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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
LARSON CATTLE COMPANY
CHARLES T. KILLEBREW
UNINSURED EMPLOYERS FUND
ORDER ON APPEAL
On December 17, 1990, the Department of Labor and Industry (DOLI) issued its final order in the contested case in the above-entitled matter. In that order, the DOLI hearing examiner found:
Thereafter, the claimant appealed to the Workers' Compensation Court which affirmed the DOLI order. Claimant successfully appealed to the Montana Supreme Court which reversed the ruling on the issue of proper notice (39-71-603, MCA) and remanded the case to the DOLI with specific directions. The Supreme Court stated:
[T]his case is remanded to the hearing examiner for the Department of Labor and Industry for the purpose of resolving the factual dispute created by the testimony of the claimant and his employer.
On remand, the DOLI accepted supplemental briefs and proposed findings of fact consistent with the directive of the Supreme Court. No additional hearing was conducted. On November 17, 1992, the DOLI issued the ORDER ON REMAND.
The DOLI entered three additional facts and further concluded and ordered:
The employer appealed the November 17, 1992 DOLI decision. On appeal this Court's authority and scope of review are limited as set forth in ARM 24.5.350 and section 2-4-704, MCA (1989). They read respectively:
The employer has failed to specify the basis of his appeal pursuant to the provisions of the rule or statute. In his brief, he frames the issues as:
It is difficult for this Court to determine whether the employer is challenging any of the facts or supplemental facts found by the hearing examiner. After reading the briefs, there is little, if any, insight into the statutory basis of the employer's appeal.
It would appear that the employer is arguing that the DOLI erred as a matter of law in that the DOLI shifted the proof burden to the employer and further that the DOLI failed to accurately apply the ". . . nature of the injury" provision of section 39-71-603, MCA.
While somewhat confused over the basis of the appeal by the employer, the Court has nonetheless considered it both from the standpoint of whether there are sufficient facts or "substantial evidence" for the record to support the fact finding and second, whether there is any error of law.
As to the former, the issue of substantial evidence must be considered in light of State Compensation Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 97, 827 P.2d 85, 49 St. Rptr. 102 (1992). Even though the employer does not reference any specific fact as not being in the record, the Court reviewed the record completely. Of particular import are the DOLI facts relative to the claimant's report of the accident and injury to the employer. That is, the essence of this litigation.
While the testimony of the employer and claimant differ, the hearing examiner found as fact that the employer knew of both accidents within two days of when they occurred. The claimant told the employer that his shoulder hurt after the first accident and that he was bruised about the upper body in the second accident. (See supplemental findings.)
These supplemental facts, combined with the original DOLI findings of fact and considered in light of the hearing examiner's opinion, clearly pose the crux of this case, which is whose testimony is to be believed, the claimant or the employer.
It is the credibility of the testimony issue on which the Supreme Court opinion hinges. This can be gleaned from the following excerpts from the Supreme Court opinion:
Claimant's employer, Clifford Larson, testified that on the date of claimant's tractor accident he came out to the ranch, saw the tractor lying on its side, and knew that claimant had been involved in an accident. However, he denied that claimant had ever advised him of any injury or physical discomfort resulting from that accident.
Similarly, the high Court noted the following from the transcript testimony of the March 17, 1990 accident:
Clifford Larson acknowledge that in March 1990 he was aware that his employee had been "in a wreck with the cows." However, he denied having been advised that claimant was injured as a result of that incident.
On appeal, the Montana Supreme Court considered two specific issues relative to the notice defense of the employer. First, whether the claimant satisfied the statutory language of section 39-71-603, MCA, requiring notice of the ". . . nature of the injury" and second, whether the DOLI believed the employer or the claimant as the testimony was directly contradictory. The latter concern is the primary reason for the remand. The Supreme Court stated in its opinion:
Later in the opinion,
The sufficiency of the notice of the nature of the injury was resolved by the Supreme Court in claimant's favor relying on Wight v. Mountain West Farm Bureau Mutual Insurance Co., 194 Mont. 109, 634 P.2d 1189 (1981). In other words, the claimant's reference to his shoulder and upper body pain, fit within the sufficiency of Wight and also Wilson v. Glacier General Assurance Co., 206 Mont. 63, 670 P.2d 931 (1983).
The remand was predicated on the credibility of which witness was being accepted by the DOLI.
In addition to the previous recitations from the record, the following specific instructions provide the DOLI with all the guidance needed:
At page 4, line 22, the hearing examiner writes:
The hearing examiner then proceeded to "interpret" the Supreme Court opinion. He states for example:
This Court is unable to find any basis for the DOLI to attribute any presupposition of facts whatsoever. The hearing examiner has mistakenly shifted or credited the appellate court with finding facts when in fact that is his responsibility. If the DOLI hearing examiner does not find and establish the facts, the courts will review the record only to determine whether the facts that are found, are supported in the record. Rost, supra. It is simply erroneous to ascribe fact presupposition to the Supreme Court.
This Court is also concerned with the following statements from the hearing examiner's opinion:
This Court finds nothing in the Supreme Court opinion which remotely suggests that claimants are being excused from complying with section 39-71-603, MCA, or that the notice provision of 603 are being "waived" as a result of this decision. In this regard, this Court can only conclude that the hearing examiner has misapprehended the Supreme Court opinion and its instructions on remand.
The essence of the Supreme Court's opinion is that if the claimant's testimony is to be believed, then the case law precedent of Wight and Wilson, supra have already decided the issue of how specific the "nature of the injury" report need be to comply with section 39-71-603. The dispositive question for the hearing examiner is simply put -- Do you believe the claimant or the employer was testifying truthfully about the report of the shoulder, upper body soreness bruises, etc.
The hearing examiner's final paragraph is, unfortunately, subject to only one conclusion on review. That is that, for some reason, the hearing examiner viewed his role on remand as one dictated by the Supreme Court on the issue of credibility. That is simply not an appropriate conclusion to draw from the Supreme Court opinion nor should it be inferred.
The hearing examiner states:
The hearing examiner appears to have concluded that the Supreme Court directed specific facts be found and that having done so, the key issue of witness credibility was necessarily weighed on behalf of the claimant. This Court is unable to ascribe the same directions from the Supreme Court to the hearing examiner. The Supreme Court was very clear in its directive to the hearing examiner. As the fact finder, he was to sort out the evidence and resolve the conflict in the testimony. Nothing in the Supreme Court opinion requires that resolution favor the claimant as it appears the hearing examiner concluded. The only dispositive element of the appellate opinion is that "the nature of the injury" component of section 39-71-603 must be consistent with prior case law, specifically Wight and Wilson, supra.
The protracted nature of this case in unfortunate. However, this Court is compelled to remand the issue once again to the DOLI to reconsider the Supreme Court's opinion and to issue findings of fact, credibility determinations, and conclusions based on the hearing examiner's independent judgment, not on what he perceives the Supreme Court wants found as fact.
IT IS HEREBY ORDERED that the above-entitled matter is REVERSED and REMANDED to the Department of Labor and Industry for further proceedings.
DATED in Helena, Montana, this 9th day of July, 1993.
c: Mr. Jerrold L. Nye
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