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Vercos v. Worker's Compensation Risk Retention Program6/30/2004
The trial in this matter was held in Kalispell, Montana, on January 6, 2004. The petitioner was present and represented by Ms. Laurie Wallace. Respondent was represented by Mr. Leo S. Ward. Due to time constraints, cross-examination and redirect of Mark Hlebichuk was resumed and completed on February 2, 2004, with the Court participating (with the parties' agreement) by telephone. The matter was then deemed submitted for decision.
Exhibits: Exhibits1 through 29 and 31 through 33 were admitted without objection. The Court reserved ruling on Exhibit 30, which is an air quality report at the College of St. Catherine, which previously employed the petitioner. Respondent objected to the exhibit on the ground it was untimely exchanged and on foundation and hearsay grounds. The petitioner did not provide foundation evidence but offered the exhibit as an impeachment exhibit. The report concerns mold levels at the College of St. Catherine. Respondent did not offer any evidence concerning mold or the lack thereof at St. Catherine, therefore, the exhibit does not qualify as an impeachment exhibit. Moreover, the fact that it is offered as impeachment evidence does not nullify the requirement for foundation. The exhibit is refused.
Witnesses and Depositions: Petitioner, Maria Zoria Yates, Edith Wagner, Christine Moore, and Mark Hlebichuk testified in person. By agreement of the parties, Dr. Emil J. Bardana testified by telephone; he was scheduled to appear in person but bad weather prevented him from leaving Portland, Oregon, where he resides and practices medicine. In addition to the foregoing testimony, the parties submitted the depositions of Maria Zoria Yates, Edith H. Wagner, Rosita Crawford, Mike Hannon, and Wayne Sinclair (two depositions) to the Court for its consideration.
Issues Presented: The issues, as set forth in the Pretrial Order, are as follows:
a Whether Petitioner suffered an occupational disease arising out of and in the course of her employment with the Browning School District.
b Whether Petitioner is entitled to temporary total disability benefits and reasonable medical expenses related to the treatment of the occupational disease.
c Whether Petitioner is entitled to an increase in award for unreasonable delay or refusal to pay proper workers' compensation benefits pursuant to §39-71-2907, MCA.
d Whether Petitioner is entitled to costs and attorney's fees pursuant to §39-71-611 and/or 612, MCA.
(Pretrial Order at 3.)
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
This case involves a claim by Anastasia Vercos (claimant) that she suffers from an occupational disease as a result of her exposure to mold while employed by the Browning School District. Mold is a fungus and fungus reproduces through spores.
The claimant is a certified teacher for grades seven through twelve. She began teaching in the Browning Middle School in Browning, Montana, in the fall of 2001 and taught at the school until taken off work on May 2, 2002.
The claimant has a history of allergic rhinitis, which is inflammation and swelling of the nose and sinuses. (See Sinclair Dep. at 16-17.) At least until the year 2000, her rhinitis was seasonal, commencing in the spring and ending in the autumn. (Ex. 12 at 11.) She treated it symptomatically with an antihistamine (Allegra). (Id.)
According to a medical history taken by an allergist on May 17,
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