NO. 88-280
INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

JOY WEAR, Claimantand Appellant.,-vsBUTTREY FOODS INCORPORATED, Employer, Defendant and Respondent.

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

COUNSEL OF RECORD:

For Appellant: Linnell, Newhall & Martin; RichardJ. Martin, Great Falls, Montana
ForRespondent:
J. David Slovak; Ugrin, Alexander, Zadick & Slovak, GreatFalls, Montana

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d: Submittedon Briefs: Sept. 9, 1988
Decided: November 3, 1988



# . - ClerkMr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

Claimant JoyWear (Wear) appeals froma judgment of the Workers' Compensation Court denying her claim for benefits for compensable injury. The sole issue before this Court is whether Wear has satisfied the statutory definition of I'injury

# ." We affirm the determination of the Workers' Compensation Judge that shehas not. Wear worked as a checker for Ruttrey Foods since 1970. OnMay 18, 1987,Wear filed a claim for compensationalleging she had sustained twelve different maladies which "arose out of and in the course of her employment, or were aggravated or accelerated by her employment 

# . .." Wear claims her disability resulted fromyears of repetitivemotion, constant stooping, lifting,twisting and standing. Wear's compensation claim listed the names and addresses of seven attending physicians. Her list of physical complaints included weakness and pain in her left arm; cervical arthritis in the neck region;pain inher lower trunk,pelvis, and upper leg; a fallen arch; bursitis in her right knee; pain in her lower back; bursitis in her hip; disfigurement of her upper thighs; symptoms of stress and increased blood pressure; fibroid tumors in her uterus; abdominalpains; and vericoseveins. Buttrey Foods denied the claim and a hearing was requested before the Workers' Compensation Court. The Workers' Compensation Judge denied Wear's claim for compensationunder theMontana Workers' CompensationAct,but strongly urged her to present a claim under the Occupational DiseaseAct. The Judge concluded thatWear had not satisfiedthe statutory definition of "injury" in S 39-71-119, MCA (1985),as it read at the time of the alleged injury in 1987: Injury or injured defined. "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

# .. . The appropriate standardof review forquestionsof law is simplywhether the lower court's interpretationof the law is correct. Wassberg v. Anaconda Copper Co. (Mont. 1985)

### , 697 P.2d 909, 912, 42 St.Rep. 388, 391. We hold that the lower court's decision is correct. Inorder for a claimant to establish an injury, we have held that the two definitive elements of "time definiteness" and "unexpectedness" must be shown. Phillips v. Spectrum Enterprises (Mont. 1986), 730 P.2d 1131, 1134, 43 St.Rep. 2288, 2291; Wise v. Perkins (1983), 202 Mont. 157, 166, 656 P.2d 816, 820. Wear testified that the cause ofher condition was her repeated lifting, twisting, turning, bending and standinq during her seventeen years of employment with Buttrey Foods. No specific event or occurrence was said to be the cause of her condition. Rather, Wear argues that she suffered an "unusual strain" through a series of minor traumas over the years while performing her normal duties as a checker. In support of this argument Wear cites Hoehne v. Granite Lumber Co. (1980), 189 Mont. 221, 615 P.2d 863, and Wise v. Perkins

(1983),202Mont. 157, 656 P.2d 816. In Hoehne,we held that
a chain 

### of actions or incidents which led to nerve damage

### over the course of two and one-half months did satisfy the statutory definition of injury. In Perkins,we held that an extraordinary work load over the course of two weeks which resulted in serious injury to the claimant was an "unusual strain"which satisfied the definitionof injury. Since Wear suffered a series ofminor traumas over the past seventeen years, the argument goes, this is sufficient to establish a "tangible happening of a traumatic nature from
an unexpected cause or unusual strain." We reject this argument. More onpoint with the factsof this case isMcMahon

### v. Anaconda Co. (1984), 208 Mont. 482, 678 P.2d 661,where we held that a claimant, exposed to noxious fumes and particulates in his place ofwork for aperiod ofyears, was not "injured" for purposes of the Workers' CompensationAct. We noted: The fact that claimant'sailmentswere so very gradual in onset excludes them from thedefinitionof injury.
We hesitate toattempt to locate the line between long-term, gradual trauma or disease, and short-term, accidental trauma, exposure or strain. In Hoehne



# ... claimant was held to have an "injury",though the onset of his carpal tunnel syndrome took place over a period of twomonths. However, we feel it is safe to conclude thatwhere laryngealand pulmonary disorders and resulting psychological impairment are occasioned by exposure to a hostile environment for aperiod ofyears,the disorders fall within the meaning of the legislatively defined term "disease." (Emphasis original.) (Citation omitted.)McMahon, 208 Mont. at 485-486, 676 P.2d at 663. On this reasoning, we conclude Wear has not satisfied the statutory definition of "injury" and therefore the order of the WorkersVompensation Court is affirmed.

We concur:

-- - JusticesNr. JusticeWilliam E. Hunt, Sr., dissenting:

I dissent. The Workers' Compensation Court itself recognized that Wear is disabled and that her disability is attributabletoher employment. Even so,the majority denies Wear's claim by relying on a definition of "injury" that is much too narrow. The majority holds that the series of minor traumas experienced by Wear over the years fails to satisfy the time definiteness element of a compensable injury. In so doing, the majority ignores Wear's testimony that her workload had increased immediately before she was forced to leave her employment. Wear worked her last month during the Easter season, a busy period for grocery stores. Furthermore, that Easter, Buttrey Foods experienced a shortage of baggers, requiring Wear to assume the tasks normally completed by those employees in addition toher regular duties. By disregarding these facts, the majority contravenes our previous decisions in Hoehne v. Granite Lumber Co.

(1980), 189 Mont. 221, 615 P.2d 863, and Wise v. Perkins (1983), 202 Mont. 157, 656 P.2d 816. In those cases, we allowed claimants who suffered traumas over the course of time to collect workers' compensation benefits. There is no distinctionbetween the increased workload undertaken by Wear during her last month of work and the workload of the claimants in Hoehne and 

### -- Perkins. There is, however, a great distinction between the traumas that caused Wear's disability--constant twisting, bending, and lifting--and the inhalation of noxious fumes that led to the claimant's lung disease in McMahon v. Anaconda Co. (1984), 208 Mont. 482, 678 P.2d 661. The maiority's reliance on McMahon is misplaced.The majority denies Wear's claim on the ground that her injury is the result of minor traumas experienced over the years. The majority's opinion, however, can easily be circumvented by the knowledgeable claimant. Apparently, 

### if Wear had been able topinpoint amajor trauma, the exactdate and time ofwhich she could recall, she would have been able to recover benefits. Perhaps if Wear had been a more sophisticated claimant she would have remembered such an event--a wrenched back as she crouched to pick up a bag of potatoes, a pulled muscle as she lifted a sack of flour, a sharp pain as she stooped to retrieve change from the cash drawer. Unfortunately for Wear, shewas not so enlightened. This opinionpunishes her forher honesty and naivety. The purpose of workers' compensation is to provide benefits for employeeswho have been injured on the job. Joy Wear is such an employee. Yet the technical definition of injury in today's decision denies Prthe benefits she so justly deserves.