Preview:

97-272

No. 97-272 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997

WILLIAM POLK, Petitioner and Appellant, v. PLANET INSURANCE CO., Insurer and Respondent, KOCH AGRICULTURE, INC., Employer.

APPEAL FROM:

Workers' Compensation Court, State of Montana Honorable Mike McCarter, Judge Presiding.

COUNSEL OF RECORD: For Appellant: Lawrence A. Anderson, Howard F. Strause, Attorneys at Law, Great Falls, Montana For Respondent: Sara R. Sexe; Marra, Wenz, Johnson & Hopkins, Great Falls, Montana

Submitted on Briefs: November 13, 1997 Decided: December 30, 1997 Filed:

__________________________________________
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-272%20Opinion.htm (1 of 8)4/18/2007 1:28:46 PM

97-272

Clerk Justice W. William Lepahart delivered the Opinion of the Court. Appellant William Polk (Polk) appeals from the February 26, 1997, Judgment and Order of the Montana Workers' Compensation Court, affirming the findings of fact, conclusions of law, and final order of the hearings examiner of the Department of Labor. Polk raises the following issues on appeal: 1. Did the Workers' Compensation Court err in holding that Polk had failed to prove causation? 2. Did the Workers' Compensation Court err in holding that the unlawful medical panel procedure was not reversible error? 3. Did the Workers' Compensation Court err in reviewing the decision of the hearings examiner under the clearly erroneous standard of review? Because we find issues one and three dispositive, we will not address issue two. Factual and Procedural Background Koch Agriculture, Inc. (Koch) owns a Great Falls factory which processes seeds, such as flax, rape, linseed, and mustard, into oil and meal sold for cattle feed. Appellant William Polk (Polk) worked in the factory owned by Koch and its predecessors from 1985 to 1993. Polk performed physical labor at the factory, including carrying and stacking meal sacks, shoveling seed, sacking and unsacking meal, blowing dust residue off of the walls, and cleaning the machinery. Polk also scraped moldy grain from the inside of elevator and machine pits. Koch's factory is housed in one building, which is 150 feet long and 70 feet wide. The building has one two-foot ventilation fan on the ceiling. Because the process of transporting, cleaning, and milling the seeds generates dust, additional fans were occasionally brought in to blow the airborne dust away from workers. Though Polk's job subjected him to dust, fumes, and airborne mold, Koch did not provide him with a dust mask until 1992. After 1992, Polk was given a paper mask, which often became clogged with dust and sweat after a few hours. In April 1991, Polk began experiencing health problems. He suffered from chills, fever, and persistent diarrhea. In February 1992, Polk was hospitalized for fever and chills. He testified that thereafter he "never felt good." He tired easily, had trouble breathing, and lost nearly 40 pounds. In November 1993, Polk was again hospitalized for ten days for fever, chills, and a cough. Shortly after, Polk's doctor ordered him to leave work. Polk continues to suffer severe shortages of breath and lightheadedness. He has lost nearly half of his lung function, and his low blood oxygen level frequently requires him to use supplemental oxygen. For about 30 years, Polk smoked one and a half packs of cigarettes a day. He attempted to quit smoking in December 1993, but still smokes occassionally. In January 1994, Polk filed a claim for occupational disease benefits against Koch
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-272%20Opinion.htm (2 of 8)4/18/2007 1:28:46 PM

97-272

and its insurer, Respondent Planet Insurance Company (Planet). Pursuant to

Download 94459cee-478b-4da6-9c2d-b51b499ae478.pdf

Montana Law