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Bogle v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

November 17, 1993

ALVA DARRELL BOGLE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for OWNERRENT RENT TO OWN Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         The trial in this matter was held on Monday, September 27, 1993, in Helena, Montana. Petitioner, Alva Darrell Bogle, was present and represented by John C. Doubek. Respondent, State Compensation Insurance Fund, was represented by Daniel J. Whyte. The petitioner, David Robinson and Carol Reed testified. Exhibit Nos. 1 through 3 were admitted by stipulation. Exhibit Nos. 4 and 5 were marked for purposes of identification but were not used at trial or formally offered. The depositions of Troy Matthews Collins and David Robinson were submitted for the Court's consideration.

         At trial the petitioner renewed his objection to Exhibit No. 2 to the deposition of David Robinson. Mr. Robinson was unable to identify the exhibit based on his own knowledge and the objection is therefore sustained.

         Having considered the pretrial order, the testimony presented at trial and through the depositions, the demeanor of the trial witnesses, and the exhibits admitted into evidence, the Court makes the following:

         FINDINGS OF FACT

         1.The employer in this matter is Ownerrent, a company which has offices in several Montana cities. The petitioner worked at Ownerrent's Helena, Montana office for a short time. He was hired in December 1992, and terminated on January 15, 1993 for reasons unrelated to this proceeding.

         2.The petitioner was hired on the same day as Troy Collins. Both the petitioner and Collins were hired by David Robinson, the manager of the Helena Ownerrent office, to deliver and pick up furniture and appliances. They also installed and did minor repair work on appliances.

         3.The petitioner filed a workers' compensation claim for a work-related back injury he alleges occurred on January 6 or 7, 1993, while he was loading a washing machine onto a truck.[1] He testified that the washer fell on him.

         4.On January 6 and 7, 1993, Ownerrent was insured by the State Compensation Insurance Fund.

         5.Petitioner did not report his injury to either David Robinson, his manager, or to Mike Edwards, the assistant manager, within the 30 day period prescribed by section 39-71-603, MCA.[2] Petitioner testified that he called Mr. Robinson the day after his injury to tell him that his back was hurting. He also testified that he told Robinson on two or three occasions that his back was hurting. In his proposed findings of fact and a post-trial brief, petitioner argues that he also told Robinson of the accident within 30 days of its occurrence, citing trial testimony at transcript page 31, lines 23--25, wherein he testified that he had told Robinson that he "had slipped while loading the washing machine." The quoted testimony, however, is taken out of context without regard to the time or date on which he informed Robinson of the injury. Other testimony of peti-tioner shows that he notified Robinson of the injury no earlier than February 8, 1993, after he had undergone an MRI, TR. 41:5-17; 42: 5-10. Any ambiguity as to when he informed the employer of an industrial accident is dispelled by petitioner's answers to questions put to him by the Court at the conclusion of his testimony:

JUDGE MCCARTER: Mr. Bogle, I do have a couple of questions. As I understand your testimony, and I want to make sure that I am understanding you correctly, when you called Mr. Robinson the day after the injury, you didn't tell him about the accident. You just told him that you were hurting and couldn't come in to work?
THE WITNESS: Right.
JUDGE MCCARTER: If I understand you further, the first time you specifically told him about the accident was after you had the MRI?
THE WITNESS: Right.

         Tr. 40:2-15.

         6.The accident was witnessed by ...


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