NO. 82-320 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

DAREL R. RIDENOUR, 

Claimant and Respondent, 

EQUITY SUPPLY COMPANY, and 

GLACIER GENERAL ASSURANCE COMPANY, 

Defendants and Appellants. 

Appeal from: Workers' Compensation Court 

Tim Reardon, Judge presidina, 

Counsel of Record: 

For Appellants: 

Garlington, Lohn & Robinson, Missoula, Montana 

For Respondent: 

James E. Vidal, Kalispell, Montana 

- 

Decided. June 30, 1983 

wed. JUN 3 0 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. 

Appellants claim that benefits should have been awarded under the 

Occupational Disease Act rather than the Workers' Compensation 

Act. We find that benefits 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 his job, 

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 site he 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 dust produced by an unloading operation which was taking place below. 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 was 
immediately 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 his usual job. He attempted 

to perform less demanding chores, yet was unsuccessful. He 

finally ceased 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 

on December 18. Dr. Maloney testified that the single grain dust 

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 in the 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 at least ten to fifteen 

years prior to examination and that there was no new disease 

traceable to the incident on December 18. He described the inhalation as a "severe but temporary illness and disability" 

however, the one episode "may have resulted in more asthma and 

more bonchitis, which could flare up more readily in the 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 that they have a major 

problem other than shortness of breath. Then an incident occurs 

"which is really the last straw that kind of breaks the camel's 
back" that causes disability. 

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 

appointed Roger Tippy as a 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 the Workers' 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 

this appeal. 

We are asked to address two issues; first, whether it was 

error to allow election by the claimant between the provisions of 

the Occupational Disease Act and the Workers' Compensation Act, 

and second, whether it was error to conclude that claimant suffered an injury as defined in section 39-71-119, MCA. We address 

these issues in turn. 

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 all diseases arising out of or contracted from and 

in the course of employment." Appellants also cite the statutory 

causation section which refines "arising out of . 

employment; " section 39-72-408, MCA: 
"Proximate causation. Occupational diseases 

shall be deemed to arise out of the employment 

only if: 

"(1) there is a direct causal connection between the conditions under which the work is 

performed and the occupational disease; 

"(2) the disease can be seen to have followed 

as a natural incident of the work as a result 

of the exposure occasioned by the nature of 

the employment; 

"(3) the disease can be fairly traced to the 

employment as the proximate cause; 

" (4) the disease does not come from a hazard 

to which workmen would have been equally 

exposed outside of 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 

the provisions of this chapter for occupational diseases . . . is 

the exclusive remedy therefor against an employer . . ." 

We disagree. We hold that although claimant may 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 

not have a common law action against his employer. 

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. In Summer the employee instituted an action 

for personal injuries in state court 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 Montana 
Workers' Compensation Act. Upon review, the ninth circuit court 

of appeals held that an employee who allegedly suffered an 

industrial accident could maintain an action against his employer 

who had not elected to be covered by the Occupational Disease 

Act. The court relied upon a section of the act which specifically prohibited common law actions against employers, except in 

those cases where employees were not eligible for benefits under 

the Act or in those cases where employees rejected coverage of 

the Act. This section was repealed in 1979. Summer dealt with a 

different statutory scheme, and while the case may 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 to Anaconda Co. v. District Court (1973), 

161 Mont. 318, 506, P.2d 81, where the claimant brought an action 

against his employer for injuries suffered in an underground 

mine. The District Court allowed the action to proceed, contrary 

to the employer's assertion that the lawsuit was barred by the 

provisions of the Workers ' Compensation Act and the Occupational 

Disease Act. The employer then petitioned this Court for a writ 

of supervisory control. This Court granted the writ 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 to occupational disease benefits. 

Finally, appellants cite Dayton 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 

this Court's holding in Anaconda, ruled that an employee who suf- 
fers a disease that is covered by the Occupational Disease Act 

has no common law remedy against his employer. 

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 

is not 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 sections together to discern legislative intent. As we said in Home 

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 intent may not 

be gained from the wording of any particular section or sentence, 

but only from a consideration of the whole." 

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 that the 

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 deals with the right 

of an employee to elect between his remedies, 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. Section 39-72-709, MCA, states: " [c] ompensation payable pursuant to the terms of this chapter to the 
claimant, his beneficiaries, or dependents shall be 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 

in such situations, double benefits will not be allowed. 

We offer one further example found in the Workers' 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 construed to 

exclude ax other workinq person who suffers g cardiovascular, 

pulmonary, or respiratory disease while id t& course and scope i 

of his employment." (emphasis added) The legislature, in providing that certain diseases of paid firefighters be compensable 

under the Workers' Compensation Act, recognized that nonfiref ighters 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 def inition of subsection (1) of 39-71-119, MCA. This is just such a 

case and we now consider whether the court erred by concluding 

that claimant 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 excluding disease - 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 

the guiding principles for resolution of this issue. 
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 

situation may exist (Mr. Ridenour's COPD existed long before the 

date of the accident, and no new disease was caused by the 

massive inhalation) it does not follow that workers' compensation 

benefits are precluded. In LaForest we were not asked to address 

the aggravation or acceleration factor, while in this case it is 

the central 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, " [tjhe fact 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 incident on December 18, 1978. 

Appellants discuss several cases dealing with aggravation and 

acceleration of pre-existing conditions and caution us to keep 

in mind that in this case, we are dealing with "a pre-existing, 

defined and certified occupational disease." It appears we are 

being asked to distinguish between a pre-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 that diseases are subject to aggravation or acceleration. In Wight v. Hughes Livestock Co., Inc., 

(1981) I Mont. --- , 634 P.2d 1189, 38 St.Rep. 1632, we were 

asked to review a finding of the Compensation Court which implied 
that claimant's spinal disease was aggravated by an industr ial 

accident. We af firmed, 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 this case; whether claimant's condition was compensable under the Occupational Disease Act or the Workers' 

Compensation Act. Mr. Greger had worked regularly with concrete. 

He learned that he was allergic to chromium and nickel which are 

additives to the cement mixture. He developed contact dermatitis. The treating physician testified that claimant suffered 

both an injury and 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 in part 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 fit the definition of occupational disease. 

In Greger 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 

allergies which are aggravated by work experience result in occupational 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, 180 Mont. at 
354, 590 P.2d at 1124. 

We have carefully reviewed the evidence in this case and 

conclude that the court properly ruled that Mr. Ridenour suffered 

an injury. Our function in reviewing these decisions is only to 

determine whether substantial evidence exists to support the 

findings and conclusions, and we cannot impose our judgment as to 

the weight of the evidence. Viets v. Sweet Grass County (1978), 

178 Mont. 337, 583 P.2d 1070. There is no doubt that claimant 

met his evidentiary hurdle. 

Af f irmed. 

We concur: 

~d90.~4 

Chief Justice