Witnesses: Credibility

MONTANA SUPREME COURT DECISIONS
Harrison v. Liberty Northwest Inc. Corp. [04/01/08] 2008 MT 102 As for witnesses who testify in person at trial, the Montana Supreme Court defers to the Workers’ Compensation Court’s findings concerning credibility and the weight to be accorded to testimony. It is the WCC’s job to resolve inconsistencies in a witness’s testimony. Ultimately, because an assessment of testimony is best made upon observation of the witness’s demeanor and consideration of other intangibles that are only evident during live testimony, the Supreme Court will not substitute its judgment for the WCC’s judgment regarding credibility and the weight accorded to live witness testimony. Conversely, the Supreme Court is in as good a position as the WCC to assess testimony presented at trial by way of deposition, and conducts de novo review of deposition testimony. This deposition testimony must then be considered in the context of the other relevant evidence in order to properly assess the factual findings at issue.
Gamble v. Sears, 2007 MT 131, 337 Mont. 354, 160 P.2d 537 The applicable standard of review does not permit the Montana Supreme Court to render its own judgment regarding alleged inconsistencies in a witness’ testimony because the court defers to the WCC’s findings regarding the credibility of testimony rendered in person at trial.
Gamble v. Sears, 2007 MT 131, 337 Mont. 354, 160 P.2d 537 Where a claimant testified in person at trial, the WCC was able to observe her demeanor, consider any inconsistencies in her testimony, judge her credibility based on these considerations and in light of the other evidence presented, and expressly stated that it found her testimony credible, the Montana Supreme Court will consider the claimant’s testimony to be credible. The court has consistently held that an assessment of testimony is best made upon observation of the witness’ demeanor and consideration of other intangibles that are only evident during live testimony.
Gamble v. Sears, 2007 MT 131, 337 Mont. 354, 160 P.2d 537 As for witnesses who testify in person at trial, the court defers to the WCC’s findings concerning credibility and the weight to be accorded to this testimony. However, since the court is in as good a position as the WCC to assess testimony presented at trial by way of deposition, the court conducts de novo review of deposition testimony.
Garcia v. UEF, 1999 MT 35N (unpublished, nonciteable opinion). In an unpubished, nonciteable opinion, the Supreme Court refused to find abuse of discretion where the WCC, after carefully considering the conflicting testimony of two witnesses, was unable to make the subjective judgment whether one was more credible than the other and decided the case based on its determination of the burden of proof.
WORKERS' COMPENSATION COURT DECISIONS

Car Werks, LLC v. Uninsured Employers' Fund [12/09/15] 2015 MTWCC 21 An uninsured employer was found not credible for two reasons: (1) he greatly exaggerated his employee’s injuries from a non-work-related motorcycle accident; and (2) he stated a former employee told him during an in-person conversation that the injured worker intended to defraud the business, but the alleged conversation took place while the former employee was incarcerated.

Car Werks, LLC v. Uninsured Employers' Fund [12/09/15] 2015 MTWCC 21 Where a witness for the uninsured employer testified by telephone from the Montana State Prison, the Court could not examine the witness’ demeanor and therefore could not make a finding as to his credibility.  However, the witness made it clear that he was adverse to the injured worker by stating that the worker got him into “trouble,” indicating bias.

Starkey v. ACE American Ins. Co. [03/17/14] 2014 MTWCC 6 Where Petitioner was a trusted employee and witnesses corroborated her testimony that she injured her foot on a picnic table at work, the Court found her credible, even though the store manager, a supervisor, and a co-worker testified that Petitioner had been limping prior to the incident at the table.
Peterson v. Liberty NW Ins. Corp. [12/31/13] 2013 MTWCC 26 The Court did not find Petitioner wholly credible where his testimony that he learned he was exposed to asbestos at his worksite only after hiring an attorney conflicted with a sworn statement and a written exposure history he provided previously.  Where Petitioner worked at the site for approximately 25 years, the Court did not find it credible that he was completely unaware of asbestos contamination and clean-up at the jobsite, and numerous co-workers who filed OD claims for asbestos-related disease.

O'Mahoney v. Liberty Insurance Corp. [03/08/13] 2013 MTWCC 6 Petitioner disputes the FCE and her physician, testifying that she cannot even work part-time due to her debilitating pain.  The Court found that Petitioner, her boyfriend, and her daughter all testified credibly as to Petitioner’s difficulty in managing simple tasks such as grasping objects and driving a car due to her pain, and Petitioner’s willingness to undergo surgery that had only a 50-60 percent chance of success was instructive of the degree of pain that she was experiencing, particularly in light of the FCE therapist’s observation that Petitioner had noticeable swelling in her right arm after two days of testing.
Ingle v. Montana State Fund [02/03/11] 2011 MTWCC 3 Although the Court found the witnesses credible, and they testified to a temporal relationship regarding the claimant’s employment and the development of her symptoms, none but the claimant could testify as to whether she suffered exposure to carbon monoxide at the place of employment and whether that exposure caused the claimant’s condition.

Poindexter v. Montana State Fund [11/19/10] 2010 MTWCC 31 Where the employer, the claims adjuster, and a former employee all testified that the employer typically made modified work available to injured workers and where the employer described proposed job duties which would have fit within Petitioner’s restrictions, I found their testimony more credible than Petitioner’s.
Hopkins v. Uninsured Employers' Fund [05/04/10] 2010 MTWCC 9 The Court found the alleged employer’s testimony that he did not have any employees at the bear park incredible where Petitioner’s  and another worker’s testimony regarding cash payments was corroborated by one of the worker’s copious and contemporaneous notes about the cash he received, the alleged employer testified he was paying a worker who was formerly his attorney for outstanding legal bills at a rate of $80 to $140 per day, and the alleged employer testified he gave Petitioner money on multiple occasions “out of my heart” coincidentally while Petitioner was performing “favors.”
Weidow v. Uninsured Employers' Fund [01/22/10] 2010 MTWCC 2 Where a witness unfamiliar to the Court testified telephonically by stipulation of the parties, the Court determined that it could consider the credibility of the witness' telephonic testimony, but would assign that testimony less weight since the witness' testimony could not wholly be assessed via telephonic appearance.
Slavin v. Uninsured Employers' Fund [11/16/09] 2009 MTWCC 36 Where the only evidence that the Petitioner suffered a compensable injury is the Petitioner’s own testimony, which the Court did not find credible, the Petitioner failed to meet his burden of proof.
Bagley v. Montana State Fund [08/18/09] 2009 MTWCC 29 The Court did not find Petitioner credible where the evidence demonstrated, among other findings, that: he mislead his employer that he was receiving vocational help at a learning center when he was not attending the center; he claimed medications affected his abilities when the medical evidence demonstrated he was no longer taking the medications; he wrote several pages of notes with his right hand while testifying that it was “impossible” for him to write with his right hand at all; he informed his counsel that his employer did not offer to make a transcriber available to him when his employer had done so in writing.
Pinnow v. Halverson, Sheehy & Plath [12/19/08] 2008 MTWCC 53 Where the record demonstrates that Petitioner was dissatisfied with every aspect of the handling of her claim, this affects the weight and credibility the Court gives to Petitioner’s dissatisfaction with the services of her attorney. While the record demonstrates that Petitioner’s former counsel handled her claim in a skillful and competent manner, the record further demonstrates that Petitioner was unlikely to be satisfied with his representation regardless of the results achieved.
Bowler v. Independent Contractor Central Unit [08/14/08] 2008 MTWCC 42 Holm testified that Petitioner rented a paint sprayer from Eastgate Rental for a church painting job Holm performed while working for Petitioner. Petitioner testified that Holm owned a paint sprayer. Petitioner further testified that he helped Holm retrieve this sprayer from a pawn shop on numerous occasions. When questioned as to the name of the pawn shop from which the paint sprayer was retrieved, Petitioner initially testified that he could not recall. Upon further questioning from the Court, Petitioner testified that the paint sprayer was retrieved from various pawn shops, but usually from the one near Hoagieville on Broadway which Petitioner could not name. I do not find Petitioner’s testimony regarding this subject to be credible. Holm specifically identified both the rental store from which the paint sprayer was rented and the specific job for which it was rented. Conversely, Petitioner testified that Holm’s sprayer was retrieved from various pawn shops on numerous occasions, none of which he could name.
Hanson v. UEF [06/25/08] 2008 MTWCC 32 Where the only evidence presented to the Court that a claimant sustained an injury while working for a construction company is a claimant’s own testimony and the Court did not find the claimant to be a credible witness and did not find Petitioner’s version of events to be credible, Petitioner failed to sustain his burden of proof.
Feuerherm v. Liberty Northwest Insurance [12/04/07] 2007 MTWCC 50 Where the Court found Petitioner to otherwise be a credible witness and where her explanation of tripping and hitting a doorway differed from the exam note of a doctor who did not testify and who was never questioned as to whether he possibly confused the tripping incident with Petitioner’s industrial accident, and where a second doctor testified that his description of Petitioner’s tripping incident was not recorded by him but by another doctor who also did not testify, the Court finds Petitioner’s explanation of the tripping incident to be credible.
Heckel v. UEF and LaFever [03/07/07] 2007 MTWCC 11 Where the medical evidence is determinative, the Court need not determine the credibility of conflicting witnesses.
Vallance v. MCCF [07/05/06] 2006 MTWCC 26 Where Petitioner has epilepsy for which he underwent brain surgery, and where he and his wife both testified that Petitioner has difficulty recalling information, particularly in stressful situations, and where Petitioner’s testimony at times contradicted itself and his deposition testimony, Petitioner’s memory problems make him an unreliable historian. Therefore, although the Court does not find Petitioner to be an incredible witness, the Court does not find Petitioner’s testimony to be reliable.
Peterson v. MSGIA [04/07/06] 2006 MTWCC 14 While the Court did not find Petitioner to be credible, Petitioner’s credibility had little bearing upon his claim because the Court’s decision was reached on the basis of the testimony from the medical and vocational experts and Respondent’s claims adjuster.
Harger v. Montana Contractor Compensation Fund [12/26/03] 2003 MTWCC 72 Claimant was found not credible concerning an alleged industrial accident where he specifically denied being injured at the time, he reported a different cause in seeking initial medical treatment, and his testimony explaining his actions was incompatible with the degree of injury he claims he suffered.
Cassidy v. State Fund [3/18/04] 2004 MTWCC 28 The Court finds the claimant incredible for a multitude of reasons which should be apparent from the text of the decision.
Allen v. Travelers Indemnity Company of Connecticut [12/17/03] 2003 MTWCC 70 Despite contradictory testimony of a coworker, the Court finds claimant's report of an industrial accident credible where his description is generally supported by another coworker. His shoulder condition arose shortly after the alleged incident. On the date of the first medical treatment a week later, and consistently thereafter, the claimant consistently attributed his shoulder pain to the incident.
Christensen v. Rosauer's Supermarket, Inc. [10/28/03] 2003 MTWCC 62 Claimant failed to persuade the Court that a herniated disk was job-related where the medical opinion relating the condition to her job was premised on the history given by claimant and the Court found that history to be untrue.
Munroe v. MT Electric & Telephone Pool [8/16/01] 2001 MTWCC 43 Detailed review of claimant's medical history demonstrates that claimant was not a reliable historian, hence the Court finds the medical records more persuasive as to the onset of claimant's complaints than her testimony.
Davis v. Credit General Ins. Co. [8/9/00] 2000 MTWCC 48 While claimant has limited motion and some pain in his right shoulder, his reports and testimony concerning his pain levels and inability to use his right arm are not credible. Medical testimony established that his reported pain is inconsistent with his medical condition, objective medical evidence, and anatomical dermatomal patterns; and that his reported lack of use of his right arm is inconsistent with objective findings of muscle mass. Moreover, claimant denied engaging in activities he is shown doing during videotaped surveillance. Affirmed in nonciteable decision 2002 MT 11N.
Stacks v. Travelers/State Fund [3/1/01] 2001 MTWCC 9 Claimant's conflicting testimony and proven poor recollection are grounds to discount his testimony when determining causation of the workplace fall.
Sutton v. Hartford [2/08/01] 2001 MTWCC 7Claimant and a coworker who supported claimant's story were not credible. The coworker was plainly biased against the employer and her and claimant's testimony was contradicted by that of a credible unbiased coworker and claimant's supervisor, who was also credible. Claimant's behavior in putting a note regarding the accident in a cash register till was "odd" and further undermined her credibility.
Sutton v. Hartford [2/08/01] 2001 MTWCC 7 External evidence of credibility should be considered by the fact-finder whenever possible. Mere observation of witnesses in the courtroom may not always lead to the correct conclusion regarding the witnesses' credibility.
Nielson v. State Fund [9/20/00] 2000 MTWCC 64Having found claimant's subjective reports of pain not credible, Court found expert opinions relying on claimant's subjective reports not persuasive. Note: In Nielson v. State Compensation Ins. Fund, 2003 MT 95, the Supreme Court reversed and remanded, holding substantial evidence did not support the WCC's conclusion that claimant was not permanently, partially disabled.
Rollins v. Liberty Northwest Ins. [2/3/00] 2000 MTWCC 5, aff'd 2001 MT 14N (nonciteable). Videotapes depicting claimant engaged in various activities around his house, and before and after IME and deposition, contradicted his claims of disability, his specific testimony about particular activities, and expert opinions based on his representations of disability.
Ronemus v. Business Ins. Co. [7/28/98] 1998 MTWCC 59 Insurer denied claim of shoulder injury from construction worker, arguing he did not work the date of claimed injury, that he told a supervisor he injured his shoulder lifting weights, that he did heavy labor for a plumber after the claimed injury, and that he was considered not truthful by two supervisors. Finding claimant a credible witness, the WCC resolved conflicts in the evidence in his favor and found he was injured during employment. The insurer's argument that claimant was not at work on the claimed injury date was undermined by evidence claimant at first thought the injury was minimal and did not seek medical treatment and, when he did seek treatment, could give only an approximate date of injury. The Court was persuaded the earlier shoulder injury occurred much earlier and that the alleged work for the plumber occurred prior to the injury. In weighing opinion evidence that claimant was untruthful, the WCC noted the evidence came from the employer's supervisors and not from disinterested members of the community.
Copley v. UEF [7/22/98] 1998 MTWCC 58 Head waitress for a steakhouse claimed she injured her back lifting a tray from the salad bar on December 2, 1996, a date on which the steakhouse was uninsured. Although the UEF and employer did not affirmatively prove claimant injured her back in another way, their evidence regarding claimant's snowmobiling, care for her husband after hernia surgery, and activity moving to a new home, along with the Court's observation and evaluation of the testimony of claimant and her witnesses, leads the Court to include claimant was not injured during employment. Factors considered by the Court include: claimant in fact worked after the claimed injury and did not complain of pain; claimant complained to numerous people about the burdens of assisting her husband after surgery, which occurred after her own claimed injury, but failed to mention her own alleged back injury; credible evidence indicated claimant packed belongings and participated in the move of her household after the alleged injury and before reporting it; her employers were also her friends and co-workers, making it unlikely she would not have mentioned a back injury.
Garcia v. UEF [6/16/98] 1998 MTWCC 53, affirmed in Garcia v. Uninsured Employers' Fund, 1999 MT 35N (unpublished, nonciteable opinion). After carefully considering the conflicting testimony of two witnesses, the WCC was unable to make the subjective judgment whether one was more credible than the other and decided the case based on its determination of the burden of proof.
Kemp v. CIGNA Property & Casualty [4/16/98] 1998 MTWCC 30 Claimant admitted lying under oath. Deceit by a party in court proceeding constitutes contempt of the court's authority. § 3-1-501(d), MCA. Pederson v. Nordahl, 261 Mont. 284, 289, 862 P.2d 411, 415 (1993). While finding claimant in contempt, the Court considers that he has admitted his misconduct. Claimant could have been sentenced to 5 days in jail and a $500 fine. He is ordered to pay a fine of $200 to the WCC in four monthly installments of $50 each.
Kemp v. CIGNA Property and Casualty [3/2/98] 1998 MTWCC 15 In a bench ruling, WCC found that while claimant admitted lying under oath, and while a number of the details of his testimony appeared fabricated, an injury did occur. Court relied upon emergency room records documenting an acute episode, including physician's finding of exquisite tenderness, testimony of credible witness that some incident occurred, and Court's conclusion claimant lacked motivation to fabricate injury.
Blowers v. Montana Insurance Guaranty Association [5/19/97] 1997 MTWCC 25 Claimant’s credibility was undermined where she did not state in deposition and trial testimony that she was joint tenant on property with her parents, which was material to Court’s inquiry whether claimant was entitled to lump sum advance of death benefits.
Klein v. Liberty Northwest Ins. Corp. [3/4/97] WCC No. 9608-7591 While a determination that a claimant is not at MMI must be supported by a preponderance of medical evidence, see section 39-71-701(2), MCA (1993), a preponderance is not determined by the number of medical witnesses who testify on one side of the issue or another. The court must look to the persuasiveness of the testimony, considering all that the witnesses state, not just their ultimate opinions. See McQuay v. McQuay, 81 Mont. 311, 320, 263 P.2d 683 (1928) (holding that a fact may be established by the testimony of one witness even where the remaining witnesses testify to the contrary).
Coates v. Liberty Northwest Ins. Corp. [11/18/96] 1996 MTWCC 71 Claim for continued TTD benefits denied where WCC did not credit claimant's reports of pain and disability and found she purposefully exaggerated her complaints to obtain benefits. This conclusion was based on several factors, including: the lack of objective medical evidence of any continued condition; contradiction between her demeanor in court and records of pain behavior displayed for physicians; conflicts between her testimony and that of medical providers; conflicts between her deposition and trial testimony; observations of pain behavior by medical providers.
(Evans) Brian v. State Fund [11/22/96] 1996MTWCC 73 While a physician can appropriately consider a claimant's veracity when making diagnoses and treatment recommendations, the Court must make its own independent determination of claimant's credibility.
McClure v. State Fund [5/29/96] 1996 MTWCC 38 Although claimant and his friends testified in detail about an alleged accident with a snow mobile, the Court disbelieved their testimony and credited the testimony of another individual that the incident was not serious and did not occur as described by claimant.
Fox v. Liberty Mutual Fire Ins. Co. [2/27/96] 1996 MTWCC 21 While Linden v. Huestis, 247 Mont. 383, 807 P.2d 185 (1991), holds that a physician who did not examine claimant may not testify at trial concerning claimant’s motivation and potential secondary gain (“he was not qualified as a human polygraph”), the doctor is qualified to render various opinions based on his medical training and experience, including testimony concerning an impairment rating.
Boharski v. Aetna Casualty & Surety Co. [12/15/95] 1995 MTWCC 105 Where court found claimant wholly incredible, and was not convinced he would spend lump-sum advance as he claims (to build heated garage, purchase sofa bed, furniture, and stove, and insulate house), request is denied, except for those amounts to which insurer already agreed.
Taylor v. State Compensation Ins. Fund [10/06/95] 1995 MTWCC 77 Though Court did not find all of the testimony of witness credible, her testimony that claimant told her he was scamming the system was credible when placed in context of the actions and behavior of the witness, as well as her demeanor when testifying.
Elam v. State Compensation Ins. Fund [08/25/95] 1995 MTWCC 65 Substantial evidence supports DOL hearing officer’s determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer’s credibility determination that claimant’s perception of his disability was “to a great extent self-limiting and rather incredible.” Other testimony and documentation also demonstrates claimant’s hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.

O'Connor v. National Union Fire Ins./Alexsis [05/19/95] 1995 MTWCC 38 Where Court was persuaded claimant would have been unable to work after certain date due to painful back condition, she is entitled to receive temporary total disability benefits from that date, irrespective of insurer’s contention that she was terminated from employment following accusation of shoplifting not proven to the Court.
Smith v. State Compensation Ins. Fund [05/03/95] 1995 MTWCC 32 Based on evidence in the case, including numerous discrepancies in statements and claims made by claimant, the Court reached a firm conviction that claimant has lied about his back condition in the attempt to obtain workers’ compensation benefits. Claimant is not entitled to benefits.
Frisbie v. Champion International Corporation [02/10/95] 1995 MTWCC 13 Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation.