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Polk v. Planet Insurance Company5/31/2002
ted as the result of a single trauma or event. Under Planet's logic, some occupational disease claimants would be entitled to the more liberal benefits of the Workers' Compensation Act, while others would not.
Planet's argument is interesting, however, it is unpersuasive. As I read Henry, the Supreme Court held that what is important for equal protection analysis is the fact that the claimant's affliction (condition) is work related and that distinctions based upon the period of time over which the affliction developed are irrational, at least under Montana statutes defining workers' compensation injuries and disease. Moreover, the factual distinctions tendered by Planet are suspect. Certainly, pulmonary conditions may develop over time, however, a review of reported cases indicates that conditions normally thought to be the result of repeated exposures also may result from a single exposure. For example, in Bremer v. Buerkle, 223 Mont. 495, 727 P.2d 529 (1986), the claimant suffered an allergic reaction to chemicals. He had been exposed to the chemicals over nine years, however, "a single exposure unexpectedly stimulated his immune system and led to the [disabling] allergy." Id. at 501, 727 P.2d at 523.
Applying Henry, I find that section 39-72-613, MCA (1993), is unconstitutional with respect to costs. Under the WCA, claimant would be entitled to recover his costs. There is no rational basis for denying him costs just because his condition and disability fall under the ODA.
My decision in this matter does not extend to attorney fees. I previously determined that the statute does not allow for an award of attorney fees. Claimant has not challenged the constitutionality of the attorney fee provision, probably with good reason: The WCA provides for attorneys' fees only where the insurer's denial of benefits was unreasonable. ยงยง 39-71-611 and -612, MCA (1993).
IV.
The Department decision reserved determination of the amount of costs due claimant pending this appeal. In this appeal, claimant has submitted a memorandum of costs and Planet has submitted objections to some of those costs. Since section 39-72-613, MCA, provides for an assessment of costs by the Department, this matter must be remanded to the Department for that assessment.
JUDGMENT
Based on the Court's August 17, 2001 Order on Appeal, and the foregoing discussion, FINAL JUDGMENT IS ENTERED AS FOLLOWS:
The Final Agency Decision is reversed insofar as it ordered a reduction in claimant's benefits by 20% and awarded attorney fees to claimant. The matter is remanded to the Department with instructions that it amend its decision in the following respects:
a Claimant is entitled to full benefits without the 20% reduction.
b Claimant is not entitled to attorney fees.
c Claimant is entitled to costs in an amount to be determined by the Department.
Upon remand, the Department shall determine the amount of costs due the claimant.
This JUDGMENT is certified as final.
Any party to this dispute may have 20 days in which to request a rehearing from this Amended Order on Appeal.
DATED in Helena, Montana, this 31st day of May, 2002.
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