¶1 The trial in this matter was held on May 10, 2000, in Helena, Montana. Petitioner, Tony Baker (claimant), was present and represented by Mr. Norman H. Grosfield. Respondent, State Compensation Insurance Fund, was represented by Mr. Charles G. Adams. A trial transcript has not been prepared.

¶2 Exhibits: Exhibits 1 through 16 were admitted without objection.

¶3 Witnesses and Depositions: The depositions of claimant, Richard Proul, Richard "Bud" Proul, Patricia Proul, and Yvonne Hufford were received for consideration by the Court. Those same individuals, as well as Terry Lewis, were sworn and testified at trial.

¶4 Issues: The issues stated in the Pretrial Order are as follows:

¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of witnesses, the exhibits and depositions, and the arguments of the parties, the Court makes the following:

FINDINGS OF FACT

¶6 In 1992 claimant began working as an auto and truck mechanic for R & R Diesel, which does repair work on trucks and automobiles.

¶7 R & R Diesel is a family business in its 22^nd year of operation. Richard "Bud" Proul (Bud) is one of the owners and oversees all work. He is claimant's uncle. Pat Proul (Pat) is Bud's wife and works as a secretary for the business. Richard Proul (Richard) and Yvonne Hufford (Yvonne), Bud's and Pat's children, both work at the company. Richard is a foreman and Yvonne works in the office.

¶8 Initially, there is no question that claimant suffered a shoulder injury some time prior to May 28, 1997. Medical records show that he sought treatment for his right shoulder on May 28, 1997, at the Indian Alliance Clinic. (Ex. 8 at 1.) Dr. C. O'Connor recorded, "The patient injured his right shoulder again when a drive shaft fell on it about a week ago." (Ex. 8 at 2; emphasis added.) The "again" part of the statement suggests he had previously injured his shoulder but the Court has received no evidence with respect to any earlier injury. The clinic record and Dr. O'Connor's note contain no information indicating where claimant was injured.

¶9 Claimant continued to experience right shoulder pain and was ultimately referred to Dr. Kenneth Carpenter, an orthopedic surgeon, who diagnosed a rotator cuff tear of the right shoulder. (Ex. 9 at 1.) On March 31, 1998, Dr. Carpenter surgically repaired claimant's right rotator cuff and did a "[d]istal clavicle resection." (Ex. 7 at 6.)

¶10 Claimant alleges in this action that he injured his shoulder at work on May 17, 1997. He claims that a drive shaft fell on him.

¶11 Claimant did not initially pursue a workers' compensation claim. During his deposition, he testified that he submitted claims for his medical care under his regular health insurance policy. According to claimant, he was covered under a policy of his girlfriend Jackie Downey (Jackie).

¶12 Claimant indicated that he submitted medical bills to his healthcare insurer because of statements by Bud, who talked about the "old days where you just toughed it out" and said he didn't "like people that went in and filed claims for workman's comp because he said they was [sic] freeloaders just trying to get money." (Baker Dep. at 12.)

¶13 The healthcare insurer denied benefits after claimant indicated his shoulder condition was the result of a work-related injury.

¶14 In February of 1998 claimant's girl friend, Jackie, went to the office at R & R Diesel and presented a First Report of Occupational Injury or Occupational Disease form. (Ex. 6; Baker Dep. at 14-16; Ex. 1.) Pat was there and testified that this was the first time she heard of an injury to claimant's shoulder. Yvonne testified that Jackie "came in with the claim and said, 'Sign this.'" (Hufford Dep. at 7.) Pat testified that most of the form was already completed, but she inserted information about the employer and signed it as Jackie requested. Pat checked the box on the form stating that the employer had reason to dispute the injury.

¶15 Claimant signed the form, but was not sure who filled it out.⁽¹⁾ He testified that it was already completed when he signed it. (Baker Dep. at 14-16; Ex. 6.)

¶16 The claim form in question states:

(Ex. 6.) For the date and time of injury, "7/15/97" and "10:05 a.m." were filled in. (Id., emphasis added.)

¶17 On February 27, 1998, Susan Amicucci (Amicucci), who is a claims adjuster for the State Fund, interviewed claimant. (Ex. 12.) Claimant reported:

(Ex. 12 at 1-2, emphasis added.)

¶18 Claimant told Amicucci that he recorded the injury in "this little book that they give me that I write down what I do during that day and that course of time." (Ex. 12 at 9.) At deposition he identified a page from his time book which includes the handwritten entry, "Hurt Arm Shop" next to the handwritten date "7/15/97." (Ex. 10; Baker Dep. Ex. 3; Baker Dep. at 21.) At deposition he explained:

(Id. at 22.)

¶19 Yvonne pulled work orders and time cards in the attempt to verify that claimant worked on a "Mack log truck." Work orders kept by R & R Diesel show both the work performed and the employee performing the work on a particular auto or truck. (Ex. 13.) Time cards for individual employees show the time worked by the employee on each work order and identify the work order by its work order number. (See Ex. 11 at 12-14.) Yvonne reviewed claimant's time cards for the entire week of July 15, 1997, and work orders for that time period. She found no reference to any work on a Mack logging truck. Bud forwarded the information to the Department of Labor and Industry, writing:

(Ex. 16.)

¶20 Claimant then changed his mind about the date of the alleged accident. The Petition for Hearing alleges "that the Employer's First Report indicates, in error, an accident date of July 15, 1997. The correct date of the accident was May 17, 1997." (Petition for Hearing ¶ 3.)

¶21 At deposition, claimant was asked why he first reported the injury as occurring July 15. He testified: "I worked on fifteen, sixteen things a day. The days melt into weeks. I'm usually pretty busy. The only way I can keep track of my time is in my book." (Baker Dep. at 16-17.) His testimony was unconvincing. According to his own time book, he injured himself on July 15, 1997.

¶22 Yvonne checked claimant's time cards for the week before and after May 17, 1997, but again located no paperwork for a white Mack log truck. (Ex. 11 at 1-11.)

¶23 Claimant's time book did not reflect work on a Mack truck. (Ex. 3; Baker Dep. at 17-18; Baker Dep. Ex. 2.) However, at deposition, claimant tried to explain away the lack of an entry by testifying that it was an "after hour job":

(Baker Dep. at 18-21.)

¶24 At trial claimant testified he was working under a truck when a drive shaft fell and struck his right shoulder. According to claimant, the incident occurred while he was working on one of two trucks around May 17, either an American Gem truck he serviced on May 16 or 17, or a "white Mack truck" he claimed his cousin, Richard, asked him to work on after hours. He testified that Richard sometimes asked him to perform work for which Richard was paid in cash in off-the-book business. Claimant testified he did the work for Richard as a favor.

¶25 In his direct testimony claimant testified that after the drive shaft fell on him he went into the office and told Pat about the accident. On cross-examination, however, he admitted that if the drive shaft fell when he was working on the "white Mack truck" after hours, he could not have told Pat since she did not work beyond regular business hours.

¶26 During deposition claimant testified that he was hurt "towards the beginning" of the week. (Id. at 26.) He said he made it through the rest of the week "[w]ith lots of aspirin." (Id.) May 17, 1997, however, was a Saturday.

¶27 Bud testified that for a time the claimant did work at R & R Diesel after regular business hours but that it was his own work. He put a stop to it due to the cost of keeping on electricity and insurance concerns.

¶28 Bud also testified that claimant took tools home and often said he was working on "so and so's" car. Claimant acknowledged that he sometimes worked on cars outside of his work for R & R Diesel. He did the work in a garage owned or rented by a roommate. At deposition, he called this work "tinkering" and testified he was not injured doing such work. (Id. at 23-24.)

¶29 Bud denied witnessing any industrial accident. He testified that the first time he heard about the matter was when his wife told him about the First Report form brought in by claimant's girlfriend. Bud recalled learning claimant had an injured shoulder after claimant went for an "ultrasound," which Bud stated was around the time of his surgery. The surgery was in March of 1998.

¶30 Bud acknowledged having told stories about the "old days" when he worked while injured. He gave as an example an occasion when he injured his back. He went to the doctor and was told there was nothing that could be done to help him, so he went back to work despite his pain. But he also testified that he always reported his injuries to his employers and never discouraged his own employees from reporting their injuries.

¶31 Pat testified that the company's procedures require employees to report an injury to the office and to complete a form. Claimant was aware of company policy. e testified during deposition that "[t]hey always said that if something happened, tell your supervisor, tell Bud or Richie, and then go in the office and report it, which I did." (Id. at 13.)

¶32 Richard testified that he first heard about an injury to claimant's shoulder after Jackie brought in the First Report. He did not witness claimant hurt his shoulder or hear claimant say he hurt his shoulder until he learned that claimant was going to have surgery. (Richard Proul Dep. at 7.)

¶33 Richard denied ever asking claimant to perform work not reflected in the company's paperwork.

¶34 Terry Lewis (Lewis) testified that no work was performed on his Mack logging truck for cash or outside the normal R & R Diesel billing system. He has an account with R & R Diesel and testified he had no reason to have work done off the books since he needs records of the work in order to claim a business expense for tax purposes.

Resolution

¶35 I am not persuaded that claimant was injured on May 17, 1997, in the course and scope of employment. Claimant's testimony was not believable, whereas I found the Prouls' and Lewis' testimony credible. Claimant's statements and testimony are replete with inconsistencies, contradictions, and changes in his story. To name a few:

• He signed a claim form reporting that the injury occurred July 15, 1997, and made a recorded statement to State Fund describing very clearly an injury in "the third week of July" while he worked on a white Mack log truck. He further stated that he immediately reported the injury: "I crawled out from underneath there grabbing my shoulder and I went in and informed the boss what happened." (Ex. 12 at 2.)



• Claimant supported his report of a July 15^th injury with a personal time book in which he had written for the week of July 15, 1997 "that I hurt my arm and got hit with the drive shaft." (Id. at 10.)

• After the employer's review of time cards and work orders revealed no work on a Mack log truck or a drive shaft on or near July 15^th, claimant changed his version of events, stating the injury occurred May 17, 1997.



• Claimant testified that he suffered only one shoulder injury, so he could not have been confused due to two injuries. (Baker Dep. at 22.)



• Time cards and work orders for the two weeks surrounding May 17^th do not show a drive shaft pulled on a white Mack truck.



• Claimant's own time book does not record an injury or work on a white Mack log truck on or around May 17^th. The failure to record an injury during May is in itself inconsistent with claimant's recording an injury in his diary for July 15^th.



• When faced with an absence of May records verifying work on the Mack truck, claimant testified that the work was off-the-books work performed after hours for Lewis, however, Lewis testified credibly that he had no work performed "off the books" on his white Mack log truck.



• With regard to reporting of the injury to Bud immediately following the alleged accident, claimant's story shifted from an unequivocal statement to State Fund that Bud was present and "grabbing my shoulder . . . I went in and informed the boss what happened" to deposition testimony that he was more likely injured while working after hours, when "everybody else was gone" except "me and Richie."



• While claimant testified at deposition that he was hurt "towards the beginning of the week" and worked through the rest of the week "with lots of aspirin," May 17, 1997, was a Saturday.

¶36 In reaching my decision I have considered the fact that on May 28, 1997, Dr. O'Connor recorded that claimant injured his right shoulder when a "drive shaft hit R shoulder." (Ex. 8, at 1.) In addition, the January 28, 1997, record of Dr. Kenneth Carpenter reflects that "Tony injured his right shoulder May 17, 1997." (Ex. 9 at 1.) However, neither record states where the injury occurred or that it was work related. Given the nature of the evidence discussed above, I find it more probable that the drive shaft event, if it occurred at all, did not occur at R & R Diesel but rather when claimant was doing work on the side.

¶37 I am also not persuaded that claimant reported a shoulder injury to his employer prior to February 1998. Claimant's shifting statements regarding reporting to Bud are noted above. His statements regarding reporting to "the office" are similarly contradictory. I found credible the testimony of the Proul family that they first heard about an injured shoulder when claimant's girlfriend presented the First Report in February 1998.

¶38 Through questioning at depositions and trial, counsel for claimant has suggested that Bud discouraged claimant from filing a workers' compensation claim by talking about the "old days" and criticizing people who file claims. I find no credible evidence that Bud discouraged the filing of workers' compensation claims. Claimant admitted he was aware that he was supposed to report his injury. Moreover, the suggestion that he was discouraged from reporting his injury flies in the face of his own testimony, though not credible, that he in fact made a timely report.

CONCLUSIONS OF LAW

¶39 Since claimant alleges he was injured on May 17, 1997, the 1995 version of the Workers' Compensation Act applies in this case. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).⁽²⁾

¶40 Claimant bears the burden of persuading the Court that he is entitled to benefits. See Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).

¶41 Claimant was required to report his alleged injury to his employer within 30 days. Section 39-71-603(1), MCA (1995), provides: