DONALD T. ROBINSON Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for ROCKY MOUNTAIN TEMPORARIES, d/b/a LABOR CONTRACTORS Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on March 3, 1994, in Kalispell
Montana. Petitioner, Donald T. Robinson (claimant), was
present and represented by Ms. Laurie Wallace. Respondent,
State Compensation Insurance Fund (State Fund), was
represented by Mr. Todd A. Hammer. Claimant testified on his
own behalf. Richard H. Schaus, Dr. Randale Sechrest, Kristen
Heck, Charles Winsell, and Dean T. Moore, II, testified on
behalf of the State Fund.
exhibits, including claimant's medical records, were
admitted into evidence. Exhibits 1 through 6 and 17 were
admitted by stipulation. Exhibits 7 through 9, part of 10,
and 14 were admitted over objection. Exhibits 15 and 16 were
admitted after the objections to them were withdrawn. The
Court refused Exhibit 11 on the basis of relevancy and
hearsay. Exhibits 12 and 13 were not offered.
parties stipulated that the following depositions can be
considered by the Court in reaching its decision: Donald T.
Robinson, Dr. Albert T. Joern, and Charles Eick.
considered the Pretrial Order, the testimony presented at
trial, the demeanor of the witnesses, the exhibits, and the
pleadings of the parties, the Court makes the following:
the time of trial claimant was forty years old.
Claimant suffered an industrial injury to his back, right arm
and shoulder while working for P.W. Berry Company on May 23,
1984. (Ex. 3.)
the time of the 1984 injury, claimant's employer was
insured by State Fund.
4. As a
result of the 1984 injury, claimant had surgery on his lower
back in July of 1988. (Tr. at 17) 5. While the surgery
afforded him some initial relief, claimant's symptoms
soon returned and were as severe as prior to surgery. Since
1988 he has had chronic pain in his neck, upper back, low
back, left leg, and intermittently, right leg.
November 1991, the claimant and the State Fund entered into a
full and final compromise settlement agreement with respect
to the 1984 injury. (Ex. 4-6; Tr. at 86-88.) In support of
settlement claimant filed an affidavit stating that despite
his surgery he "continued to suffer from low back pain,
leg numbness, pain and tingling" and had "chronic
pain." (Robinson Dep., Ex. No. 8 at 4, 13.)
Claimant alleges that he suffered another industrial injury
on January 21, 1993, while working at Semitool as a temporary
employee. His nominal employer was Rocky Mountain Temporaries
d/b/a Labor Contractors, which furnished temporary employees
to Semitool. (Tr. at 79-80.) At the time of the alleged
industrial accident, Rocky Mountain was insured by the State
submitted a claim for compensation. The claim was denied. In
this proceeding the State Fund disputes claimant's
accident description and contends that no accident occurred.
The State Fund also contends that claimant's current
condition is due to his 1984 injury and not to any new injury
According to claimant, on January 21, 1993, he reinjured his
back while he was installing a roller assembly in a furnace
at Semitool. He testified that he had to stand in an awkward
position on a 12 foot ladder and that the ladder constantly
slid and skated around on a linoleum floor. He further
testified that the ladder moved thirty to forty times,
approximately two to three inches each time, and that on four
of those occasions he felt "pops" in his back. (Tr.
Claimant testified that he told his co-workers, Chuck Winsell
and Charles Eick, that his ladder was moving and that Eick
and Winsell then helped look for a different, safer ladder.
(Tr. at 56-7.) Claimant also testified that by the end of the
day his limp was "noticeably worse." (Robinson Dep.
at 34; Tr. at 121-22.) Winsell testified at trial and Eick by
deposition. Neither worker confirmed claimant's
testimony. (Eick Dep. at 10-11, Tr. at 176.) Eick testified
that he recalled working with claimant on January 21, 1993,
but denied that claimant's ladder slid or skated on the
floor and denied that claimant ever said anything about the
ladder being unsafe. He recalled a search for another ladder,
not because claimant's ladder was unsafe but because a
taller ladder was needed. (Eick Dep. at 10-12.) Eick also
denied that claimant was "walking with a noticeably
worse limp" by the end of the day (Id. at 13)
and stated that he did not see claimant limping or exhibiting
any other sign of injury on that day. (Eick Dep. at 13, 23.)
Winsell testified that he could not recall claimant or anyone
else complaining of a ladder skating or sliding and that he
did not search for a substitute ladder for claimant. (Tr. at
178.) Claimant's supervisor, Dean Moore, was working in
the same area as claimant on January 21, 1993. (Tr. at
159-160) He stated that he did not hear of any problems with
the ladder and he did not see claimant limping. Moore and
Winsell were credible witnesses. Eick has no present
affiliation with any of the parties and he is now working for
a different employer in Ohio.
Richard Schaus, a physics teacher with a masters degree,
testified concerning the forces necessary to move a ladder
horizontally with a person standing on it. (Tr. at 243-245.)
In his opinion it was highly improbable from a physics
standpoint that the ladder could have moved as claimant
described. (Tr. at 243-45, 253, 256.) Mr. Schaus'
testimony and opinions were reasoned and credible. They have
been taken into account by the Court.
testified that he was familiar with his employer's policy
of immediately reporting an accident, but admitted that he
did not report his accident to either Labor Contractors or
Semitool until four days later. In the meantime, claimant
worked for four hours on January 22, 1993; was not limping on
January 22, 1993, because "I was thinking of my
sister," who was ill; and drove from Kalispell to
Bozeman and back to visit his sister; but "claims"
that he was otherwise flat on his back and bedridden. (Tr. at
122-124; Robinson Dep. at 51-57.)
Having listened to and observed claimant at trial, and having
considered his testimony and the testimony of other
witnesses, I do not find claimant's testimony credible. I
find that the ladder did not skid as he asserts and that