NO. 82-320

INTHESUPREME COURTOF THE STATEOF MONTANA 1983

DARELR. RIDENOUR, Claimantand Respondent,

EQUITY SUPPLY COMPANY,and GLACIERGENERAL ASSURANCECOMPANY, Defendantsand Appellants.

Appeal from: Workers'CompensationCourt TimReardon,Judge presidina, CounselofRecord:
ForAppellants: Garlington,Lohn & Robinson, Missoula,Montana
ForRespondent:

JamesE. Vidal,Kalispell,Montana



### - Decided. June 30, 1983 

### wed. 

## JUN

## 30

## 1983

... .- --- Clerk

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

In this case we are asked to review an order granting workers' compensation benefits to respondent, Dare1 R. Ridenour. Appellantsclaimthatbenefitsshould have been awarded under the Occupational Disease Act rather than the Workers' Compensation Act. 

### We find thatbenefits were properly awarded, therefore we affirm. Claimant had worked for Equity Supply Company for about twelve years. He worked primarily within the fertilizer department, but he also worked as a handyman. Claimant had smoked cigarettes since 1944. Smoking, combined with twelve years of work in a dusty environment had resulted in Chronic Obstructive Pulmonary Disease (COPD)

# . COPD 

### is a medical term describing a spectrum of lung diseases, including asthma, bronchitis, and emphysema. With the COPD, claimant was able to perform hisjob, although at

### times he experienced shortness of breath. Prior to the injury date, claimant had visited a family physician. Claimant complained of tiredness and shortness of breath. The doctor noted that his breath sounds were quite distant, which could be a result of COPD which can be secondary to a smoking history. On December 18, 1978, claimant was asked to repair a mechanism on top of a grain bin. Upon receiving instructions, he ascended on a man-lift in the grain elevator section. He left the man-lift and proceeded through a small shed and on to an eighty-foot catwalk. When he reached the repair sitehe decided he needed additional tools. He went back across the catwalk in order to take the man-lift to the ground level. He entered the shed and was overcome by a high concentration of grain dustproduced by an unloading operationwhich was takingplacebelow. He could hardly see but he made his way to the man-lift and descended to the main floor. As he proceeded down, he experienced extreme breathing difficulties. The claimant wasimmediately taken to a physician. The treating physician prescribed epinephrine to relieve bronchial spasm, and diagnosed Ridenour

### 's condition 

### as acute asthmatic bronchitis. After this incident, claimant could not perform hisusual job. He attempted to perform less demanding chores, yet was unsuccessful. He finallyceased employment on May 20, 1979. The medical evidence consists primarily of testimony from three physicians; Dr. Maloney, a family practitioner, and two pulmonary specialists, Dr. Power and Dr. Schimke. Dr. Maloney had seen respondent prior to and immediately after the incident

onDecember 18. Dr. Maloney testified thatthe single graindust inhalation of December 18 would not have caused respondent's COPD. In other words, there was clearly a pre-existing condition. Dr. Maloney indicated that even if the inhalation incident had not occurred, it was probable that respondent, if he continued to smoke and work inthe same environment, would eventually become disabled as a result of his COPD. However, the 

### time frame could not be predicted, he may have made it to retirement age. Dr. Schimke testified that respondent's chest x-rays indicated the development of emphysema for atleast ten to fifteen years prior to examination and that there was no new disease traceable to the incidentonDecember 18. Hedescribed the inhalation as a "severe but temporary illness and disability" however, the one episode "may have resulted inmore asthma and

more bonchitis, which could flareup more readily inthe ensuing months and years." Dr. Power agreed that there was a preexisting condition that could not have been caused by the single inhalation of grain dust. He described the incident as a triggering mechanism. According to Dr. Power, people with this kind of condition experience reduction in lung function over a period of 

### time without being keenly aware thatthey have amajor problem other than shortnessof breath. Then an incident occurs "which 

### is really the last straw that kind of breaks the camel'sback" thatcausesdisability. Ridenour's claim for benefits was treated as a claim under the Occupational Disease Act. The Division of Workers' Compensation computed Ridenour's benefits to be $3.93 per week. On May 26, 1981, Ridenour refiled his claim to indicate his desire to seek benefits under the Workers' Compensation Act for total disability due to an accident. A hearing was held in the Workers' Compensation Court on July 16, 1981, Judge Hunt presiding. Prior to decision, Judge Hunt left the bench. The newly-appointed judge, Timothy Reardon, disqualified himself. Jurisdiction was assumed by District Judge Gordon Bennett who appointedRoger Tippy asa hearings examiner. Mr. Tippy reviewed the record and entered findings of fact and conclusions of law and judgment; ruling that claimant was entitled to permanent total disability benefits under theWorkers' Compensation Act at the rate of $145.33 per week. Thereafter, Judge Bennett adopted in full, and without exception, the findings and conclusions of the hearings examiner. The insurer and employer then brought thisappeal. We are asked to address two issues; first, whether it was

error to allowelectionby the claimantbetween the provisions of the Occupational Disease Act and the Workers' Compensation Act, and second, whether it was error to conclude that claimant suffered an injuryasdefined insection39-71-119, MCA. 

### We address these issues inturn. The focus of appellants' argument in relation to the first issue is that claimant suffered from an occupational disease, therefore, his exclusive remedy occurs under the Occupational Disease Act. Appellants 

### cite the definition of occupational disease found in section 39-72-102(11), MCA, 

### "'Occupational disease' means alldiseases arising outof or contracted from and inthe course of employment." Appellants alsocitethe statutory causation section which refines "arising out of 

# . employment;

### " section39-72-408, MCA:"Proximate causation. Occupational diseases shallbe deemed to arise out of the employment onlyif: "(1) there 

### is a direct causal connection between the conditions under which the work 

### is performed and the occupational disease; "(2) the disease canbe seento have followed 

### as a natural incident of the work asa result of the exposure occasioned by the nature of theemployment; "(3) the disease can be fairlytraced to the employment astheproximate cause; 

### "(4) the disease does not come from a hazard to which workmen would have been equally exposed outsideof the employment; "(5) the disease 

### is incidental to the character of the business and not independent of the relation of employer and employee." Appellants argue that claimant's condition fits the above statutory definitions, therefore claimant's remedy can only be with the Occupational Disease Act, as specified in section 39-72-305, MCA, "The right to recover compensation pursuant to theprovisions of thischapter for occupational diseases

# ... is the exclusive remedy therefor against an employer 

# . 

# . ."

We disagree. We hold that although claimantmay have had a compensable disease under the Occupational Disease Act, that status did not preclude eligibility under the Workers' Compensation Act. In other words, a particular claimant could meet the requirements of both acts, thus he would be allowed to choose his remedy. To allow an election between the two acts does not violate the exclusive remedy language of section 39-72-305, MCA. The legislature only intended that an employee nothave a common law actionagainsthisemployer. Appellants cite three cases in support of their position. The earliest case 

### is Summer v. Victor Chemical Works (9th Cir. 1961), 298 F.2d 66. InSummer the employee instituted an action for personal injuries in statecourt which was later transferred to federal court. The Federal District Court dismissed the action on the ground that the employee's disability was the result of an accident, thus his remedy was under the MontanaWorkers' Compensation Act. Upon review, the ninth circuitcourt of appeals held that an employee who allegedly suffered an industrial accident could maintainan actionagainsthisemployer who had not elected to be covered by the Occupational Disease Act. The court relied upon a section of the act which specificallyprohibited common law actions againstemployers, except in those cases where employees were not eligible for benefits under the Act or in those cases where employees rejected coverage of theAct. This sectionwas repealed in1979. Summer dealtwith a differentstatutoryscheme, and while the casemay be helpful, it 

### is certainly not controlling. In fact, the case stands for liberal selection of remedies; a philosophy not beneficial to appellants. Next, 

### we are cited toAnaconda Co. 

### v. District Court (1973), 161Mont. 318, 506, P.2d 81, where the claimantbrought an action against his employer for injuries suffered in an underground mine. The 

### District Court allowed the actiontoproceed, contrary to the employer's assertion that the lawsuit was barred by the provisions of the Workers

## ' CompensationAct and theOccupational Disease Act. The employer thenpetitioned thisCourt for a 

### writ of supervisorycontrol. ThisCourt granted thewrit and directed the District Court to order summary judgment in favor of the employer. It 

### is clear that the claimant brought his personal injury action after his claim for occupational disease benefits had been rejected. In ordering summary judgment for the employer, 

### we cited section 92-1308, RCM, 1947, (now section 39-32-305, amended) which precludes a common law action against

an employer, even where a claimant has failed to prove entitlement tooccupational disease benefits. Finally, appellants citeDayton v. Boeing Company (D. Mont. 1975), 389 F.Supp. 433, where the claimant sought damages for injuries sustained by exposure to electromagnetic pulses and laser radiation. The Montana Federal District Court, relying on thisCourt's holding inAnaconda, ruled thatan employee who suf-fers a disease that 

### is covered by the Occupational Disease Act hasno common law remedy againsthisemployer. Appellants' reliance on these three cases 

### is misplaced. 

### In all of these cases, the exclusive remedy question is raised in the context of a personal injury action. The question in these

cases was whether or not a damage action could be maintained in view of the remedies provided through the Workers' Compensation and Occupational Disease Acts. In the case before us now, that 

### isnot the question. It 

### is obvious to us that the language of section 39-72-305, MCA, was only meant to prohibit personal injury actions against employers. The legislature did not intend to prevent a choice between statutory remedies. This interpretation 

### is supported in several sections of both acts. We must read all of these 

### sectionstogether to discern legislative intent. As

### we said inHome Building and Loan Association of Helena v. Fulton (1962), 141 Mont. 113, 115, 375 P.2d 312, 313, "statutes must be read and considered in their entirety and the legislative intentmay not begained from thewording of any particular sectionor sentence, but onlyfrom aconsideration of thewhole." First, section 39-72-305, MCA, the very section on which appellants' argument 

### is based, distinguishes between the remedy provided in the Occupational Disease Act and the remedy afforded through a damage action. Subsection (1)makes it clear thatthe right to recover compensation against properly insured employers 

### is provided within the Act. Subsection (2)then adopts provisions of the Workers' Compensation Act relating to uninsured employers. One of those adopted provisions dealswith the right of an employee to electbetween hisremedies, including the right to bring a damage action against his employer. S e c t i o n 39-71-508, MCA. Another section within the Occupational Disease Act supports

our interpretation. Section39-72-709, MCA, states: "[c]ompensation payable pursuant to the 

### terms of this chapter to theclaimant, hisbeneficiaries, or dependents shallbe diminished by the amount of any compensation paid or to be paid him or them under the Workers' Compensation Act of Montana or any other workers

## ' compensation act

# ." The legislature recognized that a particular condition could be compensable under either act, and insuch situations, double benefits

### willnot be allowed. We offer one further example found intheWorkers' Compensation Act. Section 39-71-119 (2), MCA, defines injury as, "cardiovascular or pulmonary or respiratory diseases contracted by a paid firefighter

# ..

# .Nothing herein shall construedto exclude ax other workinq

# person who suffers g cardiovascular, pulmonary, 

# or respiratory diseasewhile id 

### t& course and scope i of 

## his employment." (emphasis added) The legislature, inproviding that certain diseases of paid firefighters be compensable under the Workers' Compensation Act, recognized that nonfirefighters with cardiovascular, pulmonary or respiratory diseases might well be entitled to benefits under the Workers' Compensation Act rather than the Occupational Disease Act. In other words, the legislature realized that these kinds of diseases, while normally considered under the Occupational Disease Act, could be compensable as injuries under the definition of subsection (1)of 39-71-119, MCA. This 

### is just such a

case and 

### we now consider whether the court erred by concluding thatclaimant suffered an injury. An injury 

### is defined as 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 excludingdisease

## - not traceable to injury

# ... - " Section 39-71-119 (l), MCA. (emphasis added) Appellants very capably discuss case law in relation to the exclusion of diseases not traceable to injury. We are asked to pay particular attention to LaForest v. Safeway Stores, Inc. (1966), 147 Mont. 431, 414 P.2d 200, which supposedly contains theguiding principles for resolution of thisissue.In LaForest 

### we reversed an order awarding workers' compensation benefits because the medical evidence showed that claimant's bursitis existed before, and 

### was not caused by the alleged accident. Appellants contend that the same situation exists in this case, therefore the claimant is not entitled to workers' compensation benefits. Although the same factual situationmay exist (Mr. Ridenour's COPD existed long before the date of the accident, and no new disease was caused by the massive inhalation) 

### itdoes not followthatworkers' compensation benefits areprecluded. InLaForest

### we were not asked to address the aggravation or acceleration factor, while inthiscase it is thecentral issue. For many years it has been the rule in Montana that the employer takes his employee as he finds him, and as we said in Gaffney v. Ind. Acc. Board (1955), 129 Mont. 394, 401, 287 P.2d 256, 259, 

### "[tjhefact that an employee was suffering from a preexisting disease or disability does not preclude compensation if the disease or disability was aggravated or accelerated by an industrial injury which arose out of and in the course of the employment.'I Consequently, the question here 

### is whether or not Mr. Ridenour's COPD was aggravated or accelerated by the inhalation incidentonDecember 18, 1978. Appellantsdiscuss several cases dealingwith aggravation and acceleration of pre-existing conditions and caution us to keep inmind that in thiscase, 

### we aredealing with "apre-existing, defined and certified occupational disease." It appears 

### we are being asked todistinguishbetween apre-existing condition and a pre-existing disease. However, there is no such distinction in the application of the aggravation and acceleration rule. An employer accepts his employee with all of his injuries and diseases. 

### We have recognized thatdiseases aresubject to aggravation or acceleration. InWight v. Hughes Livestock Co., Inc., (1981)I Mont. --- 

## ,634 P.2d 1189, 38 St.Rep. 1632, 

### we were asked to reviewa findingof theCompensationCourtwhich impliedthat claimant's spinal disease was aggravated by an industrial accident. 

### We affirmed, making no distinction between diseases and injuries. Appellants' caution, that 

### we are dealing with "a preexisting, defined and certified occupational disease

## ," surfaces again in discussion of Greger v. United Prestress, Inc. (1978), 180 Mont. 348, 590 P.2d 1121. In Greger the central issue was the same as in thiscase; whether claimant's condition was compensable under the Occupational Disease Act or the Workers' CompensationAct. 

### Mr. Greger had worked regularlywith concrete. He learned thathe was allergicto chromium and nickel which are additives to the cement mixture. He developed contact dermatitis. The treatingphysician testified thatclaimant suffered both an injuryand an occupational disease. However, the insurer had treated the claim as one for occupational disease and paid benefits for only that period of 

### time in which claimant was totally disabled. The Workers' Compensation Court held for the insurer and we affirmed. Appellants correctly argue that our holding in Greqer was based inpart on the fact that each statutory element of occupational disease was satisfied. Therefore, according to appellants, since

### Mr. Ridenour's condition

### met the same statutory elements, the same holding should apply. However, appellants misinterpret our reasoning. Our holding did not prohibit eligibility under the Workers' Compensation Act simply because claimant's condition fitthe definition of occupational disease. InGreger there was not an injury. Claimant was exposed to the cement additives over a period of time. There was never "a tangible happening of a traumatic nature

# ." We held that allergieswhich areaggravated by work experienceresult inoccupational disease; noting that the "purpose of the occupational disease act 

### is to compensate workers who contract a disease or have inert diseases when no 'accident' 

### is involved, or as in Montana, where there 

### is no 'injury' 

# ..." Greqer, 180Mont. at354, 590 P.2d at1124. We have carefully reviewed the evidence in this case and conclude thatthe courtproperlyruled thatMr. Ridenour suffered an injury. Our function in reviewing these decisions is only to determine whether substantial evidence exists to support the findingsand conclusions, and 

### we cannot impose our judgment asto the weight of the evidence. Vietsv. SweetGrassCounty (1978), 178Mont. 337, 583 P.2d 1070. There 

### is no doubt that claimant 

### met hisevidentiaryhurdle. Af

### firmed.

We concur: 

# ~d90.~4 Chief Justice