No. 13204 INTHE SUPREME COURT OF WE STATE OF MONTANA 1976

GEORGE MILLER, Claimant and Respondent,

CITY OF BILLINGS and STATE INSURANCE FUND, Defendants and Appellants.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellants: Harris, Jackson & Utick, Helena, Montana Andrew J. Utick argued, Helena, Montana For Respondent: Joseph P. Hennessey argued, Billings, Montana

Submitted: September 10, 1976 Decided:

## 3g~ 12 ;c?;fjMr. JusticeWesley Castles delivered the Opinion of the Court.

Defendants appeal from the decision of the district court, Yellowstone County, overturning theWorkmen's Compensation Division of the IndustrialAccident Board denial of benefits under theWorkmen's Compensation Act, Title 92, R.C.M. 1947. Claimant George Millerwas employed by the City of Billings sanitation department for several years, and was assigned to the Billings landfill dump in 1963 to operate a dozer covering garbage. On April 

### 5, 1966, claimant was "gassed1'by diesel fumes from equipment and smoke from burning trashwhile working atthe dump. He was taken home by a co-worker and hiswife then took him to the emergency room of the Billings Deaconess Hospital where he

was treated and released. The following day hewas treatedby

a physician and he returned towork the next week. No claim or notification of this accident was given to his employers or to theWorkmen's Compensation Division, Claimant continued towork atthe citydump until his dismissal inOctober 1970. On July 21, 1971 [5 years and 2months after the gassing incident] claimant consulted Dr. A. Movius, a Billings physician, complaining of a severe cough and general debilitationhe claimed began atthe time of the gassing incident atthe Billings landfill. The diagnosis: pulmonary fibrosis, scarring of the tubes carrying airinto the lung's smaller cells. On June 

### 5, 1972, claimant filed a claim for recovery under theWorkmen's Compensation Act. Hisclaimwas administratively denied. On January 31, 1973, claimant requested a hearing to adjudicate the liability of the City of Billings under the "Occupational Disease Act, R.C.M. Section 92-1304." Ata Division hearing onMarch 22, 1973, claimant's attorney elected "to proceed under the Occupational Disease Act, R.C.M., Section 92-1304." Following the hearing, claimant was referred to a pulmonary specialist, Dr. Harry Power, pursuant to the provisions of the Occupational Disease Act. By reports dated May 

### 11, 1973 and June 5, 1973, Dr. Power statedhe was unable to relate claimant's condition to employment rather than tohis cigarette smoking without further studies, including an open lung biopsy. Claimant notified the Division he would not submit to the open lung biopsy. He was referred to a second pulmonary specialist, Dr. J. P. Byorth, in an effort toresolve thematter. Dr. Byorth concurred in Dr. power's opinions and recommended a lung biopsy be performed to determine if the pulmonary disease of claimant

### was work related. Prior to a decision by the Division, claimant changed the status of his claim from occupational disease to that of an industrial accident under theWorkmen's Compensation Act. In an order dated April 26, 1974, the Division denied the claim both 

# - as an occupational disease and as an industrial accident. Claimant appealed to the district court which reversed the Division order and awarded compensation on the basis of an industrial accident at65%of the claimant's wage loss. The district court alsoremanded to the Division for determination of actual wage loss. 

### Dr. Movius, claimant's physician was the only witness testifying atthe district court hearing. Histestimony

was primarily a recapitulation of the testimony given before the Division--that claimant's condition was caused by many years of exposure to smoke and fumes atthe landfill. The Division called

no witnesses and offered objection to the claim either as anoccupational disease or as an industrial accident because the claimwas filed long after the expiration of the claim filing period set forth inthe respective acts. The findings and decision 

### of theWorkmen's Compensation Division arepresumed tobe correct and if supported by credible evidencemust be affirmed. Section 92-822, R.C.M. 1947 (since repealed); Birnie v. United StatesGypsum Co., 134Mont. 39,44, 328 P.2d 133; Hurlbut v. Vollstedt Kerr Co., 

# - Mont

# . -9 538 P.2d 344,347, 32 St. Rep. 752,755. The district court must affirm the Division order if the evidence does not clearly preponderate against 

### its findings. Becktold v. Ind.Acc.Bd., 137 Mont. 119, 125, 350 P.2d 383; Stordahlv. Rush Implement Co., 148Mont. 13, 417 P.2d 95; 3Larson's Workmen's Compensation Law, 580.20. Section 92-834, R.C.M. 1947, (ineffect in 1966, but since repealed) provided the districtcourt may, upon good cause shown admit additional evidence. Section 92-835, R.C.M. 1947 (in effect in 1966, but sincerepealed), provided that if this additional evidence 

### is substantial, the district court may be justified inreversing the Division even though the evidence adduced before the Division clearly preponderates infavor of 

### its order. Murphy



### v. IndustrialAccident Board, 93 Mont. 

### 1, 16 P.2d 705; Hurlbut

v. Vollstedt Kerr Co., supra. Where the appeal to the district court 

### isheard only on the Division's certified record orwhen the district court permits additional evidence tobe introduced that 

### is not important or adds nothing new tothe case, the court 

### isbound by the same rule of appealwhich applies where the appeal isheard only on the certifiedrecord and theDivision 

### is entitled to a presumption the case

### was decided correctly. Kelly v. West Coast Const. Co.,

### 106Mont. 463, 78 P.2d 1078;McAndrews v. Schwartz, 164Mont. 402, 523 P.2d 1379;Erhart v. GreatWestern Sugar Co., Mont

# . 9 

### 546 P.2d 1055, 33 St. Rep. 302. In the instant case, the only testimony at the district court hearing was fromDr. Movius,which added nothing new or important to the evfdence adduced at the Divisionhearing. Defendants are entitled to a presumption before this Court that the Division decisionwas correct. The Division's denial of claimant's claim on the basis that

no work-related injury or accident was established is justified. Claimant asserts the 1966 "gassing" was an accident which resulted in an injury and that subsequent daily exposures were also "accidents" which resulted inhis disease. The definition of "Injury or injured" in 1966 (before amendment in 1967 and 1973) as it appeared in section 92-418,R.C.M. 1947,was: 

# "** * 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 therefromand excluding disease not traceable to injury." InMiller v. Sundance Recreation, Inc., 151Mont. 223, 230, 441 P.2d 194, the Court said the test as established in Lupien

v. Montana Record Publishing Co., 143Mont. 415,419, 390 P.2d 455, is "whether or not therewas something unusual or out of the ordinary (unexpected) as it pertained to the performance of the task which brought about an unexpected result of disability." In the instant case claimantwas doing his usual work in the expectedway at all times. His exposure to dust and smoke was a normal incident of employment at the landfill dump. His pulmonary fibrosis falls outside 

### the definition of injury provided in section 92-418,R.C.M. 1947. Profittv. 

### J. G. 

### Watts Construction

### Co., 143Mont. 210, 387 P.2d 703. Dr. Movius, claimant's witness, testified the conditiondeveloped over a long period of time and was "of insidious onsetwith gradualbuilding up of the irritation" and was not triggeredby any single episode. This is not an injury as contemplated by the statute. It is also clear claimant's pulmonary fibrosis is a disease, progressive innature, and is not "traceable to injury" and notwithin the requirement of the statute. Claimant is also barred from recoveryby his failure to file a claim for compensation within one year of the date of his alleged accident,as requiredby section 92-601,R.C.M. 1947, This claimwas filed 5 years and 2 months after the alleged accidental injury ofApril 1966,and 

### 1year and 7 months after claimant's employment was terminated by the City of Billings. The filing requirements of section 92-601,R.C.M. 1947,are mandatory innature and compliance is essential to the existence of a right to have 

### proceedings to compelpayment of compensation. Williams v. Anaconda CopperMining Co., 96Mont. 204, 29 P.2d 649; Klein

### v. Independent Wholesale Associated Grocers, 167Mont. 341, 538 P.2d 1358, 32 St. Rep. 738. In this case,neither the employer nor the Division was apprised of the ''gassing" ofApril 1966 until over 5 

### years after it occurred and over 1 year after termination of claimant's employment. Claimant althoughplagued from the time of the gassing to the present day by shortness ofbreath, weakness, coughing and other symptoms of chronic disease, failed to file a timely claim. This is not a casewhere we are dealing with a latent injury. For the reasons discussed in this opinion, the decision of the district court is reversed.

### We Concur: