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Buckentin v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 19, 1993

GREGORY S. BUCKENTIN
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         The trial in this matter was held on Wednesday, September 8, 1993, in Great Falls. Petitioner, Gregory S. Buckentin was present and represented by Mr. Torger S. Oaas. Respondent, State Compensation Insurance Fund by Mr. Thomas E. Martello. The petitioner was the only witness at hearing. The parties stipulated that the Court could consider the deposition testimony of both petitioner and Don Bost. The only exhibit offered and admitted was Exhibit No. 1. Having considered the pretrial order, the testimony presented at trial and through the deposition, the demeanor of Mr. Buckentin and the exhibit, the Court makes the following:

         FINDINGS OF FACT

         1. The petitioner is a construction worker. He worked for Bost Construction (Bost), which is the employer in this matter, for almost 11 years, the last six or seven as a construction foreman.

         2. The petitioner filed a claim for compensation stating that he suffered a work-related back injury on December 1, 1992, while working for Bost.

         3. On December 1, 1992, Bost was insured by the State Compensation Insurance Fund (State Fund).

         4. The State Fund denied liability for the claim on the grounds that petitioner had failed to report the alleged injury to his employer within the 30 day time limit prescribed by section 39-71-603, MCA.

         5. According to petitioner, the injury occurred on December 1, 1992, at a construction site at Armington Junction, which is near Belt, Montana. Petitioner was unloading sheetrock when he felt something pull in his lower back. He was immediately aware that he had hurt his back.

         6. On December 2, 1992, he told another employee, Dwight Ayers, about the injury but did not report it at that time to his own supervisor, Don Bost.

         7. Petitioner continued to work through December 17, 1992. He was then off work from December 18, 1992 through January 4, 1993, due to a shut down of company operations for the holiday period.

         8. Petitioner's condition worsened after December 1, 1992. During the week preceding the holiday layoff, he became unable to carry his wallet in his rear pants' pocket because of his pain. During the two week holiday layoff he "laid around home, hoping it would heal up." During the week of December 18, he began experiencing pain radiating into one of his legs. He testified that the radiating pain "was something different than the other times when I pulled my lower back out."

         9. Petitioner returned to work on January 5, 1993. On that day he again unloaded sheetrock, which only exacerbated his pain. That same day he called Dr. Thompson to obtain an appointment to see the doctor on January 11, 1993.

         10. Petitioner was examined by Dr. Thompson on January 11, 1993.

         11. Petitioner told his employer, Don Bost, about his injury on January 11, 1993, which was 41 days after the injury. ...


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