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Mosca v. American Home Assurance Co.2/13/2004
s thereafter determined to have a herniated disk. The two physicians evaluating his claim opined that his herniated disk was work related; one opined it was an injury by providing testimony supporting a finding that it was an occupational disease, the other, who was an independent medical examiner designated by the Department, opined that his condition was an occupational disease. The insurer presented no medical opinion that the claimant's condition was not work related.
b The notice defense was without any merit whatsoever. The insurer's own witness (Kathy Henningsen) testified that on November 15, 2002 - well within the thirty days set out in section 39-71-603, MCA - she was aware of the claimant's intent to pursue a workers' compensation claim. On that date she was provided with as much information as claimant had regarding his condition and the cause of his condition. No notice defense was proffered under the Occupational Disease Act (ODA) and none was available in any event since the ODA does not contain a thirty day notice requirement.
The requirement that an insurer act reasonably in adjusting a claim does not end on the courthouse steps. I find it extraordinary that even after being apprized of the Court's concerns with its defenses in this case that the insurer persisted in those defenses.
CONCLUSIONS OF LAW
This case is governed by the 2001 version of the Montana Workers' Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986). Since his occupational disease claim also arose while the 2001 version of the ODA was in effect, that version of the ODA also applies.
Claimant bears the burden of proving by a preponderance of the evidence that he is entitled to the benefits he seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
The claimant has provided unrebutted medical evidence that he suffers from either an occupational injury or occupational disease. To constitute a compensable injury under the WCA, claimant must prove that he suffered:
(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.
ยง 39-71-119(2), MCA (2001). The ODA covers work-related conditions arising as a result of trauma or exposure over more than a single day. Section 39-72-102(10), MCA (2001), provides in relevant part:
(10) "Occupational disease" means harm, damage, or death as set forth in 39-71-119(1) arising out of or contracted in the course and scope of employment and caused by events occurring on more than a single day or work shift. . . .
The medical opinions in this case are that he suffered one or the other.
As set forth in my findings of fact, I am persuaded that the claimant's condition arose as a result of his heavy lifting and twisting over a period of more than one day. No single event on a single day stands out as the causative factor although in retrospect the claimant believes that a couple of slips on ice on November 8th triggered his condition. I therefore find and conclude that the claimant's herniated disk is a compensable occupational disease. As such, he is entitled to medical benefits and to temporary total disability benefits from November 11, 2002 to the present time.
Finally, I consid
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