No. 88-45:!

IN THE SIJPREME COURT OF THE STATE OF MONTANA 1989

PAULR. EASTMAN, Claimantand Appellant,-VSATLANTIC RICHFIELD COMPANY, Employer,
CefenZant and Respondent.

APPEAL FRON: TheCorkers' Compensation Court,The IlonorahleTimothy Reardon, zudge presiding.

COUNSEL OF RECORD:

ForAppellant:
PaulR. Eastman,

### pro se,Kalispell,Montana

For Respondent:
Andrew 2. IJtick; [Jtick & Grosfield,Helena,Montana

Suhmitted on Briefs: March 9,1989

i- Decided: May.10,1989

### Mr. Justice Fred J. 

### Weher delivered the Opinion of the Court.

The claimant, Paul Eastman, appeals from a final decision of the Workers' Compensation Court denying him benefits under theWorkers' Compensation Act and affirming a compensation award of $10,000 under the Occupational DiseaseAct. Me affirm. Mr. Eastman appears pro se and requests this Court to review the decision of the Workers' Compensation Court in two respects. First,we are asked todetermine the constitutionality of theOccupational DiseaseAct, and then to review the sufficiency of the evidence to support the lower court's determination. We phrase the issues as follows: 1. 

### Does the treatment of employees suffering work-related diseases under the Occupational Disease Act violate equal protection or deny a claimant's right to full legal redress? 2. 

### Did theWorkers' Compensation Court err in determining that Mr. Eastman is ent-itledto benefits under the Occupational Disease Act rather than the Workers' Compensation Act? 3. 

### Is 

### claimant entitled to reasonable costs and attorney fees and a 20%penalty? Pa-ulEastmanbegan working for Atlantic Richfield Company (ARCO)at its Columbia Fa1l.sAluminum plant in June 19?7. 

### He was employed!as a welder, and continued i.nthat position until he was laid off onApril 26, 

### 1985, 

### following the closure of the Columbia Fallsplant. Twoweeks prior to the lay off, Mr. Eastman was exposed to an unusually large and concentrated dose of fumes while welding at the plant. He 

### was working with a 

### heavy metal pot in which aluminum ore is refined,when the welding debrisdripped ontoplastic and tar belcv, 1-he area 

### and ignited those materials. The smoke andfumes from the burning materials were much more j-ntenseand concentratedthan normal. Following the incident,Mr. Eastman leftwork and drove himself to t.heemergency room at Kal-ispel: Regional Hospitz! for treatment. He was hospitalized for three days, during which time he was given large doses of: steroids. Followj-ng hospitalization, Mr. Eastman returned to work urrtil he was laid off twoweeks Later. bir. Eastman had a history of asthma prior to the incident of April 8, 1985. He first began to experience short--

ness 05 breath in 1973 during periods of heavy exercise. Re continued.to experience shortness of breath during exertion while empl-oyedwith ARC0 between 1978 and 1980,during whj-ch time he al.so experienced recurring bouts of bronchitis. Ry 1983,Mr. Eastman's conditionhad developed into full-blown, severe asthma, which was mefiicallydiagnosed as Chronic ObstructFve Pulmonary Cisease. He was first treated with antibiotics and steroid medication in April, 1983, under the

care 

### of Dr. Rosetto. The steroid treatments have continued

on and off since that time. Dr. Rosetto described 

### Mr. East.-.

man as "steroid dependent," meaning that the claimant is unable togo off themedication without his ast-hmaflaring to the point where he either couldn't do anything or would end up in the hospit.al. Dr. Rosetto testified that the claim-- ant's steroid dependency had existed prior to the incident which occurred in April, 1985. The medication he must take to control his asthma has severe physical and emotional side effects, which the claimant.testified affectshis ability to find and perform work. Since his layoff in April, 1985, Mr. Eastman has conducted an extensive 

### job search through theMontana Department of Social and Rehabi.l.itativeServices. Despi.teapplying for 2C t-c 30 jobs, 

### Mr. Rastman has failed t.o find steadyemployment. He worked as a retail clerk in 1986,but had tc quit after one day because the job required him to lift and carry 10pound boxes which exacerbated his breathing problems and precipitated an asthma attack. 

### A vocational counselor .forthe Career Exploration and Development Center t-estified. thatMr. Eastmanhas the work habits, grooming,and aptitudes 

### of competitive employment and has many transferable skills. Kith the exception of one clay of employment, the cl-aimantdid not work at all between April 1985 and June 1987. I.Eastman filed a claim for compensation with the Division of Workers1 Compensation on May 1,1985. The Division designated the claim as one for benefits under the Occupational Disease Act, although the claimant later filed a. petition alleging that he was entitled to benefits under the Workers' Compensation Act because of his April 8, 1985 "inju

### ry." The determination

### of "injury"was consolidated with the claimant's appeal from the Division's final decision regarding compensation under the Occupational DiseaseAct. In that order, the Divisiondetermined thatMr. Eastman suffered from

a nondisabling occupational disease and was awarded 

### the maximum statutory allowance of $10,000 pursuant tc 5 39-72-405 (2), MCA. TheWorkers1Compensation Court affirmed thedecision of the Division that the claimant's occupational disease was nondisabling. The court also addressed the "injury" issue, noting that the claimant did not elect to pursue either form 

### of ccmpensation, but instead presented both theories of recovery for determination. The court held that the unexpected occurrence of abn~rmally dense fumes at work onApril 8, 1985, caused an aggravation of the claimant's preexisting asthma condition, 

### and therefore qualified as 

### an "linjur.;." ?Towever,the court then concluded that,

# .. . themezical evidence from claimant's treating physician Dr. Rosetto clearly indicates that the claimant's medication during his three days 

### of hospitalization returned him to his pre-exacerbation state. The claimant was then released from the hospital to return to his fulltime work which he continued until he was laid off some two weeks later. A1though the claimant's incident is technically an "injury, 

### " his asthma condition returned to its pre-injury state with no loss of wages or impairment being established. Having satisfied the statutory criteria for an injury, the Court's function has not encied. The overwhelming medical evidence is that claimant's April 8, 1985 exposurewas disabling only for a few days and upon receiving medication he was essentia!ly restored to hispre-April 8, 1985 condition. That condition, as well as his health after the three-day hospital stay,was a product of an occupational disease exposure as found by the Division. Although the court determined that Mr. Eastman suffered

an injury onApril 8, 1985, it concluded that the injury was noncompensable under the Workers' Compensation Act. 

### The court also concluded that the claimant was not entitled tc a 2C% increase in award pursuant to S 39-71-2907,MCA, nor was he entitled to reasonable costs and attorney fees under 

### 5 39-71-61.?,NCA. It j.s from this jud-gmentthat Kr. Eastman appeals.

Does the 0cc.upationalCisease Act violate equal protection or deny 

### a claimant's right to full legal redress? The employer argues that this Court should not address the claimant's constj.tuti.onalarguments because he failed to present them before the lower court. It is a general ru1.e that new issues may not be raised for the first time or! appeal. Bauer v. 

### Kar Products, Inc. (~ont. 19881, 749 P.2d. 1385, 1318, 

### 45 St.Rep. 322, 326. However, this Court "reserves to itself the power to examine constitutional issues that.involve broad public concerns," and even if raised forthe 5rst time on appeal, this Court can hear the issue if the alleged error affects the substantial.right of a litigant. Cot-trill

### v. Cottrill Sodding Service (Mont. 1987), 

### 744 P.2d 895, 896, 44 St.Rep. 1762, 1763. Claimant has not briefed his constitutional contentions in detail. Nonetheless, considering the nature of such ccntentions as well as his pro se status, we will consider his constitutional challenges. EQUAL PROTECTION -----Mr. Eastman first challenges the State's classification of diseasecl workers under the Occr~pationalDisease Act as arbitrary and discriminate and in violation of the Equal Protection Clauses of the U.S. and Montana Constitutions. In determining what level 

### of scrutiny is to be applied to this legislation under an equal protection analysis, it is neces-- sary to determi-newhat rights are involved and whether the legislation infringes ,uponthe rights of any suspect cl-ass. Cottrill, 

### 744P.2d at 897. -- We have held that the right to receiveb?srkers1Cornpen-.- sation benefits is not a fundamental right. Cottrill, ?44 

### --- P.2d at 897, citing Shapirov. Thompson (19691,394U.S. 618, 89 S.Ct. 1322, 22 T,.Ed.2d 600. This same rule applies to benefits under the Occupational DiseaseAct,which are also a form of disability benefits, so that no fundamental right 

### is at stakehere. The classification dces not affect the rights of a suspect class, which woul-d.i.ncl.uderace, nationality, alienage and wealth. Cottrill, 

### 744 P.2d at 897. We conclude that the Act is not subject to strict scrutiny. As a result. ARC0 nee$. not show a compelling state interest. We conclude that the Act should be analyzed under the rational basis test. That test requiresa legitimate governmental objective which bears some identifiable rational relationship tc: the c!asstfication in question. --- Cottrill, --- - 744 P.2d at 897.Mr. Eastman argues that there is no rational basis upon which to distinguish an employee who suffers from an occupational disease from an employee who suffers an injury. F7e disagree. A historical inquiry into the subject reveal-sa legislativepurpose for thisdifferentiation. Historically workers' conpensation was enacted to compensate vFctims of industrial.accidents and injuries. It was not set up to respond to workers suffering occupational c',is~ase. That distinction was partial-lyexplained by the common lawhistorical background which had allowed tort suits fcr i.njuriesbut generally had shown that the negligence 

### of

an employer was not a basFs for a common law action. As state6 in 1F Iarson, I4Torkmen's Cornpensat<-onT,aw 

### , Section 41.20 (1987):

To the extent that compensation acts were thought of as substituting nonfault liability for the kind of in-juries that were potential subjects of fault liahil-ity,there was thought to he no place for occupational diseases, which (in the sense of a disease due to the "normal" conditions of t-he industry as distinguished from the negligence of the employer) had consistently been hel-dincapable of supportinga common-law act!-on.

As the incidence of devastating diseases of the work place increased, legislatures concluded that some system of compensationwas needed. Gradually the lawwas expanded toprovide henefits for the victims of occupational disease, notably silicosis and ashest-osis.32 Labor Law Journal (1981), 313,

By 1978,every state had enacted statutes making occupational di.seasescompensable. 1B Larson,Workmen's Compensation Law, Section 41.00. Larson points out that this lag 

### in coverage can be attributed to the heavy incidence of siliccs_is a~d asbestosis in certain j.ndustries, for whi-ch fullcoverage under workers' compensation would have created 

### a difficultburden. 1R Larson, supra,Section 41.10. Kontana creat.ed a statutory remedy for work-related eiseases in 1959by the enactment of t.heOccupational Disease Act, S 92-1301 RCM (19471 et seq., now SS 39-72-101 

### to 716, MCA. In the workers' compensation field, this Court upheld the power cf the legislature to enact workers' compensation which replaced common law remedies. Shea v. North-Butte Plining Co. (1919),55 Mont. 522, 534, 179 P.2d 499, 503. We conclude that the same rationale properly can be applied to the Occupational DiseaseAct. We concl-udethere is a rationalbasis for the enactmentof the OccupationalDiseaseAct.by the legislature. Claimsnt argues that the benefits payable under both workers' compensationand the Occupational Disease Act shou.15 be the same. We recognize the fairness of Fin argument for equal compensation for similar disabilities. However, the equal protection clause does not require that all aspects of occupational disease and occupational injury be dealtwith in the same manner. As stated. bl7 the Unite? States Supreme Court in Iqilliamsonv. Lee Optical Co. (19551,348 1T.S. 483, 99L.Ed. 563, 

### 75 S.Ct. 461:

Theproblem of legislative classification is a perennial one, admitting of no doctrinaire defini-- tion. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. (case cited) Or the reform may take one step at a time, addressing itself to thephase of theproblemwhich seems most acute to the legislative mind. (case cited) The legislaturemay selectonephase of one field and apply a remedy there, neglecting the others. (casecited)We conclude that the claimant has failed to show that the legislature is required to award the same or comparable benefits under the Gccupational Eisease Act as compare6 to the Workers' Compensation Act. We hold that there is a rational basis for thebenefits awarded under the Occupational Disease Act and that the claimant has failed to establish

aviclationunder the equalprotection clausesof the Montana Consti-tutionand of the Constj.tution of the United St-ates. While we find that claimant has failed to show a constitutional violation of the equal protection clauses, our review of the Occupational Disease Act has shown there are serious questions which should be addressed by the legislature. In this instance Mr. Eastman has proved permanent partial disabiLity which would entitle him to extensive benefits 

### if he came under the Workers' Compensation Act. However, under the Occupational Disease Act, because he is not totally disabled, his award is limited to $10,000. We suggest that a review of the benefjts under this Act is certainlyCue cn the part of the leaislature. FUIdL LEGAL REDRESS



## . Eastrnan next argues that 

### he was denied full legal redress under the Occupational Disease Act because of the requirement that a worker be disabled formore than five days t.o receive compensation. He argues that had he remained off the joh Formore than five days, he would have received full compensationunder the Workers' Compensation Act, but because he missed only two days of work, the statutory requirement arbitrarily denies him his right to full legal redress. We p~intout that the five day requirement appears under 9 39-71-736,MCA (1985), 

### of theWor1;ers' Compensation Act, and no similar requirement is contained in the Occupational Disease Act as Mr. Eastmarl asserts. Plhile the lower court concluded that the claimant suffered an injury nnder theWorkers

### ' Compensation Act, it further concluded that the injury was only temporary an2 did not continue to be disabling. Based on that evidence, the court held that claimant's injury was noncompensahle and affirmed the Division's award under the Occupational DiseaseAct. Even if claimanthad proved an injury which resulted in

e Zisahility of more than five days, under the medical evidence of this case he would nut be entitled to compensation unler the klorkers' Compensation Act. The court found that the medical evidence established that his condition returned to its pre-exacerbation state following medical. treatment which extended over just a few days. We thereforehold that claimant has "ailed to establish a denial of his right to full legal redressbecause heha-snot been denied any compensation under the Workers' CompensationAct. I1 Did the Workers' Compensation Court err in determining that Mr. Eastman was entitled to benefits under the Occupational DiseaseAct rather than theWorkers' Compensation Act? The Workers' Compensation Court found that the claimant's asthmawas a preexisting conditionwhich was aggravated by his 8 years of enployment as a welder with ARCO. This Court has he12 that a preexisting condition of Chronic Obstructive Pulmonary Disease, which includes asthma, is compensable under the FJorkers' Compensation Act if a claimant

can identify an unexpected tangible happening on a specific date which aggravate6 the condition. Flhittington v. Ramsey Construction and Fabrication (Mont. 1987), 744P.2d 1251, 44 St.P.ep. 1823. Ridenour 

### v. Equity Supply Co. 11983), 204 Mont. 473, 665 P.2d 783. Fhere the claimant was unable to show that his asthma was significantly aggravated by an unexpected incident. rather than a deteriorating condition over time, t-hjsCcurthas upheld the lower court's conclusionthat the claimant suffered from an occupational disease rather than an injury compensable under the Workers

### ' CompensationAct. Whittington, 744 P.2d at 1257. 

### -- In this case, the court determined that the unexpected

occurrence of abnormal.2.ydense fumesatwork onApril 8, 1985 caused an aggravation of claimant's preexisting asthma, and that the incident was unexpected and time definite enough to qualify as an "injury" under the Workers' CompensationAct. g 39-71-119, MCA (1985). Fowever, the court went on to conclude that the injury was noncompensable under the Workers' Compensc;t::'.on Act based on the medical evidence which established that the injury did not continue to be disabling. Following hospitalization and medication, the court found that Mr. Eastman was returned to his pre-exacerbation state and failed to prove any loss of wages or additionalphysical Impairment. The court concluded that his pre-April 8, 1985 condit.i.on, as well as his health following the three day hospital stay,was a product of an occupational disease and affirmed the Division's award under the Cccupati.onalDisease Act.

# . It is not the function of this Court to reweigh the evidence. Wewill uphold the findings and conclusions of the Workers' Compensation Court if they are supportedby substantial credibleevidence in the record. Snyderv. San FranciscoFeed and Grain (Mont. 1987), 748 P.2d 924, 929, 44 St.Rep. 2216, 2221. The testimony which led the lower court to conclude that Mr. Eastman's injury did not continue tobe disabling and was therefore noncompensable under the Workers' Compensation Act

was given hy several medical experts. The claimant's own treatingphysician,Dr. Rosetto, testified thatMr. Eastman's asthma condition would not change in the f.uture,that his disease was not: caused by any single eve~t, ancl tha-tany"incident" which occurred during the progression of his 6isease would not change the status of his condition as it was at the time of trial. Dr. Rosetto also testified that having worked at ARC0 for 8years as a we]-der, the worsening of claimant's disease could have heen expected, and that the incidentofbreathing toxic fumesdid not causeany permanent significantadditional impairment. Another physician, Dr. Schimke, testified that the fluctuations in claimant's condition over 8 years showed a norseni-ngtrend, and that his employment as a welder was the

cause 

### of the dFseasebecoming disabling. Dr. Power examined Mr. Eastman at the request of the claims division to determine whether claimant suffered an occupationaL disease. The examination consisted of a general physical, chest X-rays, and a pulmonary function test,which took place in November 

### 1985, sevenmonths after the April 8 incident. Dr. Power testified that any aggravation caused b:- the incident was only temporary and that claimant's asthma had stabilized to itspre-April 8 condition. The conclusion of the lower court that claimant'scondi-- tionhad returned tohis conditjonprior to the April 8, 1985 injury does not suggest that he had returned to good health. 

### The evidence shoo~sthat he had disability from the disease prier to April 8, 1985 and that such disability continued and grew worse thereafter. Our examination of the record demonstrates there is substantial medical evidence which show^ that claimant experienced no additional physical impairment

as a result of the injury of April 8, 1985. The record also contains substantial evizence to support the conclusion that his conditionwas the result of an occupational disease. Ve hold 

### that it was not error 

### For the lower court to conclude that r.Eastman's injury was not compensahle under the Florkers' CompensationAct.

### Is claimant entitled to reasonable costs ancl attorney fees and/or a 20% penalty? The provi-sions for costs and attorney fees and a 20% penalty are found in the Workers' Compensation Act, 

### 5s 33-71-61? 

### and 39-72-2907, MCA (1985). Since this Court affFrms the determinationby the lower court that

### Mr. Eastman i.snot entitled to benefits und.er the Workers' Compensation Act, thoseprovisions do not apply in this case. Affirmed.

We Concur: A

Chief Justice

-- --- - -- -- JusticesMr. ~ustice ~illiam E. Hunt, Sr., dissenting:

I dissent. From the beginning, Eastman has been forced to surmount hurdles that would challenge even the greatest trial tactician. He appearsbefore this Courtpro se because his attorney, after collecting his fee,merged his law firm with the firm representing ARCO. Added to this burden, is the fact that Steven J. Shapiro, chief legal counsel for the Workers' Compensation Division--the same division that actively opposed Eastman every step of theway--was appointed the first hearing examiner. The facts found by Shapiro and adopted by Robert 

### J. Robinson, administrator for the division, are the facts Eastman has had to struggle with throughout this legal andmedicalmorass. Thewonder here is not that Eastmanwas denied his rights as an injured Montana worker. Thewonder is thathe got anything at all. The majority holds that Eastman's April 8, 1985, injury did not significantly aggravate his preexisting disease. Eastman's medical history, however, tells a different story. Prior to the April 

### 8, 1985, injury, Eastman's breathing difficulties forced him to seek treatment at Kalispell Regional Hospital on only two occasions. In July, 1983,he consulted with the hospital emergency room. In June, 1984, he was hospitalized. Within the four months following the accident, however, his visits to the hospital became much

more frequent. He visited the hospital emergency room twice--once on May 20, 1985, and again on July 31, 1985. On August 20, 

### 1985, he was hospitalized for four days with

severe asthma. In addition,Eastman'sneed to consultwith his treating physician had subsided in the months preceding the injury. In 1983, he called or visited Dr. Rossetto almost monthly.In 1984,however,he sawDr. Rossetto twice--once in June and

once in July. He called the doctor three times. His last flare up of asthma prior to April 8, 1985, occurred in December, 1984. After the April accident, however, his asthma repeatedly flared. He consultedDr. Rossetto at least

once amonth thereafter. 

### In 

### ide en our v. Equity Supply Co. (1983), 204 Mont. 473, 665 P.2d 783, a claimant's preexisting Chronic Obstructive Pulmonary 

### ise ease (COPD) was aggravated by a high concentration of grain dust. We awarded the claimant permanent total disability benefits under the Workers' Compensation Act. Yet in this case, where the facts are almost identical,we award claimant amere $10,000under the Occupational DiseaseAct and send him on hisway. In Ridenour, the claimant was injured on December 

### 18, 1978. He was unable to performhis usual job from thatdate, though he did attempt less strenuous work. A little over five months after the accident, his breathing difficulties became so severe that he was forced to cease employment. Unlike the claimant in

### ide en our, Eastman returned to his normal job for two weeks after the accident. He was able to do so, however, only because he was heavily medicated with steroids. He returned to work rather than remaining on sick leave because he knewARC0was planning a large reduction in force and he wanted to work asmuch as possible before being laid off. Had Eastman not been laid off as part ofARCO's general reduction in force, his breathing problems would have soon forced him to quit, just as the claimant in Ridenour eventually ceased working. Slightly over two months after the accident, on June 11, 1985,Dr. Rossetto wrote a letter to Job Service in which he sta.ted that Eastman's condition had progressively worsened and he would be unable to work in

### the foreseeable future. On September 9, 1985,Dr. Rossetto noted on the medical record that Eastman should not return to work because of recent extensive asthma attacks. Eastman himself testified that, due tohisphysical condition,he had notbeen able to return towork since the lay off even though ARC0had called him back two or three times. The medical record amply demonstrates that the April 8, 1985,injury aggravated Eastman's disease. Nevertheless, the majority refuses to acknowledge this objective evidence. Instead, the majority relies on the deposition testimony of three doctors--even though oneof the doctors,Dr. Power,did not have access to Eastman's medical record. Dr. Power's testimony indicates thathewas unaware of Eastman's complete medical history. Furthermore,the testimony of the remaining doctors does not unequivocally support the majority's holding. Dr. Rossetto testified that the injury was unlikely to change Eastman's medical status as of the time of the deposition. He acknowledged that since the accident,Eastman continued to have periods of severe exacerbations. He also stated that Eastman had been on steriods almost continuously since that time and was steroiddependent. Dr. ~chimke'stestimony is more telling. Dr. Schimke testified that the~pril 8,1985, incidentwasnot the single underlying cause of Eastman's disease. However,he could not state with medical certainty that Eastman's status returned to his preexacerbated condition following the accident. He stated: I 

### view the ~pril,1985, incident as but one in a long series of similar incidents. And Ibelieve I 

### stated if the incident caused hospitalization--and I 

### believe that one did--it could have had some long-term lasting effect. And it is medical speculation, 

### I think, to tell 

### you how much or how little.We have previously recognized that "'cautious medical testimony' should,whenever possible,be interpreted in favor of the claimant.'' Wheeler 

### v. Carlson Transport (1985),217 Mont. 254, 262, 

### 704 P.2d 49, 54. Indeed, in Ridenour, we granted disability benefits based on testimony very similar to that givenby the doctors in this case--testimony that the claimant's accident "may have resulted in more asthma and more bronchitis, which could flare up more readily in the ensuing months and years." (Emphasisadded.) Ridenour, 204 Mont. at 475-76, 665 P.2d at 785. Themajority in this case, however, ignores the precedent set in Ridenour and unfairly denies Eastman disability under the Workers' Compensation Act. Themajority also asserts that there is a rationalbasis for paying benefits to claimants under the Occupational Disease Act at a lower rate than those paid to claimants under the Workers' Compensation Act. Iwish somebody would tell me exactly what that rational basis is. I certainly cannot find it in this opinion.

n Iwould reverse the Workers'

We join Mr. Justice William E. Hunt, Sr., in his dissent to themajority opinion. 

### /