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Davis v. Montana Municipal Insurance Authority

Court of Workers Compensation of Montana

October 7, 1994

SCOTT DAVIS Petitioner
v.
MONTANA MUNICIPAL INSURANCE AUTHORITY Respondent Insurer for THE CITY OF KALISPELL Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         The trial in this matter was held on September 12, 1994, in Kalispell, Montana. The petitioner, Scott Davis (claimant or Davis), was present and represented by Ms. Laurie Wallace. Respondent, Montana Municipal Insurance Authority (MMIA), was represented by Mr. Leo S. Ward. Claimant, Lanny Scovel, Jerry Diegal, Leonard Hogan and Dick Brady testified. Additionally, the depositions of Scott Davis, Lawrence Iwersen, M.D. and James Kiley, M.D. were submitted for the Court's consideration. Exhibits 1 through 4, 7 and 9 were admitted into evidence without objection. Exhibit 5 was admitted over objection but for limited purposes. Pages 18-21 of Exhibit 6 and pages 33-37, 43 and 47 of Exhibit 8 were also admitted over objection.

         Issues Presented: This case involves Mr. Davis' claim that he suffered an industrial injury to his low-back in late October or early November of 1991. The MMIA timely denied Davis' claim. In this proceeding it asserts that claimant failed to notify his employer of any accident within the thirty days provided by section 39-71-603, MCA. MMIA further contends that Davis did not suffer an industrial injury.

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

         FINDINGS OF FACT

         1. Claimant lives in Kalispell, Montana. His present age is thirty-nine.

         2. Claimant graduated from high school in 1974. He thereafter served in the U.S. Army for two years. After military service he worked at various laboring and heavy equipment operator jobs.

         3. In 1983, while working as a heavy equipment operator for Royal Logging, claimant injured his neck and low-back. He reported the injury and filed a claim for compensation.

         4. Following his 1983 injury, the claimant experienced low-back pain and pain radiating into his left leg. (Ex. 1 at 113.)

         5. On March 28, 1985, claimant underwent low-back surgery. The surgery was performed by Dr. Albert Joern, an orthopedic surgeon, at the Kalispell Regional Hospital. Dr. Joern carried out a bilateral hemilaminectomy and foraminotomy at the L4-5 level, and a complete discectomy at the L4-5 level. He also performed a posterior interbody fusion at L4-5 level and a left-side posterolateral fusion of the L4 to S1 vertebrae. Dr. Joern's operative report is Exhibit 1 at pages 116 through 118. A summary is found at page 113 of Exhibit 1.

         6. In August of 1987, claimant settled his 1983 claim for 500 weeks of disability benefits at his maximum rate.

         7. Claimant contends that he suffered another injury to his back in late October or early November of 1991, while operating a street sweeper for the City of Kalispell. He testified that while standing on the top of the street sweeper, he slipped on a wet spot and fell to the ground, landing on his buttocks. He claims that he reported the accident to his employer on the same day. According to claimant, he thereafter experienced severe low-back pain, which had not been the case before the injury, and discovered that the 1985 fusion of the low-back had "busted". He testified that he was not previously aware that the fusion had "come apart" or "busted".

         8. The MMIA denies that claimant reported any injury within the thirty days provided by section 39-71-603, MCA (1989) and denies that claimant suffered an industrial accident in November 1991. It also contends that even if an industrial accident occurred, claimant's present condition is unrelated to the incident.

         9. Claimant testified that after the accident he returned to the city shop at 2:00 or 2:30 p.m. According to claimant, he told two co-employees, Lanny Scovel and Jerry Diegal, that he had just fallen off his sweeper and injured his back, and they told him to report the injury on his time card. Claimant further testified that he noted his injury on the time card and told his immediate supervisor, Leonard Hogan (Hogan), that he had fallen off his sweeper and injured his back. Claimant states that he asked to take the rest of the day off due to his back, but Hogan told him to stay around the shop area and do light work such as cleaning windows until the end off the day. Hogan testified at trial and denied that any conversation ever occurred; denied that claimant reported the injury; and denied any knowledge of the alleged injury until several months later when claimant filed a claim.

         10. Claimant did not file a written claim for compensation until April 10, 1992. (Davis Dep. Ex. 1.)

         11. The time cards for late October and early November 1991 might well be dispositive of claimant's assertion that he reported the injury on his time card. Those cards, however, have been destroyed. Dick Brady, the Public Works Superintendent for Kalispell, testified that he threw out a drawer full of time cards, representing several years, after the city computerized its payroll information and the cards were no longer needed. Mr. Brady's testimony was credible and no adverse inference is drawn on account of the unavailability of the time cards.

         12. Two Kalispell employees testified that they recalled claimant mentioning that he had injured himself. One of the employees, Lanny Scovel, testified that he told claimant to note the injury on his time card. Neither observed him actually filling out the time card. Both witnesses testified that claimant approached them and brought the incident to their attention after he had been terminated from his employment and was already involved in a dispute over his claim. In light of other testimony and circumstances in this case, the Court did not find their testimony convincing or persuasive as to either the filling out of a time card or the occurrence of an accident.

         13. Leonard Hogan testified that claimant did not report an injury to him. His testimony was based on his memory and his daily procedures. Whenever an injury occurs, Hogan writes it down on his calendar and requires a memo concerning the accident. Hogan also testified that he would not have told an employee to stay at work after an injury.

         14. Claimant's testimony in this case was exaggerated, distorted, incomplete and/or untruthful.

a. His testimony that he first learned that his fusion was "busted" was contradicted by other evidence. Dr. Iwersen's medical note of February 6, 1989, indicates that the PLIF fusion (referring to the posterior interbody fusion of the L4-5) had "definitely failed." The note states specifically that "we talked about the failed fusion of his PLIF." Claimant was thereafter seen by the Spine Care Medical Group in Daly City, California. The May 4, 1989 report from the examining physician, Dr. Gerald Keane, states: "It is my assessment at this point that there is definite evidence of a failed fusion both at the interbody and the posterolateral fusions appearing non-solid on the images available to us." Then, sometime prior to March 30, 1990, claimant submitted a medical malpractice complaint against Dr. Joern to the Montana Medical-Legal panel. The complaint alleged that as a result of Dr. Joern's 1985 surgery "Mr. Davis now suffers from a chronically unstable and painful back with an incomplete and failed fusion." The complaint further stated that "Mr. Davis did not discover that his fusion had failed until November, 1988, after an x-ray had been taken and he was advised thereof." (Ex. 6 at 20.) Claimant has presented no medical evidence that the status of his fusion changed after 1989. Claimant was well aware that his fusion had failed long prior to the alleged 1991 accident.
b. Claimant's written claim for compensation, which was prepared April 9, 1992, identified the date of injury as December of 1991. In his deposition he testified that the accident occurred in October of 1991. At the time of trial he testified that it occurred in late October or early November 1991. In his deposition, claimant testified that he knew he injured himself on a Thursday, because he only had one day of work left. At trial claimant was not certain if it was a Thursday or a Wednesday. Claimant testified that he believed the date was the last Thursday in October, however, his work records show he was on vacation that day.
c. Claimant did not seek medical care following the alleged accident. He saw his family physician, Dr. James Kiley on December 16, 1991 for flu and on February 7, 1992 for depression but the doctor's notes on both dates do not mention any back complaints or any injury at work despite claimant's assertion that he was in great pain following the accident. The Court did not believe claimant's testimony that he told Dr. Kiley about his back or his assertion that Dr. Kiley merely failed to record his complaints.
d. Claimant first reported back pain to Dr. Kiley on March 19, 1992, after he had been fired from his job. Claimant was fired from his job on March 17, 1992, because of unexcused absences from work. Those absences were unrelated to any back problem.
e. Claimant testified that he filed the present claim after seeing Dr. Iwersen on April 3, 1992, at which time he says he first became aware he had "busted" his fusion in his accident. The Court finds this testimony unbelievable. Dr. Iwersen's April 3, 1992 note makes no mention of any injury or to claimant's fusion. Rather it states, "The pt was in today, seems to be getting progressively worse." (Ex. 1 at 151; emphasis added.) Dr. Iwersen, who testified by deposition, did not indicate any change regarding the fusion, and as set forth in subparagraph a, claimant was well aware of the fusion had failed three years prior to the April 1992 examination.
f. Claimant also testified that he informed Dr. Iwersen about his accident during the April 3, 1992 examination. Dr. Iwersen's medical note, however, does not mention any accident. (Ex. 1 at 151.)
g. Claimant testified that he did not file a claim right away because he was not sure his condition was serious. That testimony is found to be incredible in light of claimant's testimony that after the accident he ...

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