STEVEN K. YAGER Petitioner
MONTANA SCHOOLS GROUP AUTHORITY and ALEXSIS RISK MANAGEMENT SERVICE Respondent/Insurer for LIVINGSTON SCHOOL DISTRICT #4 AND #1 Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on May 26, 1994 in Helena,
Montana, the Honorable Mike McCarter, Judge of the
Workers' Compensation Court, presiding. Petitioner,
Steven K. Yager, (claimant) was present and represented by
Mr. J. David Slovak. Respondents, Montana Schools Group
Authority and Alexsis Risk Management Service, were
represented by Mr. Leo S. Ward and Bill Adamo was designated
representative of both the insurer and employer. Claimant,
Beverly Yager, Bill Adamo, Joe Mason and Verne Beffert were
sworn and testified. The depositions of claimant, Beverly
Yager, Karen Wiles, Joe Mason, William Adamo, Verne Beffert,
Mike Warren, Lorraine Eller, Nina Humble, Robert C. Logan,
Matthew Bernethy, William F. Frazier, Jr., Michael P. Sand,
Lindsay M. Baskett, M.D., and Whitney S. Robinson, M.D., were
stipulated into the record by the parties and considered by
the Court in reaching its decision.
1 through 7 and 12 through 19 were admitted into evidence
without objection. Exhibits 9 and 10 were not admitted as
they were redundant to other exhibits. Exhibit 8 (photographs
of classroom) was objected to by respondent on foundation
grounds. Respondent's objection to Exhibit 8 was
overruled and the exhibit was admitted. Exhibit 11 was
objected to by the claimant on grounds of relevancy and
hearsay. The claimant's objection was overruled and
Exhibit 11 was admitted.
close of the claimant's case-in-chief, the respondents
made a motion for a summary ruling to dismiss the
claimant's case. The motion was denied. At the close of
trial, the respondents moved for a bench ruling. The Court
advised the parties that it would be in a position to make a
bench ruling following review of the deposition testimony and
the trial was reconvened for that purpose on June 3, 1994. In
its bench ruling, the Court found in favor of the claimant
with regard to liability, holding that the claimant suffered
a compensable injury within the course and scope of his
employment with the Livingston School District. The Court
further held that the insurer was not unreasonable in its
denial of the claim and denied attorney fees and the penalty.
A copy of the transcript of the Court's bench ruling is
considered the Pretrial Order, the testimony presented at
trial, the demeanor and credibility of the witnesses, the
depositions and exhibits, the Court makes the following:
claimant was 39 years old at the time of trial. He is married
to Beverly Yager and they have two young children. The
claimant graduated from Park High School in 1974 and has been
employed in a variety of positions since that time, including
employment as a machinist for Burlington Northern and in a
variety of manual labor positions.
Claimant was hired as a custodian with the Livingston School
District in August 1989. His job duties included cleaning,
vacuuming, furniture moving, and a host of other duties
typically associated with a custodial position.
November 7, 1992, the Livingston School District was
self-insured through Montana Schools Group Authority. Alexsis
Risk Management Service was retained to adjust the claim.
approximately 12:15 a.m. Saturday, November 7, 1992, while
working at the Sleeping Giant Middle School, claimant slipped
and fell while pushing a vacuum cleaner out of a classroom.
The claimant was pushing the vacuum cleaner with his left
hand while holding the electrical cord with his right hand.
As he was exiting the room, the vacuum cleaner struck a strip
of carpet molding, causing the vacuum cleaner to come to an
abrupt stop. The handle of the vacuum cleaner struck claimant
in the left hip, causing him to lose his balance and fall
backwards. The claimant testified that as he was knocked
backwards he pushed a student desk out of the way, landing on
the floor on his buttocks. The accident was not witnessed by
anyone other than the claimant.
claimant noted pain and discomfort in his low back following
his fall but was able to complete his scheduled shift. He
left the school at approximately 2:00 a.m.
claimant initially believed that he had pulled or strained a
muscle. He expected his condition to improve over the
claimant's condition did not improve over the weekend and
on Monday, November 9, 1992, he called the Park Clinic and
was seen by Dr. Lynn Freeman that day. The claimant also
contacted the Livingston School District on November 9, 1992,
and reported the accident.
Employer's First Report (Ex. 5) was prepared on November
9, 1992 by Lorraine (Nardella) Eller, an employee of the
school district. The report was signed on November 10, 1992
by Bill Adamo, Director of Business Services, on behalf of
the employer. The claimant also signed the report on November
10, 1992. The employer indicated on the report that it had no
reason to question the accident of November 7, 1992.
However, shortly thereafter the employer began to question
the accident. Over the next three months, claimant's
activities were observed by school personnel and ...