No. 13204 

IN THE 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~ 1 2 ;c?;fj 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

Defendants appeal from the decision of the district court, 

Yellowstone County, overturning the Workmen's Compensation 

Division of the Industrial Accident Board denial of benefits 

under the Workmen's Compensation Act, Title 92, R.C.M. 1947. 

Claimant George Miller was 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 trash while working at the dump. 

He was taken home by a co-worker and his wife then took him to 

the emergency room of the Billings Deaconess Hospital where he 

was treated and released. The following day he was treated by 

a physician and he returned to work the next week. No claim or 

notification of this accident was given to his employers or to 

the Workmen's Compensation Division, Claimant continued to work 

at the city dump until his dismissal in October 1970. 

On July 21, 1971 [5 years and 2 months after the gassing 

incident] claimant consulted Dr. A. Movius, a Billings physician, 

complaining of a severe cough and general debilitation he claimed 

began at the time of the gassing incident at the Billings landfill. 

The diagnosis: pulmonary fibrosis, scarring of the tubes carrying 

air into the lung's smaller cells. 

On June 5, 1972, claimant filed a claim for recovery under 

the Workmen's Compensation Act. His claim was 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." At a Division hearing on 
March 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 stated he was unable to relate claimant's condition to 

employment rather than to his 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 to resolve the matter. 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 the Workmen'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 at 65% of the claimant's wage loss. The 

district court also remanded to the Division for determination of 

actual wage loss. Dr. Movius, claimant's physician was the only 

witness testifying at the district court hearing. His testimony 

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 at the landfill. The Division called 

no witnesses and offered objection to the claim either as an 
occupational disease or as an industrial accident because the 

claim was filed long after the expiration of the claim filing 

period set forth in the respective acts. 

The findings and decision of the Workmen's Compensation 

Division are presumed to be correct and if supported by credible 

evidence must be affirmed. Section 92-822, R.C.M. 1947 (since 

repealed); Birnie v. United States Gypsum Co., 134 Mont. 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; Stordahl v. Rush Implement Co., 

148 Mont. 13, 417 P.2d 95; 3 Larson's Workmen's Compensation Law, 

580.20. Section 92-834, R.C.M. 1947, (in effect in 1966, but 

since repealed) provided the district court may, upon good cause 

shown admit additional evidence. Section 92-835, R.C.M. 1947 (in 

effect in 1966, but since repealed), provided that if this additional evidence is substantial, the district court may be justified 

in reversing the Division even though the evidence adduced before 

the Division clearly preponderates in favor of its order. Murphy 

v. Industrial Accident Board, 93 Mont. 1, 16 P.2d 705; Hurlbut 

v. Vollstedt Kerr Co., supra. 

Where the appeal to the district court is heard only on the 

Division's certified record or when the district court permits 

additional evidence to be introduced that is not important or 

adds nothing new to the case, the court is bound by the same rule 

of appeal which applies where the appeal is heard only on the 

certified record and the Division is entitled to a presumption 

the case was decided correctly. Kelly v. West Coast Const. Co., 
106 Mont. 463, 78 P.2d 1078; McAndrews v. Schwartz, 164 Mont. 402, 

523 P.2d 1379; Erhart v. Great Western 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 from Dr. Movius, which added nothing new or important 

to the evfdence adduced at the Division hearing. Defendants are 

entitled to a presumption before this Court that the Division 

decision was correct. 

The Division's denial of claimant's claim on the basis that 

no work-rela ted 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 in his 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 therefrom and excluding disease not traceable 

to injury." 

In Miller v. Sundance Recreation, Inc., 151 Mont. 223, 230, 

441 P.2d 194, the Court said the test as established in Lupien 

v. Montana Record Publishing Co., 143 Mont. 415, 419, 390 P.2d 

455, is "whether or not there was 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 claimant was doing his usual work in the 

expected way 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. Profitt v. J. G. Watts Construction 
Co., 143 Mont. 210, 387 P.2d 703. Dr. Movius, claimant's 

witness, testified the condition developed over a long period 

of time and was "of insidious onset with gradual building up 

of the irritation" and was not triggered by 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 

in nature, and is not "traceable to injury" and not within the 

requirement of the statute. 

Claimant is also barred from recovery by his failure to 

file a claim for compensation within one year of the date of 

his alleged accident, as required by section 92-601, R.C.M. 1947, 

This claim was filed 5 years and 2 months after the alleged 

accidental injury of April 1966, and 1 year 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 in nature and compliance is essential to the existence of a 

right to have proceedings to compel payment of compensation. 

Williams v. Anaconda Copper Mining Co., 96 Mont. 204, 29 P.2d 649; 

Klein v. Independent Wholesale Associated Grocers, 167 Mont. 341, 

538 P.2d 1358, 32 St. Rep. 738. 

In this case, neither the employer nor the Division was 

apprised of the ''gassing" of April 1966 until over 5 years after 

it occurred and over 1 year after termination of claimant's employment. Claimant although plagued from the time of the gassing 

to the present day by shortness of breath, weakness, coughing and 

other symptoms of chronic disease, failed to file a timely claim. 

This is not a case where we are dealing with a latent injury. 

For the reasons discussed in this opinion, the decision 

of the district court is reversed. 
We Concur: