Statute in effect on last day of work determines timeliness of claim
Case name: Fleming v. International Paper Co., et al., No. 05-738 (Mont. 09/23/08).
What it means: The statute of limitations in effect on an employee's last day of work governs whether an occupational disease claim has been timely filed in Montana.
The claimant was diagnosed with asbestos-related lung disease in April 2001, but did not file an occupational disease claim against IPC until 2004. The commission dismissed the claim, finding that it was barred because the claimant did not file it within one year of the date he knew or should have known that his condition resulted from an occupational disease. In reaching its decision, the commission applied the 2003 version of the statute because it was the version in effect when the claimant filed his petition. The Supreme Court reversed the dismissal of the petition. The commission should have applied the version of the statute that was in effect in November 1993, when the claimant last worked for IPC.
Under the 1993 version of the statute, the limitations period does not begin to run until the claimant becomes totally disabled from the condition and is aware that his total disability resulted from an occupational disease. According to the medical evidence, the claimant was capable of working because he only suffered from "minimal asbestos-related pleural thickening." The 2003 version of the statute does not contain the total disability requirement.
The court noted that because the claimant worked at the lumber mill for three different owners, a question remained as to whether his last day of work for IPC or for a different employer governed his claim based on the last injurious exposure doctrine. In addition, the claimant's total disability status and entitlement to occupational disease benefits had yet to be determined.
November 4, 2008
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