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- Sharon v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

June 2, 1994

SHARON McCOLLEY Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for OMO CONSTRUCTION, INCORPORATED Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         The trial in this matter was held on January 21 and February 2, 1994, in Billings, Montana, the Honorable Mike McCarter, Judge of the Workers' Compensation Court, presiding. Petitioner, Sharon McColley (claimant), was present and represented by Mr. Don Edgar Burris. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Thomas E. Martello. Richard N. Pallach, Jr., Karl Tadday, Mel Kegley, Kimberly Frye, Theresa Oblander, A.C. Ronning, claimant and Jennifer VanLuchene were sworn and testified. The parties agreed that the depositions of claimant and Jacque Sisson should be considered by the Court. Exhibits 1 through 38 were admitted by agreement of the parties.

         There are two trial transcripts on file in this matter, one for January 21 and the other for February 2, 1994. The transcripts will be cited Tr. I and Tr. II, respectively.

         Having considered the Pretrial Order, the testimony presented at trial and by deposition, the demeanor of the witnesses appearing at trial, the exhibits, and the parties arguments, the Court makes the following:

         FINDINGS OF FACT

         1. On September 28, 1992, claimant worked twelve hours for Omo Construction, Inc. (Omo), as a flagger on a road construction project near the Billings, Montana airport. She claims that during her one day of work she suffered a new industrial injury to her neck and back.

         2. While working for Omo claimant was positioned at one end of a road section which was under construction. Her job was to flag north bound traffic. Karl Tadday, another worker, was at the other end of the road segment and flagged the south bound traffic. Traffic was permitted to proceed in one direction at a time, so the two flaggers took turns stopping and holding traffic from their respective directions.

         3. Claimant had a sign which she used to slow and stop traffic. The sign was mounted on a pole. The sign and pole were approximately five to six feet tall. She stood during most of the day. (McColley Dep. at 45.)

         4. According to claimant, she suffered an aggravation of her back and neck conditions when buffeted about by turbulence created by speeding gravel trucks. Her written claim states:

The company trucks were not required to stop or slow down for flaggers. Instead, they accelerated & went past me at a high speed. I was positioned in the center of the road, at the bottom of an incline. The trucks caused such an air current as they sped by I could hardly hold my sign & my body in an upright position. When there were trucks on both sides of me (entering & leaving the pour) it was impossible to keep my balance & I was pulled all over the road. The speed of the trucks along with the dust clouds they created made it extremely dangerous.

(Ex. 22; emphasis added.)

         5. At the time of the alleged injury, Omo was insured by the State Fund under Plan III of the Montana Workers' Compensation Act.

         6. The claimant did not inform her employer of her alleged injuries but submitted a written claim for compensation directly to the State Fund.

         7. The State Fund denied liability for the claim. In this proceeding it challenges claimant's credibility and contends that she did not suffer an industrial injury. In its response, the State Fund also asserted that claimant did not give notice to her employer within the 30 day period specified by section 39-71-603, MCA. However, in the course of trial it was learned that the employer in fact received notice within 30 days, albeit through an inquiry sent by the State Fund to the employer. (Ex. 38; Tr. II at 59-62, 83-84.) Following this discovery the State Fund withdrew its notice defense, leaving the Court to determine whether an industrial accident occurred as claimant alleges.

         8. Since December 14, 1983, claimant has worked a total of approximately two and one half months. (Tr. II at 41.)

         9. On December 14, 1983, claimant injured her neck in a work-related accident while employed as a laborer for Ramsey Construction and Fabricating Company, Inc. (Exs. 3 and 4; McColley Dep. at 8-10.) She filed a claim for compensation and, except for a one month period from March 28 to May 2, 1984, she received biweekly workers' compensation disability benefits continuously from the date of her accident until April 1991. She also received a lump sum settlement. All told, between December 14, 1983 and April 29, 1993, claimant received $131, 832.94 in temporary total and permanent partial disability benefits, of which $61, 829.50 was for 500 weeks of permanent partial disability benefits. (Exs. 6, 8 and 11.)

         10. Following her 1983 neck injury claimant attended college. (Ex. 5 at 1; Ex. 6 at 12.) However, she did not complete her education.

         11. Claimant's 1983 injury resulted in a 3 percent whole person impairment rating. She suffered continuing, permanent symptoms on account of her injury, including headaches:

Q. [By Mr. Martello] Okay. All right. Now, as a result of that 1983 injury you had some --you had some permanent problems as a result of that injury, did you not?
A. [By claimant] I guess they were, yes.
Q. And they included problems with your neck and problems with headaches; is that correct?
A. Yes.

(Tr. II at 29.) As of September 21, 1988, nearly five years after the 1983 injury, claimant stated that she "currently experiences headaches, tenderness and stiffness between the shoulder blades, and a continuous dull burning ache in her neck ...


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