                                                No.    86-328

                    I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA

                                                      1987




TRULY W.     COCKING,

                      C l a i m a n t and R e s p o n d e n t ,
          -vs-

THE HILLHAVEN CORPORATION,
              Employer,
          and

RANGER I N S U R A N C E COMPANY,

                      D e f e n d a n t and A p p e l l a n t .




A P P E A L FROM:     The Workers' Compensation Court, Honorable
                      T i m o t h y R e a r d o n , Judge p r e s i d i n g .

COUNSEL O F RECORD:

          For A p p e l l a n t :

                      M a r r a , W e n z , Johnson & H o p k i n s ;         T h o m a s A.   Marra,
                      G r e a t Falls, Montana

          For R e s p o n d e n t :

                      Burgess,        Joyce     & Whelan;         T h o m a s J . Joyce, B u t t e ,
                      Montana




                                                      S u b m i t t e d on B r i e f s :   Dec.   11, 1 9 8 6

                                                         Decided:         F e b r u a r y 19, 1987

Filed:      FEB 1 9 1987
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
     Defendants appeal the award by the Workers' Compensation
Court granting claimant occupational disease benefits plus
costs and attorneys' fees. We reverse and remand.
     Claimant began work as a janitor in February, 1983, at
Butte Convalescent Center, owned by defendant Hillhaven
Corporation.    Claimant's duties included washing windows,
cleaning furniture and stripping floors.        During 1983,
claimant began taking allergy shots to treat his allergic
reaction to horses, dogs, and cats, to which he was exposed
away from work.    In June, 1984, claimant began breaking out
with sores on his side, ankles, face, ears, and eyelids.
Claimant attempted to identify the cause by removing all pets
from his home, the wood stove, changing his diet, and trying
different types of clothing and detergents.
     Claimant visited several doctors during July and August
of 1984, but none of the doctors were able to diagnose or
adequately treat claimant's condition.      Claimant took an
extended leave of absence from work August 21, 1984, through
October 14, 1984.     Claimant's supervisor was aware of his
medical problems, yet claimant did not inform the supervisor
that his skin infections were work related nor did he file an
incident report.
     The record is unclear as to claimant's work attendance
during the last 3 months of 1984.       In November of 1984,
claimant began treatment with a certified dermatologist, Dr.
Ballinger.    Dr. Ballinger concluded claimant had contact
dermatitis but was unable to positively correlate it with any
of the products claimant used at work.
      On December 21, 1984, claimant filed a claim for
workers' compensation alleging an industrial injury in July,
1984. Defendant Ranger Insurance Company denied liability by
letter dated February 4, 1985. Claimant continued to have
outbreaks and began treatment with another certified
dermatologist, Dr. Robert Neill. Dr. Neill applied topical
medications to claimant's eruptions and within two weeks
claimant's condition had improved substantially.           To
determine the cause of claimant's sores and rashes, Dr. Neill
suggested claimant return to work.
      Claimant returned to work February 28, 1985, and within
two weeks experienced a recurrence of his skin condition
after using certain cleaning compounds. Claimant filed an
incident report alleging an injury on March 4, 1985, and did
not return to work upon Dr. Neill's advice.       A workers'
compensation claim was filed and defendant denied coverage.
Defendant contacted the Division of Workers' Compensation
 (Division) regarding the claim and requested the Division
appoint a physician to examine claimant.        The Division
appointed a physician and scheduled an examination to
determine whether claimant was eligible for occupational
disease benefits.
      Meanwhile, on May 20, 1985, claimant filed a petition
for hearing before the Workers'         Compensation Court.
Defendant filed a motion to dismiss on July 10, 1985,
contending the proceedings before the Division deprived the
Workers' Compensation Court of jurisdiction. The motion to
dismiss was denied. On July 31, 1985, the Division entered
its order referring copy of medical report to the parties
which contained a preliminary finding that claimant was not
entitled to occupational disease benefits.     On August 19,
1985, the Division entered its order suspending proceedings
pending the outcome of industrial injury proceedings before
the Workers' Compensation Court.
      Following hearing, the hearing examiner found claimant
had not suffered an injury under § 39-71-119 of the Workers'
Compensation Act, but was suffering from an occupational
disease and was entitled to temporary total disability
benefits as well as costs and attorneys' fees.        Workers'
Compensation Judge Reardon adopted         the  findings and
conclusions of the hearing examiner and awarded claimant
occupational disease benefits retroactive to July 1, 1984,
plus costs and attorneys' fees pursuant to § 39-71-612, MCA.
Defendant appeals and raises the following issues:
      1) Whether the Workers' Compensation Court properly
awarded claimant occupational disease benefits?
      2) Whether the Workers' Compensation Court properly
awarded attorneys' fees and costs to claimant?
      The claimant has conceded on appeal that the Workers'
Compensation Court exceeded its jurisdiction in finding
claimant suffered from an occupational disease.
      This Court has previously held that a claimant may elect
to pursue benefits under the Workers' Compensation Act or the
Occupational Disease Act.      Ridenour v. Equity Supply Co.
 (Mont. 1983), 665 P.2d 783, 40 St.Rep. 1012.
      The procedure for obtaining benefits differs under the
two acts.     The Occupational Disease Act provides that a
physician shall be appointed to examine the claimant when the
insurer has not accepted liability. Section 39-72-602(2)(a),
MCA. If either party is dissatisfied with the results of the
first examination, a second examination may be requested.
The results are then reviewed by a medical panel which
submits a report to the Division indicating whether claimant
is suffering from an occupational disease.
     Prior to the time the Division issues its determination
whether the claimant is entitled to occupational disease
benefits, the claimant, insurer, or the Division may request
a hearing.    Section 39-72-611, MCA.   Following issuance of
the Division's determination a rehearing may be requested.
Appeals from a final determination of the Division shall be
made to the workers' compensation judge within 30 days from
the date of the Division's final determination.       Section
39-72-612 (2), MCA.  These provisions make it clear that the
workers' compensation judge has appellate jurisdiction to
award occupational disease benefits.
     In the present case, claimant filed a petition for
hearing under the Workers' Compensation Act alleging an
industrial injury.     The Workers' Compensation Court had
jurisdiction to determine whether or not claimant was
entitled to workers' compensation benefits.     The court did
not have jurisdiction to make a finding that claimant
suffered from an occupational disease and was entitled to
occupational disease benefits.      That is a matter to be
decided on appeal following final determination by the
Division. In this instance, the Division did not make such a
determination.
     The award of attorneys' fees and costs pursuant to S
39-71-612, MCA, was improper.      The Workers' Compensation
Court exceeded its jurisdiction in awarding occupational
disease benefits. The award being improper, claimant is not
entitled to attorneys' fees and costs.
     The Workers' Compensation Court is reversed and this
case is remanded to the Division of Workers' Compensation for
a   determination of   claimant's   entktlement   to occupational
disease benefits.




We concur:
