No. 79-16 

IN THE SUPREME COURT OF 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: 

For Appellants: 

Utick and Grosfield, Helena, Montana 

For Respondent: 

H.L. McChesney, Missoula, Montana 

Submitted on briefs: April 3, 1980 
Mr. Chief Justice 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 in the course of his employment with Granite Lumber 

Company. Alaska Pacific Assurance Company (Alaska Pacific), 

Granite Lumber's insurance carrier, appeals. 

Richard Hoehne commenced employment with Granite Lumber 

Company in Phillipsburg, Montana, in early March, 1978. His job 

consisted of removing 2" by 4" studs from a conveyor system and 

stacking them in a pile. 

About two weeks after commencement of the job, claimant's 

fingers started going numb which caused pain and resulted in 

sleeplessness. Hoehne continued to work and the pain in his 

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 

lifting and stacking lumber. 

Claimant consulted with Dr. Cunningham, a local physician 

who in turn 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 in the 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 in other capacities in 

late June or early July, 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 with Granite 

Lumber. 

Richard Hoehne filed a claim dated 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 denied 
liability 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 its findings of fact and 

conclusions of law in the 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 in the 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 is whether the claimant suffered 

an injury as defined in section 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 in subsection (2) of this 

section;" 

The appellant does not attack the Workers' Compensation 

Court's findings of fact, instead it is contended that the findings do not support the legal conclusion of a compensable 

injury. The heart of this contention is that 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 in an injury within the 

definition of section 39-71-119(1), MCA. Thus, the sole difference between the parties on appeal is that one believes a gradual development of job-related injury which is not attributable 

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to one specific incident is an "injury" and the other believes it 

is not. 

The issue of whether an injury fits within the definitional requirements of the Workers' Compensation Act has been 

presented to this Court in numerous cases. 

In James v. V.K.V. Lumber Company (1965), 145 Mont. 466, 

401 P.2d 282, a lumber stacker suffered a back injury when 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 injured defined. 'Injury' or 

'injured'means a tangible happening of a 

traumatic nature -- from an unexpected cause, 

resulting in either 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 injury within the previous 

definition, since the cause of the injury was not unexpected. 

"Lifting the fifteen pound block was expected and done routinely 

I I 

... Mont. at 469, 401 P.2d at 283. 

A case similar to James was presented in Jones 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 in section 39-71-119(1), MCA. In Jones we found an 

"injury" within the statutory definition and stated: 

"Now, in 1967, the legislature included the words 

'or unusual strain.' What is the meaning? How 

do we measure 'unusual strain.' It seems clear 

that the legislature intended to change and 

modify the James 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 

nature which results in physical 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 in Jones. The 

legislative amendment was intended to change the majority's decision in James and to allow claimants relief when an injury is the 

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 . . . A tangible 

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. ) 

In our present case the tangible happening was not a 

single isolated incident, as was the situation in Jones, but 

rather a chain of actions or incidents, i.e. the stacking of 

lumber on a daily basis. Under the preceding definition either 

situation is a "tangible happening." 

No attack has been made on the causal connection and the 

record clearly establishes that respondent's injury resulted from 

his work 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 

to the present appeal. These cases generally arise in cases 

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); Hurl but v. Voll stedt 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 determining what is an "injury" (section 39-71- 

119(1), MCA), under the Workers' Compensation Act, this 

Court has demonstrated a quixotic ability to mount its horse 

and ride off in all directions. 

In McAndrews v. Schwartz (1974), 164 Mont. 402, 523 

P.2d 1379, compensation was denied to a claimant with arteriosclerosis obliterans in a femoral artery principally because 

the Act excluded "disease not traceable to injury." 

In Erhart v. Great Western Sugar Company (1976), 169 

Mont. 375, 546 P.2d 1055, compensation was denied to a 

claimant who suffered a mental breakdown because there was 

no tangible happening of a traumatic nature from an unexpected 

cause or unusual strain. 

In Ness v. Diamond Asphalt Company (1964), 143 Mont. 

560, 393 P.2d 43, compensation was denied where an employee 

suffered a myocardial infarction while at work, but not 

because of his work. 

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 in his work was an occupational disease, compensable 

as such, and not as an industrial accident. 

In Hurlbut v. Vollstedt Kerr Company (1975), 167 Mont. 

303, 538 P.2d 344, we held that unusually cold weather did 

not constitute an "unusual strain" to make a myocardial 

infarction suffered thereby in an otherwise diseased 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 in bed had not established a heart 
condition "traceable to injury" from long hours, stresses 

and strains on the job, and we denied compensation. 

In the recent case of Moen v. Decker Coal Co. (1979), 

- Mont. , 604 P.2d 765, 36 St.Rep. 2220, the majority 

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, after which the claimant was subjected 

to further unusual strain of an unexpected nature which 

aggravated his condition and led to his death. 

In the instant case, we have a claimant who was doing 

the job he was hired to do, stacking lumber. While he was doing 

the ordinary chores of his job, his tendons swelled, pinching 

the nerves in his hands. Where is the traumatic happening 

of a tangible event? Where is the unexpected cause or 

unusual strain, if his job is to stack lumber? These elements 

simply do not exist. 

It is far more likely that claimant is entitled to 

compensation under the Occupational Disease Act of Montana. 

(Sections 39-72-101 et seq., MCA). The swelling of his 

tendons from the repeated exertions of stacking lumber is 

not unlike the development of 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 classes of diseases: cardiovascular, pulmonary, 

or respiratory. Under the decisions of this Court, it has 

constantly ruled myocardial infarctions are not compensable, 

though they are within - - the exception. Here we make something 

akin to tendonitis cornpensable, though it is outside - the 

exception. 

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I would hold that the claimant is entitled to compensation 

under the Occupational Disease Act of Montana. His benefits 

would be the same, but he would not be entitled to benefits 

for partial disability. (Section 39-72-703, MCA.) Here 

that is not important, because no residual disability is 

claimed.