author: JUSTICE TRIEWEILER

text:
    BURNT FORK CITIZENS COALITION, an unincorporated association, Petitioner and Respondent, v. BOARD OF COUNTY COMMISSIONERS OF RAVALLI COUNTY, a body politic and political subdivision of the State of Montana, Respondent and Appellant, and DENNIS MORGAN, TRUSTEE OF AMPAC MANAGEMENT, INC., PROFIT SHARING PLAN, Intervenor-Respondent and Appellant.
    No. 97-019.
    Submitted on Briefs May 30, 1997.
    Decided December 30, 1997.
    54 St.Rep. 1490.
    287 Mont. 43.
    951 P.2d 1020.

      For Appellants: Norman H. Grosfield, Utick & Grosfield, Helena; (for Board of County Commissioners of Ravalli Coirnty); Martin S. King; Worden, Thane & Haines; Missoula (for Dennis Morgan, Trustee of AMPAC Management, Inc.).
    For Respondent: William A. Rossbach and Elizabeth A. Brennan; Rossbach & Whiston, PC.; Missoula; and Karl J. Englund, Attorney at Law, Missoula.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Petitioner Burnt Fork Citizens Coalition filed a petition for writ of review in the District Court for the Twenty-First Judicial District in Ravalli County after the respondent Board of County Commissioners of Ravalli County conditionally approved the subdivision proposal submitted by intervenor-respondent Dennis Morgan. After a hearing, the District Court granted Burnt Fork’s writ of review and held that the conditional approval was “annulled and set aside.” Morgan and the Board appeal. We affirm the order of the District Court.

There are two issues on appeal:

1. Did the District Court err when it held that the Board was obligated to apply the county subdivision regulations and that the regulations had not been impliedly repealed by the Montana Subdivision and Platting Act, § 76-3-608(3)(a), MCA (1993)?

2. Did the District Court err when it found that the Board had exceeded its jurisdiction when it considered the subdivision proposal without the satisfaction of certain conditions precedent?

FACTUAL BACKGROUND

Dennis Morgan owns a 191-acre tract of land in northeast Ravalli County. In 1994, he submitted a proposal to the Ravalli County Board of County Commissioners (“Board”) to develop a 32-lot subdivision on the land, known as Burnt Fork Meadows. The Board denied the proposal, but expressly stated that Morgan could resubmit a revised proposal and offered him general direction about what aspects of the proposal to revise.

In the spring of 1995, Morgan submitted a second Burnt Fork Meadows subdivision proposal which included twenty lots. In addition to the preliminary plat, Morgan submitted a number of supplemental materials to support his proposal, pursuant to the Ravalli County Subdivision Regulations. On July 12, 1995, the Ravalli County Planning Board held a public hearing to accept public comment on the proposed subdivision, in accordance with the County Subdivision Regulations. A number of citizens spoke at the hearing, almost all of whom expressed opposition to the subdivision for a variety of reasons. The Planning Board, which acts in an advisory capacity to the Board, voted at the meeting to recommend to the Board that the proposed subdivision be denied. A few days later, the chair of the Planning Board communicated in a memo to the Board its findings from the hearing and “strongly recommend [ed]” that the Board deny the subdivision.

Despite the Planning Board’s recommendation, the Board conditionally approved the Burnt Fork Meadows subdivision on August 11, 1995. The Subdivision Regulations of Ravalli County provide that the basis of a decision by the Board to approve or disapprove a subdivision shall be whether the information submitted has demonstrated that the subdivision would be in the public interest. The Regulations also state that any subdivision not in the public interest shall be disapproved and that, as part of its decision, the Board shall include written findings regarding eight criteria for determining public interest. The Board’s conditional approval made written findings regarding only five of the eight criteria. All of those indicated that the subdivision would have a negative effect on the public interest.

On September 11, 1995, Burnt Forks Citizens Coalition, an unincorporated association of interested citizens, filed a petition for writ of review in the District Court. The Coalition asserted in an amended petition that the Board failed to follow the County Subdivision Regulations and that in doing so it acted in excess of its jurisdiction when it approved the subdivision. Morgan moved to intervene, and the District Court granted his motion on October 27, 1995. He later moved to dismiss the petition for, among other things, its failure to state a claim. After the parties briefed the issue, the District Court denied the motion to dismiss on July 26, 1996.

A hearing was held on August 29,1996. Following the hearing, the parties submitted briefs regarding the implied repeal of the County Subdivision Regulations by the amended Montana Subdivision and Platting Act, § 76-3-608(3)(a), MCA (1993). On October 30, 1996, the District Court held that the County Subdivision Regulations had not been repealed and that the Board’s approval failed to comply with the Subdivision Regulations. Therefore, it granted the petition for writ of review and ordered that the conditional approval be “annulled and set aside.”

ISSUE 1

Did the District Court err when it held that the Board was obligated to apply the county subdivision regulations and that the regulations had not been impliedly repealed by the Montana Subdivision and Platting Act, § 76-3-608(3)(a), MCA (1993)?

We review a district court’s conclusions of law to determine whether its interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

The Montana Subdivision and Platting Act requires that local governing bodies adopt regulations for the development of subdivisions within their jurisdiction. See § 76-3-501, MCA. Pursuant to the Act, the Board of County Commissioners of Ravalli County adopted regulations to review proposed subdivision plats in 1985. Until 1993, the County Regulations mirrored the Act; each required that the Board weigh eight criteria to determine whether the proposed subdivision would be in the public interest. The criteria included: “(a) the basis of the need for the subdivision; (b) expressed public opinion; (c) effects on agriculture; (d) effects on local services; (e) effects on taxation; (f) effects on the natural environment; (g) effects on wildlife and wildlife habitat; and (h) effects on the public health and safety.” Section 76-3-608(2), MCA (1985); see also Ravalli County Subdivision Regulations, Section II.A. 10.

The 1993 Montana Legislature, however, amended the Act, so that local governing bodies were required to review only five criteria. They included: “the effect on agriculture, local services, the natural environment, wildlife and wildlife habitat, and public health and safety.” Section 76-3-608(3)(a), MCA (1993). The Board, at the time of its review of the Burnt Fork Meadows subdivision, had not amended its County Regulations to conform to the amended 1993 Act, and still listed eight criteria for review.

Here, in an attempt to justify the Board’s consideration of only the five criteria in the amended 1993 Act, the Board and Morgan assert that the County Regulations, as they existed in 1995, conflicted with the Act, and therefore, that the County Regulations had been impliedly repealed and replaced by the amended 1993 Act. Accordingly, they contend that the Board, in fact, complied with the County regulations, since the County regulations, like the Act, required that the Board make findings regarding only five criteria, and not the eight criteria listed in the “outdated” County Regulations. We disagree.

There is no question that the Board is required to review and either approve or disapprove a subdivision proposal pursuant to the terms of the County Regulations in effect at the time that the proposal is submitted. See § 76-3-501(2), MCA. It is also undisputed that the County Regulations, as they existed at the time of Morgan’s Burnt Fork Meadows proposal, required the Board to review and make written findings on eight criteria to determine the public interest. Based on § 76-3-501(2), MCA, the Board may not ignore its own County Regulations and apply just the terms of the Act to review and conditionally approve a proposed subdivision. Rather, we hold that it is bound to follow the County Regulations in effect at the time that the proposal is made.

The Board and Morgan assert that the County Regulations “conflicted” with the amended 1993 Act because they included criteria that the Legislature had expressly removed from the Act and that the County Regulations were therefore impliedly repealed. They rely on State ex rel. Swart v. Casne (1977), 172 Mont. 302, 308-09, 564 P.2d 983, 986, in which we stated: “This grant of authority does not include the right to promulgate regulations in direct conflict with the Act. ... An administrative agency is not a ‘super legislature’ empowered to change statutory law under the cloak of an assumed delegated power.” Swart held that where the Act specifically provided for an exemption, a state agency could not develop regulations that eliminated the exemption. However, their reliance on Swart and their consequent claim that the County Regulations “directly conflict” with the Act is unfounded.

Unlike the state agency in Swart, county governments have extensive powers pursuant to the Montana Constitution. See Art. XI, Sec. 4, Mont. Const. (“A county has legislative, administrative, and other powers provided or implied by law. ... [which] shall be liberally construed.”). In State ex rel. Dreher v. Fuller (1993), 257 Mont. 445, 450-51, 849 P.2d 1045, 1048, which also involved the Act, we explained that an agency’s authority is limited by the specific and definite guidance from the Legislature, while a county governing body, .which often has separate legislative authority and is accountable to its constituents, requires less guidance. Accordingly, the Act’s mandate to local governing bodies to assert local control and to develop .their own subdivision regulations clearly contemplates that counties are free, pursuant to their legislative authority, to promulgate regulations which do not necessarily conform exactly to the Act, so long as they do not conflict with it. See Dreher, 257 Mont. at 451, 849 P.2d at 1049 (“[A] regulation which establishes procedures ... gives substance to the Act’s policy of local government control.”).

If we consider the amended 1993 Act as a whole, we further note that local governing bodies are not necessarily required to maintain their subdivision regulations in precise accordance with the language of the Act. For example, § 76-3-608(3), MCA (1993), states that proposals must be reviewed for the five “primary criteria,” while earlier versions of § 76-3-608, MCA, made no attempt to designate the eight criteria as primary in relation to other criteria that local governing bodies might consider. In addition to the provision that names the five primary criteria, the amended 1993 Act added a provision that requires local governing bodies to review a proposed subdivision for its “compliance with the local subdivision regulations provided for in part 5 of [the Act].” Section 76-3-608(3)(b)(ii), MCA (1993). This clearly indicates that the Act expects local regulations to be able to supplement the five requirements in § 76-3-608(3)(a), MCA (1993). Finally, the Act prior to and after the 1993 amendments refers to state standards as “minimum” requirements for local subdivision regulations and the need for local regulations to be “consistent with [the Act].” Section 76-3-504(2), MCA.

We find clear evidence in the Act that local regulations need not be in precise conformity with the Act. The clear intent is that local governing bodies be able to develop their own local subdivision regulations that are consistent with the Act, and that the Act establishes minimum requirements that local governing bodies must follow. Mere difference between the County Regulations and the Act is insufficient grounds on which to assert that the County Regulations conflict with the Act and effectuate their implied repeal by the Act.

Nonetheless, we recognize that some local subdivision regulations may significantly conflict with the Act so as to undermine the legality of the local regulations. Where differences between statutes exist, the earlier statute may be impliedly repealed by the later one if they are “plainly and irreconcilably repugnant to or in conflict with each other.” W.R. Grace & Co. v. Department of Revenue (1989), 238 Mont. 439, 450, 779 P.2d 470, 476.

Here, the County Regulations merely hold subdivision proposals to a stricter set of criteria than the Act requires. As stated above, the Act contemplates that local bodies be able to establish a review process that is particular to their own jurisdiction. The County Regulations expand on the Act’s minimum requirements and preserve a stricter review process for proposed Ravalli County subdivisions, which is consistent with the policy of local government control and suggests no threat to the Act. See Dreher, 257 Mont. at 451, 849 P.2d at 1049. Accordingly, we conclude that the County Regulations are not plainly and irreconcilably repugnant to or in conflict with the Act. Therefore, they are not impliedly repealed by the amended 1993 Act and the Board was bound to make findings on the eight criteria in the County Regulations.

ISSUE 2

Did the District Court err when it found that the Board had exceeded its jurisdiction when it considered and conditionally approved the subdivision proposal without the satisfaction of certain conditions precedent?

This matter came before the District Court as a petition for writ of review. Section 27-25-102(2), MCA, authorizes a district court to grant a writ of review “when a lower tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of the tribunal, board, or officer and there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy.”

The parties here do not contest the writ based on the adequacy of the remedy available to the Coalition. Rather, the Board and Morgan assert that even if the Board was bound to review the proposed subdivision according to the eight criteria in the County Regulations, its failure to do so and its subsequent conditional approved in light of the findings did not amount to an act that exceeded its jurisdiction. Therefore, we must determine if the Board’s conditional approval of the subdivision constitutes an exercise of authority beyond its jurisdiction.

In Buffalo v. Thiel (1984), 213 Mont. 280, 691 P.2d 1343, we were called upon to analyze a tribunal's authority or jurisdiction under circumstances analogous to those in this case. In that case, Myron Buffalo was sued injustice court by Jerry Thiel for damage to a motel room based on a theory of implied contract. The justice court issued an ex parte pre-judgment attachment of a pickup in Buffalo’s possession and the truck was impounded. Buffalo filed a petition for writ of certiorari or review in the district court, which concluded that it had no authority to review the pre-judgment attachment. On appeal, we held that certiorari or review, as provided for by § 27-25-102, MCA, is appropriate where a tribunal acts without jurisdiction, but that it cannot be employed to correct errors within a tribunal’s jurisdiction. See Buffalo, 213 Mont. at 284, 691 P.2d at 1345. We stated that:

In this sense, the lack of jurisdiction must be distinguished from an erroneous decision made by a court in exercising the jurisdiction it possessed. 20 Am.Jur.2d Courts Section 90. If a court is acting within its jurisdiction, it has the power to decide erroneously as well as correctly. Johnston v. Marsh (3rd Cir. 1955), 227 F.2d 528.

Buffalo, 213 Mont. at 284, 691 P.2d at 1345.

We noted, however, that:

The area of difficulty arises, as in this case, where an inferior court has both subject matter and personal jurisdiction, and is acting under a particular statute conferring jurisdiction to act only in certain circumstances. The inquiry in such a case is to whether all of the conditions precedent to such jurisdiction are present. The presence or absence of such “jurisdictional facts” is determinative of whether the lower court acted with and within its jurisdiction.

Buffalo, 213 Mont. at 285, 691 P.2d at 1345.

We noted that a justice court’s authority to issue a writ of attachment was dependent by statute on submission of an affidavit which establishes that the defendant is indebted to the plaintiff based on a contract for the direct payment of money and that the contract at issue in that case was clearly not one for the direct payment of money. For that reason, we held that the justice court had not satisfied a condition precedent to the exercise of its jurisdiction and that the district court erred when it denied Buffalo’s petition for a writ of certiorari.

A similar situation exists in this case. By both statute and regulation, there were limitations on the Board’s jurisdiction or authority to approve a subdivision application. Section 76-3-501(2), MCA, provides that “[r]eview and approval or disapproval of a subdivision under [the Act] may occur only under those regulations in effect at the time an application for approval of a preliminary plat or for an extension under 76-3-610 is submitted to the governing body.”

In other words, the Board was limited by statute from acting on an application absent compliance with its own regulations. The Subdivision Regulations of Ravalli County which were in effect on the date of the intervenor’s application provided as follows:

The governing body shall disapprove any subdivision which it finds not to be in the public interest. To determine whether the proposed subdivision would be in the public interest the governing body shall issue written findings of fact which weigh the following criteria for public interest:
a. The basis of need for the subdivision;
b. Expressed public opinion;
c. Effects on agriculture;
d. Effects on local services;
e. Effects on taxation;
f. Effects on the natural environment;
g. Effects on wildlife and wildlife habitat and;
h. Effects on the public health and safety.

The Board made no findings regarding the need for the subdivision, expressed public opinion, or its effects on taxation. Of those findings that the Board did make, none of them established that the development was in the “public interest” based on the criteria considered. For example, the Board found:

1. “[T]he cumulative impacts [of this subdivision] will have a negative long-term impact on the local farming economy.”

2. “[I]t is expected that there will be negative effects of this subdivision on the continued operation of existing agricultural activities.”

3. “This subdivision will negatively effect [sic] the provision of county-wide public services as they are provided at this time.”

4. “The development of these lots will result in additional air pollution related to vehicular and home heating emissions.”

5. “Until additional school facilities can be assured, a subdivision of this magnitude would substantially and immediately jeopardize the quality of education of those students currently enrolled and the additional students from this subdivision.”

6. “[T]his proposed subdivision in this area will have a negative impact on wildlife populations and habitat.”

7. “Police protection is available, but would be severely limited due to response time and available personnel.”

We conclude that the District Court did not, as the appellants contend, simply review the Board’s decision to determine whether it was correct. If the Board had made findings that the subdivision was in the “public interest” and the District Court had concluded, based on the evidence, that those findings were in error, the appellants’ argument would have some merit. However, in this case, the Board’s own findings were that the applicant for subdivision approval had failed to meet the statutory prerequisite for approval. In the language of our decision in Buffalo, the condition precedent to the Board’s authority to approve, or even conditionally approve, the application for subdivision approval had not, based on the Board’s own findings, been satisfied.

We therefore conclude that the District Court did not err when it held that the Board exceeded its jurisdiction when it considered and conditionally approved the subdivision of Burnt Fork Meadows, and when the court, on that basis, “annulled and set aside” conditional approval of that application.

For these reasons, the order and judgment of the District Court are affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, NELSON and GRAY concur.


source: Caselaw Access Project

author: JUSTICE GRAY JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    ELMER R. BALDRIDGE, Petitioner and Appellant, v. BOARD OF TRUSTEES, ROSEBUD COUNTY SCHOOL DISTRICT #19, COLSTRIP, MONTANA, and NANCY KEENAN, Superintendent of Public Instruction, Respondents and Respondents.
    No. 97-230.
    Submitted on Briefs August 21, 1997.
    Rehearing Denied February 2, 1998.
    Decided December 30, 1997.
    54 St.Rep. 1495.
    287 Mont. 53.
    951 P.2d 1343.

      JUSTICE NELSON specially concurring.
    JUSTICE TRIEWEILER dissenting, joined by JUSTICE HUNT.
    For Appellant: Michael G. Moses; Moses Law Firm, Billings.
    For Respondents: Jeffrey M. Hindoien; Gough, Shanahan, Johnson & Waterman, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

This case involves the 1988 dismissal by the Board of Trustees of Rosebud County School District #19, Colstrip, Montana (Board), of science teacher Elmer R. Baldridge (Baldridge). Baldridge appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, which, in essence, judicially affirmed his dismissal by the Board. We affirm the District Court.

We restate the dispositive issue on appeal as whether, given the unchallenged findings of fact before us, acting county superintendent of schools Shirley Barrick erred in concluding that Baldridge’s conduct did not constitute incompetence, unfitness or violations of Board policy under § 20-4-207, MCA (1987).

BACKGROUND

This is the second time this lengthy litigation has been before this Court. Our opinion in Baldridge v. Board of Trustees (1994), 264 Mont. 199, 870 P.2d 711 (Baldridge I), set forth at length the tortured procedural path this matter followed between the Board’s dismissal of Baldridge in 1988 and our remand, in 1994, for further proceedings. That history need not be repeated here. Suffice it to say that, in Baldridge I, we clarified the standards of review to be applied by the Montana Superintendent of Public Instruction (State Superintendent), district courts and this Court in cases involving the dismissal of a school teacher. Baldridge I, 870 P.2d at 714-18. We then remanded to the district court with instructions to remand to the State Superintendent for remand to the acting county superintendent of schools (County Superintendent) for'the purpose of entering a decision complying with applicable statutes and rules. Baldridge I, 870 P.2d at 718.

On remand, County Superintendent Shirley Barrick (Barrick) entered extensive findings of fact and conclusions of law relating to the Board’s dismissal of Baldridge. Barrick found that, at the time he was terminated, Baldridge was a popular teacher of various science classes with an excellent reputation; he had excellent teaching skills and consistently received the highest possible performance evaluations. Baldridge was known to be a “thorn in the side” of the district superintendent of schools and the Board, however, because of his activist role in school matters.

In early April of 1988, high school principal Eileen Pearce (Principal Pearce) received a letter from the parents of a student in one of Baldridge’s science classes complaining about an occurrence in Baldridge’s classroom which became known as the “glove incident.” Baldridge was cleaning the lab during class and sought student assistance by placing a rubber glove on his hand, holding his hand in front of his face, palm in, and asking, “Mayl have a female volunteer?” He admitted repeating the incident in several classes that day.

After a preliminary investigation into the glove incident, Principal Pearce recommended to the district superintendent that Baldridge be suspended with pay pending a further investigation. Baldridge was suspended, an investigation took place which resulted in additional allegations of inappropriate conduct by Baldridge and, after a hearing, the Board dismissed Baldridge from his tenured teaching position on May 16, 1988. The stated reasons for the dismissal were incompetence, unfitness and violation of Board policies.

Baldridge appealed his dismissal to the County Superintendent and a hearing was held on May 30, 1989. Both the Board and Baldridge presented evidence at the hearing and a number of students testified. Testimony centered on nine instances of alleged misconduct by Baldridge, including the admitted glove incident. The County Superintendent determined the credibility of Baldridge and the other witnesses. She then found that, of the nine incidents alleged, eight of them — including the glove incident — occurred. Having found that the incidents occurred, the County Superintendent also found that Baldridge’s behavior was “inappropriate and not common place.” She made additional findings regarding each incident, to the effect that Baldridge had not intended to offend, the references he made were not intended to be sexual or phallic, and the students were not offended by Baldridge’s conduct.

In Barrick’s extensive conclusions of law, she determined that § 20-4-207, MCA (1987), authorizes the trustees of a school district to dismiss a teacher for “immorality, unfitness, incompetence, or violation of the adopted policies of such trustees.” She also determined that, because Baldridge was a tenured teacher, his tenure could not be taken away except for good cause.

Noting that the bases the Board specified for dismissing Baldridge were “incompetence, unfitness and violation of adopted policies,” the County Superintendent analyzed each of those bases and concluded that the Board had not established that Baldridge was either incompetent in his teaching duties or unfit to teach. Moreover, she determined that, while policy violations may have occurred, any such violation was legally insignificant and did not tarnish or adversely affect the teacher-student relationship. Having concluded that none of the statutory bases for dismissal existed, Barrick further concluded that the Board did not establish good cause for Baldridge’s dismissal and reversed the Board’s decision to dismiss him.

The Board appealed the County Superintendent’s findings, conclusions and order to the State Superintendent. The State Superintendent reversed the County Superintendent’s decision, determining that Barrick erred as a matter of law in concluding that the Board did not have good cause to terminate Baldridge, and Baldridge petitioned for judicial review. The District Court determined that the County Superintendent erred in concluding that Baldridge was not unfit and that any policy violations committed by him were legally insufficient to support dismissal; in other words, the court determined that the County Superintendent’s conclusions were incorrect in light of the findings of fact she made. As a result, the District Court affirmed the State Superintendent’s decision, effectively upholding the Board’s decision to dismiss Baldridge. Baldridge appeals.

STANDARDS OF REVIEW

As noted above, we clarified the standards for review of the various levels of decisionmaking involved in a teacher dismissal in Baldridge I. Pursuant to § 2-4-623, MCA, a county superintendent’s decision regarding the dismissal of a teacher by school trustees requires written findings of fact and conclusions of law, separately stated, with support provided for each conclusion of law. Baldridge I, 870 P.2d at 715. The state superintendent, in turn, reviews a county superintendent’s decision pursuant to 10.6.125, ARM, which is nearly identical to § 2-4-704, MCA, under which district courts review final decisions of administrative agencies in contested case proceedings. Baldridge I, 870 P.2d at 716. In doing so, the state superintendent may not substitute his or her judgment for that of the county superintendent as to the weight of the evidence on questions of fact. Baldridge I, 870 P.2d at 716 (citation omitted).

In the event of judicial review of the state superintendent’s decision, a district court applies the standards contained in § 2-4-704, MCA. Baldridge I, 870 P.2d at 717. In doing so, however, a district court must first decide whether the county superintendent’s findings and conclusions were properly supported because, unless and until it does so, it cannot determine whether the state superintendent properly reviewed and .either affirmed or reversed the county superintendent’s decision. Baldridge I, 870 P.2d at 717-18 (citation omitted). Finally, this Court reviews findings of fact in administrative cases to determine whether the findings are clearly erroneous; we review conclusions of law to determine whether they are correct. Baldridge I, 870 P.2d at 714-15. This latter standard includes determining whether the law was properly applied to the facts. Taylor v. Taylor (1995), 272 Mont. 30, 33, 899 P.2d 523, 525.

Thus, because the County Superintendent is the trier of fact under § 2-4-623, MCA, we must focus initially on the County Superintendent’s findings and conclusions before we can determine whether the State Superintendent or the District Court erred thereafter. In this case, the County Superintendent’s findings of fact are not disputed. The sole issue, at the initial stage of our review, is whether the County Superintendent correctly applied the law to the undisputed facts. If so, both the State Superintendent and the District Court erred in determining otherwise; if not, the District Court’s affirmance of the State Superintendent’s reversal of the County Superintendent’s decision must be upheld.

. DISCUSSION

Did the County Superintendent err in concluding that Baldridge’s conduct did not constitute incompetence, unfitness or violation of Board policies pursuant to § 20-4-207, MCA (1987)?

At the outset, it is important to observe that, technically, the issue before us is whether the County Superintendent erred as a matter of law in concluding that good cause did not exist for the Board’s dismissal of Baldridge. This is so because Baldridge was a tenured teacher, and we have repeatedly recognized that a teacher’s tenure is a substantial, valuable and beneficial right which cannot be taken away except for good cause. Trustees, Missoula Cty. S.D. 1 v. Anderson (1988), 232 Mont. 501, 505, 757 P.2d 1315, 1318 (citing Yanzick v. School Dist. No. 23, Etc. (1982), 196 Mont. 375, 391, 641 P.2d 431, 440; State ex rel. Saxtorph v. District Court, Fergus County (1954), 128 Mont. 353, 361, 275 P.2d 209, 214). Tenure is not the issue in this case, however, as Baldridge himself admits that tenure “cannot protect a teacher from acts of immorality, unfitness, incompetence, or violation of policies of the Board of Trustees.” Thus, the threshold issue before us is whether the County Superintendent erred in concluding that Baldridge’s conduct, as she found it to have occurred, did not constitute incompetence, unfitness or violation of Board policies under § 20-4-207, MCA (1987).

We turn first to the County Superintendent’s conclusion that Baldridge’s conduct did not constitute “unfitness” under § 20-4-207, MCA (1987). “Unfitness” is not defined by statute in Montana. Our cases indicate, however, that a teacher may be unfit to teach if he or she engages in inappropriate conduct in the classroom or with students outside the classroom. See Johnson v. Beaverhead Cty. High Sch. D. (1989), 236 Mont. 532, 771 P.2d 137; Lincoln Cty. Sch. Dist. No. 13 v. Holden (1988), 231 Mont. 491, 754 P.2d 506; Yanzick, 641 P.2d 431. Indeed, The American Heritage Dictionary 1950 (3rd ed. 1992) defines unfit as “[n]ot meant or adapted for a given purpose; inappropriate.”

As discussed above, Barrick received evidence regarding nine alleged instances of misconduct by Baldridge. She found that the glove incident — in which Baldridge sought student help in cleaning the lab by placing a rubber glove on his hand, holding the gloved hand in front of his face, palm in, and asking, “May I have a female volunteer?” — occurred in three classes on one day. She also found that additional incidents involving Baldridge occurred as follows:

1. During a heated discussion with a student over a late assignment, Baldridge ultimately responded to the student’s request for an extra day in which to turn in the work by telling the student to “Stop, drop and blow.” According to Baldridge, “stop” means quit arguing, “drop” means drop the subject, and “blow” means “blow it out your ass,” although Baldridge did not use the entire latter phrase with the student.
2. Baldridge stated to several high school students that he would “give [them] twenty bucks if you make that kid cry.”
3. Baldridge told a joke in class involving the term “testes” and had been telling the joke to his students for five years.
4. In conversations with students, Baldridge made repeated indirect references to himself and others as a “prick,” by stating either “He’s what Cinderella [Snow White] did to her finger” or ‘You guys might think I’m a little_,” accompanied by a motion to prick his finger.
5. Baldridge “flipped off’ or “gave the finger” to students during the school day on school property.
6. After a female student stated that she could not “stand the sight of blood,” Baldridge replied, “[S]he must have a rough month” or words to that effect.

Determining that Baldridge’s conduct was “inappropriate and not common place,” Barrick ultimately concluded that it did not constitute “unfitness” under § 20-4-207, MCA (1987). We disagree.

Each of the seven incidents is inappropriate conduct by a high school teacher toward his students. None properly could be meant or adapted for the purpose of teaching high school science students. Moreover, in addition to being inappropriate conduct in and of itself, Baldridge’s behavior demonstrated an inherent lack of judgment regarding a teacher’s role and relationship with his students which relates directly to fitness to teach.

Nor need we determine here whether any one of the incidents, standing alone, would constitute unfitness sufficient for dismissal under § 20-4-207, MCA (1987). A teacher who makes jokes about testes and a student’s menstrual periods, flips off his students and views it as “the highest form of respect,” and makes gender-based remarks and innuendoes in his classroom is unfit to continue teaching as a matter of law.

The County Superintendent relied on Holden, as support for her conclusion that Baldridge’s conduct was insufficient to support dismissal for unfitness, but Holden is readily distinguishable. There, the teacher was dismissed for calling a student a “slob” for being inattentive and slumped down in her chair, and for saying “move over, Goodyear,” to a child or group standing in front of a tape machine. Holden, 754 P.2d at 507. The county superintendent concluded that the two incidents of inappropriate language did not constitute a statutory basis for dismissal and we ultimately held that conclusion was not erroneous. Holden, 754 P.2d at 509. Here, we are faced with numerous instances of inappropriate conduct by Baldridge, nearly all of which were related to sex or gender on the face of it. Both the number of incidents and the tone and tenor of the conduct are of a greater magnitude in this case than in Holden.

Furthermore, while the County Superintendent’s findings that Baldridge did not intend to offend and that the students were not offended are supported by substantial evidence, those findings are irrelevant to the issue before us. Baldridge’s conduct was inappropriate on the face of it and it is his conduct and lack of judgment in engaging in the conduct, rather than his intent, which is at issue. In addition, the propriety of a teacher’s conduct cannot be evaluated by viewing it through the eyes of the very teenagers the teacher has a duty to educate and to guide. To do so almost certainly would result in an educational environment unacceptable to school administrators, educators, parents and society at large.

We conclude that the County Superintendent did not properly apply the law to the facts, as she found them, regarding Baldridge’s conduct. Therefore, we hold that Barrick erred in concluding that Baldridge’s conduct did not constitute unfitness under § 20-4-207, MCA (1987).

As discussed above, the State Superintendent determined that the County Superintendent erred in concluding that Baldridge’s conduct did not constitute “unfitness” and the District Court affirmed that determination. Because their decisions in that regard comport with our conclusion and holding above, it is not necessary to analyze the decisions in any detail. Baldridge asserts error with regard to other portions of those decisions, however, and we address those arguments briefly.

First, Baldridge contends that the State Superintendent substituted her judgment for that of the County Superintendent on questions of fact in contravention of the standard of review contained in 10.6.125, ARM, § 2-4-704, MCA, and Baldridge I. His contention is based on the State Superintendent’s insertion of words such as “obscene,” “egregious” and “derogatory” into her decision when such characterizations were not set forth in Barrick’s decision. While it is true that the State Superintendent characterized some of the facts differently in reaching her decision than did the County Superintendent, she did not substitute her judgment for Barrick’s regarding Baldridge’s actual conduct. The fact remains that the State Superintendent ultimately determined — and correctly so, as we held above— that the County Superintendent had erred as a matter of law. Thus, any error by the State Superintendent in this regard was harmless.

Baldridge also points out that the State Superintendent first set forth the correct standard by which she was to review Barrick’s decision and then stated that “[a] review of the record in this case leaves the definite and firm conviction that the County Superintendent’s order is incorrect.” Baldridge is correct in contending that the “definite and firm conviction” test is the final prong of the clearly erroneous standard of review which applies to findings of fact. See Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. Again, however, the State Superintendent’s inclusion of this language did not prejudice Baldridge because the State Superintendent ultimately reached the correct decision.

Finally, Baldridge argues that the District Court, like the State Superintendent, substituted its judgment for Barrick’s with regard to questions of fact. We disagree. The District Court accepted Bar-rick’s undisputed findings of fact with regard to whether Baldridge’s conduct occurred. Applying the law to those facts, the court determined that the conduct Barrick found to have occurred constituted unfitness as a matter of law under § 20-4-207, MCA (1987). As discussed above, the District Court’s determination was correct.

Section 20-4-207, MCA (1987), provides that a teacher may be dismissed for “immorality, unfitness, incompetence, or violation of the adopted policies of [the Board].” Because the statute is written in the disjunctive, it is clear that only one of the statutory bases for dismissal need exist. We held above that Baldridge’s conduct constituted unfitness as a matter of law and that the County Superintendent erred in concluding otherwise. As a result, we need not address Barrick’s conclusions regarding Baldridge’s competence or violations of policies adopted by the Board.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and LEAPHART concur.

JUSTICE NELSON

specially concurs.

I concur. In signing our opinion, however, I do not implicitly lend my support to some future argument that our decision in Lincoln Cty. Sch. Dist. No. 13 v. Holden (1988), 231 Mont. 491, 754 P.2d 506, is still good law. While we have distinguished that case from the one at bar based upon the number of instances of inappropriate conduct involved, this is a distinction without any real difference. It is not the number of instances of misconduct that counts but, rather, it is the substance of what was said and done and the complete lack of sensitivity and judgment that such comments and conduct reflect, that is at the heart of the matter. A teacher calling a student a “slob” for inattentiveness or for slouching in his chair or analogizing an overweight child to a blimp cannot be considered acceptable or appropriate conduct by any measure. This is especially true when many of today’s young people are not only obsessed with their appearance but suffer from low self-esteem and from life-threatening eating disorders as well. The classroom should be a place for nurturing not degradation.

I would overrule Holden to the extent that it stands for the proposition that the sorts of comments made in that case are not so serious as to be grounds for dismissal. The sophomoric behavior and insensitive and unprofessional comments at issue in that case and in the one at bar have no place in the classrooms of this State nor do the offending teachers.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

I do not disagree that several instances of Elmer Baldridge’s conduct while teaching high school students in Colstrip, Montana, were inappropriate. However, as our standard of review properly requires, I would defer to the County Superintendent’s judgment regarding the credibility of witnesses, the context of Baldridge’s comments, and the impact of those isolated comments on his fitness as a teacher.

The Superintendent heard and observed the witnesses against Baldridge, and heard and observed Baldridge’s explanation for his comments, as well as his cross-examination. Ultimately, she concluded that the witnesses against Baldridge belonged to a clique directly related to a school board member involved in efforts to discharge Baldridge and that their credibility was suspect. She also concluded that Baldridge’s description of events, and the student witnesses who testified on his behalf, were credible.

Since the Superintendent’s findings of fact are uncontested, and since the majority opinion is based on its conclusion that Baldridge is unfit to teach, several findings related to his fitness are noteworthy. Therefore, I take this opportunity to set them forth in their entirety.

3. Baldridge has an excellent reputation as a teacher and person in the school and community. The School Board Chairman testified Baldridge evaluations were excellent prior to this incident [referring to the glove incident]. Teachers and students testified Baldridge was one of the best teachers they had ever known and was dedicated to the school and his profession.
4. Undisputed testimony revealed Baldridge received the highest possible evaluation the School District offers in every category and in every evaluation he had received.
5. Baldridge often challenged alleged discrimination against Native American students, bringing his concerns to both the administration and School Board.
7. Respondent High School Principal was Eileen Pearce. Pearce testified Baldridge was viewed as a good teacher and had excellent teaching skills. Baldridge could relate well with students. The sole critical evaluation Baldridge received related to his relationship with the District Superintendent Tokerud.
10. Holly Granlund and Bill Medved were teachers in Respondent School District. They testified about Baldridge as a teacher. They concurred Baldridge was able to teach a variety of areas, that he was competent and a supporter of activities-of the school. They also testified Baldridge spent more time in the school than other teachers and was considered a “model teacher.”

Juxtaposed with Baldridge’s excellent credentials as a teacher, however, was his activism as a member of the teachers’ collective bargaining unit which the Superintendent found placed him in an adversarial role with the administration. He chaired the grievance committee, attended School Board meetings, occasionally questioned administrative decisions, and brought up subjects sensitive to the administration during School Board meetings. While the Superintendent found that he was at no time insubordinate, he was known to be a “thorn in the side” of the School Superintendent and School Board because of his activist role.

Having established the context in which the complaints against him arose, it is important to my consideration of his fitness to consider the Superintendent’s specific findings regarding each of his alleged offenses.

THE GLOVE INCIDENT

Superintendent Barrick found that the evidence regarding the incident and the students’ perception of the incident conflicted. Several students perceived it as a reference to a female examination, several others interpreted it as a chauvinistic solicitation of help to wash dishes. She weighed the testimony, found that the incident was not of concern to students at the time, was not perceived as a derogatory sexual statement at the time and did not affect the student-teacher relationship between Baldridge and his students, nor his abilities to perform his duties in the classroom. She found it peculiar that the incident occurred on March 30, 1988, and was not complained of until April 11. She found it significant that neither the complaining parents nor the principal in her letter to the Superintendent attached any sexual connotation to the comment.

STOP, DROP, AND BLOW INCIDENT

Barrick made the following finding regarding this incident:

I heard and observed Baldridge’s testimony and the testimony of the other students. I find the testimony of Baldridge to be credible. I find that there was no offensive meaning intended by these comments and there was no sexual connotation attached to these words. This was a form of expression used by Baldridge to enforce his policy of handing work in on time dealing with a student who had contested Baldridge’s grading system.

If this finding is uncontested, as the majority concedes, then Baldridge’s comment to “stop, drop, and blow” cannot serve as the basis for concluding that he was unfit to teach.

TWENTY DOLLARS TO MAKE STUDENT CRY

The Superintendent found that Baldridge made the statement to several students that he would “give you twenty bucks if you make that kid cry.” Baldridge admitted he made these statements. However, the students involved testified that they did not believe he seriously intended that they physically assault another student and the Superintendent found “no basis for including this allegation as a basis for the termination of Baldridge nor was the statement intended to harm or threaten any student or person.”

TESTES REFERENCE

Superintendent Barrick made the following undisputed finding regarding Baldridge’s reference to testes:

Baldridge admitted telling a joke in class that involved the term “testes”. Baldridge further testified he had used that particular joke for five years. In its worst interpretation, this joke is innocuous and, if deemed inappropriate by the School Board, should have been handled with a warning to stop this activity. No warning was ever provided. Student David Grover testified another teacher, during the same time period, at the same school, told a similar joke. Connie Ramsey, testified that her husband, a math teacher at Colstrip High School, had used a similar joke. No evidence was presented that any of these teachers were warned about the telling of this joke.

Superintendent Barrick found that these comments were an acceptable form of communication at the school at the time and had not offended any student and had not adversely affected Baldridge’s relationship with his students.

REFERENCE TO PRICKING FINGER

Baldridge admitted making references to pricking his finger but denied any phallic reference. Students testified that there was not a phallic interpretation of his comments. The Superintendent found that the statements were made but that the intent of the reference was to “an irritation reference instead of any phallic reference and did not offend the students or suggest a sexual connotation at the time.” She also found that the incident did not affect Baldridge’s relationship with his students.

FLIPPING OFF INCIDENT

Several students testified that while such an incident occurred it was not done with the “classic connotation.” Superintendent Barrick found:

I find these incidents occurred. I further find such behavior was inappropriate and not commonplace. However, I also find the gesture was not intended or perceived as offensive by any student at the time.

TIME OF MONTH INCIDENT

Baldridge admitted stating to a student who had remarked that she could not stand the sight of blood that “she must have a rough month” or words to that effect. He also stated that he instantly recognized the potential for misunderstanding and immediately apologized to the student in front of the whole class and again after class. Superintendent Barrick found after listening to the testimony of Baldridge and the student to whom the comment was made that:

I am persuaded by the testimony of both Thea Simpson and Baldridge that this episode was an honest “slip-of-the-tongue,” after consideration of all of the circumstances. Baldridge immediately apologized in front of the class and then again on a one-on-one basis. Thea Simpson found his apology sincere. I find this action demonstrates an affirmative response to an embarrasing situation and recognition not to repeat this statement.

The Superintendent found that this comment did not adversely affect Baldridge’s relationship with his students and was not a basis for dismissal of a tenured teacher.

I also find it significant that although these incidents are alleged to have occurred over a significant period of time, there was no prior effort to discipline Baldridge because of his classroom behavior and, in fact, no prior warnings that anything he had done in the classroom or in the presence of students was inappropriate. While I conclude that several of Baldridge’s remarks and, specifically, his gesture in the presence of students were inappropriate, the Superintendent, who listened to the witnesses and considered Baldridge’s excellent credentials as a teacher, apparently believed that repetition of those incidents could have been prevented by a warning and that termination of an admirable career in teaching was unnecessary. It is obvious from the Superintendent’s findings that she also felt that Baldridge’s politics and relationship with the Superintendent were the more likely basis for his termination than any of the incidents complained of.

Because I believe that the Superintendent who listened to the witnesses, including the teacher involved, was in the best position to analyze the context of his remarks and judge his fitness to teach in light of not only those remarks but his entire record, I would give greater weight to those findings than the majority had done. I also conclude that based on those findings, when considered in their entirety, the Superintendent did not err as a matter of law when she concluded that the School District had not proven that Baldridge was unfit to teach.

For these reasons I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissenting opinion.


author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    DIANA L. WEBB, Plaintiff and Appellant, v. T.D., D.C.; R.K.S., M.D.; and C.H.A., M.D., Defendants and Respondents.
    No. 97-255.
    Heard November 13, 1997.
    Submitted November 20, 1997.
    Rehearing Denied January 30, 1998.
    Decided December 30, 1997.
    54 St.Rep. 1502.
    287 Mont. 68.
    951 P.2d 1008.

      JUSTICE LEAPHART specially concurring, joined by JUSTICE GRAY.
    For Appellant: John M. Morrison (argued), Meloy & Morrison, Helena.
    For Respondent: Richard F. Cebull (argued) and Lisa A. Rodeghiero; Brown, Gerbase, Cebull, Fulton, Harman & Ross; Billings (for R.K.S., M.D.).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

The plaintiff, Diana L. Webb, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County in which she alleged that she was injured as a result of a negligent orthopedic examination performed by Robert K. Snider, M.D. Dr. Snider had examined her at the request of her employer’s workers’ compensation insurance carrier. The District Court granted summary judgment to Dr. Snider on the basis that he owed claimant no duty because he had no physician-patient relationship with her. Webb appeals from that order and judgment. We reverse the judgment of the District Court.

The issue on appeal is whether a physician who performs a medical examination of an individual at the request of a third party has a duty of care to the examinee and, if so, what is the scope of that duty.

FACTUAL BACKGROUND

The following facts were before the District Court by deposition or affidavit. Because Webb’s claim was resolved by summary judgment, we set forth only those facts most favorable to her claim.

Diana Webb suffered a work-related injury to her lower back in 1986. From April through August of that year, she received treatment on one occasion from a physical therapist and periodically from a chiropractor for pain relief. The only medical doctor who examined her back was Robert K. Snider, M.D., an orthopedic surgeon, to whom she was referred by the State Compensation Insurance Fund. She saw Dr. Snider on October 7, 1986. He examined her and had her undergo a CAT scan of her back to help determine whether she had herniated an intervertebral disc.

Following Dr. Snider’s examination and review of the CAT scan film, he wrote her the following letter on October 8, 1986:

Mrs. Edward Webb
Box 45
Belfry, MT 59008
Dear Diana:
I have reviewed the CAT scan, and it looks excellent. There is no evidence of a ruptured disc. I think that the problems that you are having are of a back sprain, and I don’t feel that any surgical treatment will be necessary.
I indicated to workers’ compensation that I feel that you can work, and I gave them an impairment rating of 2 percent applied to the whole person.
If you feel that you cannot return to your original job, then you need to discuss this with workers’ compensation.
Sincerely,
Robert K. Snider, M.D.

According to Webb’s testimony, because Dr. Snider was the only physician who had actually examined her, she relied on his advice and sought no further treatment for her back injury. She eventually returned to an occupation in which she performed heavy labor, severely herniated an intervertebral disc in her lower back, and has significant physical limitations as a result of that additional back injury.

Lawrence Guinney, M.D., is an orthopedic surgeon who, at Webb’s request, reviewed her medical records, including those prepared by Dr. Snider, and the CAT scan done at Dr. Snider’s request in 1986. It was his opinion that, contrary to the advice of Dr. Snider, that film showed an abnormal bulging disc at the level between Webb’s fifth lumbar vertebra and first sacral vertebra and that Dr. Snider departed from the accepted standard of care for orthopedic surgeons by failing to note the abnormality. It was his opinion that as a result of Dr. Snider’s misdiagnosis in 1986 and his failure to limit Webb’s work-related activity, she suffered a herniation of the same disc in 1989 from which she suffered nerve root compression. Dr. Guinney concluded that the pain and dysesthesia, from which she now suffers, is a result of the prolonged nerve root compression caused by the 1989 herniation, and that if her condition had been accurately diagnosed in 1986 and her activities limited, it is more likely than not that the 1989 herniation and nerve root compression would not have occurred.

Dr. Snider moved for summary judgment. In support of his motion, he stated by affidavit that he saw Webb on one occasion on October 7,1986, at the request of the State Compensation Insurance Fund to evaluate the nature and extent of her disease or injury and whether she could return to work. He stated that he was not retained to provide medical treatment and that he provided none. His findings were reported to the State Fund and the fee for his services was paid by the State Fund.

Dr. Snider contended that he was entitled to summary judgment for two reasons: (1) Webb’s claim was barred by the statute of limitations; and (2) he owed Webb no duty because he had no doctor-patient relationship with her.

On February 3, 1995, the District Court granted summary judgment to Dr. Snider based on the statute of repose found at § 27-2-205, MCA. That order was appealed to this Court, which reversed the District Court on February 20, 1996, and remanded to the District Court for further proceedings. See Webb v. R.K.S., M.D. (1996), 275 Mont. 243, 912 P.2d 202. On January 21, 1997, the District Court granted a second motion for summary judgment in favor of Dr. Snider based on its conclusion that an independent medical exam (i.e., an exam performed at the request of a third party) does not give rise to a doctor-patient relationship, and that absent such a relationship an examining physician has no duty to the examinee to exercise reasonable care.

DISCUSSION

Does a physician who performs a medical examination of an individual at the request of a third party have a duty of care to the examinee and, if so, what is the scope of that duty?

This is an appeal from an order dismissing Webb’s claim by summary judgment. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P. Our review of district court orders granting summary judgment is plenary. See State Farm v. Powell (1995), 274 Mont. 92, 95, 906 P.2d 198, 200.

The District Court granted Dr. Snider’s motion for summary judgment based on its conclusion that he owed no duty to Webb because she was not his patient. The question of whether a legal duty is owed by one person to another, as well as the scope of any such duty, are questions of law. See Nautilus Ins. Co. v. First Nat’l Ins., Inc. (1992), 254 Mont. 296, 299, 837 P.2d 409, 411.

On appeal, Webb contends that doctors in Montana have a duty to exercise that degree of skill and learning ordinarily exercised by other doctors in the same speciality under like circumstances, and failure to do so is negligence. She cites our decision in Aasheim v. Humberger (1985), 215 Mont. 127, 695 P.2d 824. She contends that she submitted evidence that Dr. Snider negligently failed to diagnose her condition and that she suffered farther damage as a result of his negligence and, therefore, that the District Court erred by dismissing her claim by summary judgment.

Dr. Snider responds that although he has a duty to exercise reasonable care, based on the standards of his profession, when examining, diagnosing, or treating a patient, that duty is based on, and limited to, the doctor-patient relationship. He contends that because he had no doctor-patient relationship with Webb, he owed her no duty as a matter of law. Although Dr. Snider concedes that there are no prior decisions to that effect in Montana, he relies on the following decisions from other jurisdictions: Hafner v. Beck (Ariz. App. 1995), 916 P.2d 1105; Keene v. Wiggins (Cal. Ct. App. 1977) 138 Cal. Rptr. 3; Peace v. Weisman (Ga.App. 1988), 368 S.E.2d 319; Rogers v. Horvath (Mich. 1975), 237 N.W.2d 595; Henkemeyer v. Boxall (Minn. Ct. App. 1991), 465 N.W.2d 437; LoDico v. Caputi (N.Y. App. Div. 1987) 517 N.Y.S.2d 640; Promubol v. Hackett (Pa. Super. 1996), 686 A.2d 417; Tomko v. Marks (Pa. App. 1992), 602 A.2d 890; Craddock v. Gross (Pa. Super. 1986), 504 A.2d 1300; Wilson v. Winsett (Tex. App. 1992), 828 S.W.2d 231; Johnston v. Sibley (Tex. Civ. App. 1977), 558 S.W.2d 135. The District Court agreed, and on that basis, granted Dr. Snider’s motion for summary judgment.

Webb replies that this case is distinguishable from the authorities cited by Dr. Snider and relied on by the District Court because in this case Dr. Snider undertook to advise Webb regarding her condition, and thereby, assumed a duty to her to exercise reasonable care. She contends that the authorities cited by Dr. Snider and relied on by the District Court are inapplicable to the facts in this case because in none of those cases was advice directly provided by the examining physician to the person who had been examined. Webb contends that the more persuasive authorities are the following: Daly v. United States (9th Cir. 1991), 946 F.2d 1467; Green v. Walker (5th Cir. 1990), 910 F.2d 291; Betesh v. United States (1974), 400 F. Supp. 238; Hoover v. Williamson (Md. 1964), 203 A.2d 861; Cleghorn v. Hess (Nev. 1993), 853 P.2d 1260; Edwards v. Lamb (N.H. 1899), 45 A. 480; Baer v. Regents of Univ. of California (N.M. App. 1994), 884 P.2d 841; Ferguson v. Wolkin (N.Y. 1986), 499 N.Y.S.2d 356; Twitchell v. MacKay (N.Y. App. Div. 1980), 434 NY.S.2d 516; Armstrong v. Morgan (Tex. App. 1977), 545 S.W.2d 45.

We agree that the authorities cited by Dr. Snider and relied on by the District Court are not applicable to the facts in this case. All of them involve independent medical examinations at the request of a workers’ compensation insurance carrier, state agency, or employer, and all involve allegations that the examination was done negligently, causing some damage to the plaintiff. However, none involved a situation in which the defendant physician was accused of negligently diagnosing a plaintiff’s condition and communicating his erroneous conclusions directly to the patient. The closest to a case on point is Promubol where the defendant physician interpreted the plaintiff’s x-ray film, sent a report to the plaintiff’s insur anee company, and sent a copy to the plaintiff. However, critical to that court’s decision in favor of the defendant doctor was its conclusion that he had not, in fact, given advice to the plaintiff. That court gave the following explanation for its decision:

It is clear that the report does not advise appellant. It was neither prepared for appellant nor directed to appellant, and it did not provide recommendations for follow-up. There were no personal notations, whatsoever on the report. Clearly, it represented a gratuitous notification that the information contained therein was being sent to the insurance carrier. Since the exam was reported as normal, sending a copy of the report doubled as notification that appellant Promubol’s sought-after insurance increase would likely be granted.

Promubol v. Hackett (Pa. Super. 1996), 686 A.2d 417, 420.

On the other hand, in Hoover, the Maryland Court of Appeals considered a physician’s duty under circumstances similar to those in this case. In that case, General Electric Company required annual x-ray examinations of the chests of certain employees due to the effects of silica dust to which they were exposed. One of the employees was the plaintiff, Willard Hoover. The examinations were performed under the direction of the defendant, Dr. C. Vernon Williamson. The plaintiff alleged that following his annual examination, Dr. Williamson advised him that he had “a little infection in the lungs,” when, in fact, the examination clearly revealed that he had silicosis. However, his complaint was dismissed based on lack of a physician-patient relationship since Dr. Williamson had been retained and paid by his employer. The trial court held that Williamson’s duty was to the company and not to Hoover. The Maryland Appellate Court acknowledged that ordinarily recovery for malpractice is limited to situations which involve the relationship of a doctor and patient, but reversed the defendant’s dismissal based on the following exception:

There is, however, a broader, a more fundamental rule of long standing under which a physician may incur a tort obligation which is nonconsensual and independent of contract. This is the general rule that one who assumes to act even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement, Torts, Sec. 325, says the law is that one who gratuitously undertakes to render services which he should recognize as necessary to another’s bodily safety, and leads the other in reasonable reliance on the services to refrain from taking other protective steps, or to enter on a dangerous course of conduct, ‘...is subject to liability to the other for bodily harm resulting from the actor’s failure to exercise reasonable care to carry out his undertaking.’See also 2 Harper and James, The Law of Torts, Sect. 18.6.

Hoover v. Williamson (Md. 1964), 203 A.2d 861, 863.

That court held that even if the defendant had no duty to the plaintiff to begin with, he assumed a duty when he made affirmative representations to the plaintiff regarding his condition. Hoover is also relied on in Betesh v. United States (1974), 400 F. Supp. 238, 245-46, for the principle that a physician performing an independent medical examination can mislead a patient and, therefore, breach a duty to that patient by withholding information, as well as by affirmatively misrepresenting a patient’s condition.

Dr. Snider contends that if we adopt the plaintiff’s theory and allow an exception to the physician-patient requirement in only those situations where a physician makes affirmative representations to the examinee, then in those situations where the examinee does in fact suffer from some physical ailment about which he or she should be notified, i.e., the presence of a potentially fatal tumor, then it would be in the physician’s best interest not to notify the examinee, and that that would not be in the public’s best interest. We agree. Therefore, while we agree with the decision of the Maryland Court of Appeals in Hoover that a physician who performs an independent medical examination has a duty to exercise reasonable care when he or she communicates the results of that examination to the examinee, we conclude that the scope of the duty to the examinee is not limited to those situations in which diagnoses are negligently made and communicated to the person being examined.

Based on the statutory scheme which defines the duty of every person in Montana to exercise ordinary care and skill to avoid injury to others (§ 27-1-701, MCA), we find the decision of the Fifth Circuit Court of Appeals in Green v. Walker, M.D. (5th Cir. 1990), 910 F.2d 291, persuasive. In Green, the decedent’s employer required its employees to undergo an annual physical examination and contracted with the defendant physician to conduct those examinations. The defendant reported that all of Green’s test results were normal and that he was employable without restriction. Approximately one year later, he was diagnosed with lung cancer from which he ultimately died. Prior to his death, he brought an action against the examining physician based on his contention that the physician negligently failed to diagnose his condition and that if he had, his chances of survival would have been greater. The district court, however, granted summary judgment in favor of the physician on the basis that no physician-patient relationship existed and, therefore, that the defendant had no duty to Green. The issue on appeal to the Fifth Circuit Court was whether, under Louisiana law, the defendant had a duty to the examinee to perform the examination with due care, and to report his findings, particularly any finding which appeared to pose a threat to the physical or mental health of the examinee. The Fifth Circuit Court held that the defendant had such a duty. That court acknowledged that the traditional principle of law regarding liability for malpractice depends on a physician-patient relationship. See Green, 910 F.2d at 296. That court based its decision on Louisiana statutory law, in spite of a decision from Louisiana’s Court of Appeals which seemed to require the opposite result. See Thomas v. Kenton (La. App. 1982), 425 So. 2d 396. It noted that in Louisiana “the Erie obligation is to the [Civil] Code, the ‘solemn expression of legislative will.’” Green, 910 F.2d at 294 (quoting Shelp v. National Surety Corp., 333 F.2d 431, (5th Cir. 1964), cert. denied (1964), 379 U.S. 945, 85 S. Ct. 439, 13 L. Ed. 2d 543). The statutory provision it relied on provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” La. Civ. Code art. 2315. That court concluded that Louisiana’s Civil Code “permits the articulation of a duty of care that would protect physical examinees, if they are to be deemed other than ‘patients,’ a position we do not here concede.” Green, 910 F.2d at 295. It provided the following rationale and conclusion:

We live in an age in which the drive for an increasingly productive workforce has led employers increasingly to require that employees subject their bodies (and minds) to inspection in order to obtain or maintain employment. See Rothstein, Employee Selection Based on Susceptibility to Occupational Illness, 81 Mich. L. Rev. 1379 (1983) (common procedures include blood tests, urinalysis, pulmonary function tests, and x-rays). In placing oneself in the hands of a person held out to the world as skilled in a medical profession, albeit at the request of one’s employer, one justifiably has the reasonable expectation that the expert will warn of “any incidental dangers of which he is cognizant due to his peculiar knowledge of his specialization.” American Mfrs. Mut. Ins. Co. v. United Gas Corp., 159 So. 2d 592, 595 (La. App. 1964).
We therefore now hold that when an individual is required, as a condition of future or continued employment, to submit to a medical examination, that examination creates a relationship between the examining physician and the examinee, at least to the extent of the tests conducted. This relationship imposes upon the examining physician a duty to conduct the requested tests and diagnose the results thereof, exercising the level of care consistent with the doctor’s professional training and expertise, and to take reasonable steps to make information available timely to the examinee of any findings that pose an imminent danger to the examinee’s physical or mental well-being. To impose a duty upon the doctor who performs such tests to do so in accordance with the degree of care expected of his/her profession for the benefit of the employee-examinee, as well as the employer, is fully consistent with the very essence of Civil Code article 2315.

Green, 910 F.2d at 295-96 (footnote omitted).

Green has been followed or cited with approval in Daly v. United States (9th Cir. 1991), 946 F.2d 1467; Cleghorn v. Hess (Nev. 1993), 853 P.2d 1260, and Baer v. Regents of Univ. of California (N.M. App. 1994), 884 P.2d 841.

Similarly, the Montana Code Annotated provides as follows:

Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Section 27-1-701, MCA.

Based on § 27-1-701, MCA, we likewise conclude that it is consistent with statutory law in Montana to impose a duty on physicians who perform examinations of an employee, insured, or other person at the request of a third party to exercise the level of care required by the examiner’s professional training and experience and to make information regarding the results of that examination available to the examinee if the physician’s findings disclose an imminent danger to the examinee’s physical or mental well-being.

We do not, by this opinion, conclude that physicians retained by third parties who perform independent medical examinations have the same duty of care that a physician has to his or her own patient. The scope of the duty attendant to an independent medical examination must necessarily be developed on a case-by-case basis. We agree with the observation of the California Court of Appeals in Keene v. Wiggins (Cal. Ct. App. 1977), 138 Cal. Rptr. 3, when it stated that:

This does not suggest, however, a doctor is required to exercise the same degree of skill toward every person he sees. The duty he owes to each varies with the relationship of the parties, the foreseeability of injury or harm that may be expected to flow from his conduct, and the reliance which the person may reasonably be expected to place on the opinion received. A case-by-case approach is required.

Keene, 138 Cal. Rptr. at 6.

What we do hold, in this case, is that a health care provider in Montana who is retained by a third party to do an independent medical examination has the following duties:

1. To exercise ordinary care to discover those conditions which pose an imminent danger to the examinee’s physical or mental well-being and take reasonable steps to communicate to the examinee the presence of any such condition; and

2. To exercise ordinary care to assure that when he or she advises an examinee about her condition following an independent examination, the advice comports with the standard of care for that health care provider’s profession.

For these reasons, we conclude that the District Court erred when it held that the defendant, Robert K. Snider, M.D., had no duty to the plaintiff, Diana L. Webb, to exercise ordinary care under the circumstances alleged in this case. We reverse the order and judgment of the District Court and remand to the District Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, NELSON and HUNT concur.

JUSTICE LEAPHART,

specially concurring.

I concur in the result reached by the Court, however, I would have only answered the question posed by the appellant Webb. Webb phrased the issue on appeal as follows:

“Does a physician who undertakes to advise a patient about her condition following an independent medical examination have an obligation to exercise reasonable care in doing so?”

In responding to the issue framed by Webb, I would hold that an IME doctor who undertakes to advise a patient about her condition following an independent medical examination has an obligation to exercise reasonable care in so advising her.

Unlike the majority, I would not have addressed the broader questions of whether an IME doctor who examines a person must exercise ordinary care to discover mental or physical conditions and to take reasonable steps to communicate the presence of such conditions to the examinee. Those are questions which were not posed by the appellant and are outside the scope of the facts of this appeal. While I do not necessarily disagree with the Court’s analysis of those issues, they are issues for another day, another appeal.

JUSTICE GRAY joins in the foregoing special concurrence.


author: JUSTICE LEPAHART

text:
    WILLIAM POLK, Petitioner and Appellant, v. PLANET INSURANCE CO., Insurer and Respondent, KOCH AGRICULTURE, INC., Employer.
    No. 97-272.
    Submitted on Briefs November 13, 1997.
    Decided December 30, 1997.
    54 St.Rep. 1508.
    287 Mont. 79.
    951 P.2d 1015.

      For Appellant: Lawrence A. Anderson, Howard F. Strause, Attorneys at Law, Great Falls.
    For Respondent: SaraR. Sexe; Marra, Wenz, Johnson & Hopkins, Great Falls.
   JUSTICE 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 and its insurer, Respondent Planet Insurance Company (Planet). Pursuant to §§ 39-72-601 through -613, MCA, the Department of Labor and Industry appointed a panel of three doctors to evaluate Polk’s claim. Polk was examined by Drs. David Anderson and J. Michael Sadaj. Dr. Anderson concluded that Polk suffered from an occupational disease, while Dr. Sadaj concluded he did not. Athird physician, Dr. Thomas Thigpen, reviewed the records and reports of Drs. Anderson and Sadaj. Dr. Thigpen did not meet with the other two doctors, but issued a report to the Department of Labor on behalf of the panel concluding that Polk’s condition was not the result of an occupational disease. Polk appealed this determination to the hearings unit of the Department of Labor and Industry.

The eight medical experts whose testimony was presented at the hearing had either examined Polk or reviewed his medical records. Each came to a different conclusion as to the cause of Polk’s pulmonary condition. Dr. Anderson, a panel doctor, concluded that Polk’s condition was caused primarily by asthmatic bronchitis, hypersensititivy pneumonitis, and some emphysema. Hypersensitivity pneumonitis, or “farmer’s lung,” can be caused by exposing the lungs to grain, molds, and other airborne irritants. Emphysema is typically caused by smoking. Dr. Anderson stated that the asthmatic component of Polk’s condition was ‘likely related to his exposure to toxic organic dusts.” Drs. Sadaj and Thigpen, the other panel doctors, concluded that Polk suffers from “chronic obstructive pulmonary disease and chronic respiratory insufficiency as a result of long term heavy smoking.”

Polk’s treating physician, Dr. Holly Strong, concluded that Polk suffers from hypersensitivity pneumonitis, occupational asthma, and slight emphysema. She also diagnosed Polk with bronchiectasis, which can be caused by fungus associated with organic dust and by hypersensitivity pneumonitis. Dr. Jeffrey Kessler, a radiologist, performed a high-resolution CT scan on Polk’s lungs and determined that Polk suffers from hypersensitivity pneumonitis, severe bronchiectasis, and minimal emphysema.

Dr. Stephen Demeter, an expert retained by Planet, testified that he found no evidence that Polk suffers from hypersensitivity pneumonitis, or of any occupational disease. He concluded that Polk has emphysema caused by smoking and some bronchiectasis, possibly caused by a past episode of pneumonia. Planet also offered the expert deposition testimony of Dr. Robert Merchant, who concluded that Polk suffers from emphysema and some bronchiectasis. Polk’s expert, Dr. Dana Headapohl, concluded that Polk suffers from hypersensitivity pneumonitis caused by his exposure to mold and organic dust while working at Koch.

After a hearing, the hearings examiner found that Polk is not suffering from an occupational disease. In March 1996, Polk appealed to the Workers’ Compensation Court, arguing that the procedure used by the three-member medical panel was unlawful and that the hearings examiner had failed to apply the appropriate standard of causation. The Workers’ Compensation Court held that the medical panel had acted improperly by failing to meet to discuss Polk’s case, but that this was not reversible error. It further found that the hearings examiner’s finding that Polk does not suffer from an occupational disease is not clearly erroneous and is supported by substantial evidence. Polk appeals from this decision.

Standard of Review

We review the Workers’ Compensation Court’s findings of fact to determine whether the findings are supported by substantial credible evidence. This Court reviews conclusions of law to determine whether the lower court’s interpretation of the law is correct. Kloepfer v. Lumbermen’s Mut. Cas. Co. (1996), 276 Mont. 495, 916 P.2d 1310.

Discussion

Did the Workers’ Compensation Court err in holding that Polk had failed to prove causation and in reviewing the decision of the Department of Labor under the clearly erroneous standard?

A. Appropriate Standard of Causation

The Occupational Disease Act of Montana (the Act) is codified at Title 39, Ch. 72, MCA. To qualify for benefits under the Act, the claimant must prove that his or her employment is a proximate cause of the claimant’s condition. Under § 39-72-408, MCA:

Occupational diseases shall be deemed to arise out of the employment only if:
(1) there is a direct causal connection between the conditions under which the work is performed and the occupational disease;
(2) the disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
(3) the disease can be fairly traced to the employment as the proximate cause;
(4) the disease does not come from a hazard to which workmen would have been equally exposed outside of the employment;
(5) the disease is incidental to the character of the business and not independent of the relation of employer and employee.

Polk recognizes that to prevail, he must prove that his lung condition was proximately caused by his exposure to dust and other irritants at Koch. However, he asserts that the hearings examiner and the four doctors who concluded that he did not suffer from an occupational disease applied the wrong standard of causation.

Under Montana law, a worker may receive pro rata compensation “[i]f an occupational disease is aggravated by any other disease or infirmity not itself compensable or if disability or death from any other cause not itself compensable is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease.” Section 39-72-706(1), MCA (emphasis added). “ ‘Occupational disease’means harm, damage, or death ... arising out of or contracted in the course and scope of employment and caused by events occurring on more than a single day or work shift.” Section 39-72-102(10), MCA (emphasis added). Polk argues that in light of these statutes and our case law construing them, he must only show that a work-related exposure aggravated or contributed to his illness. He asserts that the testimony of several of the doctors, and in turn the conclusion of the hearings examiner, was based on the misconception that to satisfy causation, Polk had to prove that the occupational exposures were the major factor causing his health problems.

Indeed, this Court has held that “an employer accepts his employee with all of his injuries and diseases” and, thus, that the test for compensability is whether the job-related incident significantly aggravated the preexisting condition. Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 665 P.2d 783; see also Eastman v. Atlantic Richfield Co. (1989), 237 Mont. 332, 777 P.2d 862. For example, in Ridenour, 665 P.2d at 784, the claimant was a long-term smoker who worked in a dusty grain-processing plant. After an incident of grain inhalation, the claimant developed a cardiopulmonary disease. Ridenour, 665 P.2d at 784. This Court held that “diseases are subject to aggravation and acceleration” and that the grain inhalation had aggravated the claimant’s preexisting lung disease. Ridenour, 665 P.2d at 788. Thus, we found that he was entitled to pro rata compensation. Ridenour, 665 P.2d at 788.

Planet argues that the aggravation statute does not relieve the claimant of the burden of proving proximate cause, but that Polk is still required to prove a direct causal connection between the work-related factors and his resulting condition. We agree with Planet that the aggravation statute, § 39-72-706, MCA, does not circumvent the proximate cause requirement of § 39-72-408, MCA. However, Planet contends that to prove proximate cause, Polk must show that occupational exposures were a substantial contributing factor to his health problem.

In light of the proximate cause statute and the aggravation statute, we agree with the Workers’ Compensation Court that “occupational aggravations of preexisting non-occupational diseases are compensable, as are occupational diseases which are aggravated by non-occupational factors.” As we held in Ridenour, the test for compensability under the Act is whether occupational factors significantly aggravated a preexisting condition, not whether occupational factors played the major or most significant role in causing the claimant’s resulting disease.

Other jurisdictions, such as New Mexico, have come to the same conclusion when considering the effect of numerous factors, occupational and non-occupational, on pulmonary diseases:

These cases have dealt specifically with the analytical and testimonial difficulties inherent in determining compensability of diseases caused by the combined effect of smoking and work-related exposures to dust, asbestos, radiation, and various toxic fumes.... The majority rule in states with a statutory scheme similar to New Mexico’s allows compensation without a showing that work-related exposures were the predominant cause of the disease or death.

Buchanan v. Kerr-McGee Corp. (N.M. App. 1995), 908 P.2d 242, 249. That court noted that “[t]he work-related cause may, in fact, be a minor factor so long as the worker establishes that, as a matter of medical probability, it was a cause of the disability.” Buchanan, 908 P.2d at 249.

Therefore, we hold that Polk need not prove that occupational exposures were the major or substantial factor causing his chronic pulmonary condition. Rather, Polk must prove that he is suffering from a disease that is proximately caused by his employment or that exposure to dust and other irritants while in the course of his employment at Koch contributed to or aggravated a preexisting condition. Having stated the appropriate test for causation, we proceed to apply it to this case.

B. Workers’ Compensation Court’s Standard of Review

The Workers’ Compensation Court agreed that § 39-72-408, MCA (proximate cause) “must be read together with § 39-72-706, MCA, which provides for apportionment between occupational and non-occupational causes.” Nonetheless, the Workers’ Compensation Court went on to hold that the findings of the Department of Labor’s hearings examiner were not clearly erroneous.

Under § 39-72-612, MCA, the judge of the Workers’ Compensation Court may overrule the decision of the Department of Labor when it is:

(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

The Workers’ Compensation Court erred in reviewing only for clearly erroneous findings of fact. Whether the hearings examiner applied the appropriate test for proximate causation is a question of law. Thus, pursuant to § 39-72-612, MCA, the Workers’ Compensation Court should have reviewed the Department of Labor’s decision not only for clearly erroneous findings of fact, but also to determine whether the decision was affected by an error of law.

C. Application of Appropriate Standard of Causation in this Case

As noted by the hearings examiner, “[e]xamination and analysis of [PolkJ’s condition as well as the cause of that condition by numerous doctors resulted in one group of doctors concluding [Polk] suffers from an occupational disease and another group of doctors concluding [Polk] does not suffer from an occupational disease.” Based on the presumption of correctness given to the medical panel’s adverse decision and on the hearings examiner’s determination that the doctors who found no occupational disease were more qualified and presented better-reasoned conclusions, the examiner concluded that Polk did not suffer from an occupational disease. Polk argues that had the hearings examiner reviewed the evidence under the appropriate standard, to determine whether an occupational exposure contributed to or aggravated Polk’s condition, rather than simply adopted these doctors’ conclusion that Polk does not suffer from an occupational disease, the balance of evidence would have been tipped in his favor.

As stated above, each doctor came to different conclusions as to the cause of Polk’s pulmonary disease. As noted by Dr. Merchant, placing a name on the myriad of symptoms Polk suffers is difficult: “[0]ne of the reasons that we term it ‘COPD’ [chronic obstructive pulmonary disease] rather than ... going past that and actually saying, ‘You have chronic bronchitis versus emphysema,’ is that very often you have a mixture of the various conditions, because some of the things that cause one of them can also cause the others.”

Four of the eight doctors involved in this case, Drs. Sadaj, Thigpen, Demeter, and Merchant, concluded that Polk did not suffer from hypersensitivity pneumonitis, or any other occupational disease. Based on their testimony, the hearings examiner concluded that Polk was not entitled to compensation. However, the testimony of three of these four doctors could support a finding that the conditions to which Polk was exposed at Koch aggravated or contributed to his pulmonary condition.

Dr. Merchant concluded that Polk suffers from emphysema and some bronchiectasis. However, Dr. Merchant also testified that occupational exposures “would be very likely to play a significant role in exacerbating [Polk’s] emphysema.” Dr. Thigpen, the doctor who reported to the Department of Labor on behalf of the medical panel, concluded that hypersensitivity pneumonitis was not the most likely cause of Polk’s pulmonary condition, but did not exclude it as a possibility. Further, Dr. Thigpen stated that “if one does have any type of underlying lung disease (and that includes emphysema and chronic bronchitis) exposure to various types of dust and other irritants will aggravate claimant’s condition.” [Emphasis added]. Dr. Sadaj, another panel doctor, concluded that Polk suffers from chronic obstructive pulmonary disease and chronic respiratory insufficiency as a result of long-term heavy smoking. However, in support of this conclusion, Dr. Sadaj testified: “The only way that I could say the occupation was a major part in his problem was if he has hypersensitivity pneumonitis.”

As stated above, Polk need not prove that the occupational exposures, as compared to smoking or other contributing factors, were the “major” or primary factor causing his present condition. Rather, as long as occupational exposures substantially aggravated Polk’s pulmonary condition, he is entitled to pro rata compensation for his injuries. However, in concluding that he did not suffer from an occupational disease, Drs. Merchant, Sadaj, and Thigpen were operating under the mistaken assumption that, to qualify him for occupational disease benefits, Polk’s exposure to dust and other irritants at Koch had to be the major factor causing his pulmonary condition. When the testimony of Drs. Merchant, Sadaj, and Thigpen is reviewed under the correct standard of causation and added to the testimony of the four doctors who concluded that Polk indeed suffers from an occupational disease, it could support a finding that occupational factors contributed to or aggravated Polk’s pulmonary disease.

By adopting the doctors’ threshhold requirement that Polk’s occupational exposures be the major or primary factor causing his medical condition rather than reviewing their testimony to determine whether it supports a finding that an occupational exposure contributed to or aggravated Polk’s condition, the hearings examiner applied the wrong standard of causation. We hold that the Workers’ Compensation Court erred in not overruling the Department of Labor’s decision based on this error of law.

Based on the foregoing, we reverse the decision of the Workers’ Compensation Court and remand to that court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and REGNIER concur.