FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on September 13, 1993, in
Billings, Montana. Petitioner, Russell Paulsen (claimant),
was present and represented by Don Edgar Burris. Respondent,
Entech Incorporated (Entech), was represented by Robert T.
O'Leary. Claimant and Thomas F. Kiely, Jr., were sworn
and testified. Exhibit Nos. 1 through No. 13 were admitted
into evidence by agreement of the parties.
Court has considered the Pretrial Order, the
testimony presented at trial, the demeanor of the claimant,
Mr. Kiely, the exhibits and makes the following:
November 28, 1989, claimant suffered a back injury in the
course and scope of his employment while operating a scraper.
the time of injury, the employer, Entech, was self-insured.
about December 1, 1989, the claimant signed an Employee
Confirmation of Work Related Injury. (Ex. No. 12.)
statement described how the injury occurred in the following
has been a gradual onset from running a scrapper [sic].
for the signature and social security number, the claimant
did not fill out the remainder of the form. However, upon
examination of the form, it would not be immediately apparent
to a third party that someone other than claimant had filled
out the form.
his injury the claimant was treated by Dana Stokke, D.C. Dr.
Stokke first treated claimant on November 29, 1989. The
doctor's notes of that visit describe the circumstances
of petitioner's injury as follows:
"Date of onset was November 28, 1989, at about 6:00
P.M., when he was running a scraper, turned to the right to
look over his shoulder, hit a bump, and he steadily got worse
with aching and burning across low back radiating into right
groin. All activity, such as bending, sitting, lifting,
standing, walking, coughing, sneezing, increases the pain. He
has not tried any home treatment. He has had a previous
history of lumbosacral sprain but nothing as severe as
(Ex. No. 5 at 2.) Dr. Stokke diagnosed "Lumbo Sacral
Sprain complicated by lt lateral convexity and
sacralization." (Ex. No. 5 at 8.)
Stokke took claimant off work on November 29, 1989, but
approved his return to work on December 8, 1989. (Ex. No. 5
at 1 and 9.) Claimant has worked continuously since that
letter dated December 27, 1989, Entech denied claimant's
workers' compensation claim. The denial was based on the
accident description set forth in the Employee Confirmation.
In the opinion of Thomas F. Kiely, Jr., Entech's director
of Benefits and Claims, the onset of claimant's pain did
not meet the injury definition of the Worker's
Compensation Act. The letter stated in relevant part:
Based on the information you supplied us, we are denying your
workers [sic] compensation claim filed on November 29, 1989.
On the Employee Confirmation of Work Related Injury form you
filled out and signed, you stated the injury has been a
"gradual onset from running a scraper." According
to Section 39-71-119(2) of the Workers [sic] Compensation
Act, an injury is caused by an accident. An accident is
defined as "(a) an unexpected traumatic incident or
unusual strain; (b) identifiable by time and place of
occurrence; (c) identifiable by member or part of the
body affected; and (d) caused by a specific event on a
single day or during a single work shift."
In addition, we are denying this claim as an occupational
disease based upon the medical notes provided by Dr. Dana
. . . .
(Ex. No. 10 [emphasis in the original].)
January, 1990 claimant retained attorney Geoffrey R. Keller