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Robinson v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 14, 1994

DONALD T. ROBINSON Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for ROCKY MOUNTAIN TEMPORARIES, d/b/a LABOR CONTRACTORS Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         The 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.

         Fourteen 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 Exhibits 15 and 16 were admitted after the objections to them were withdrawn.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.

         The 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.

         Having 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:

         FINDINGS OF FACT

         1. At the time of trial claimant was forty years old.

         2. 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.)

         3. At 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.

         6. In 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.)

         7. 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 Fund.

         8.Claimant 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 or aggravation.

         9. 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. at 53-56.)

         10. 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.

         11. 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.

         12.Claimant 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.)

         13. 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 ...


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