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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1998 MTWCC 72
WCC No. 9804-7961
STATE COMPENSATION INSURANCE FUND,
AAA FENCING & WELDING, INCORPORATED,
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: On December 4, 1997, a first report was filed indicating claimant had received an electrical shock at work on October 29, 1997. Claimant testified he told the president of the company about the shock on the day of the incident. The president did not recall the event and testified he would recall such an occurrence, noting he recalls many less serious incidents at work.
Held: The credible evidence indicates claimant did not report an electrical shock within thirty days of the alleged occurrence. In addition to the Court's observation of the witnesses' credibility, factors considered include: that medical reports relatively close to the incident involving claimant's headaches do not mention the alleged incident, there were conflicts between the testimony of claimant and his corroborative witness, the corroborative witness testified he did not recall hearing the report to the president, and other evidence suggests a motive for the late attempt to link claimant's headaches with an incident at work. Petition dismissed.
¶1 The trial in this matter was held on September 28, 1998, in Missoula, Montana. Petitioner, William Flansburg (claimant), was present and represented by Mr. Andrew F. Scott. Respondent, State Compensation Insurance Fund (State Fund), was represented by Ms. Carrie L. Garber. No transcript has been prepared of this proceeding.
¶2 Exhibits: Exhibits1 through 4 were admitted without objection.
¶3 Witnesses: Claimant, Lex Herbert and Ron Cochrane were sworn and testified.
¶4 Issue: As set forth in the Pretrial Order, the sole issue to be determined is:
¶5 Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, exhibits, and the arguments of the parties, the Court makes the following:
¶6 Claimant was employed by AAA Fencing & Welding, Incorporated (AAA), on October 29, 1997. On that date he claims that at approximately 2:30 p.m. he suffered an electrical shock and was knocked unconscious while welding beneath a flatbed trailer.
¶7 At the time of the alleged injury, AAA was insured by the State Fund.
¶8 On December 4, 1997, AAA filed a First Report of Occupational Injury or Occupational Disease. The report was filled out by Lex Herbert (Herbert), the president and chief shareholder of AAA. In the report Herbert noted, "Bill [claimant] notified me (Lex Herbert - Owner) today 12-4-97 that he was shocked." (Ex. 2.)
¶9 The State Fund denied liability for the claim and asserts in this proceeding that the claim is barred by claimant's failure to provide his employer with 30-day notice of his alleged injury, as required by section 39-71-603, MCA (1997).
¶10 Claimant testified that after he regained consciousness on October 29, 1997, he was dizzy and disoriented. According to claimant, he went to the shop and sat down on a welding bench. He further testified that a coworker, Ron Cochrane (Cochrane), saw him and asked what had happened, and that he replied that he had been shocked and knocked unconscious.
¶11 Claimant testified that he then went back to work and worked until about 4:30 p.m., at which time he and Cochrane went to the office to clock-out and go deer hunting. Claimant recalled telling Herbert who was in the office at the time, that he had "been shocked and really gotten it." According to claimant, they then talked for 15 minutes.
¶12 Herbert testified that on October 29, 1997, he spent the morning out on bids, arriving at the shop/office in the early afternoon. He did not recall claimant telling him of any shock until December 4th. His further testimony makes it likely that his not remembering claimant telling him of the alleged accident on October 29th was not a simple matter of lack of recollection or forgetfulness. Herbert testified that losing consciousness on account of a shock is a significant matter which he would recall. He testified that had he been told of the incident he would have made a note of it and would recall it. He listed other incidents of far lesser significance which involved employees and which he recalled.
¶13 Following his December 4th conversation with the claimant, Herbert interviewed other AAA employees to determine if they knew anything about the incident. None of the employees, including Cochrane, remembered the incident.
¶14 Cochrane has been employed as a fencer by AAA since 1996 and has known the claimant since the claimant went to work at the company. He and claimant are friends and "hung out together."
¶15 Cochrane recalled October 29th because it was the day he shot a deer. According to Cochrane, he returned to the shop at approximately 4:00 p.m. from off-site work and was in a hurry to clock out and go hunting. He noted that the days were short and there was not much daylight left. He saw claimant sitting at a welding bench holding his head and recalled claimant telling him he had been shocked and knocked unconscious. Nonetheless, he asked claimant if he wanted to go hunting with him and claimant agreed. They then proceeded into the office, clocked out and took off. Cochrane could not recall whether claimant told Herbert about being shocked.
¶16 Claimant continued working for AAA until approximately November 15, 1997, when he ceased working. His mother notified AAA that he was sick.
¶17 On November 17, 1997, claimant saw Dr. Walker Ashcraft because he was experiencing severe headaches. Dr. Ashcraft's office note for that date records:
(Ex. 1 at 1.) Claimant did not tell Dr. Ashcraft about the alleged shock. (Id. and Trial Test.)
¶18 Still suffering a headache, claimant saw Dr. Ashcraft again on November 20th, at which time Dr. Ashcraft referred claimant to Dr. Lennard S. Wilson, a neurologist. (Ex. 1 at 2.) Again, claimant did not mention the alleged shock. (Id. at 4 and Trial Test.)
¶19 Dr. Wilson examined claimant on November 24, 1997. He took a history, which included the following information:
(Ex. 1 at 4.) Claimant did not mention the alleged shock to Dr. Wilson. (Id. and Trial Test.)
¶20 On November 25, 1997, claimant's landlord, Daniel Dewert (Dewert), called Dr. Wilson's office and informed Dr. Wilson that claimant had been shocked while welding and may have lost consciousness. (Ex. 1 at 6.) Dr. Wilson further recorded, 'Pt. [claimant] "forgot" to discuss this incident according to Mr. DeWert." (Id.)
¶21 After considering all of the testimony in this case, I find that claimant did not report his alleged injury to his employer on October 29, 1997, rather he reported it for the first time on December 4, 1997. Claimant's testimony was not credible. I was also unimpressed and unpersuaded by Cochrane's testimony that he observed claimant in distress on October 29th and that claimant told him he had been shocked and lost consciousness. Indeed, I am unpersuaded that claimant was shocked and lost consciousness.
¶22 I base my determination not only on my perception of the demeanor and truthfulness of the witnesses who testified at trial but also on the following considerations:
¶23 Claimant failed to report his alleged October 29, 1997 industrial injury to his employer within 30 days.
CONCLUSIONS OF LAW
¶24 Claimant bears the burden of proving, by a preponderance of the evidence, that he is entitled to benefits under the Workers' Compensation Act. 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).
¶25 Section 39-71-603(1), MCA (1997), provides as follows:
Claimant has failed to persuade me that he notified his employer of his alleged industrial accident within 30 days as required by the statute.
¶26 1. The claimant failed to notify his employer of his alleged industrial injury within 30 days as required by section 39-71-603, MCA (1997). His petition is dismissed with prejudice.
¶27 2. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶28 3. Any party to this dispute may have 20 days in which to request a rehearing from these findings of fact, conclusions of law and judgment.
DATED in Helena, Montana, this 15th day of October, 1998.
c: Mr. Andrew F. Scott
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