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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1994 MTWCC 92
MONTANA MUNICIPAL INSURANCE AUTHORITY
Respondent Insurer for
THE CITY OF KALISPELL
The trial in this matter was held on September 12, 1994, in Kalispell, Montana. The petitioner, Scott Davis (claimant or Davis), was present and represented by Ms. Laurie Wallace. Respondent, Montana Municipal Insurance Authority (MMIA), was represented by Mr. Leo S. Ward. Claimant, Lanny Scovel, Jerry Diegal, Leonard Hogan and Dick Brady testified. Additionally, the depositions of Scott Davis, Lawrence Iwersen, M.D. and James Kiley, M.D. were submitted for the Court's consideration. Exhibits 1 through 4, 7 and 9 were admitted into evidence without objection. Exhibit 5 was admitted over objection but for limited purposes. Pages 18-21 of Exhibit 6 and pages 33-37, 43 and 47 of Exhibit 8 were also admitted over objection.
Issues Presented: This case involves Mr. Davis' claim that he suffered an industrial injury to his low-back in late October or early November of 1991. The MMIA timely denied Davis' claim. In this proceeding it asserts that claimant failed to notify his employer of any accident within the thirty days provided by section 39-71-603, MCA. MMIA further contends that Davis did not suffer an industrial injury.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
1. Claimant lives in Kalispell, Montana. His present age is thirty-nine.
2. Claimant graduated from high school in 1974. He thereafter served in the U.S. Army for two years. After military service he worked at various laboring and heavy equipment operator jobs.
3. In 1983, while working as a heavy equipment operator for Royal Logging, claimant injured his neck and low-back. He reported the injury and filed a claim for compensation.
4. Following his 1983 injury, the claimant experienced low-back pain and pain radiating into his left leg. (Ex. 1 at 113.)
5. On March 28, 1985, claimant underwent low-back surgery. The surgery was performed by Dr. Albert Joern, an orthopedic surgeon, at the Kalispell Regional Hospital. Dr. Joern carried out a bilateral hemilaminectomy and foraminotomy at the L4-5 level, and a complete discectomy at the L4-5 level. He also performed a posterior interbody fusion at L4-5 level and a left-side posterolateral fusion of the L4 to S1 vertebrae. Dr. Joern's operative report is Exhibit 1 at pages 116 through 118. A summary is found at page 113 of Exhibit 1.
6. In August of 1987, claimant settled his 1983 claim for 500 weeks of disability benefits at his maximum rate.
7. Claimant contends that he suffered another injury to his back in late October or early November of 1991, while operating a street sweeper for the City of Kalispell. He testified that while standing on the top of the street sweeper, he slipped on a wet spot and fell to the ground, landing on his buttocks. He claims that he reported the accident to his employer on the same day. According to claimant, he thereafter experienced severe low-back pain, which had not been the case before the injury, and discovered that the 1985 fusion of the low-back had "busted". He testified that he was not previously aware that the fusion had "come apart" or "busted".
8. The MMIA denies that claimant reported any injury within the thirty days provided by section 39-71-603, MCA (1989) and denies that claimant suffered an industrial accident in November 1991. It also contends that even if an industrial accident occurred, claimant's present condition is unrelated to the incident.
9. Claimant testified that after the accident he returned to the city shop at 2:00 or 2:30 p.m. According to claimant, he told two co-employees, Lanny Scovel and Jerry Diegal, that he had just fallen off his sweeper and injured his back, and they told him to report the injury on his time card. Claimant further testified that he noted his injury on the time card and told his immediate supervisor, Leonard Hogan (Hogan), that he had fallen off his sweeper and injured his back. Claimant states that he asked to take the rest of the day off due to his back, but Hogan told him to stay around the shop area and do light work such as cleaning windows until the end off the day. Hogan testified at trial and denied that any conversation ever occurred; denied that claimant reported the injury; and denied any knowledge of the alleged injury until several months later when claimant filed a claim.
10. Claimant did not file a written claim for compensation until April 10, 1992. (Davis Dep. Ex. 1.)
11. The time cards for late October and early November 1991 might well be dispositive of claimant's assertion that he reported the injury on his time card. Those cards, however, have been destroyed. Dick Brady, the Public Works Superintendent for Kalispell, testified that he threw out a drawer full of time cards, representing several years, after the city computerized its payroll information and the cards were no longer needed. Mr. Brady's testimony was credible and no adverse inference is drawn on account of the unavailability of the time cards.
12. Two Kalispell employees testified that they recalled claimant mentioning that he had injured himself. One of the employees, Lanny Scovel, testified that he told claimant to note the injury on his time card. Neither observed him actually filling out the time card. Both witnesses testified that claimant approached them and brought the incident to their attention after he had been terminated from his employment and was already involved in a dispute over his claim. In light of other testimony and circumstances in this case, the Court did not find their testimony convincing or persuasive as to either the filling out of a time card or the occurrence of an accident.
13. Leonard Hogan testified that claimant did not report an injury to him. His testimony was based on his memory and his daily procedures. Whenever an injury occurs, Hogan writes it down on his calendar and requires a memo concerning the accident. Hogan also testified that he would not have told an employee to stay at work after an injury.
14. Claimant's testimony in this case was exaggerated, distorted, incomplete and/or untruthful.
15. Claimant was not a credible witness; Hogan was. Having weighed all of the testimony in this case, and considering all of the circumstances, I find that claimant did not report any injury to Hogan or on his time card. I further find that the first report of any injury occurred in April 1992, when claimant submitted a written claim for compensation.
16. I further find that claimant did not suffer an industrial accident. I did not find his testimony concerning the occurrence of an accident credible.
17. While he experienced a temporary remission of his symptoms following his surgery in 1985, claimant's back pain and leg pain was present long before his alleged 1991 accident. He saw Dr. Iwersen on November of 1988 and was complaining of pain in both his back and legs. (Iwersen Dep. at 8.) Claimant's continued complaints caused Dr. Iwersen to refer claimant to a spine clinic in California, where claimant was seen on May 4, 1989. (Ex. 1 at 37, 101-104.) In March of 1990 Dr. Iwersen prescribed physical therapy. (Ex. 1, Iwersen at 151.) In a March 26, 1990 letter Dr. Iwersen wrote:
(Ex. 1, Iwersen at 7.) I find it more likely than not that claimant's back symptoms in March and April 1992, and thereafter, are a continuation and natural progression of his preexisting condition.
1. Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Ricks v. Teslow Consolidated, 162 Mont. 469, 483-484, 512 P.2d 1304 (1973); Dumont v. Aetna Fire Underwriters, 183 Mont. 190, 598 P.2d 1099 (1979).
2. This case is governed by the statutes in effect on the date of claimant's alleged injury. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380 (1986). Claimant contends he was injured in October of 1991, thus the 1991 version of the Workers' Compensation Act applies.
3. Claimant is required to give notice of an injury within thirty days after the occurrence of an accident. Section 39-71-603, MCA (1991) provides:
The section is mandatory and "no claim shall be considered compensable unless the employer or employer's insurer is notified within [the] 30 days." Buckentin v. State Fund, 51 St.Rep. 0656 (1994)(quoting Reil v. Billings Processors, Inc., 229 Mont. 305, 308, 746 P.2d 617, 619).
Claimant contends that he informed his co-workers, as well as his supervisor, Leonard Hogan, of his accident the day it occurred. Notice to co-workers is not sufficient to satisfy the notice requirement, Bogle v. State Fund, 51 St.Rep. 380 (1984), and the Court has found as a matter of fact that claimant did not report any injury either to Hogan or on his time card. The first notice of his alleged injury was in April 1992, several months after the alleged injury.
4. A worker is entitled to compensation and medical benefits only if the worker suffers an "injury" within the meaning of the Montana Workers' Compensation Act. See Title 39, Part 7, MCA (1991). "Injury" is defined is defined as follows:
Claimant has not persuaded the Court that any accident occurred in 1991 or that he injured or aggravated his back condition in 1991. A preponderance of credible evidence persuades the Court that the claimant's current back problems are the result of his preexisting condition caused by his 1983 injury.
5. Claimant is not entitled to a penalty, costs or attorney fees.
1. Claimant is not entitled to compensation because he failed to give proper notice to his employer and in any event did not suffer an industrial injury in October, November or December of 1991.
2. Claimant is not entitled to a penalty, attorney fees or costs.
3. The JUDGMENT herein is certified as final for purposes of appeal pursuant to ARM 24.5.348.
4 Any party to this dispute may have twenty (20) days in which to request a rehearing from these Findings of Fact and Conclusions of Law and Judgment.
DATED in Helena, Montana, this 7th day of October, 1994.
c: Ms. Laurie Wallace
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