                               No.    91-471

             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1992



KATHLEEN HUGHES,
            Claimant and Appellant,


DEPARTMENT OF LABOR AND
INDUSTRY/STATE COMPENSATION
MUTUAL INSURANCE FUND,
            Defendants and Respondents.



APPEAL FROM:        Workers' Compensation Court,
                    The Honorable Timothy W. Reardon, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                    Richard J. Pyfer, Small, Hatch, Doubek     &   Pyfer,
                    Helena, Montana
            For Respondents:
                    Leo S. Ward, Browning, Kaleczyc, Berry     &   Hoven,
                    Helena, Montana


                                  Submitted on Briefs:    April 23, 1992
                                               Decided:   June 3 0 , 1992
Filed:    JUN 3 0 1992

    CLERK O F SL!PFTE%?
Justice Fred J. Weber delivered the Opinion of the Court.

     The Montana Worker's Compensation Court (WCC) upheld an order
by the Montana Department of Labor and Industry (Department) which
denied claimant, Kathleen Hughes (Ms. Hughes), recovery for medical
care and wage loss benefits under Montana's Occupational Disease
Act 5 5 39-72-101 et seq., MCA.   Ms. Hughes appeals. We affirm.
     The issues raised by the claimant are restated as follows:
     1.   Did the WCC correctly determine that Ms. Hughes1 medical
condition was not proximately caused by her employment?
     2.   Did the WCC correctly reject claimant's contention that
the Department's findings of fact were clearly erroneous?
     Ms. Hughes suffers from a severe form of atopic dermatitis.
The record includes medical reports from several specialists who
have evaluated and treated Ms. Hughes for this condition from 1983
to the present, including internists, dermatologists and the
dermatology departments at Mayo Clinic in 1988, the University of
Oregon in 1987 and the Virginia Mason Clinic in 1986.
     In deposition testimony, Ms. Hughes' treating dermatologist
stated that he treated Ms. Hughes for her dermatitis from October
1983 to November 1989.     In 1983, during this examination, Ms.
Hughes indicated that she was suffering from a "flare-up" in her
skin condition which had begun in September 1983.       The doctor
stated that her condition was aggravated by changes in temperature,
dust and air flow.   He also testified that when he examined the
claimant in 1989, she was totally disabled due to her illness.
in ally,    he testified that Ms. Hughes was able to minimize her
disease through aggressive care and by remaining inside her home in
a controlled environment.
     Ms. Hughes testified she began working as an investigator for
the Montana Department of Labor and Industry in October 1983, and
began traveling for the Department in February or March 1984. Ms.
Hughes stated that she suffered from localized incidents of
dermatitis prior to her employment as an investigator, and that she
began having serious problems with her skin in 1986.          Ms. Hughes
stated she suffered a severe alflare-upat the disease in 1986
                                        of
after conducting an audit at a talc mine.            She describes her
condition     as   getting   progressively   worse    after   that   time
culminating in dermatitis coupled with staph infection which
covered approximately ninety percent of her body.
        In April 1988, the atopic dermatitis rendered her unable to
work.      At that time she began treatment with her current treating
physician, Harry S. Etter, M.D.          Dr. Etter hospitalized the
claimant and referred her to the Mayo Clinic for evaluation and
aggressive treatment.
        In a 1989 report submitted as evidence, Dr. Etter writes that
Ms. Hughes has a twenty year history of severe atopic dermatitis
which had significantly worsened since 1986.         Dr. Etter testified
that Ms. Hughes remains totally disabled by this condition because
of the aggressive treatment schedule required to control the
disease.     He also testified that environmental conditions such as
temperature      changes, dust                and    wind   aggravated   her      medical
condition.        Finally, Dr.                Etter testified that prior           severe
outbreaks of dermatitis did not increase Ms. Hughest susceptibility
to outbreaks currently or in the future.
     Ms. Hughes submitted a claim for benefits under Montana's
Occupational Disease Act.                  The insurer did not accept liability
under the Act.             Thus, pursuant to g 39-72-602(2) (a), MCA, the
Department directed Ms. Hughes to a member of the medical panel for
examination. Lance Hinther, M.D., a board certified dermatologist,
examined the claimant. On May 9, 1990, Dr. Hinther issued a report
consistent with the analysis of Ms. Hughest treating physicians.
The report stated:
     Atopic dermatitis is a disease that is intrinsic to the
     patient and not caused by her occupation. It is possible
     that environmental conditions such as fluctuations in
     temperature and humidity can significantly aggravate the
     degree and involvement of the skin condition.
             *         *            *     *      *     *     *      *       *
     Although atopic dermatitis is aggravated by the patient's
     job exposures, it is an condition that would be present
     even without her prior work history.
         *         *            *         *      *     *     *      *       *
     In summary, Kathleen Hughes has atopic dermatitis, a skin
     condition which is not work caused but is occupation
     aggravated.           ..
Neither party requested a second medical examination.
     On November 14, 1990, both parties presented their arguments
to the Department's hearings examiner.                       On April 19, 1991, the
Department       issued         an      order   denying     Ms.   Hughes'       claim   for
occupational disease benefits.                       This order was reviewed and
affirmed by the WCC on September 3, 1991.                          The WCC found the
Department correctly applied the statute on proximate cause.       It
further   found   the   Department's   findings were   supported   by
substantial evidence in the record.     Ms. Hughes appeals from this
WCC ruling.
                                   I
     Did the WCC correctly determine that Ms. Hughes1 medical
condition was not proximately caused by her employment?
    Ms. Hughes claims that although she suffered from dermatitis
prior to working as an investigator for the Labor Department, the
unusual travel requirements of the job aggravated her medical
condition to the point of disability.
     Section 39-72-102(10), MCA defines occupational disease as
"harm, damage or death     . . . arising out of or contracted in the
course and scope of     employment . . .     Section 39-72-408, MCA,
defines proximate cause under Montana's Occupational Disease Act.
It states in part that occupational diseases arise out of the
employment only if: "(4) the disease does not come from a hazard to
which workmen would have been equally exposed outside of the
employment; and (5) the disease is incidental to the character of
the business and not independent of the relation of employer and
employee."
     Here, Ms. Hughes contends her medical condition was aggravated
by environmental factors incidental to her employment.         Those
environmental factors include extensive travel in heated or air
conditioned vehicles which exposed the claimant to temperature
fluctuations, air flow, dust and wind resulting in aggravation of
her medical condition.
     The State Compensation Mutual Insurance Fund (State Fund)
contends that Ms. Hughes1 employment did not proximately cause her
medical condition under 5 39-72-408, MCA. We agree that Ms. Hughes
cannot satisfy the proximate cause standards.
        In this case, the medical reports support the W C C 1 s findings.
First, the claimant's condition is intrinsic to her and not caused
by her occupation. Further, the environmental factors aggravating
her condition are not indigenous to her employment.               Rather
temperature fluctuations, air flow, wind and dust are common to
everyone.      Finally, there is no evidence in the record which
connects her prior outbreaks during employment with the outbreaks
she currently suffers.       In deposition testimony Dr. Etter stated
that her prior outbreaks of dermatitis did not make Ms. Hughes more
susceptible to future outbreaks, We affirm the W C C 1 s conclusion
that Ms. Hughes1 illness does not arise out of the course and scope
of her employment and is not an occupational disease.
        Finally, Ms. Hughes contends she is entitled to recovery under
the Act's aggravation statute, 5 39-72-706, MCA, which states in
part:
        If an occupational disease is aggravated by any other
        disease or infirmity not itself compensable or if
        disability or death from any other cause not itself
        compensable is aggravated     . . .  by an occupational
        disease, the compensation payable under this chapter must
        be reduced and limited to such proportion only of the
        compensation that would be payable if the occupational
        disease were the sole cause of the disabiity or death as
    such occupational disease as a causative factor bears to
    all the causes of such disability or death.
This section limits the insurer's liability to the proportion of
the disability caused by an occupational disease.          It requires
either an occupational disease aggravated by a non-compensable
illness or injury or a non-compensable injury or illness which is
aggravated by an occupational disease.        In this case, the WCC
determined that the claimant is not suffering from an occupational
disease.   Rather, the claimant has an intrinsic non-compensable
disease which is aggravated by environmental factors not specific
to the claimant's former occupation.
    We conclude that 5 39-72-706, MCA, does not create a cause of
action for an aggravation of a pre-existing condition unless the
pre-existing   condition   is   an    occupational    disease   or   the
aggravation itself is an occupational disease.       Accordingly, 5 39-
72-706, MCA, does not apply in this instance.
     We hold that the WCC correctly determined that Ms. Hughes'
medical condition was not proximately caused by her employment.
                                 II
     Did the WCC correctly reject claimant's contention that the
Department's findings of fact were clearly erroneous?
     The WCC upheld the hearings examiner's    findings of fact.      In
reviewing the findings of the Department of Labor and Industry, 5
39-72-612(2), MCA, states in part that the WCC may overrule the
Department's   determination if the determination is:           "clearly
erroneous in view of the reliable, probative, and substantial
e v i d e n c e on t h e whole r e c o r d .      . .     .      H e r e t h e WCC found t h e

Department 's determination was supported by substantial evidence in

the record.         W e agree t h a t t h e r e c o r d supports t h e Department's

findings.       F u r t h e r , the WCC used the p r o p e r s t a n d a r d of review.
       W e hold that t h e WCC p r o p e r l y r e j e c t e d c l a i m a n t ' s       contention

t h a t t h e Department's       f i n d i n g s of f a c t w e r e c l e a r l y e r r o n e o u s .




W e Concur:             4
                                     June 30, 1992

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Richard J. Pyfer
SMALL, HATCH, DOUBEK & PYFER
Livery Square, 39 Neil1 Ave.
Helena. MT 59601

Leo S. Ward
BROWNING, KALECZYC, BERRY & HOVEN
P.O. Box 1697
Helena, MT 59624

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
