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Tempel v. National Union Fire Insurance of Pittsburgh

Court of Workers Compensation of Montana

April 22, 1994

CRYSTAL TEMPEL Petitioner
v.
NATIONAL UNION FIRE INSURANCE OF PITTSBURGH Respondent/Insurer for R.G.I.S. INVENTORY SPECIALISTS Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         The trial in the above-entitled matter was held on Wednesday, February 16, 1994, in Helena, Montana. The Honorable Mike McCarter, Judge of the Workers' Compensation Court, presided. Petitioner, Crystal Tempel (claimant) was present and represented by her attorney, Mr. Thomas A. Budewitz. Respondent, National Union Fire Insurance of Pittsburgh, was represented by Mr. Oliver H. Goe.

         A Pretrial Order was agreed to between the parties and adopted by this Court. As reflected herein, there were no uncontested facts. The parties proposed and this Court adopted the following issues for determination:

         1. Whether Petitioner suffered a compensable industrial injury arising out of and in the course of her employment on January 28, 1993, while working for R.G.I.S. Inventory Specialists.

         2. If Petitioner suffered an accident on January 28, 1993, arising out of and in the course of her employment with R.G.I.S. Inventory Specialists, were her subsequent medical expenses related to such accident.

         3. Whether Petitioner is entitled to costs.

         At the commencement of trial and consistent with the rules of the Court, the parties agreed and stipulated that the depositions of Crystal Tempel, Tom Tempel, Barb Tewmey, Patricia Hanon, and Dr. Finney were to be admitted into evidence and considered part of the record. Exhibit Nos. 1 through 5 consisting of the medical reports and records of Dr. Wienert and Dr. Finney, St. Peter's Hospital and Dr. Gorsuch, as well as a summary of medical expenses were admitted into evidence without objection. Exhibit Nos. 6 through 10, including the diary of Crystal Tempel, the daily log of Patricia Hanon, the Employer's First Report, Report to Walt Kelly from Patricia Hanon, and an April 16, 1993 letter from ALEXSIS to Crystal Tempel were objected to by the claimant on the grounds of hearsay and relevance. Such objections were overruled and the exhibits were admitted into evidence. Crystal Tempel, Tom Tempel, Lorie Wallace and Patricia Hanon were all sworn and testified.

         At the close of trial, and having had the opportunity to personally hear from all the witnesses and to review all relevant evidence including depositions, this Court entered a bench ruling for respondent finding that it did not believe Tempel's claim of a work-related accident occurring on January 28, 1993. The Court requested respondent to prepare proposed findings of fact consistent with the bench ruling. Having received and considered the proposed findings, this Court now enters the following Findings of Fact, Conclusions of Law and Judgment.

         FINDINGS OF FACT

         1. Claimant began working for R.G.I.S. Inventory Specialists, in October, 1992. R.G.I.S. is also known as "Marketing Force," and will be called by that name in the findings that follow.

         2. Through its employees, Marketing Force sets up and stocks manufacturers' displays in retail stores throughout Montana and other states. Claimant's job was to set up and stock manufacturers' displays at various retailers in the Helena area.

         3. At the time of claimant's initial employment by Marketing Force, she had a history of back problems. She had undergone a laminectomy in June of 1992.

         4. Claimant alleges that on January 28, 1993, she suffered a further back injury while stocking a Muppet Babies display at the Helena K-Mart store. She testified that while working at K-Mart she reached overhead for a box and fell backwards; she immediately felt pain in her back and down into her leg. There were no witnesses.

         5. On January 28, 1993, Marketing Force was insured by National Union Fire Insurance of Pittsburgh, which has responded to ...


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