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Larson v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 17, 1993

JAMES D. LARSON Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BARRY SMITH LOGGING, INCORPORATED Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         The trial in this matter was held on September 22, 1993 in Missoula, Montana. Petitioner, James D. Larson was present and represented by Timothy J. Lape. Respondent, State Compensation Insurance Fund, was represented by Susan C. Witte. The petitioner and petitioner's wife, Virginia Larson, were sworn and testified. Exhibit No. 1 was offered and admitted without objection. The depositions of Barry Smith, Dr. Gregory Chapman, Marlene Catulli, Charlotte Payne, Linda Johnson and William DeCou were filed with the Court. The parties stipulated that the Court may consider those depositions. Having considered the PRETRIAL ORDER, the testimony presented at trial and through depositions, the demeanor of petitioner and Virginia Larson and the exhibits, the Court makes the following:

         FINDINGS OF FACT

         1. Petitioner is 41 years old. He has worked in the timber industry for over 20 years. Fourteen (14) of those years have been as a sawyer.

         2. Petitioner was employed as a sawyer for Barry Smith Logging, Inc. between January 1992 and June 5, 1992.

         3. Petitioner alleges that he injured his back on April 9, 1992 while working for Barry Smith Logging at a timber site near Schwartz Creek. Since the issue in this case is notice, the Court does not determine whether an industrial accident in fact occurred.

         4. At the time of the alleged injury, Barry Smith Logging was insured by the State Fund.

         5. On the same day as his alleged injury, petitioner told John Rockenbaugh, another sawyer working on the Schwartz Creek job site, that he had "taken a bad spill" and was "feeling kind of poorly." (Tr. at 53.)

         6. Following his injury, petitioner took a couple of days off work because his back was sore. He then sought treatment for his back on April 17, 1992, from chiropractor Greg Chapman, D.C. Dr. Chapman treated petitioner on four occasions between April 17 and May 1, 1992. Petitioner paid for the treatments and did not request Dr. Chapman to submit a first report of treatment to the State Fund until early June 1992. On June 9, 1992, at petitioner's request, Dr. Chapman referred the petitioner to a neurologist.

         7. Petitioner notified Barry Smith of the April 9, 1992 accident 39 days later on May 18, 1992. He filed a written claim for compensation on June 3, 1992.

         8.The State Fund denied liability for petitioner's claim because petitioner failed to notify his employer of his injury within 30 days.

         9. Petitioner could have notified Barry Smith of his injury within 30 days, and spoke to him in early May without informing him of the injury. Prior to his April 9, 1992 injury, petitioner had called Barry Smith at home to report another work-related injury. During previous employments he had also reported other workers' compensation injuries.

         10 Barry Smith is the owner and sole stockholder of Barry Smith Logging, Inc. The company's business office is located in Smith's home in Missoula, Montana. Two-thirds of his employees work on yarding crews and the other third are employed as sawyers.

         11. Petitioner claims that his April 9, 1992 conversation with John Rockenbaugh, wherein he told Rockenbaugh of his fall in the woods, constituted notice to his employer. He asserts that Rockenbaugh was his direct supervisor.

         12 .Petitioner was hired and paid by Barry Smith. Petitioner sent pay information directly to Smith.

         13. Barry Smith assigned sawyers to different timber stands which he had contracted to cut. Typically two sawyers were assigned to an area.

         14. Once assigned to an area and given general instructions, the sawyers worked separately and independently, each taking a part of the area to cut.

         15. John Rockenbaugh was employed by Smith as a sawyer. Both he and the petitioner were paid by the piece. Both performed the same duties felling trees, limbing them and cutting them to length. At the time of the petitioner's injury, Rockenbaugh had worked for Smith for approximately six years. He was not employed as a supervisor.

         16.Barry Smith often had one sawyer inform other sawyers as to the location of their next job site and the specific areas they were to work. He did not designate any particular individual to convey the information. He used "whoever happened to be the handy guy, I would show them the next job site or tell them where it was at." (Dep. of Smith at 28.)

         17. Barry Smith showed petitioner the job site for petitioner's first job.

         18.Petitioner was shown the second logging site at Schwartz Creek by John Rockenbaugh. Barry Smith instructed petitioner to meet Rockenbaugh at the Schwartz Creek exit near Clinton, Montana, and he did so on April 3, 1992. Rockenbaugh told petitioner to "follow me" to the logging site. (Tr. at 45.) At the site he showed petitioner the boundaries of the unit they were to cut, provided instructions concerning the felling of trees near the boundaries, told him the types or species of trees they were to cut and the lengths they were to be cut, told him how much rot could be taken when cutting a tree, and advised petitioner of the type of skidding equipment which would be used in the area. Later on Mr. Rockenbaugh also gave petitioner directions concerning an alternate route to the Schwartz Creek logging site so he could avoid skidding equipment. Rockenbaugh told petitioner that if he had any questions or problems, to ask him.

         19. Each of the sawyers then selected an area to cut. Rockenbaugh presumed they selected their respective areas by coin toss; Larson thought that "since I was starting out there, that John gave me the option to start where I wanted. I believe he told me it didn't make any difference to him." (Tr. at 46:23-25, 47:1-2.)

         20.The two sawyers proceeded to cut in their respective areas. They were some distance apart although within shouting distance of one another.

         21. John Rockenbaugh exercised no supervision over petitioner's work. He did not tell petitioner that he was in charge ...


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