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Haag v. Montana Schools Group Insurance Authority

Court of Workers Compensation of Montana

November 30, 1994

ED HAAG Petitioner


          Mike McCarter Judge

         Summary: School district custodian claimed he injured his shoulder in a work-related accident. Insurer eventually denied liability, but failed to accept or deny the claim within thirty days as required by section 39-71-606(1), MCA (1991).

         Held: Claimant was not injured at work; his claim was a fabrication. Pursuant to Solheim v. Tom Davis Ranch, 208 Mont. 265 (1984), the insurer's failure to accept or deny within thirty days does not automatically entitled claimant to benefits. Even if the insurer's failure amounted an acceptance of the claim, subsequent denial on the basis of claimant's fraud is appropriate. Note: the Supreme Court reversed on both points, holding that the insurer's failure to comply with section 39-71-606(1), MCA (1991), amounted to acceptance of the claim, and that the lower court improperly reached an issue of fraud that was not litigated.

         The trial in this matter was held on March 28, 1994, in Great Falls, Montana. The petitioner, Ed Haag (claimant), was present and represented by Mr. Tom L. Lewis. Respondent, Montana School Group Insurance Authority (MSGIA), was represented by Mr.Oliver H. Goe. Claimant, Joseph E. Murphy, Sandra Haag, Don Hubert, Jr., Norbert (Norby) Johnson, Jerry Hatch, and Judy Wiltrout testified. Exhibits 1, 4, 5, 7-11, 13-15, 18, 22, 25 and 26 were admitted into evidence without objection. Exhibits 16, 17, 19, 20, 23, 24 and 27 were admitted over the objections of Mr. Goe. Exhibits 6 and 12 were admitted over the objections of Mr. Lewis. Exhibit 3 was not offered. The Court refused Exhibit 21 on the basis of relevancy. The Court reserved its ruling on Exhibit 2 and asked both sides to brief its admissibility. The offer of Exhibit 2 is refused. The parties stipulated that the depositions of claimant, Dr. J. Alton Ross, Dr. Steven P. Akre, and Edward May may be considered by the Court in reaching its decision.

         Prior to receiving evidence, the Court ruled that the issue of whether the petitioner is entitled to temporary total disability benefits was not properly before the Court and would be bifurcated. The Court determined that if claimant succeeded on the issues properly before the Court, the Court would request the parties mediate the temporary total disability benefit issue.

         Issues presented for decision: Claimant alleges that on March 23, 1992, he injured his shoulder in a work-related accident. MSGIA has denied liability. The principal issues before the Court are (1) whether MSGIA is estopped from denying liability on account of its failure to accept or deny the claimant's claim for compensation within thirty (30) days as required by section 39-71-606, MCA, and, if not, (2) whether petitioner suffered a compensable injury on March 23, 1992.

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


         1. At the time of trial claimant was sixty-one years of age.

         2. Claimant was employed by the Great Falls Public Schools from August 30, 1982 until March 24, 1992. (Tr. at 83-84.) He performed janitorial type duties. Between October of 1983 and March 24, 1992, his job title was "first engineer." (Tr. at 84.) On March 24, 1992, he was demoted to a "swing custodian." (Tr. at 130.)

         3. On March 19, 1992, claimant was working as a first engineer at West Elementary School in Great Falls. (Tr. at 83.) At approximately 12:30 p.m., claimant was involved in a serious disciplinary event in the school kitchen and cafeteria. In front of ten and eleven year old children, claimant angrily cursed and berated cafeteria workers. (Tr. at 153; Ex. 6.)

         4. Later that afternoon, claimant met with Mr. Duane Dockter (the principal of West Elementary), Joseph Murphy (Assistant Supervisor of Buildings and Grounds), and Kent Graves (Vice-Principal of West Elementary). At that time he was told that he could lose his job as a result of his conduct. (Tr. at 242.) Murphy told him to "stay the hell out of the cafeteria area." (Tr. at 244.) Claimant denies that he was told to stay out of the cafeteria area (Tr. at 285) but the Court does not find claimant's testimony credible. Claimant told Murphy, ". . . I would be history in eleven months, give me eleven months and I'll be history . . . ." (Tr. at 161.)

         5. March 23, 1992, was the last day claimant worked.. (Tr. at 126-128.)

         6. On March 24, 1992, a disciplinary meeting was held. Present were claimant, Jerry Hatch, (Assistant Superintendent for Personnel Services), Earl Jakes (a union repre sentative), Kent Graves, Joe Murphy (Murphy), and Norby Johnson (Supervisor of Buildings and Grounds). (Ex. 7.) Claimant was suspended without pay until March 26, 1992 at 10:30 a.m., at which time a further discussion regarding claimant's continued employment was scheduled. (Id.)

         7. At the meeting on March 26, 1992, claimant was informed that he could immediately return to work but that he was demoted to the position of swing custodian. (Ex. 7.) The demotion resulted in a reduction in pay of forty-three (43¢) cents per hour. (Tr. at 130.) At the end of the meeting, claimant said that he had understood his suspension was for three days and "wished to take a pay deduction for one additional day." (Ex. 7.)

         8. At 7:54 a.m., March 27, 1992, the claimant was treated for "nervous stomach" and stress at the emergency room of the Great Falls' Deaconess Hospital. (Ex. 11.) The emergency room record reflects the onset of claimant's complaints as "1 week ago" when claimant "was suspended from his job." (Id.) Claimant did not mention any injury. The emergency room doctor wrote a note taking claimant off work for three days. (Id.)

         9. Later on the day of March 27, 1992, claimant delivered the "no work slip" to Murphy's office. (Tr. at 135.) Murphy was out of his office, so claimant phoned Murphy later during the day. He told Murphy that he was not coming to work because he blacked out and had an upset stomach. (Tr. 135.) Claimant did not mention any injury. (Tr. at 136.)

         10. On Saturday, March 28, 1992, claimant and his wife went dancing. (Haag Dep. at 47.) In his deposition the claimant also admitted that he might have gone trap shooting that weekend, but at trial he denied doing so. (Haag Dep. at 48; Tr. at 136.)

         11. On March 30, 1992, claimant saw Dr. J. A. Ross. (Ex. 12.) At trial the claimant testified that he went to Dr. Ross for treatment of a shoulder injury he suffered while working on March 23, 1992. (Tr. at 91.) However, Dr. Ross' note reflects the purpose of the appointment as follows:

Edward comes in to talk about a problem he had at work about a week ago. He was helping someone in the kitchen and got into an argument with someone there and profaned rather loudly. He was reported to some officials there and he was suspended from school [and] his job for approximately three days. Before the time was up, he had what sounds like probably an acute anxiety episode, ended up at the Emergency Room at Deaconess ...

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