                                                                                            January 10 2012


                                          DA 11-0347

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2012 MT 3



EDNA BANCO,

              Petitioner and Appellant,

         v.

LIBERTY NORTHWEST INSURANCE
CORPORATION,

              Respondent and Appellee.


APPEAL FROM:          Workers’ Compensation Court
                      Cause No. WCC 2006-1544
                      Honorable James Jeremiah Shea, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      John E. Seidlitz, Jr.; Seidlitz Law Office; Great Falls, Montana

               For Appellee:

                      Larry W. Jones; Law Offices of Larry Jones; Missoula, Montana



                                                    Submitted on Briefs: December 7, 2011

                                                                Decided: January 10, 2012


Filed:

                      __________________________________________
                                        Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    Edna Banco (Banco) appeals from the Order and Judgment of the Montana

Workers’ Compensation Court (WCC), which determined that Liberty Northwest

Insurance Corporation (Liberty) is not liable for Banco’s occupational disease (OD) in

her right shoulder. The sole issue on appeal is whether there was substantial credible

evidence to support the WCC’s conclusion that Banco was not last injuriously exposed to

the hazard of the OD at her employment with Liberty’s insured.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2    Banco worked concurrently at 4B’s Restaurant and the Child Development Center

on Malmstrom Air Force Base (CDC). 4B’s is insured by Liberty, and CDC is insured

under the federal workers’ compensation system. At the time she filed her claim for

Montana workers’ compensation benefits, Banco had worked for twenty-eight years as a

cook at CDC, preparing hundreds of meals a day. Banco’s job required stirring large

quantities of food and lifting heavy pots and pans; slicing and cutting meat, vegetables

and fruit; doing dishes; helping serve the meals; and putting away “freight.” Her shift at

CDC typically ran from 6:30 a.m. to 3:00 p.m. on weekdays. Banco also had worked for

many years as a server at 4B’s three nights a week and from 7:00 a.m. to 3:00 p.m. on

Saturdays and Sundays. There, she waited tables and carried food trays, ice buckets and

bus tubs. Between the two jobs, Banco worked fifty-five to sixty hours a week for more

than twenty years. Banco quit her job at 4B’s on or about April 29, 2005.




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¶3     Banco filed a report of a shoulder injury on June 10, 2005, naming 4B’s as her

employer. She stated her shoulder condition developed over time and no particular

incident caused it. She continued to work full-time at CDC after she left 4B’s. Banco

told Jack Randolph, an investigator from Liberty, she quit working at 4B’s but stayed on

at CDC because she thought “if I give up one that it might be a little easier on me.” She

also told Randolph her job duties at CDC were “definitely” more strenuous than at 4B’s,

as they required “constant” kitchen work. During her deposition, Banco stated the two

jobs involved “equal lifting.”

¶4     Dr. Keith D. Bortnem, Banco’s treating physician, testified she suffered from a

degenerative tendinosis of her shoulder that is multifactorial in origin.     He stated

activities which involve repetitive, overhead and chronic uses of the arms away from the

body predispose people to developing the condition.            Dr. Bortnem performed

arthroscopic shoulder surgery on Banco on June 21, 2005.            Banco subsequently

underwent an independent medical evaluation by Dr. John C. Schumpert, who concluded

that Banco’s shoulder condition was more related to her work at CDC and likely would

have occurred had she never worked at 4B’s. Dr. Aimee V. Hachigian examined Banco

in July 2006, and opined that Banco’s shoulder complaints were triggered equally by her

work at CDC and 4B’s.

¶5     The parties dispute Banco’s duties at CDC after she left 4B’s and before her

surgery. Banco contends the record does not show she returned to work at CDC after

quitting 4B’s until after her surgery, at which time she did “no lifting and [] only

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paperwork.” Liberty claims the evidence showed she continued to work at CDC under

the same conditions that could have caused her shoulder condition. Banco’s interview

with Randolph on June 20, 2005, indicates she continued with the same cooking and

cleaning duties at CDC after leaving 4B’s, but prior to her surgery. Dr. Bortnem, who

testified he had no knowledge of Banco’s work at CDC, wrote her a note four weeks after

her surgery, indicating “she can work doing paperwork only at her request.” Banco

advised Dr. Schumpert she continued to work at CDC full-time after she left 4B’s. She

testified at her deposition in April 2006 that she still worked at her CDC job, but did

“more paperwork,” and that “the other girls” did any lifting for her.

¶6     Liberty denied Banco’s claim for workers’ compensation benefits. Banco and

Liberty then brought the matter before the WCC on a stipulated record.             Witness

testimony was provided solely by deposition. The court was persuaded that Banco was

exposed to working conditions of the type and kind giving rise to her shoulder condition

at both 4B’s and CDC. Since her last day of work was in April 2005, the court applied

the 2003 statute, § 39-72-303(1), MCA (2003).

¶7     The WCC relied on our prior case law interpreting the statutory standard for

determining liability when a worker has been exposed to hazards at more than one place

of employment. Liberty N.W. Ins. Corp. v. Mont. State Fund, 2009 MT 386, ¶ 19, 353

Mont. 299, 219 P.3d 1267 (In re Mitchell).         “[F]or purposes of the initial liability

determination of an OD where two or more employers are potentially liable, the ‘last

injurious exposure’ to the hazard of the OD occurs during the last employment at which

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the claimant was exposed to working conditions of the same type and kind which gave

rise to the OD.” In re Mitchell, ¶ 26. The WCC found Banco was last exposed to work

“of the same type and kind” that gave rise to her shoulder condition while she was

working at CDC. Thus, since she was not last exposed at 4B’s, Liberty was not liable

under the “last injurious exposure” rule. Banco appeals the WCC’s judgment.

                             STANDARD OF REVIEW

¶8    We review the WCC’s factual findings to determine whether they are supported by

substantial credible evidence, and we review the WCC’s conclusions of law to determine

if they are correct. Fleming v. Int’l Paper Co., 2008 MT 327, ¶ 17, 346 Mont. 141, 194

P.3d 77. The Court will not resolve conflicting evidence, nor do we consider whether

evidence supports findings different from those made by the WCC. Wright v. Ace Am.

Ins. Co., 2011 MT 43, ¶ 14, 359 Mont. 332, 249 P.3d 485. Since we are in the same

position as the WCC to assess deposition testimony, we review deposition testimony de

novo. Wright, ¶ 14. However, “even where we conduct de novo review of deposition

testimony, we are ultimately restricted to determining whether substantial credible

evidence supports the WCC’s findings.” Wright, ¶ 14 (quoting Harrison v. Liberty N.W.

Ins. Corp., 2008 MT 102, ¶ 13, 342 Mont. 326, 181 P.3d 590).

                                   DISCUSSION

¶9     Was there substantial credible evidence for the WCC to conclude Banco’s “last
injurious exposure” occurred at CDC?

¶10   An “occupational disease” means “harm, damage, or death . . . arising out of or

contracted in the course and scope of employment and caused by events occurring on
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more than a single day or work shift.” Section 39-72-102(10), MCA (2003). Under the

Occupational Disease Act of Montana, “[w]here compensation is payable for an

occupational disease, the only employer liable is the employer in whose employment the

employee was last injuriously exposed to the hazard of the disease.” Section 39-72-

303(1), MCA (2003). This case turns on application of that statute to an OD claim where

multiple employers may have contributed to the condition. Although § 39-72-303 was

part of the since-repealed Occupational Disease Act of Montana, we apply it here since

an employee’s last day of work is “the point in time from which [an] occupational disease

claim [will] flow.” Fleming, ¶ 27. The language of the current statute, § 39-71-407(13),

MCA (2011), is identical.

¶11    In In re Mitchell, we considered the standard for liability when an employee’s

work for multiple consecutive employers may have contributed to a claimant’s OD. ¶ 14.

We adopted the “potentially causal” standard, finding a claimant who was “arguably

exposed to the hazard of an OD among two or more employers is not required to prove

the degree to which the working conditions with each given employer have actually

caused the OD in order to attribute initial liability [between the employers’ insurers].” In

re Mitchell, ¶ 24. Instead, the claimant must prove only that she was exposed to working

conditions of the same type or kind that gave rise to the OD. In re Mitchell, ¶ 26. Under

the “last injurious exposure” rule, therefore, “where two or more employers are

potentially liable,” liability for the OD is borne by the insurer providing coverage for the




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“last employment at which the claimant was exposed to working conditions of the same

type and kind which gave rise to the OD.” In re Mitchell, ¶ 26.

¶12    Banco first argues the WCC erred because there was no evidence of an

aggravation or any change to Banco’s shoulder after she quit 4B’s. We declined in In re

Mitchell, however, to adopt the insurer’s proposed standard under which the “last

injurious exposure” rule would immunize a subsequent insurer unless a permanent

aggravation of or contribution to the OD is established. See In re Mitchell, ¶ 33 (J. Rice,

concurring). Rather, we made clear that an insurer’s liability is based on the working

conditions present in the employment and whether they are of the same type and kind as

those that led to the development and diagnosis of the OD, even if the subsequent

employment “was not the major contributing cause of his OD . . . .” In re Mitchell, ¶ 25.

¶13    Secondly, Banco argues the evidence and the WCC’s findings focused on which

of the two employment positions caused her shoulder injury, not on whether she

continued to be exposed to the same conditions while maintaining her position with CDC.

She contends the lack of analysis or evidence of her specific duties at CDC after she left

4B’s is a fatal flaw in the WCC’s analysis and requires remand for further consideration.

The WCC found Banco quit working at 4B’s on or around April 29, 2005. She continued

to work at CDC after she quit 4B’s because she believed giving up one job might make

things easier for her. Under In re Mitchell, the WCC is not required to find whether the

conditions at CDC actually were “a substantial contributing cause” of Banco’s condition.

¶ 24. Instead, the WCC applies the “potentially causal” standard. In re Mitchell, ¶ 24.

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Thus, the issue to be reviewed is not whether contribution to the OD is established, but

whether her working conditions at CDC were of the same type and kind after she left

4B’s.

¶14     In its order, the WCC described in detail Banco’s duties at CDC and 4B’s. It

found “that Banco worked two physically demanding jobs seven days a week, and well in

excess of 40 hours per week, for over 25 years.” The court found that she was exposed to

working conditions of the type and kind which would give rise to her shoulder condition

both at 4B’s and at the CDC, where she continued to work after leaving employment with

4B’s.

¶15     Our review of the depositions in light of the deference owed to the WCC’s

findings of fact leads us to conclude the court had substantial credible evidence upon

which to make these findings. Banco admitted she continued to work at CDC after she

left 4B’s. Banco described her duties at CDC in the June 2005 Randolph interview, and

did not indicate any of those duties had changed since the time she worked both jobs.

She was still responsible for making breakfast and lunch daily, requiring constant

“multi-tasking” to have the meals ready on time, afternoon snacks prepared, and

everything cleaned up to be out by three o’clock. She told Randolph, “then I have

paperwork[,] which I don’t have time to do.” Though she testified in her deposition that

her work at CDC had changed so that she did “more paperwork” and co-workers assisted

with the lifting, this testimony occurred long after her last day of work at 4B’s and nearly

a year following surgery. Dr. Bortnem’s records show it was not until July 2005, nearly

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three months after she quit 4B’s and a month after surgery, that he wrote an order

permitting Banco to change her duties to paperwork only. The evidence in the record,

though limited, supports the WCC’s finding that prior to her surgery, Banco continued to

work at CDC in the same capacity before and after she quit work at 4B’s.

¶16    Banco finally contends the “last injurious exposure” rule should not apply here

because she worked the two jobs concurrently and was exposed to conditions giving rise

to her OD at both places of employment. Had the WCC not made an express finding that

Banco was last injuriously exposed to the hazard at CDC, this argument might require

further consideration. Given the WCC’s findings, however, which we have found to be

substantiated by the record, the law precludes imposition of liability on 4B’s. The WCC

properly applied the statute to the facts of this case.

¶17    We conclude the WCC had substantial credible evidence upon which to find

Banco was “last injuriously exposed” at CDC to working conditions of the type and kind

that led to her OD. Accordingly, we affirm its judgment that Liberty is not liable for

Banco’s OD.

                                                   /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT




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