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High court to hear case on worker¹s illness claim

| June 18, 2004 12:00 AM

By Brent Shrum, Western News Reporter

The Montana Supreme Court is scheduled to hear oral arguments next week in the case of a former W.R. Grace employee who is challenging a three-year time limit for filing occupational disease claims.

William Hardgrove worked at Grace¹s Libby vermiculite mine from 1967 until 1984 and was diagnosed with asbestosis in 1998. A month after his diagnosis, he filed an occupational disease claim which was denied under a state law limiting the time to file claims to three years from the last day of employment. The denial was upheld in worker¹s compensation court.

Represented by Great Falls attorneys Tom Lewis, Keith Marr and Thomas Baiz, Hardgrove contends that the time limitation should not begin until disease is discovered or that the statute should be found unconstitutional because it violates the right to equal protection under the law.

Hardgrove is joined by more than a dozen other former Grace workers or widows of Grace workers who were barred from receiving worker¹s compensation under the same statute. They filed as friends of the court and are represented by the Kalispell law firm McGarvey, Heberling, Sullivan & McGarvey.

In 1985, the Montana Legislature repealed the time restriction at issue in the case, but the amendment was limited to claims arising from exposures that occurred after Oct. 1, 1985.

Hardgrove¹s attorneys hold that the interpretation of the pre-1985 statute as an absolute time bar is inconsistent with the Supreme Court¹s prior treatment of similar worker¹s compensation provisions.

In a brief filed on behalf of Grace¹s insurer, the Transportation Insurance Co., Kalispell attorneys Todd Hammer and David Sandler countered that Hardgrove and the others ³want to have their cake and eat it too,² pointing out that the Supreme Court has held that when an occupational disease claim is barred by the time limit the employer is not protected from lawsuits.

The insurance company¹s attorneys noted that Hardgrove has filed suit against Grace and argued that the time limitation on worker¹s compensation claims is not unfair.

³Indeed, many would argue that the person who can bring a tort claim is in a better position than the worker who can recover only occupational disease benefits,² they said.

In enacting a time limit for the filing of occupational disease claims, the Legislature may have rationally concluded that it was promoting legitimate economic interests by lowering worker¹s compensation insurance premiums, they added.

Oral arguments in the case are scheduled for 9:30 a.m. on Wednesday, June 23.