FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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.
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:
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.
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.
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. He testified that the washer fell on him.
January 6 and 7, 1993, Ownerrent was insured by the State
Compensation Insurance Fund.
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,
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.
accident was witnessed by ...