LaVERN F. BURNS Petitioner
PLUM CREEK MANUFACTURING Respondent/Insurer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on October 13, 1993, in
Kalispell, Montana. Petitioner, LaVern Burns (claimant), was
present and represented by Mr. Dean K. Knapton. Respondent,
Plum Creek Manufacturing (Plum Creek), was represented by Mr.
Kelly M. Wills. Claimant was sworn and testified on his own
behalf. Phil Wierz, Dorothy Burns and Pam Burns were also
sworn and testified. Testimony of Gregory Luna, M.D., Joseph
Knapp, M.D. and Charles Swannack, M.D. was presented by
deposition. Exhibit Nos. 1 and 2 were admitted into evidence
considered the testimony, the demeanor and credibility of the
witnesses appearing at trial, the exhibits and depositions,
the Court makes the following:
Claimant is 30 years old.
January 1985, claimant suffered a right subclavian vein
thrombosis following a skiing accident and was hospitalized
twice during January and February 1985 for treatment of his
elementary terms a "thrombosis" is a blood clot
which obstructs a blood vessel. "Subclavian"
indicates that claimant's thrombosis was in a vein
located beneath his clavicle. According to medical testimony,
the thrombosis probably involved an injury to the intima of
the vein. The intima is the innermost lining of a blood
vessel. An injury to the intima may be followed by deposits
of fibrin, leukocytes and erythrocytes, in other words, a
Claimant went to work for Plum Creek in 1987. He passed a
physical examination and began working on the plywood green
chain. The green chain was heavy work.
June 1991, the claimant began working on the
"spreaders." Claimant was one of four individuals
working as a team to assemble plywood sheets in layer-cake
fashion. Pieces of wood called "core" are fed by
one worker through a roller which applies glue to both sides
of a piece and ejects it. Another worker (a "core
layer") catches each ejected piece and places it on top
of a larger thin sheet of veneer until the sheet is covered
by core. Two other workers ("sheet turners") then
place another large sheet of veneer on top of the newly laid
core, and the process starts over again. When the plywood
sheet reaches the proper thickness it is removed and a new
one is started. At the time of claimant's alleged injury
the core layer and sheet turners rotated their positions
every two hours so that no worker laid core for more than two
hours at a time.
worked Friday, March 13, 1992, and was off work the weekend
of March 14 and 15, 1992. According to claimant and his wife,
claimant did nothing strenuous over the weekend.
March 16, 1992, the claimant worked the swing shift, starting
work at 3:30 p.m. That evening the spreader crew laid down
core pieces which are called "27s." The 27s are
approximately 27 inches wide by 4 feet long and are heavier
than other core pieces typically used in making plywood.
Claimant had laid 27s on previous occasions.
the end of claimant's shift, at approximately 11:30 p.m.,
he experienced a tingling sensation in his right hand and
stopped work for a short time. He told his supervisor that
his arm was bothering him and returned to laying core and
finishing his shift. His supervisor confirms that claimant
told him that his arm was bothering him. Claimant, however,
did not report an injury or incident at that time.
complained of aching and numbness when he arrived home after
work. By the following day his arm was swollen and painful.
He sought medical care and was hospitalized. It is undisputed
that he was suffering a recurrence of subclavian vein
relates the recurrence of his thrombosis
("rethrombosis") to his catching 27s on March 16.
He testified on direct examination that he had fallen behind
in core laying on March 16 and was trying to catch up. He
further testified that if you are not watching, pieces of
core can hit you in the chest or face, and that he was
"hit a few times that night that way." However,
during cross-examination, claimant acknowledged that the
events at work on March 16 were not unusual and that in his
previous deposition testimony he had not identified any
specific bumping or traumatic event occurring on March 16th.
The following cross-examination occurred:
Q. Okay. Now, your wife testified that you told her you were
jarred or jolted somehow.
A. Well, on that job when a piece of core is curved, it comes
through the rolls and it comes up at you and you get hit
anywhere from the chest to the face. You can get hit with a
piece of core if you're not watching it and fast enough
to catch it. And I did get hit a few times that night that
Q. Well, isn't it true that in your deposition you told
us that you didn't get bumped or suffer any trauma?
A. That happens --
Q. Is that what you testified to in your deposition?
Q. Okay. And it's also true that in your deposition you
testified that nothing unusual happen that day.
A. Not to get -- No.
Q. And that it was just a typical workday, nothing out of the
A. Well, besides catching the 27's.
Q. And you do that regularly?
Q. Now your testimony is that you got bumped or were struck
Q. Is that your testimony now?
A. No, I didn't say I got struck. I said I was catching
27's. When they hit me in the hand, that's when I
felt the tingling in my hand.
Q. I don't mean to argue with you, but I thought you just
testified you got hit in the chest with the 27's.
A. You do get hit in the chest with the 27. That happens
Q. Did you or didn't you?
A. Yeah, I got hit that ...