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McGuin v. State Compensation Insurance Fund12/16/1999
ment of the condition.
The medical evidence does not persuade me that the 1988 Lake Koocanusa dive materially and permanently aggravated claimant's condition. Dr. Youngblood did not believe claimant suffered from a pre-existing fistula at the time of the 1988 dive, so his testimony did not address aggravation based on that incident. Dr. Von Doersten testified that the incident aggravated a pre-existing fistula but did not address the materiality or permanency of any aggravation. Dr. Oehrtman did not address the question at all.
As discussed in the conclusions of law that follow, it is unnecessary for me to consider whether the 1991 swimming pool dive materially aggravated claimant's condition.
CONCLUSIONS OF LAW
Claimant's alleged injury occurred in 1986, therefore the 1985 version of the Workers' Compensation Act governs his entitlement to benefits. See Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Claimant bears the burden of persuading the Court, by a preponderance of the evidence, that he suffered a compensable injury . See Ricks v. Teslow Consolidated, 162 Mont. 469, 483-84, 512 P.2d 1304, 1312 (1973); Dumont v. Aetna Fire Underwriters, 183 Mont. 190, 201, 598 P.2d 1099, 1105 (1979).
Section 39-71-119, MCA (1985), provides the definition of work-related injury applicable to this case.
It provides:
39-71-119. Injury or injured defined. "Injury" or "injured" means: (1) 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, except as provided in subsection (2) of this section;
(2) Cardiovascular or pulmonary or respiratory diseases con- tracted by a paid firefighter employed by a municipality, village, or fire district as a regular member of a lawfully established fire department, which diseases are caused by overexertion in times of stress or danger in the course of his employment by proximate exposure or by cumulative exposure over a period of 4 years or more to heat, smoke, chemical fumes, or other toxic gases. Nothing 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.
(3) Death resulting from injury .
Industrial injuries encompass "unusual strains." The term "unusual strain" was first interpreted by the Montana Supreme Court in Jones v. Bair's Café, 152 Mont. 13, 445 P.2d 923 (1968). The Court held that "unusual strain" encompasses not only unexpected causes of injury , but also unexpected injuries resulting from ordinary workplace activities. In Jones the Court allowed recovery when a dishwasher, during an unusually heavy work period, picked up a heavy tray of dishes and suffered a back injury. Similarly, in Robins v. Ogle, 157 Mont. 328, 485 P.2d 692 (1971), the Court allowed recovery by a claimant who, "while working as a cook on the graveyard shift, was engaged in lifting a mop pail full of water when she felt a pull and a burning sensation." Id. at 329, 485 P.2d at 693. The Court explained: "The strain suffered by claimant here, although not 'unusual' from the standpoint of the general manner in which the mopping was done, was 'unusual' in that on this particular occasion she 'picked [the bucket] up wrong' and 'twisted back' when she moved the bucket and removed the mop." Id. at 332, 485 P.2d at 694.
The "unusual strain" cases nonetheless require some tangible occurrence in the workplace whi
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