Document Oz6Ypq4L91g8KroQ31oZw28Je

.1 P 'SS March 16, 1967 Aaerloan Adjustment Company F. 0. Box 2625 Great Falla, Montana 59401 ATTENTION i Robert Coni* y i Rat Tear Mitt 1 0 34-016160* Insured t V, B. Oraoe 4 Co, Claimant* Lilas D. Valob Dear Mr. Conley* This will aerre to oonflrm otur varloui telephone convert* tlons./' oonoernlng tbla matter, and provide you with Information now available.. Aa far aa we oan aaoertaln, the flret Indication of a .possible olala by Mr. Veloh waa oontalned In a letter from Attorney Blobard Dstivi, of Great Falla, Montana, to the Montana State ^ O. Industrial.Aooldent Board-dated-Jnly l/r 1965* ln%whloh^Mr^>';'^'\ Dilrl'atated that hla ollent 'suffered from aabeatoala reaalt^.-;* lng fron hla employment with' Insured, and requested*oertaln. Information and forma. On July 12, 1965 forma reqaeated were forwarded to. the i`attorney, and the matter than roe ted'.untll Janaf ry . 14, _ I967, when Mr. D* .vl forwarded the Board an Occupational^Disease Claim.for Beneflta form, subaorlbtd' by olalmant Veloh,': and ' dated December 16, 1966, together} wlth a narrative .report V . aubmltted by Dr. C. G. MoCarthy,. of Mlaaonla, Montana.-.V A. i.'*'" e Our ovn lnveatlgatlon reveals that Mr. Veloh haa been employedU'- by innured. In the Libby, Montana area alnoe February,8r'19^ 9 He worked-In the mill until April 14,1949, or for. a period of approximately, two monthe, and then alternated be tween l''r- driving truck and working on oonetruotlon for approximately aeven years. Hla truok driving experience lnolnded both-*'r;.:*''s*.V; work In the mine, aa well at. hauling . the, ref lned produot ".'G,; ;lrom .the lower ore bln to^tLe storage china -near tthe'"railrbadll. ^r Slnoe Ootober l5t 1956 Mr. Velch haa.been employed-ln the warehouae -J ::V. X.- X-'-vV..-.- L-y~ V. -'r- si-.& -Vjmsssmmm via PLAINTIFF'S EXHIBIT Av^n = PLAINTIFF: * EXHIBIT U)&-/zs  ifp EXHIBIT -fi- Ve ere Informed by Mr. Karl Lori ok, Manager of the insured's operation* In tb* Libby, Montana area, that to hie knowledge Hr. Velob vai raleed In the are#, and ba* bad no employment experience whlob night bare subjected bln to tba type of exposure with vbloh we are dealing, other than ble work wltb our Insured. Hr. Velob la presently 6k year* of age, baring been born on February 5 1903* and la apparently presently totally dis abled with raapeot to any enploynent whleh weald easse any sort of pbysloal exertion. .j Ve are lnfornod that be singly would be unable to walk aerosa a olty atreet without stopping to rest nt soma point. Clainant bad beeu enployed in the warehouse as a parts for the past several y< era,'and for . the las'. year er two baa been unable to ollnb etaire or engage in any activity vbloh involved nore than nlnlmal axertlon. Vr are advised by Mr. Lovlok that they allowed Mr. Velob to oontlnne with bis enploynent until he simply oould not oontlnne, and aa the work he was doing was tba saslsst Job available,' there slnply was nothing for bln to do other than resign. >J1-'.'j'c.. J-,r. : Aooordlng to insured'sreoords, olainact's last datat. enploynent was 11/8/66He.is entitled to Soelal Seourity:^ 'f:-. benefits and eons snail pension fron the Coapany, and wears' lnforaed that ble present oredl ts would allow bin tba snn C:'--:!1; of $331.09 per year if he bad been able to wait until ha 65 years of age prior to retiring, but that hie benefits, beeause of his prematur*' re tirenent would. be aotuarily . .." soaled down. .. J-->;?*'i** .. * . > . *. _ w a , _.! r ; '*. ; . * ,, . r* ;"-Vr. Ve ere further Informed that various elalrs htve bran.for- v.*` warded to the Travelers Insurance Coup any, whlob oarrler. provides health and aooldent.oorerage to lnsured'a employees ,V'Vi with respeot to ne \loal expenses:for.'ssvsral ysars, andv'.tkat...^^ be is "in fact now drawing sons sortTof weekly benefit as result of bls_ disabill ty. In this respeot, the various '^;: - :' ^ nedioa.'. expsi ss olains, as well aa the present ( laabll 1 ty ^ jl". :. olaln, have been presented to Travelers as not Job raLatnd,.' ' .and they have for several years paid suoh expenses, and-are, ' (or so we are advised, presently, making.payment bf .tbe weekly . .-^ benefits. /; ; In 'this regard11.night bs :notsd~;tbat;after .Mr, Velch'e retirement, Dr. HoCartby had forwardedjInsured a form Indi cating that his dlffloulty was in faot.related to his employ ment , thovever Mr. Lovlok had written that oarrler and informed , thin tbit Id bis opinion, the difficulty wee In no way job oonneoted, and aa a result, Travelers did aooept the olaln. -3- In discussing the situation with the Industrial Aooldent Board however, we are informed that Travelers has now written then requesting information with respect to Hr. Veloh, and It nay be eseumed that that Conpany will now deny applicability of its coverage in view of Hr. Vsloh's present olaltis. Ve examined all of Insured's rsoords relative to claimant's medical history, and are at this time forwarding ooples of all pertinent Information. It should be noted that the flrt Group Hospital Insurance Claim is dated 4/19/63, and indicates that claimant was adnltted to St. Patriok's Hospital in Missoula, Montana on 3/29/6J. In bis Claim for "`neflts, Mr. Welch has indicated that'he first consulted Hr. McCarthy with respect to his present disability on Karoh 27, 1963.' Vs do not presently have lnfornatlon concerning claimant's medloal history prior to that date, however will attempt to ojtaln whatever may be available, either through cooperation of counsol, or dlsoovery proceedings. At any rate, it Is Interesting to note that Dr. McCarthy's First Report, dated April 2, 1963, describes the injury as "Pneumonitis. Post pneumonlo syndrome which is continuing caused by chronic lung asbestosls". The diagnosis appearing on the original hospltal_'claim-: indicates as follows! "Benign prostatlo hypertrophy';'*':Arteriosclerotic heart disease. Chronic lung disease". In March of 1964, It appears that clainint suffered from ; Bronchitis, and In June of 1964, his condition was again .. diagnosed by Dr. McCarthy, as AsTjestosis. In March of 1965,.-. a Dr. G. A. Diettert of the Western Montana Clinic, diagnosed the condition as nAcute..flbrosia secondary to asbestosls". In May of 1965, Dr. McCarthy diagnosed "Bronchial pneumonia; -- Silicosis". In August of 19'>5, Dr. McCarthy lndioa^sdthat Tv claimant had suffered from "Bronchial Pneumonia" and ."Pneumo coniosis", in June of that year,*"and from'"Furunculosis" *.' * In August. \ . ' A medical report dated January 24, 1966 by Dr. MoCarthy Indi cated the condition then existing os "Furunculosis" and the records then opparently Jumped'to December of 1966, `at vhioh . titae claimant vae hosplta 11 red with JBronclila 1 Pneumonia. At that tine Dr. McCarthy indicated the'oondi tlon;to have arisen out of his employment. . : ; * . .:. 7 As you are of course avare, Insured is engaged in the naon- facture of a product distributed under tbe brand nans "Zonollte". 7-onoJite Is actually Vermlcultte, and the ore involved is mined on insured's premises through open-pit methods. It is then hauled on trucks to a transfer point / vherc it is dumped In hoppers and then conveyed some 1700 feet to the mill site. It is then fed to the "wet Bill" where It is vet processed and screened. Gen*rally speaking, the screening develops two sizes of ore, ard the smaller size Is concentrated through a floatation process In the wet Bill. Goth sizes are then run through a dry shed to the 'try-mill, and at that point the fine ore is screened for size. 'The coarser material is crushed through the use of both roll crushing and hammer-mill procedures, and after'soreenlng is placed in a holding bln. From that'point it is hauled by Truck to storage bins which are situate near the Great Northern Railway, from which point it is shipped to approximately 50 expnnding and packaging plants in the United States and Canada. Insured does maintain an expanding and packaging plant in the City of Libby where it does proceed on with the.final procesling procedures with some ol" its product. Tt does appear that the Montana State board of Health;.as wall as the Montana State Tuberculosis Sanitarium at.Oalen have been, interested in insured's operations for some time,.' The mill of course has created a dust problem, and insured has been engaged in attempting to improve ventilation and its dust collection system for lose' years. Mr. Lovlok has furnished us with copies of all available information, relating to.thlB -;. particular problem, and the first record of interest evJdenoed . by the Montana State Board of Health li oentained ln a' report . from that Department to tbe insured's Libby Offleesdated February 11,.19^2, oonoerning tests conduct ed . on. December 9, 194V.: Ve' are enclosing oopies of all reports and icorre*pondono* involving',the Montana State Board of UealtL. f orryour^revlew, however;it* should'generally be noted that a duat.condition In tho mill' area has existed, and has at times presented a sevore problem. The report of Februury 11, 1992, prepared and subnii t led .by the.Director and.Chief Engineer.of the Division of industrial Hygiene, indicates that the dust encountered in the plant contained little or no silica, and that It was therefore.?, classed .as. "a ^nuisance dust" with s threshold.''.limit. of .50 ml 11 ion'particles ' per cublo foot of alri :*' . r>s? 9 ondur ted by the State board of Uealth in August of l.qS again apparently specifically considered a free silica ,'muir, and again the dust was described as of a nuisance type only, vitli a eilnor free silica content. At the tine of these tests, the asbestos content of the dust had not been determined however iwas Indicated that a small percentage Increase In the asbestos content of the material being processed would/ produce several tines greater concentration of the dust in the area, and indicated that the maxicuo allowable concentration for asbestos yaa 5 million particles per oublc foot (MPPCF). j' This report went on to indicate that Vermiculite, dust from this oaterial, was not considered to bo was generally considered only os a nuisance duet. content of the duot however was causing the State ;-eal th eone anxiety at that tine. \ or the toxic, and The asbestos Board of Jr. n report dated January 12, 1959, Mr, benjamin F. Wake, v)io was then and now is the Industrial Hygiene Engineer uf the State Heard of Health Division of Disease Control, indicated that his teBts conducted on December 16 and 17, of 195^, determined there to be an asbestos contont in tbe dust in the.mill of approximately 27'*. He quoted from an Article InrJ he.vJournal^o f Industrial hygiene entitled "Pulmonary Ashes Los is" 'as follows: . - `-'`v-r-'.- : v.v" -0 ."Inhalation of asbestos duet oust be expected'. ' sooner:/or later- to produce pulmonary fibroeis, depending upon (a) length of exposure and (b) nature .and concentration of the dust. Pulmonary .nsbestosis, once establishod, is u -progressive .disease with'a.bad prognosis; its treatment can only be synp tonat 1 c . " . y :. ` N .both. in the .reporV of 195b and ' 1959 . i t* was ind i ca ted that the Ginximua/allovnble concentration of asbestos particles couid bej.de;te,rojned only through a "wolgbted average" formula involving?;tHb,>concentration'of/material., and. the .hours of exposure, and neither-report indicated that the 'aabe'stoa ' concentration in tho Dill was either excessive or acceptable. In a report., involving tests conducted in Mor h of lf>62, again by-Mr. ..Benjamin VaUe, it was indicatod that it had been 'de tcn2ined.'..Llia t he airborne dust In the mill containedapproximately kr'% ' " t remo 11 to asbestos". It' was. further,. :indicutud.-tho t thlle originally it had been felt that' the vermiculite dust should be classified as a nuisance type only, later Information supplied by the United States Public. Health'Service.Indicated that the vermiculite without asbestos -6- nnocntrot1 on should In fact be classified In the order o1 r.; i r;-! 1 ko minerals, and that the maximum conccu Lth 11 oil allov;,lil e should bo 20 M1TCF, rather than 50 Mi'l'CT. Again, the presence of asbestos fibers obviously was causing some anxiety In the mind of the engineer concerned. A review of a report relating to tests oonducted In 1963 ugoin Indicated there to be a rather high e.sbes'tos concentra tion In the nir dust in the mill, and additional ventilation wan recommended. It was indicated that the sazliUB allowable concentration of asbestos concentration was 5 MPPCF, based upon a 40S asbestos content In airborne dust. V'e are In addition to the above reports, attaching copies of correspondence which merely seems to fairly well establish the existence of an asbestos concentration in the dust at the nl11 site, and the sincere attempts by the Insured to alleviate the entire dust problem through the improving of its dust collection and ventilation methods. relating all of the above background and information to the instant case, It would seem we must first oonslder Dr. C. G. McCarthy's diagnosis as set forth In his attending Physloian's First Report, dated January 30t 1967, copies of which you have in your file. You will note that Dr. McCarthy states as follows: v -.v * *'; ' '.ij, "Exacerbot1 on of chronic, lung disease, suspect bronchopneumonia. All of these superimposed on ellicosis. Chronic Pulmonary Fibrosis,'-; secondary to asbestosls, pneumoconiosis secondary to zonallte." J` - I dlicuesed this particular oase pert anally with Dr. McCarthy 'ot bis offices in Missoula^ Mon'anaand be 11 eve we cay expect him to act as an advooate on claimant's behalf. Lie Is positive In his assertion that Mr.:Velch's oondltlon is a direct and proximate result.of hia employment,; and his oxposuro to dust in the Insured's premises and operations, lie indicated to me that he felt that there, were four.known pneumoconiosis resulting from^halation of dust ;pnrtlcles, and further that he felt we L:lght be faced with an entirely new and as yet unestabl1 shed Industrial disease.- He Indicated that he hod concluded positively through x-ray examination and.tests that claimant does suffer.from asbestosls, and infornod me that the symptoms of this disease as exhibited through' x-raywe re ns easy for hire to detect as a "red flag being ;vaved" -or something to that effeot. .> t . . *1 ; *1 1 -7- ji la or course Intereating to note that Pr. McCarthy la ippnrently iHo.cnos lng n case of silicosis, combiner! with asb^stosls, together with an unknown pneumoconiosis jso mj*! lary to Zonal tto" and I an sure ho feels he hasikthus *ovr-n*d nil possibilities. From nil information furnished us, as evidenced In the enclosures, we simply should not in any way be facing the prohler. of silicosis, in that it hos been determined thnt Fthoer fthreee hosciltiocra tocodneteen.'tribles .^sao "Pmnineiummaol coasniotsois psreesceondt anroy to Zproonballeimte.:" is, it would appear, so sweeping in extent as to have oo value as a diagnosis. As above indicated, "Zonolito" is nerely a trade name, and the actual mineral involved is Vemiculite. Whether the Dootor is attempting to describe i pneunoconiosis resu1 ting f1oa inhalation, of Vermiculite ilust would seem to be questionable, and fros my own conversa tion with hin, I feel lie has Included this particular, diagnosis in an attonpt to assist Mr. Welch to the greatest, extent possible. Vo are informed that the minerals processed in the mill, which presumably would exist in sons combination in the general dust involvedare .as follows:-. ;" 1. Dlopsido, CaO 'MgO. 2S10,, .' r> Auglte, CaO * 3 (Fe,Mg)0.Al203.^SlO3 3 Vermiculite , .0(Mg,Fe )0-4(AlFe ) o*0-. 10S10-. 7Il90 ** V U Ingioclases (the group),.Ma20,A1o0_.6Si0o to cuo.ai2o3.2Sio2 . T> 5 orthorlases (mainly microclinc) KjO.Al2Oj.6Si02 h lilotlte (K,n)9.0(Mg',Fe)0. (A1, Fe )n'\ 3Si 0,, -j- * l Av 11 no l-i te , Cot). 3(Mg , Fe )0.4sl0^ w y Trcrao 1 i tc , 2Cnu . cS i . H^O *. t Traces of other minerals (oaguetltei tltanlte, opatite, and quartz) have boen detected at . various tines, is l understand, Items 7 and 8 are some, type of asbestlform, which ir hu extremely short ftbro asbestos, : I 4 | ' i I pUlNTlFP: exhibit A_ A.'; you arc' ol'- mi rse uvarn, Section M'j_1 1 lot is o^cupa- i lon.-i) diseases 10 Silicosis and Aslusiimis, together viib ;*o !_sor. i nc by various chemicals and compound a . '"illc I pri-suMt wo should coDSult a chemist in this respect, it would t>e n\ understanding that in the instant cnee, we 10 u s t consider ourselvos concerned only with the problem * ro l.i 11 iw', io Silicosis and Asbestoala. Again, if die hi I ujr.ia 11 on s o far available is correct, if in fact Mr. vel-rh millers from Silicosis, it should be extremely diffi cult to ;tro.\in;ilaly connect bis condition with his employ ment by our insured when considering the lack of free silica in the nir, and 1 presume ve may be fairly confident that we cAn successfully defend a claim of Silicosis* *.,e liusI, on the other hand, not underestimate the exposure with respect to the claim of Asbeslpsis. 1 have personally discussed the general facts with which we are here concerned .!> ir. A. <. Knight, Superintendent of the Montana State Tuberculosis .'iini mnuia ut Galen, Montana, who In 1959 pvr.dcnred an interest in the content of the dust in the mill at. I.ibbv, ns well ns villi Mr. Benjamin Vake, the Montana State Uoiii d of Health Industrial engineer. r. kn: glit informs ne that to his recollet: 11 on, he,, at least on one previous occasion, was consulted wi th respect-.-loa% /Mi i c. unary problem exhibited by one of lusured * s -employees Ills recollection of the case was that he had at first felt the party Involved suffered from Asbestosis, and had obtained from insured a list of the substances their raw ore contained. lir indicated however that it had l.i that case been determined :i:-u the | orson involved did in fact actually suffer from a disease known as Sarcoidosis, which apparently exhibits .. I'ArAotcn sties very similar to Asbestosis, but which in fact B a disease of unknown origin, and not considered to be the'.', result of outside irritant. ' ` l*r. Knight further stated that he did not feel that Pr. tedarthy could mukc an absolute diagnosis ol Asbestosis without- n biopsy. As you ure of course aware, Hr. Knight is most certainly considered to. he a loader in his own field, :m.l It would be ray assumption thui ollior specialists would acree in bis rcspti't , m 1 :!iOii(;n we ure lnforattl that Asbestosis ;sost certainly doe6 exhibit certain characteristics discernible by x-ray. '1 thout attempting to invade the province of whatever experts we may consult, we find the following in Textbook o f lcd 1 c 1 no, ,*.'lnlh rJltlon, Cecil & l.oeb, at Pace lOpil : . ... . ' '/she s tos 1 s 1 9 n form of pnewnonoc. onl ob 1 a produced hy the inhalation of dust contuinlng OBbcslon or rook wool fibors. The fibrosis of tho lung differs from thnt of silicosis in that It Is not nodular, but distributed In collar-llke lnshion around the ntrlo nml the respiratory bronchioles. The fibers find their way alonir. the Interlobular septa and . into the pleura, outlining polygonal figurej ol ' bl ii "--black color. Coder darkfield illumination lualnous nshostos fibers may be eeen. Asbestosls bodies, which consist of such fibers on which i roncontolning material is deposited, ony be seen In sections as clubbed or beaded shapes. These nre also seen tn siiutur from tine tc time. * "Symptoms of disability, dyspnea and r.augh appear relatively much earlier.in the course of the disease than is usual in uncomplicated silicosis. "Utapnosis depends upon the history of exporure; the appearance of an 1rregu 1 nr reticular f1bros1s in the lung roentgenograms, which has no specific fentures, and tho finding of asbestos bodies In the sputurj. ConfIrmation at autopsy depends upon the lemons t rn Li on of th asbestos fibers anil bodies in the tissues undergoing fibrosis." V . . ' *' - ' :; \ Mr. Vake, of the State Hoard of Health, agreed that the free silica content of the dust in the nren vm such hs to almost necessarily rule out any. connection between Mr. Velch's employment and the condition of Silicosis. He did express nn opinion that the insured had been taking steps as required or sugcost:l to alleviate the entire dust situation, and iv1( their present operations were probably within the boundaries suggested.hy .the State Hoard of Health. He did indicate chat. In the past, h prol^loo had existed, and that l. lie hnd considered tlie possibility of claims arising relntinp - 1 o As lias t os i s .. . .Cl alnant '.s enp 1 oyment .-in..the .warehouse since 1956 would not., have'.exposed hiri'.-to any concentrated dust, other than the.'~i '\'y general . dun ' which does, pervade the entire area around the ` mill. Mr'. Vnko informed that to Ins rocol loot ion he hnd never conducted or caused tests to be conducted at Ihe warehouse, as It.contains only par ts , ..jruter i a 1 s and supplies, and would not se*ni to present-Any sort of exposure other than ' that necessarily present around ,the mill site. Mr. Lovlck ' ' !i::s advl sc'l that-Ms Company doespossess ' d- due t-countlng 'r. device 1 der< i r.o 1 _ to that used by.the- $te to Uoard'- of Ilea 1 th, .*;,:*.* nndthnt tNey do and have;conductod their own air tests , "V from time to time, and ooy have some records relating to . 1 tests made t or near the warehouse. - j n- ti . '.v c I -ii's jTJmt' exposure would of course lnvol v the <; r+ i .n* was coployed in the ail l, iinwnvor tie would in add)non be exposed when driving truck, loading under the Sower hoppers and hauling to the railway junction. In a letter dated Jiecember 30, 1964, from Mr. R. A. hlelch, 'ianr.ecr of the Libby operation, to Mr. J. A. Kelley, copies of which ifve attached, reference Is made on l'nge/4, to the \-p-.9ure ' present at the lower ore bins. We quote as follows i "Loading of the Kenvorth truck beneath the lower ore bins is a dusty operation in u somewhat confined space. The drivers are resp 1 ra tor-eqiii ppec 6nd * nftor opening the loaning gate do not need to remain * at that point but can move a few^feet to a clean location. The truck will not overflow. It takes , approximately 5 minutes to load the truck. Total loading time is about 1 hour per day. The ventllatlon problem Is immense aud other than a rigid enforcement of respirator wearing, no change is scheduled. "Hie haul road to the river loading hius becomes -very dusty during the dry Beauon. Again water was formerly used but the situatlcu has been adequately controlled by the use of oil as in the case of the sine haul roods. "The ciuroping of the Ker.worth truck into either the river loading hoppers or the horizontal storage creates dust in considerable quantities because the vermrulite has been handled through t tie skip system, lower ore bins and Kenworth truck loading. Each handling has boen curaulaMve.' liovevor, actual J limp ing is In tho open so exposure Is reduced to n low level." Employment records Indicate that Mr. Welch was omployed as a truck driver In this particular phase of the operation - from 5/19/49 to 12/16/49. from 10/1/51 to 1/1/52, und from . 9/1/55 to IO/1/56.. ihe remainder of .Ills work history luvolv- - ;ing construction, truck driving in the mine, operating a sand truck and his warehouse experience would not indicate "any exposure to concentrations of dust. o arc 'informed by all pliyBioians wo have quoetioued, that .the suBcep tl bl ) 1 ty to diseasos of the type with.which we are hero conrorued, .vnr1es greatly from one individual to another. One phyBlclun Informed us that he would not oonsider it unusual to find on exposure existing In 1V9Q, reeu1ttngin a disabl11ty '11 s late as 1966, citinx enses of Si 1icosls*whlch have token , twenty years to develop. On the othor haDd, Dr..Knight, of - . .. 2 PLAINTIFF EXHIBIT -] 1 - .'ib* r.M 1 ms i > Mini lATiure expressed surprise that such -i ,cried wouM he Involved before the condiilon i,*. } c i .vrni'i l o ir.*l disabling, Hie fcoJiug seemed tu he that a person who would be so susceptible as to develop i!i? rnnJiiion as a result of exposure of n few months, would im; likely to contract the disease^ qul to swiftly. n.lor an> > i reams t ance s, it does at least appear that we how 1 d be a ii l e to establish that Mr. Velch lias not teen exposed t < nay concentration of dust in hi 6 employment since he look the iob iu the warehouse In October of 1950, wild this point may be of some Importance : :i our defense of the claims p reseu ted . . j-# As you arc nwaro,. Section 92--1311 A.1. provides ns followa: V.\o coripens.i t i on shall be paid vlicr the last dny of t!i- injurious exposure of the employee- to iue nj/.nrd <!' the- ocoupa L lonal disease* !ias occurred pi i.r io the effective date of Mi., s a 'except as tu this section, paragraph "A", subparagraph ** ,'l nvi .led . " ,-.<u; .,i ra m'a |'. i w of tliis ^eultoii seeuis to apply only in the event at: employee hua beun ,discharged or transferred from i his emp 1 oyrjen t' as` n'.Vre-SuI t>rof - an ` oefeupa t; onal disease incurred In that etep* oyment, and iu Die instant case, it does appear that Mr. belch simply continued to work until " ' ,'i . hr finally was nimble to adequately perform his duties.. " t;-v. D.c efiVi : i vc date of the Act was the date of its approval., : r 'inif.ii . . I')}'-', and it would see ft to follow that if in. . l .isc i '>c .<rt ;*.ble to establish thaDwork in the warehouse ots not ' in :n iou.i exposure'' then, ns he linn been ''erjp'l bye d.'f ii*.' ai Inal. pi. tin. since 19 36 , Ji i s 1 as C i n j u r i on s exposure wus t'-v yA:'-. e s<i i* i i y have been prior to that date. y -. .. v 'Die Mir.i' n!i;i nciiipa l i oua 1 Disease Act docs of course provide " ; ' for-Die procedure . to..-.be'ToVIowed . vi th 'respect to de t eren ril ng-si Validity i.* f c 1 n itus pro s.e n tod . Lilther the ''ton (ana Medical Associw11 mi w Die Industrial Accident board is tu appoint .. w modJc.il j'.u.e 1 -iirJ Medical cojirji Hop , uetibsrs ol which uro . iJi.;n Im- inrcii Oil io uouduui necessary .acliual ex an i na t I ons 1 -.wi'j iwforiieM '.v Die Industrial Accident how r.i tha L. i o fact .a ii(;iiuu vie 1 i *a Vi pane 1 or comii ttec lu m exi siecce, uml* p l.a ; ' l In-j r no 1 ua l prac i i c 1 procedure gene rn i 1 y . I s' me re J y . ; * f *., opjw> i ;,i souic..v|Uo 1 i f i ed .-.phys t c lau to .nako and oonduc t , the.'-.. .cxualna t ion requi red - . .. '.'' j *:. :vV-. ' " * ;; 'Vv.v.s:-]%;v:'. PLAINTIFF EXHIBIT - J 2- ilic 'i'i''biin of proximate cnusAllon ns ruqui red and sc' lorlb i it some detail In Section 92-1305 is determined by t:c Inriu9trinl Accideut Board after nil evidence, i :cl.isivo uf medical testimony, is of record. Tho defense of the .lain here presemed will of course involve denial of proximate enusntion, and It is ay assumption we will wish lb have available as nuch Information nrf possible to establish :.*ie lack of free silica In the area concerned, as well as in nu nlte:nni to establish that the asbestos content of the dust is not such as to constitute a proximate cause of the Asbestosis condition claimed. I assume our problem In this latter respect cannot be minimized. i* It would further appear that we should contest any diagnosis of Asbestosis as such, and most certainly any diagnosis of pneumoconiosis related to Zonolito. If Hr. Knight la correct, it may be that oilior experts will not be willing to .give nu opinion ns to the o.\isten:o of Asbestosis wi thou.l biopsy procedure. in this respect, u is my understanding that the Industrial Accident honrd will appoint a physician qualified to conduct examination and express an opinion on the points concerned, however in my discussion with Hr. Swanberg, Chairman of the : Industrial Accident Board, 1 gained the impression that he i-nti id - not/Immediately .-think of any prnc Li^l oner -i.n.; Montana `1 qualified directly on the subject of Asbea t osis \. ' > In defending against the claims pre: en ted, we may further .onslder dm effect of Sections 92-1312 aud y2-1313 rolating to prese n ta .; on of written claim nnd. notice of disability, respec t i\ ly. . :. . In the instant case i l vouId appear that Attorney Dzivi did -L >>,; wri to the : 1 udus tr l n 1 Accident Board in July of 1965, i tid i -; * ~i 'ating Hint his client did 6uffer from Asbestosis resulting v'VirV:` fron his employment, nnd requesting instructions ns to . procedure and cl.iui forrjs. 11' does not iiovnvor appear that vr.: Mr. Wfllnii v.is ni that . I i mo .morel than jin r t in I ly;. d tsob l ctl and of courso as we ltnow,' he dldvcontinue on with hid , . employment until Pecenber of 1966. ../ . ' J.-'-i 1 t does however appoar thni in July of 1965 both Mi and bis r1 io n t wore claiming that Mr. Welch did Buffer fron - :Asbes tos i s resul ting froio .his, employment, uml that disability mi glit re.i'i it. . . rii .'beZ-r* . rv--j . . . V l v /,/ . -13- PLAINT1FFS EXHIBIT j i. |, i v; 'lair. for benefits, Mr. Welch has indicated that his i . 11 > lie:.tn ou November 9, )?0h, however lie also .; pnicu t 1 y has g;ntic i 1 oil in the date of -July, 1965. Under n-.y rii onnslanccs, It would seen that we should be able to es tablish i.hr t claimant did in fact bocorae disabled on Novenher at which time he left insured's employ ment, ami further it would appear that the evidence will i ad 1 cute lluii. Mr. Welch on that date was well aware that . f l.o supposedly suffered from Asbestosls related to his employment. Soctlou 92-13l3 would require him to file a Notice of Disability or Heath with respect to conditions other than Si 11 cos i ' wifthiii thirty days after lie "knew or should have known the 'nature of the impairoent...and its relation to the employment". Technicnlly interpreting this Statute, It would seeu that Mr. Welch should1 consequently lmve given sui'h Notice of Disability "to his employer, the insurer or he Heard as i.he case may bo" on or before the'9th day of Iccenter, I960. . The No lice described is required to be in writing, and . .ii i.a i I. certain specified inforuatiou, and i < sat pi-uscd ! y io he on forms to be. furnishod by the hoard. Vc. aro. .informed that the Industrial Accident hoard does ' and lias: riot furnished such Torus, however whether, this fa l lure''by ` the' Hoard could be considered to relieve Mr. Welch of.-.ihe rcqulroctenIs of this Section is, it would appearjrVqui to' question.hle. not * ^ M nny ra c, no-written Notice -of Disability has ever been furnished lo Mic ewjiloyer or, I assume, to the 1 osurer, and of.course Lhe. first notice received by the Industriul Accident Hoard ; is .Mr. ; r.7.iv.'s le tter of January Pi, 19C7, and the .claim f or Jieno fi'Cs da led December 16, 1 , and apparently . received, by, the board on January 16, 10t}7. ' . v ..., . ' - ,. : : While ^reiiul renents of. section 19-1312 relative to. formal . " "cl ain vr a q*u iVi t\ Ks ucii claim to* be presented in 'writing,- `under " . oh tii,:..:wi'thin:-thirty days after filing Notice of Disability, . !:avo pnrhnps Leon satisflod by the filing ol the.Ciului;for Done f i t's. pi hove montl oned , still It would seem that 11 can hi* arguo'd that' Mr. Welch simply lias ooi ful lowed She ' in f.u lory, io <( uir er;c 1.1 s relative to. timely action on ids part, * o'i I ho r a.-, 'to notice ur filing of writ ton claim. * ; foe Industrial Accident honrd line indicated that they .would ' wish io have'tostimony of Mr. Welch lu evidence prior tov; proceeding on vl th- modi cal examination, mid it is of .course possible that- they will further desire flint evidenco deleting ;o the decree and extent of oxposure be nlso available ftl t ha l lon. -1 . .iwnr'1 , Attorney l'iv; is ;iro:ipm ! y mti i'.r ; :i . I': ; i J :i Ui rn in ielonn, however ns so..a .is he is nvuil- ..: .-7 wr ,; l I .il Ipri.l to ii rra ugo no u t s to oh in in : tun oJ .-lawj.int in or lor lo satisfy the sur.-osllnna ;;i . .wAuhp r;r of lim Irvins trial AocI.Icjim Hoard. / In :.* im? an I i rio , it is my sugges'tjoR that letter ho t i ; ui'! t-< '.he Industrial Accident Hoard and those otlior sons rt.rn'u rncil, making formal denial of tho cJains <rn:.onli-<l >} Mr. belch on all grounds which appear to be a*. 11 1 ul I i i n s . 1 Jo in fond to fur tlu n discuss procedure wit!i Mr. bwunberg i in order t-> In t oral no* 1 f he would tiosiro ns to obtnln i lie testimony of hr. McCarthy hv vuy of deposition, and further : f he won 1.1 expect us to retain the services of our own .icdicaJ expert, even though such procedure does not seem.'- "" / 1 i*. l.o . mi t c:rp 1 a toJ y tiie Act. \t the ticiP ol' obtaining the testimony ol Mr. V'elch, 1 usiu.-.ic- wi 1 : he able to develop with some .-.ertalnty i duiv:.* I'-iai ivi! ;o liis present condition, i.c. whether J i s.iti. I i ; > is in flics, total in character ns required by- .r*c .ion I -- I " c:*!. \ -p will ol /:rsp appreciate younrpvipw o all of the obove, n> : providini us with t?:e benefit ol nr.\ succcs 11 ons or ri in- o:n::viiiIn t i mis you nay have. t lnr. e r ; * y . i '.. nt. ' m' : res . ,*.r , ' i: Mary land Casual ty' Coopnny I *i i ' -is' A n v. e v Street ori 'a;'.<' , -.'regon .viTi.! i'll*.' : rJoldi ItopititU l 1 t h 1 I.#*: J' yosVutre S. ) ' a rr 1 r It *