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Turjan v. Royal Insurance

Court of Workers Compensation of Montana

November 3, 1994

DONNA TURJAN Petitioner
v.
ROYAL INSURANCE Respondent/Insurer for VALLEY VIEW ESTATES NURSING HOME Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         The trial in this matter was held on January 18, 1994, in Missoula, Montana. Petitioner, Donna Turjan (claimant), was present and represented by Mr. Thomas C. Bulman. Respondent, Royal Insurance (Royal), was represented by Mr. P. Mars Scott. Claimant testified on her own behalf. Connie Strong, Nancy Conley and Pat Wallace also testified. Brad Jarvis' post-trial deposition and claimant's deposition were submitted for the Court's consideration. Exhibits 1 through 8 and 10 were admitted into evidence by stipulation of the parties. Exhibit 9 was admitted over Royal's relevancy objection on the condition that it would only be considered if claimant established estoppel up and through the period preceding the date on Exhibit 9, July 31, 1992. Exhibit 11, which consists of portions of a claim file maintained on behalf of Industrial Indemnity Insurance Co. (Industrial Indemnity) with respect to a September 16, 1986 injury, was admitted into evidence by stipulation after the trial. (Tr. at 129-130)

         The Court held an in camera inspection of another claim file maintained on behalf of Industrial Indemnity. The file included work product and attorney-client privilege documents. The Court determined that the first mention of an April 1987 injury was on July 22, 1992. A sealed copy of the file has been retained by the Court so that it is available in the event of an appeal.

         Issues Presented: The issues before this Court are whether claimant complied with the sixty (60) day notice provision of section 39-71-603, MCA and, if so, whether she filed a written claim complying with section 39-71-601, MCA.

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

         FINDINGS OF FACT

         1. Claimant was employed as a nurses' aide at Valley View Estates Nursing Home (Valley View) from February of 1986 to April of 1987.

         2.On September 16, 1986, claimant injured her lower back and right shoulder while lifting a patient into a bath chair. (Tr. at 147.) The injuries occurred in the course and scope of her employment with Valley View.

         3.Claimant notified her supervising nurse, Bonnie Hicks, of the injury. On September 22, 1986, she filled out an Accident Investigation Report. (Tr. at 149-150, 161-162.) On January 26, 1987, she filed a written claim for compensation. (Ex. 2.)

         4.Previously, on September 1, 1986, claimant had filled out an Accident Investigation Report after a patient hit her. (Ex. No. 2 at 23.) At trial the claimant testified that she knew that she was required to fill out a claim form if she were injured. (Tr. at 161.)

         5.Based on the facts recited in the previous two paragraphs, the Court finds that claimant was familiar with the nursing home's procedures for reporting a worker's compensation injury and filing a claim. Claimant knew that she was required to report any industrial accident to her supervisor, fill out a written accident report and file a claim.

         6.At the time of claimant's September 16, 1986 injuries, Valley View was insured by Industrial Indemnity Insurance Company, which accepted liability for the claim.[1]

         7.Following her September 16, 1986 injuries, claimant was treated by Dr. John M. Fuhrman, an orthopedic surgeon. On September 24, 1986, Dr. Fuhrman restricted claimant to "light duty, i.e. no pt. lifting." (Ex. 2 at 8.)

         8.Claimant continued to work but was assigned light-duty work. She provided clean towels and linen to rooms at the nursing home. (Ex. 1 at 19.)

         9.Although she continued to work, claimant continued to experience low-back pain. Based on Dr. Fuhrman's April 23, 1987 office note (Ex. 6), and claimant's testimony in a deposition taken on July 7, 1992, the pain apparently radiated into her legs. Dr. Fuhrman's note refers to "some radicular signs and symptoms down the posterior lateral distribuion [sic] of the right leg into the ankle." When questioned as to whether the symptoms reported on April 23, 1987, were new ones arising in April 1987, the claimant responded:

Q. There aren't any radicular findings in Dr. Fuhrman's records until after April of 1987. Do you agree with that assessment?
A. Well, the first time I was injured I had a burning sensation, also.
Q. Okay. Now, on April 23rd, 1987 there is a note from Dr. Fuhrman that you had some new symptoms and new pain radiating down in your leg. Would you have told him about new symptoms after the event in April 1987 when you were lifting the other lady?
A. I told him all the symptoms I had, even before.
Q. Okay. You wouldn't dispute his records that you had some new symptoms in April of 1987 though, would you?
A. I had all the pain from before and I told him. Q. Uh-huh. Now, you wouldn't dispute his records though, would you?
A. With the pains I would.
Q. Okay. Now, the event in April 1987, that involved a change in your condition, didn't it? It worsened your condition?
A. Yes. (Ex. 1 at 25-26, emphasis added.)

         10. In April of 1987, the claimant was once again assigned heavier work. (Tr. at 149; Ex. 1 at 19.)

         11. According to time records maintained by the nursing home, claimant's last day of work was April 21, 1987. On her last day of work, claimant was helping a nurses' aide lift a patient when she felt a "real sharp pain down the lower back and all the way down my leg." (Tr. at 153.) Since the only issues presented for the Court's determination in this case concern notice (§§ 39-71-601 and 39-71-603, MCA), the Court assumes for the limited purposes of its present decision, but does not decide, that an industrial accident occurred.

         12. As already noted in Finding of Fact No. 9, claimant was examined by Dr. Fuhrman on April 23, 1987. Dr. Fuhrman's office note for that date reads in full:

Donna is worse and she has a new constelation [sic] of symptoms in the sinse [sic] that she now has some radicular signs and symptoms down the posterior lateral distribuion [sic] of the right leg into the ankle, which occured [sic] while she was working the other night. She has some atinuation [sic] of the achilles reflex and diminished pin prick, lateral boarder [sic], right foot. Motor strength is full.
IMPRESSION: Radicular signs and symptoms. She has taken off work. She will continue with the Flexural, Motrin, PT and rest at home. Reassessment one wk.

         (Ex. No. 6) While the note indicates that new symptoms occurred at work, it does not mention any specific incident or incidents as causing the new symptoms. Claimant's July 1992 testimony also indicates that the symptoms were not new ones, rather she experienced a worsening of her existing symptoms. (See Finding of Fact No. 9.)

         13.Claimant testified that on the day of her April 1987 injury, she notified Connie Strong (Strong) of her injury and filled out an accident report for Strong to give to Bonnie Hicks (Hicks). (Tr. at 171-172.) Hicks was not on duty at the time. (Tr. at 174.) The Court does not find claimant's testimony on this point either credible or persuasive. Strong, who no longer works for Valley View, could not recall claimant ever telling her that she had been injured in April 1987. Strong stated that had claimant done so she would have reported it to Hicks, the director of nursing. (Tr. at 44-46.) Strong was a credible witness.

         14.Claimant went back to Valley View following her last day of work and delivered to Hicks two "no work" notes written by Dr. Fuhrman, one dated April 23, 1987 and the other June 2, 1987. (Ex. 2 at 8, Tr. at 172 and 175.) However, claimant did not report her April injury to Hicks at those times.

         15.In her testimony at trial, claimant initially characterized Strong as her "supervisor." (Tr. at 154.) Later on, however, she testified that Hicks was her supervisor. (Tr. at 161-62, 174.) Hicks performed the only two performance evaluations of claimant, one in July 1986 and the other on February 12, 1987. (Ex. 2 at 20-21.) Strong testified that she was not a supervisor in April 1987. (Tr. at 43-44.) Her testimony was credible. Claimant also took Dr. Fuhrman's notes to Hicks. After considering all of this evidence, I am persuaded that Strong was not in fact a supervisor in April 1987. Claimant knew that Hicks was her supervisor and that her injury should have been reported to Hicks.

         16.Ms. Nancy Conley (Conley), a fourteen year employee at Valley View, was personnel director in April of 1987. She was responsible for preparing workers' compensation reports. (Tr. at 49-50.) She first learned of claimant's alleged April 1987 injury in 1993. (Tr. at 52.)

         17.Claimant failed to persuade the Court that prior to 1993, Valley View was informed or knew of her April 1987 injury. Valley View learned in late April 1987 that claimant was unable to work, but claimant failed to persuade the Court that Valley View, or its supervisory personnel, were aware that her inability to work was due to a second, April 1987 industrial injury.

         18.Industrial Indemnity employed Crawford and Company (Crawford) to adjust claimant's September 16, 1986 claim. An April 30, 1987 ...


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