No. 85-353 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

EDWIN R. BREMER, 

Claimant and Respondent, 

-vsDONALD BUERKLE, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Insurer, 

and 

INTERMOUNTAIN INSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court of the State of 

Montana, The Honorable Timothy Reardon, Judge. 

COUNSEL OF RECORD: 

For Appellant: 

Moulton, Bellingham, Longo & Mather; Brad H. ~nderson, 

Billings, Montana 

For Respondent : 

Utick & Grosfield; Andrew J. Utick, Helena, Montana 

Crowley Law Firm; Terry G. Spear, Billings, Montana 

Submitted: August 7, 1986 

Decided: October 30, 1986 

+/ 7 Filed: /i) . -i c.) & (1 ," 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Edwin Bremer suffered from allergic contact dermatitis 

which caused him to be disabled forcing him to quit his job 

as a body shop repairman. The Workers' Compensation Court 

held that Mr. Bremer's allergy was both an injury and a 

disease and therefore Mr. Bremer was entitled to elect his 

remedy under either the Workers' Compensation Act or the 

Occupational Disease Act. We affirm. 

The only issue in this case is, did Edwin Bremer's 

allergy constitute an injury within the meaning of the Workers' Compensation Act, as well as an occupational disease 

within the meaning of the Occupational Disease Act, so that 

Mr. Bremer can elect his remedy between the two acts? 

Edwin Bremer (claimant) had worked at the Baker Body 

Shop in Baker, Montana for approximately nine years as a 

"body man." The claimant's employment duties required him to 

remove dents and otherwise repair the bodies of damaged 

vehicles. This work exposed the claimant on a daily basis to 

the fumes of the chemicals in paint primer, paint, enamel 

reducer, lacquer thinner, body filler, body putty and rubbing 

compound and exposed the claimant to direct body contact with 

these same chemicals. On or about February 24, 1983, the 

claimant developed a rash and itching on the top side of his 

right shoulder. On March 10, 1983, the claimant first obtained medical treatment for his rash. From the time the 

claimant first contracted the allergy until he quit work on 

March 27, 1984, the claimant's rash spread over his back to 

his right arm and his hands and fingers. 

In February of 1983, claimant's employer was enrolled 

under Compensation Plan No. 2 of the Montana Workers' 
Compensation Act, the insurer being Intermountain Insurance 

Company (Intermountain) . Intermountain remained as the 

employer's insurer until August 11, 1983, after which time 

the employer was enrolled with the State Compensation Fund 

(State Fund). The State Fund accepted liability and paid 

benefits to claimant under the Occupational Disease Act, but 

has refused to accept liability under the Workers' Compensation Act. Intermountain denies any liability under either 

the Workers' Compensation Act or the Occupational Disease 

Act. Claimant desires to receive benefits for his allergy as 

an injury under the Workers' Compensation Act. If claimant's 

allergy is considered to be an injury which occurred in 

February 1983, then Intermountain Insurance Company is liable 

under §§ 39-71-101 to -2909, MCA, as it was the insurer at 

risk at that time. If claimant's allergy is considered an 

occupational disease, then the State Fund is liable to claimant under §§ 39-72-101 to -714, MCA, as it insured claimant's 

employer in March 1984 when claimant became disabled. None 

of the parties question the fact that Mr. Bremer's allergy is 

a disease covered under the Occupational Disease Act. If 

claimant's allergy is considered both an "injury" as defined 

in the Workers' Compensation Act, and a "disease" as defined 

in the Occupational Disease Act, then claimant is entitled to 

make an election as to the Act under which he will claim 

benefits. Ridenour v. Equity Supply Co. (Mont. 1983), 665 

P.2d 783, 40 St.Rep. 1012. 

The medical evidence was presented in two depositions of 

Dr. William G. Ballinger, which showed that claimant was 

exposed to some chemical at work to which his immune system 

reacted by developing antibodies. The Workers' Compensation 

Court concluded that the exposure to the chemical in question 
occurred on or about February 17, 1983, and that on or about 

February 24, 1983, for reasons unknown to medical science, 

the claimant became allergic to the chemical (or chemicals) 

in question and developed allergic contact dermatitis. The 

claimant's rash and itching were continuous, with varying 

intensity and severity, from February 24, 1983 to the trial 

date. 

I 

Did Edwin Bremer's allergy constitute an injury within 

the meaning of the Workers' Compensation Act, as well as an 

occupational disease within the meaning of the Occupational 

Disease Act, so that Mr. Bremer can elect his remedy between 

the two acts? 

This Court has stated the general rule on several occasions that we will not substitute our judgment for that of 

the Workers' Compensation Court where there is substantial 

evidence to support its findings of fact. See Wise v. 

Perkins (Mont. 1983), 656 P.2d 816, 40 St.Rep. 1, and cases 

cited. 

The Workers' Compensation Act defines injury in 5 

39-71-119(1), MCA, which provides: 

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, 

except as provided in subsection (2) of this 

section; 

Likewise S 39-72-102 (11) , MCA, of the Occupational Disease 

Act defines occupational disease: 

"Occupational disease" means all diseases arising 

out of or contracted from and in the course of 

employment. 
In McMahon v. The Anaconda Co. (Mont . 1984) , 678 P. 2d. 

661, 41 St.Rep. 480, we held that claimant's physical and 

psychological ailments, which resulted from years of exposure 

to noxious fumes and particulates in his work environment, 

were not "injuries" for purposes of the Workers' Compensation 

Act. Regarding the difference between what constitutes an 

injury and a disease, we stated: 

Despite the detailed definition, it remains a 

difficult task to satisfactorily describe and 

define injury to the exclusion of disease. See 

LaPlant, Opp, Workers' Compensation and Occupational Disease, 43 M~nt.~.Rev. 75, 92-100 (1982). 

Professor Larson identifies two crucial points of 

distinction: "unexpectedness," and "time 

-definiteness." 1B A. Larson, The Law of Workmen's 

Compensation § 41.31 at 7-357. We find the second 

point to be the critical factor in this case. The 

fact that claimant's ailments were so very gradual 

in onset excludes them from the definition of 

in jury. 

[2] 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 v. Granite Lumber Co. (Mont. 1980), 615 

P.2d 863, 37 St.Rep. 1307, 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." 

McMahon, 678 P.2d at 663. 

Here the Workers' Compensation judge analyzed the "unexpectedness" and "time-definiteness" factors and concluded 

that Mr. Bremer's allergy was unexpected and time-definite. 

The findings of fact of the Workers' Compensation Court 

accurately summarized the medical testimony of Dr. Ballinger: 

9. On or about February 17, 1983, the claimant was exposed to some chemical at work to which 

his immune system reacted from on or about February 

17, 1983, to on or about February 24, 1983, by 

developing antibodies to the chemical in question. 

(deposition cites omitted.) 
10. On or about February 24, 1983, the claimant, for reasons unknown to medical science, had 

developed antibodies to the chemical to which 

claimant was exposed to at work on or about February 17, 1983; this development .el exposure 

followed by immune system developing antibodies) 

resulted in the claimant having allergic contact 

dermatitis and being allergic to the chemical (or 

chemicals) in question. (cites omitted.) 

11. On or about February 24, 1983, the claimant was again exposed to the chemical that had on 

or about February 17, 1983, triggered the immunological response in the claimant that resulted in 

the claimant developing allergic contact 

dermatitis; this second exposure, caused the claimant on or about February 24, 1983, to develop a 

rash on the top of his right shoulder. - Id. 

12. The exposure to the chemical in question 

that caused the claimant to develop allergic contact dermatitis occurred on or about February 17, 

1983; the claimant did not develop allergic contact 

dermatitis because of his repeated and cumulative 

exposure to the chemical in question for the approximately nine years prior to February 17, 1983. 

(cites omitted. ) 

13. The claimant's rash and itching from on 

or about February 24, 1983, to the date of trial is 

the result of his allergic contact dermatitis; the 

rash and itching has been continuous, with varying 

intensity and severity, from February 24, 1983, to 

the date of trial. (cites omitted.) 

14. The claimant's rash and itching has 

persisted from on or about February 24, 1983, to 

the date of trial because of his repeated exposure 

at work to the chemical in question from on or 

about February 24, 1983, through March 27, 1984. 

(cites omitted. ) 

15. The claimant's development of allergic 

contact dermatitis was unexpected; i.e., by definition, an allergic reaction to a chemical is unusual 

and few persons become allergic to chemicals with 

which they have frequently worked for many years. 

(cites omitted.) 

The testimony of Dr. Ballinger showed Mr. Bremer was 

exposed to chemicals on or about February 17, 1983, which 

resulted in a rash which first appeared about seven days 

later. Thus, the "time-definiteness" factor enunciated by 

Professor Larson was met. 
The "unexpectedness" factor identified by Professor 

Larson was also met. In that regard, Dr. Ballinger 

testified: 

Q. Now, if a person is exposed to chemical 

for a number of years, I believe you testified that 

a worker can be exposed to the same chemicals day 

after day for 25, 30 years' period. But during 

that period, not be allergic to them. 

A. That is true. 

Q. And then for some reason, there will be 

one exposure which causes an allergic reaction and 

the allergic symptoms, the rash, this type of 

dermatitis will manifest itself. 

A. That one exposure somehow stimulates the 

immune system to set in a cascade of events that 

leads to what we know as allergic sensitivity. 

Q. And exposures to the same chemicals prior 

to that reaction did nothing. 

A. That's correct. 

Q. . . . So then to follow that out, medical 

science would not know what effect, if any, those 

previous exposures might have had to this same 

chemical? 

A. Well, one would have to say that previous 

exposures had no effect. 

Q. So it's not a situation where it's a 

gradual buildup-- 

A. No. No. 

Q. --of sensitivity to a particular chemical. 

A. It's an all or nothing type of rash, in 

which you either don't react at all or you do react 

to varying degrees of sensitivity. 

Q. You've probably answered this question 

many times already, but I'm going to use a little 

different words. Mr. Bremer's development of this 

what you feel is allergic reaction would not have 

been expected, would it? It would have been an 

unexpected happening. 

A. Yes. 
The evidence established that notwithstanding Mr. 

Bremer's exposure to chemicals for nine years, for reasons 

unknown to medical science, a single exposure unexpectedly 

stimulated his immune system and led to the allergy. This is 

in contrast with Greger v. United Prestress, Inc. (1979), 180 

Mont. 348, 590 P.2d 1121. In Greger the claimant had an 

existing allergy which was triggered by a chemical to which 

he was exposed in the work place. Claimant Greger's allergic 

response was expected because his condition had already 

existed. In contrast, claimant Bremer's reaction was not 

expected as he had been exposed to the same chemical for many 

years without any response by his system. We distinguish 

Greger from the present case because of the "unexpectedness" 

of the allergy in the present case as compared to the "expectedness" of the allergic reaction of claima.nt Greger. The 

evidence here clearly established that Mr. Bremer had met the 

"unexpectedness" test enunciated by Professor Larson. 

We affirm the conclusion of the Workers' Compensation 

Court in regard to the "unexpectedness" and 

"time-definiteness" factors: 

The claimant's development of allergic contact 

dermatitis was unexpected, i .e., it is not recognized as an inherent hazard of continued exposure 

to the chemicals with which the claimant routinely 

worked; his development of allergic contact 

dermatitis was not gradual, i.e., a single exposure 

to the chemical in question triggered the immunological response that created the antibodies, that 

are his allergy, no later than seven days after the 

single, triggering exposure. 

Dr. Ballinger's testimony demonstrates that a tangible 

happening of a traumatic nature resulted in Mr. Bremer's 

contact dermatitis, thereby meeting the tests under 

S 39-71-119, MCA. We hold that Mr. Bremer's allergy constituted an injury within the meaning of the Workers' 
Compensation Act, as well as an occupational disease within 

the meaning of the Occupational Disease Act, so that he could 

elect his remedy between the Acts. The judgment of the 

Workers' Compensation Court is affirmed. 

We Concur: 

fd Chief Justice