 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Fuss v. Insurance Co. of North America11/25/2003
DECISION AND ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
The matter before the Court is claimant's motion for partial summary judgment. Claimant asks the Court to find that Insurance Company of North America (ICNA), one of two respondent insurers in this case, is liable for claimant's current medical problems which are primarily respiratory in nature.
Undisputed Facts
During 1997 and 1998, claimant was employed as a janitor at two businesses - 4B's Crossroads and Truckers Express, Inc. The two employers were affiliated and, during 1997, 1998, and parts of 1999, were both insured by ICNA, which at that time was known as Cigna but hereinafter referred to as ICNA. (Petitioner's Statement of Uncontroverted Facts, 1, Ex. A; ICNA's Response to Petition, IF.) ICNA ceased providing coverage for 4B's Crossroads on July 1, 1999, and for Truckers Express, Inc. on August 1, 1999. (ICNA's Response to Petition, IF.)
During 1997 the claimant developed hoarseness and loss of voice. (Ex. A and B to respondent's Statement of Uncontroverted Facts.) On March 27, 1998, a representative of both employers wrote to ICNA reporting the claim and enclosing a First Report listing Truckers Express, Inc. as the employer. (Petitioner's Statement of Uncontroverted Facts, 5, Exs. A, B.) The letter stated it would be "acceptable for this occupational disease to be handled through the Truckers Express account" and noted the employer did not question the claim. (Id., 5, 6, Ex. A, B.)
On June 1, 1998, ICNA denied the claim. It informed claimant that "the information we have received indicates that your condition cannot be directly related to your occupation." (Petitioner's Statement of Uncontroverted Facts, 9, Ex. F.) Nonetheless, the insurer referred the claim for evaluation by the statutory Occupational Disease Panel. (Id.)
On August 4, 1998, Dr. Dana Headapohl performed an Independent Medical Examination on referral from the Department of Labor and Industry ("Department"). (Petitioner's Statement of Uncontroverted Facts, 11; ICNA's Opposition to Partial Summary Judgment, 1, Ex. 1.) She concluded:
In response to the specific occupational disease questions:
Mr. Fuss has pre-existent atopy as manifested by asthma as a very young child and positive allergy testing to a variety of exposures. However, he had been asymptomatic until high occupational dust exposures in the fall of 1997.
His upper airway irritation, nasal and sinus congestion and dysphonia meet the proximate causation criteria for occupational disease.
He continues to work at his job in a modified capacity. He should be able to continue his job with the use of a dust mask and a HEPA filter vacuum cleaner.
Allergy shots for dust mites and pollen (likely contaminants in the dust at work) is recommended on an ongoing basis.
With regard to apportionment, 50% of his symptoms are occupationally related and 50% for his underlying pre-existent atopic condition.
(Ex. 1 to ICNA's Opposition to Partial Summary Judgment.) I note here that the occupationally related symptoms addressed by Dr. Headapohl were "upper airway irritation, nasal and sinus congestion and dysphonia," and nothing more. "Dysphonia" is "defective use of voice." (Encyclopedia Britannica Dictionary 2003, Ultimate Reference Suite DVD.)
Based on Dr. Headapohl's report, on September 9, 1998, the Department issued an Order of Determination concluding that "claimant is suffering from an occupational disease and is entitled to benefits under the Occupational Disease Act." (Petitioner's Statement of Uncontroverted
Page 1 2 3 4 5 Montana Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|