NO. 88-280 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

JOY WEAR, 

Claimant and Appellant., 

-vsBUTTREY FOODS INCORPORATED, 

Employer, Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable ~imothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Linnell, Newhall & Martin; Richard J. Martin, Great 

Falls, Montana 

For Respondent: 

J. David Slovak; Ugrin, Alexander, Zadick & Slovak, 

Great Falls, Montana 

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Submitted on Briefs: Sept. 9, 1988 

Decided: November 3, 1988 

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Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Claimant Joy Wear (Wear) appeals from a 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 she has not. 

Wear worked as a checker for Ruttrey Foods since 1970. 

On May 18, 1987, Wear filed a claim for compensation alleging 

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 from years of repetitive motion, 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 in her 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; 

abdominal pains; and vericose veins. 

Buttrey Foods denied the claim and a hearing was 

requested before the Workers' Compensation Court. The 

Workers' Compensation Judge denied Wear's claim for 

compensation under the Montana Workers' Compensation Act, but 

strongly urged her to present a claim under the Occupational 

Disease Act. The Judge concluded that Wear had not satisfied 
the 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 standard of review for questions of law 

is simply whether the lower court's interpretation of 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. 

In order 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 of her 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), 202 Mont. 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 definition of injury. 

Since Wear suffered a series of minor 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 on point with the facts of this case is McMahon 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 of work for a period of years, was 

not "injured" for purposes of the Workers' Compensation Act. 

We noted: 

The fact that claimant's ailments were so 

very gradual in onset excludes them from 

the definition of injury. 

We hesitate to attempt 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 two months. However, we feel it is 

safe to conclude that where laryngeal and 

pulmonary disorders and resulting 

psychological impairment are occasioned 

by exposure to a hostile environment 

for a period of years, 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: 

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Justices 
Nr. Justice William E. Hunt, Sr., dissenting: 

I dissent. The Workers' Compensation Court itself 

recognized that Wear is disabled and that her disability is 

attributable to her 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 to her 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 

distinction between 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 to pinpoint a major trauma, the exact date 

and time of which 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, she was not so enlightened. 

This opinion punishes her for her honesty and naivety. 

The purpose of workers' compensation is to provide 

benefits for employees who have been injured on the job. Joy 

Wear is such an employee. Yet the technical definition of 

injury in today's decision denies Pr the benefits she so 

justly deserves.