No. 91-471 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

KATHLEEN HUGHES, 

Claimant and Appellant, 

DEPARTMENT OF LABOR AND 

INDUSTRY/STATE COMPENSATION 

MUTUAL INSURANCE FUND, 

Defendants and Respondents. 

APPEAL FROM: Workers' Compensation Court, 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Pyfer, Small, Hatch, Doubek & Pyfer, 

Helena, Montana 

For Respondents: 

Leo S. Ward, Browning, Kaleczyc, Berry & Hoven, 

Helena, Montana 

Submitted on Briefs: April 23, 1992 

Decided: June 30, 1992 

Filed: JUN 3 0 1992 

CLERK OF SL!PFTE%? 
Justice Fred J. Weber delivered the Opinion of the Court. 

The Montana Worker's Compensation Court (WCC) upheld an order 

by the Montana Department of Labor and Industry (Department) which 

denied claimant, Kathleen Hughes (Ms. Hughes), recovery for medical 

care and wage loss benefits under Montana's Occupational Disease 

Act 55 39-72-101 et seq., MCA. Ms. Hughes appeals. We affirm. 

The issues raised by the claimant are restated as follows: 

1. Did the WCC correctly determine that Ms. Hughes1 medical 

condition was not proximately caused by her employment? 

2. Did the WCC correctly reject claimant's contention that 

the Department's findings of fact were clearly erroneous? 

Ms. Hughes suffers from a severe form of atopic dermatitis. 

The record includes medical reports from several specialists who 

have evaluated and treated Ms. Hughes for this condition from 1983 

to the present, including internists, dermatologists and the 

dermatology departments at Mayo Clinic in 1988, the University of 

Oregon in 1987 and the Virginia Mason Clinic in 1986. 

In deposition testimony, Ms. Hughes' treating dermatologist 

stated that he treated Ms. Hughes for her dermatitis from October 

1983 to November 1989. In 1983, during this examination, Ms. 

Hughes indicated that she was suffering from a "flare-up" in her 

skin condition which had begun in September 1983. The doctor 

stated that her condition was aggravated by changes in temperature, 

dust and air flow. He also testified that when he examined the 

claimant in 1989, she was totally disabled due to her illness. 
 in ally, he testified that Ms. Hughes was able to minimize her 

disease through aggressive care and by remaining inside her home in 

a controlled environment. 

Ms. Hughes testified she began working as an investigator for 

the Montana Department of Labor and Industry in October 1983, and 

began traveling for the Department in February or March 1984. Ms. 

Hughes stated that she suffered from localized incidents of 

dermatitis prior to her employment as an investigator, and that she 

began having serious problems with her skin in 1986. Ms. Hughes 

stated she suffered a severe alflare-upat of the disease in 1986 

after conducting an audit at a talc mine. She describes her 

condition as getting progressively worse after that time 

culminating in dermatitis coupled with staph infection which 

covered approximately ninety percent of her body. 

In April 1988, the atopic dermatitis rendered her unable to 

work. At that time she began treatment with her current treating 

physician, Harry S. Etter, M.D. Dr. Etter hospitalized the 

claimant and referred her to the Mayo Clinic for evaluation and 

aggressive treatment. 

In a 1989 report submitted as evidence, Dr. Etter writes that 

Ms. Hughes has a twenty year history of severe atopic dermatitis 

which had significantly worsened since 1986. Dr. Etter testified 

that Ms. Hughes remains totally disabled by this condition because 

of the aggressive treatment schedule required to control the 

disease. He also testified that environmental conditions such as 
temperature changes, dust and wind aggravated her medical 

condition. Finally, Dr. Etter testified that prior severe 

outbreaks of dermatitis did not increase Ms. Hughest susceptibility 

to outbreaks currently or in the future. 

Ms. Hughes submitted a claim for benefits under Montana's 

Occupational Disease Act. The insurer did not accept liability 

under the Act. Thus, pursuant to g 39-72-602(2) (a), MCA, the 

Department directed Ms. Hughes to a member of the medical panel for 

examination. Lance Hinther, M.D., a board certified dermatologist, 

examined the claimant. On May 9, 1990, Dr. Hinther issued a report 

consistent with the analysis of Ms. Hughest treating physicians. 

The report stated: 

Atopic dermatitis is a disease that is intrinsic to the 

patient and not caused by her occupation. It is possible 

that environmental conditions such as fluctuations in 

temperature and humidity can significantly aggravate the 

degree and involvement of the skin condition. * * * * * * * * * 

Although atopic dermatitis is aggravated by the patient's 

job exposures, it is an condition that would be present 

even without her prior work history. * * * * * * * * * 

In summary, Kathleen Hughes has atopic dermatitis, a skin 

condition which is not work caused but is occupation 

aggravated. . . 

Neither party requested a second medical examination. 

On November 14, 1990, both parties presented their arguments 

to the Department's hearings examiner. On April 19, 1991, the 

Department issued an order denying Ms. Hughes' claim for 

occupational disease benefits. This order was reviewed and 

affirmed by the WCC on September 3, 1991. The WCC found the 
Department correctly applied the statute on proximate cause. It 

further found the Department's findings were supported by 

substantial evidence in the record. Ms. Hughes appeals from this 

WCC ruling. 

I 

Did the WCC correctly determine that Ms. Hughes1 medical 

condition was not proximately caused by her employment? 

Ms. Hughes claims that although she suffered from dermatitis 

prior to working as an investigator for the Labor Department, the 

unusual travel requirements of the job aggravated her medical 

condition to the point of disability. 

Section 39-72-102(10), MCA defines occupational disease as 

"harm, damage or death . . . arising out of or contracted in the 

course and scope of employment . . . Section 39-72-408, MCA, 

defines proximate cause under Montana's Occupational Disease Act. 

It states in part that occupational diseases arise out of the 

employment only if: "(4) the disease does not come from a hazard to 

which workmen would have been equally exposed outside of the 

employment; and (5) the disease is incidental to the character of 

the business and not independent of the relation of employer and 

employee." 

Here, Ms. Hughes contends her medical condition was aggravated 

by environmental factors incidental to her employment. Those 

environmental factors include extensive travel in heated or air 

conditioned vehicles which exposed the claimant to temperature 
fluctuations, air flow, dust and wind resulting in aggravation of 

her medical condition. 

The State Compensation Mutual Insurance Fund (State Fund) 

contends that Ms. Hughes1 employment did not proximately cause her 

medical condition under 5 39-72-408, MCA. We agree that Ms. Hughes 

cannot satisfy the proximate cause standards. 

In this case, the medical reports support the WCC1s findings. 

First, the claimant's condition is intrinsic to her and not caused 

by her occupation. Further, the environmental factors aggravating 

her condition are not indigenous to her employment. Rather 

temperature fluctuations, air flow, wind and dust are common to 

everyone. Finally, there is no evidence in the record which 

connects her prior outbreaks during employment with the outbreaks 

she currently suffers. In deposition testimony Dr. Etter stated 

that her prior outbreaks of dermatitis did not make Ms. Hughes more 

susceptible to future outbreaks, We affirm the WCC1s conclusion 

that Ms. Hughes1 illness does not arise out of the course and scope 

of her employment and is not an occupational disease. 

Finally, Ms. Hughes contends she is entitled to recovery under 

the Act's aggravation statute, 5 39-72-706, MCA, which states in 

part: 

If an occupational disease is aggravated by any other 

disease or infirmity not itself compensable or if 

disability or death from any other cause not itself 

compensable is aggravated . . . by an occupational 

disease, the compensation payable under this chapter must 

be reduced and limited to such proportion only of the 

compensation that would be payable if the occupational 

disease were the sole cause of the disabiity or death as 
such occupational disease as a causative factor bears to 

all the causes of such disability or death. 

This section limits the insurer's liability to the proportion of 

the disability caused by an occupational disease. It requires 

either an occupational disease aggravated by a non-compensable 

illness or injury or a non-compensable injury or illness which is 

aggravated by an occupational disease. In this case, the WCC 

determined that the claimant is not suffering from an occupational 

disease. Rather, the claimant has an intrinsic non-compensable 

disease which is aggravated by environmental factors not specific 

to the claimant's former occupation. 

We conclude that 5 39-72-706, MCA, does not create a cause of 

action for an aggravation of a pre-existing condition unless the 

pre-existing condition is an occupational disease or the 

aggravation itself is an occupational disease. Accordingly, 5 39- 

72-706, MCA, does not apply in this instance. 

We hold that the WCC correctly determined that Ms. Hughes' 

medical condition was not proximately caused by her employment. 

I I 

Did the WCC correctly reject claimant's contention that the 

Department's findings of fact were clearly erroneous? 

The WCC upheld the hearings examiner's findings of fact. In 

reviewing the findings of the Department of Labor and Industry, 5 

39-72-612 (2) , MCA, states in part that the WCC may overrule the 

Department's determination if the determination is: "clearly 

erroneous in view of the reliable, probative, and substantial 
evidence on the whole record. . . . Here the WCC found the 

Department ' s determination was supported by substantial evidence in 

the record. We agree that the record supports the Department's 

findings. Further, the WCC used the proper standard of review. 

We hold that the WCC properly rejected claimant's contention 

that the Department's findings of fact were clearly erroneous. 

We Concur: 4 
June 30, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Richard J. Pyfer 

SMALL, HATCH, DOUBEK & PYFER 

Livery Square, 39 Neil1 Ave. 

Helena. MT 59601 

Leo S. Ward 

BROWNING, KALECZYC, BERRY & HOVEN 

P.O. Box 1697 

Helena, MT 59624 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA