JAMES D. LARSON Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BARRY SMITH LOGGING, INCORPORATED Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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:
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.
Petitioner was employed as a sawyer for Barry Smith Logging,
Inc. between January 1992 and June 5, 1992.
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
the time of the alleged injury, Barry Smith Logging was
insured by the State Fund.
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.)
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.
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.
State Fund denied liability for petitioner's claim
because petitioner failed to notify his employer of his
injury within 30 days.
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.
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.
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.
.Petitioner was hired and paid by Barry Smith. Petitioner
sent pay information directly to Smith.
Barry Smith assigned sawyers to different timber stands which
he had contracted to cut. Typically two sawyers were assigned
to an area.
Once assigned to an area and given general instructions, the
sawyers worked separately and independently, each taking a
part of the area to cut.
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.
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.)
Barry Smith showed petitioner the job site for
petitioner's first job.
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.
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.)
two sawyers proceeded to cut in their respective areas. They
were some distance apart although within shouting distance of
John Rockenbaugh exercised no supervision over
petitioner's work. He did not tell petitioner that he was
in charge ...