobenefits forpartial disability. (Section 39-72-703, MCA.) 

### Here that is not important, because no residual disability is claimed.