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Yager v. Montana Schools Group Authority

Court of Workers Compensation of Montana

June 20, 1994

STEVEN K. YAGER Petitioner
v.
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 JUDGMENT

          Mike McCarter, Judge.

         The 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.

         Exhibits 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.

         At the 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 attached hereto.

         Having 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:

         FINDINGS OF FACT

         1. The 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.

         2. 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.

         3. On 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.

         4. At 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.

         5. The 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.

         6. The claimant initially believed that he had pulled or strained a muscle. He expected his condition to improve over the weekend.

         7. 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.

         8. The 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.

         9. However, shortly thereafter the employer began to question the accident. Over the next three months, claimant's activities were observed by school personnel and ...


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