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Paulsen v. Entech Inc.

Court of Workers Compensation of Montana

February 22, 1994

RUSSELL PAULSEN Petitioner
v.
ENTECH INCORPORATED/WESTERN ENERGY COMPANY Respondent/Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         The 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.

         The Court has considered the Pretrial Order, the testimony presented at trial, the demeanor of the claimant, Mr. Kiely, the exhibits and makes the following:

         FINDINGS OF FACT

         1.On November 28, 1989, claimant suffered a back injury in the course and scope of his employment while operating a scraper.

         2.At the time of injury, the employer, Entech, was self-insured.

         3.On or about December 1, 1989, the claimant signed an Employee Confirmation of Work Related Injury. (Ex. No. 12.)

         The statement described how the injury occurred in the following terms:

         This has been a gradual onset from running a scrapper [sic].

         Except 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.

         4.Following 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 now."

(Ex. No. 5 at 2.) Dr. Stokke diagnosed "Lumbo Sacral Sprain complicated by lt lateral convexity and sacralization." (Ex. No. 5 at 8.)

         5. Dr. 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 time.

         6. By 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 Stokke.
. . . .

(Ex. No. 10 [emphasis in the original].)

         7.In January, 1990 claimant retained attorney Geoffrey R. Keller to ...


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