FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on August 22, 1994 in Billings,
Montana. Petitioner, Jerry Pinyerd (claimant), was present
and represented by Mr. Patrick R. Sheehy. Respondent, State
Compensation Mutual Insurance Fund (State Fund), was
represented by Mr. Daniel J. Whyte. Claimant and Robert
"Jake" Jacobson testified. Exhibits 1 through 4
were admitted into evidence without objection.
parties stipulated to bifurcation of two principal issues in
this case. The first issue is whether or not a September 18,
1993 assault on the claimant by Robert Jacobson (Jacobson)
arose out of and in the course of the claimant's
employment with Prestige Toyota (Prestige). The second is
whether the assault caused the medical condition which is the
basis for claimant's claim for wage loss and medical
benefits. The second issue was deferred until resolution of
the first. Since the first issue is resolved adversely to
claimant, the second issue is moot.
considered the Pretrial Order, the testimony presented at
trial, the demeanor and credibility of the witnesses, and
exhibits, the Court makes the following:
Claimant is thirty years old and married. He grew up,
attended school and worked in California until 1993.
Claimant moved from California to Billings, Montana, in May
of 1993. At the time of his move claimant had four years
experience as a successful car salesman and had already lined
up a job with Prestige Toyota in Billings. He went to work
for Prestige in June of 1993 as a sales representative.
Prestige has two teams of salesmen, a "green" team
and a "blue" team. The two teams work different
hours and compete with one another for the most sales each
month. Claimant was assigned to the green team.
During claimant's employment at Prestige there were
approximately seven salesmen on the green team. One of those
salesmen was Robert "Jake" Jacobson.
salesmen on each team competed with one another for the most
sales each month. However, car sales also required
cooperation among the salesmen. Whenever a salesman was
having difficulty in making a sale he was expected to
"turn" the prospective customer over to a fellow
salesman in the hope that another salesman with a different
approach or personality could persuade the customer to buy a
new car. If a sale was then consummated, both salesmen split
Prestige established sales quotas for each of its salesmen
and paid them on a commission basis. It also paid cash
incentives (Spifs) for the top salesman, for demonstration
rides, and for obtaining customer purchase commitments.
During the first couple of weeks of his employment the
claimant was shut out of sales by the other salesmen, who
used their experience at Prestige to get to customers first
and did not "turn" any customers to the claimant.
Claimant talked to the manager of Prestige about the
situation. The manager talked to the other team members and
they then began to make turns to him.
Jacobson was especially hostile towards the claimant. He made
it clear ...