FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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.
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:
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.
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.
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.)
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.)
the time of the alleged injury, Omo was insured by the State
Fund under Plan III of the Montana Workers' Compensation
claimant did not inform her employer of her alleged injuries
but submitted a written claim for compensation directly to
the State Fund.
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.
Since December 14, 1983, claimant has worked a total of
approximately two and one half months. (Tr. II at 41.)
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.)
Following her 1983 neck injury claimant attended college.
(Ex. 5 at 1; Ex. 6 at 12.) However, she did not complete her
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?
(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 ...