No. 90-043 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

JOAN C. GAUMER, 

Claimant and Respondent, 

-vsMONTANA DEPARTMENT OF HIGHWAYS, 

Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Appellant. 

APPEAL FROM: Workers Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leo S. Ward; Browning, Kaleczyc, Berry & Hoven; 

Helena, Montana 

" For Respondent: 

C;*< 

C3 Kristine L. Foot; Milodragovich, Dale & Dye, I ! - .4 Missoula, Montana 

Submitted on Briefs: May 3, 1990 

Decided: June 15, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

The State Workers1 Compensation Insurance Fund (the insurer) 

as insurer for the Montana Department of Highways appeals the order 

of the Workers1 Compensation Court adopting the findings of fact 

and conclusions of law of the hearings examiner and entering 

judgment in favor of the claimant, Joan Gaumer. The Worker's 

Compensation Court's adoption of findings of fact and conclusions 

of law involves the construction of recent amendments to the injury 

statute, § 39-71-119, MCA. The court essentially held that the 

definition of injury under the amended statute includes aggravation 

of a pre-existing condition or disease under the specific facts 

of this case. We affirm. 

The insurer raises the following issues on appeal: 

(1) Did the Worker's Compensation Court err in determining 

that the claimant suffered a compensable injury under the newly 

amended Workers' Compensation Act, ii 39-71-119(5), MCA (1987). 

(2) Is there substantial credible evidence to support the 

conclusion of the Worker's Compensation Court that the claimant was 

entitled to benefits because her exposure to chemicals at work was 

the primary cause of her physical harm in relation to other 

contributing factors? 

(3) Did the Worker's Compensation Court err in assessing a 

20 percent penalty on the insurer on the grounds that its denial 

of the claim was unreasonable? 

The facts as found by the hearings examiner and adopted by the 
court indicate that the claimant suffered a severe respiratory 

attack on May 10, 1988, as a direct result of an exposure to a 

chemical or allergen in the workplace. On that day the claimant 

had difficulties with her asthma due to some odor present at the 

Missoula office of the Montana Department of Highways where she 

worked. As a result, she planned to complete some work and then 

leave early for the day. 

Shortly before noon, the claimant went to the office copy 

machine to complete her work. The copy machine is located close 

to the mechanic's shop. While operating the copier, the claimant 

heard the door to the mechanic's shop open, and detected a strong 

chemical odor being drawn into a nearby exhaust fan. Within a few 

seconds of inhaling the chemical odor the claimant found breathing 

difficult. She returned to her desk and felt the need to rest for 

a moment before starting home. Upon heading for her car to leave 

for the day, her respiratory difficulties increased severely and 

a coworker assisted her. The claimant was taken by ambulance to 

the hospital where she spent several days in intensive care. 

Claimant was placed on oxygen and the testimony of her treating 

physician and an independent examining physician indicate that she 

will likely remain on oxygen for the remainder of her life. The 

court found that as a result of the episode the claimant is totally 

disabled. 

The claimant has a history of respiratory ailments prior to 

the accident involved here. Her symptoms of respiratory ailments 

began in 1983 and 1984. She was evaluated for allergies in June 
of 1983. In 1987, an inhaler was prescribed for the claimant to 

be used every four hours to control her asthma. Later that year, 

she suffered an asthmatic attack on an airplane at the Helena 

airport. 

The claimantss attending physician, Dr. William Bekemeyer a 

specialist in pulmonary medicine and intensive care, treated the 

claimant in the emergency room of St. Patrick's Hospital, Missoula, 

Montana, the day of the accident. He testified that the claimant 

was in severe respiratory distress and if she had not received 

treatment that day in his opinion she probably would have died. 

Dr. Bekemeyer also opined that the need for hospitalization was 

caused by exposure to some unidentifiable chemical present in the 

workplace on May 10, 1988. 

A mediation conference was held in this matter on December 2, 

1988, pursuant to 5 39-71-2401 et seq., MCA. Prior to this time, 

no independent medical examination was requested or given. 

Following the conference the insurer requested an independent 

medical examination which was subsequently conducted by Dr. Thomas 

Schimke on April 21, 1989. 

Dr. Schimke is a specialist in internal medicine and pulmonary 

disease. He testified that his conclusions did not contradict 

those of Dr. Bekemeyer. However, he minimized the importance of 

the May 10, 1988 episode in relation to the claimant's health 

problems I1because she did not have a known toxic exposure to any 

identifiable chemi~al.~~ The findings of fact note that this 

conclusion clearly contradicts the conclusion of Dr. Bekemeyer, 
which clearly connected the claimant's hospitalization to an 

exposure to a chemical or allergen in the workplace on that day. 

The hearings examiner also found that the claimant's treating and 

attending physician, Dr. Bekemeyer, was in a much better position 

to assess the cause of the claimant's present medical condition, 

noting that Dr. Schimke only spends 25% of his time on respiratory 

treatment. 

Dr. Schimke also concluded that the claimant has chronic 

obstructive lung disease. He ultimately concluded that the 

claimants1 alleged exposure to chemical irritants in the work place 

was not the primary cause of her physical harm in relation to other 

factors contributing to her physical harm. One factor influencing 

Dr. Schimke's conclusion was the fact that claimant's alleged 

exposure to chemical irritants resulted in a reversible obstructive 

airway disease called status asthmaticus which was eventually 

corrected. Dr. Schimke concluded that this reversible condition 

was the only result of the exposure at the workplace and therefore 

the claimant's disability is due to her underlying obstructive lung 

disease which was primarily caused by claimant's allergies, 

smoking, and heredity. 

The State Fund initially denied liability for the claim on 

the grounds that the exact chemical agent causing the alleged 

injury could not be identified. At the time that denial was issued 

the insurer had access to the report of Dr. Bekemeyer connecting 

the injury to an exposure in the workplace. Regardless of that 

report, the insurer did not make an investigation until after a 
petition was filed in this claim. After filing of the petition, 

the only investigation by the defendant insurer related to the 

independent medical examination which was scheduled only after a 

trial date had been set in this case. The hearings examiner and 

subsequently the court found that the insurer's denial was 

unreasonable and added a 20 percent penalty to all benefits that 

the insurer must pay the claimant. The insurer, relying on the 

1987 amendments to the Act now appeals both liability for the claim 

and assessment of the penalty. 

I. and 11. 

Although the Workers' Compensation Act underwent substantial 

revision in 1987, this Courts1 standard of review of decisions of 

the Workerst Compensation Court remains the same. Decisions of 

the Workers' Compensation Court will not be overturned if there is 

substantial evidence to support its findings and conclusions. 

Giacoletto v. Industrial ~ndemnity Co. (1988), 231 Mont. 191, 751 

P. 2d 1059 ; Tenderholt v. Travel Lodge International (1985) , 218 

Mont. 523, 526, 709 P.2d 1011, 1013. Where findings are based on 

conflicting evidence, the reviewing court's function is confined 

to this determination; it is not the court's function to determine 

whether there is sufficient evidence to support contrary findings. 

Stamatis v. Bechtel Power Corp. (1979), 184 Mont. 64, 68-69, 601 

P.2d 403, 405-406. 

The insurer argues as its first two issues that the Workerst 

Compensation Court erroneously interpretedthe newly amended injury 

statute and substantial evidence is lacking to support the findings 
of fact as adopted from the hearings examiner. We will discuss 

these first two issues together in light of the above-cited 

standard of review. 

The injury statute of the Worker's Compensation Act, as 

amended in 1987, provides: 

39-71-119. Injury and accident defined. (1) gfiInjuryfil 

or Ifi inj ured" means : 

(a) internal or external physical harm to the body; 

(b) damage to prosthetic devices or appliances, 

except for damage to eyeglasses, contact lenses, dentures 

or hearing aids; or 

(c) death. 

(2) An injury is caused by an accident. An 

accident is: 

(a) an unexpected traumatic incident or unusual 

strain; 

(b) identifiable by time and place of occurrence; 

(c) identifiable by member or part of the body 

affected; and 

(d) caused by a specific event on a single day or 

during a single work shift. 

(3) "Injuryfi1 or "injuredfi' does not mean a physical 

or mental condition arising from: 

(a) emotional or mental stress; or 

(b) a nonphysical stimulus or activity. 

(4) "Injuryw or 'finjured" does not include a 

disease that is not caused by an accident. 

(5) A cardiovascular, pulmonarv, respiratory, or 

other disease, cerebrovascular accident. or myocardial - 

infarction suffered by a worker is an injury only if the 

accident is the primary - cause of the physical harm in 

relation to other factors contributinq to the physical 

harm. (Emphasis added.) 

Section 39-71-119, MCA (1987). The claimant concedes that the 

amendments to the statute evince an intent by the legislature to 

restrict coverage under the Workersfi Compensation Act. The old 

statute provided that "[nlothing herein shall be construed to 

exclude any other working person who suffers a cardiovascular, 

pulmonary, or respiratory disease while in the course and scope of 

his employment." See 5 39-71-119(2), MCA (1985). Subsection (5) 
of the amended statute now provides some more definite guidelines 

as to which diseases are actually compensable under the new law. 

Under the new statute, cardiovascular, pulmonary, or respiratory 

diseases warrant coverage only if the claimant can show that the 

accident is the primary cause of the physical harm in relation 

to other contributing factors. 

The insurer contends that a plain reading of the statute 

requires the claimant to prove by a preponderance of the evidence 

that the harm of her chronic obstructive pulmonary disease was 

primarily caused by her exposure at work in relation to other 

factors contributing to that harm. This contention assumes that 

the term "physical harm" in the statute refers to the claimants 

cumulative present condition. If claimant were required to prove 

that her cumulative health condition was caused primarily by her 

exposure at work her burden would be impossible. Thus, to accept 

the insurer's contention would render subsection (5) of the 

statute meaningless, because a claimant with pre-existing 

cardiovascular, pulmonary, or respiratory problems suddenly 

aggravated by a traumatic accident at work could never meet this 

burden. Also, the legislature did not clearly set forth the 

meaning of the term llharmw as used in the statute. The statute 

does define an injury as "physical harm to the bodygt and defines 

an injury as an event caused by an accident. It follows that for 

a claim to be compensable the physical harm required by the statute 

is not the claimant's cumulative present condition but is that harm 

which results primarily from the accident at the workplace. 
Here the physical harm complained of is not the cumulative 

condition of the claimant's chronic obstructive pulmonary disease. 

Rather, the resultant harm is the aggravation caused by the 

exposure to toxins in the workplace. That the "primary causeI1 of 

this aggravation was the exposure in the workplace is apparent from 

the drastic change in the claimant's condition following the 

exposure on May 10, 1988. This drastic change in her condition is 

reflected in finding no. 27: 

27. Dr. Schimke testified that the claimant had 

irreversible obstructive disease. (Tr. at 89.) He also 

testified that there were some significant changes in her 

medical situation after May 10, 1988. (Id- 

~pecifically, following that date, the claimant was 

placed on oxygen. (Id. at 89-90.) She is on oxygen all 

of the time. (Id.) Moreover, he [Dr. Schimke] agreed 

that the claimant was unable to work following May 10, 

1988. (Id. at 90.) Claimant's condition has 

dramatically declined, and that decline began immediately 

following the May 10, 1988 episode. Even according to 

Dr. Schimkels own testimony, she will be on oxygen for 

the remainder of her life. She will also be unable to 

work. It is clear that the claimantls medical condition 

chanqed drastically followins the iniury of May 10, 1988. 

(Emphasis added.) 

As this finding indicates, the drastic change in the claimant's 

medical condition was primarily caused by the accident in the work 

place where she was exposed to chemical toxins or allergens, it was 

not merely the progressive result of her pre-existing respiratory 

ailments. Nor did her pre-existing respiratory ailments-- 

admittedly contributing factors--primarily cause the physical harm 

suffered as contemplated by the statute. Rather, the ''primary 

cause1' of the harm suffered in this case was the triggering event 

where the claimant was exposed to toxic fumes at the workplace. 

There is substantial evidence in the testimony of Dr. Bekemeyer to 
support this finding. Furthermore, the hearings examiner chose to 

assign more weight to the treating physician, Dr. Bekemeyer, than 

the independent medical examiner, Dr. Schimke, and this finding 

was adopted by the Workerst Compensation Court. We will not 

substitute our judgment for that of the Workerst Compensation Court 

as to the weight of the evidence on questions of fact. Robins v. 

Anaconda Aluminum Co., (1978), 175 Mont. 514, 575 P.2d 67. 

Therefore, under these facts the claimant is entitled to benefits 

under the statute. 

The insurer also claims that the Workers1 Compensation Court 

erred in assessing a 20 percent penalty against it on the grounds 

that its denial of the claim was unreasonable. The applicable 

statute, 5 39-71-2907, provides in pertinent part: 

39-71-2907. Increase in award for unreasonable delay or 

refusal to pay. (1) When payment of compensation has 

been unreasonably delayed or refused by an insurer, 

either prior or subsequent to the issuance of an order 

by the workers1 compensation judge granting a claimant 

compensation benefits, the full amount of the 

compensation benefits due a claimant between the time 

compensation benefits were delayed or refused and the 

date of the order granting a claimant compensation 

benefits may be increased by the workers' compensation 

judge by 20%. The question of unreasonable delay or 

refusal shall be determined by the workers1 compensation 

judge. . . . 

Section 39-71-2907, MCA (1987). This penalty statute should not 

be used by the Workerst Compensation Court to discourage legitimate 

defenses of disputed claims. Paulson v. Bozeman Deaconess Hospital 

(1984), 207 Mont. 440, 444, 673 P.2d 1281, 1283. The insurer 

contends that the imposition of a penalty in this case by the 
Workers' Compensation Court discourages legitimate defenses of 

disputed claims because the insurer had a defense for denial of 

this claim based on the plain language of the statute, the clear 

legislative intent, and the particular facts of this claim as 

revealed in the record. 

We disagree. The Workers' Compensation Court stated that 

"[tlhe imposition of the penalty in this case is premised on the 

insurers failure to directly and specifically identify for the 

claimant's treating physician, the significance of the term 

'primary cause' in a 'medical' context." Moreover, the insurer 

made no investigation of the claim in light of the new law when the 

reports of the treating physician were available to it; instead it 

summarily denied the claim on the grounds that the exact chemical 

agent was not identified. Such an identification is not required 

by the statute. The insurer has a duty to make at least a minimal 

investigation of a claim's validity in light of the relevant 

statutes. Absent such an investigation, as in the case at bar, 

denial of a claim for benefits is unreasonable. The claimant is 

entitled to the penalty under the statute. 

The order of the Workers' Compensation Court awarding claimant 

benefits and assessing a 20 percent penalty for unreasonable 

denial of her claim is 

AFFIRMED. 

We Concur: