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Chaney v. U.S. Fidelity & Guaranty

Court of Workers Compensation of Montana

April 6, 1995

LARRY D. CHANEY Petitioner
v.
U.S. FIDELITY & GUARANTY Respondent/Insurer for OWENS-HURST LUMBER COMPANY Employer STATE COMPENSATION INSURANCE FUND Intervenor.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Claimant, who suffers from carpal tunnel syndrome, alleges that his condition results from a November 3, 1983, injury with an employer insured by U.S. Fidelty & Guaranty. State Fund makes the same contention, seeking indemnification from the first insurer.

         Held: Claimant's injury during November, 1983, is not the proximate cause of his current carpal tunnel syndrome. He is not entitled to benefits from U.S. Fidelity & Guranty. Note: this decision was reversed in Chaney v. U.S. Fidelity & Guaranty, 276 Mont. 513 (1996), with Supreme Court finding liability to flow from this insurer's failure to accept or deny the claim within thirty days.

         The trial in this matter was held on June 28 and 29, 1994, in Great Falls, Montana. Petitioner, Larry D. Chaney (claimant), was present and represented by Mr. Randall O. Skorheim and Mr. Robert C. Melcher. Respondent, U.S. Fidelity & Guaranty (USF&G), was represented by Mr. Michael S. Lattier. Intervenor, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams. Claimant testified on his own behalf. Dr. Patrick E. Galvas and Scott Hall also testified. The depositions of the claimant, Dr. Stuart Reynolds, Dr. Patrick R. Cahill, Dr. John V. Stephens, Dr. Patrick E. Galvas and Mary Chaney were submitted for the Court's consideration. Exhibits 1 through 11 were admitted into evidence without objection. Exhibit 12 was offered by USF&G and objected to by claimant. The Court reserved its ruling on Exhibit 12. After considering the arguments made by both sides, Exhibit 12 is denied.

         State Fund's motion to add issue: Prior to the commencement of the trial in this matter, the State Fund moved to add the issue of whether the State Fund is liable for the claimant's carpal tunnel syndrome. Based on the representation of claimant's counsel that the claim against the State Fund is being pursued under the Occupational Disease Act (ODA), the Court denied the motion. The Department of Labor and Industry, not the Court, has original jurisdiction over liability disputes under the ODA.

         Issues: Claimant suffers from carpal tunnel syndrome (CTS). He alleges that his CTS is attributable to a November 3, 1983 injury he suffered while working on the green chain at Owens-Hurst Lumber Company (Owens-Hurst). He seeks a determination that USF&G, which insured Owens-Hurst at the time of the accident, is liable for temporary total, permanent total, permanent partial, rehabilitation and medical benefits, as well as attorney fees, and a penalty. The State Fund has intervened to seek indemnification for compensation and medical benefits it has paid claimant since 1993. Those benefits have been paid under a reservation of rights. As already noted in the second paragraph, the State Fund's liability, if any, is not at issue in this case.

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

         FINDINGS OF FACT

         1. At the time of trial claimant was thirty-two years old. He has completed high school.

         Claimant's Credibility

         2. The following findings must be prefaced by the Court's determination concerning claimant's credibility. Claimant was not a credible witness. The contradictions in claimant's testimony in deposition and at trial were numerous and blatant. Ultimately, it was impossible for the Court to ascertain an accurate history of claimant's finger, hand, wrist and arm complaints.

         Claimant's Early Work History

         3. In 1979, while attending high school, claimant joined the National Guard (Guard). (Tr. at 109.) In 1981, at age 19, claimant dropped out of high school and attended advanced training in the Guard. (Id.) Claimant continued to serve in the Guard until 1985. (Id.) While in the Guard he worked as a mechanic.

         4. In June of 1981, the claimant began working for Crystal Lake Resort in Fortine, Montana, where he washed, fueled and maintained golf carts and worked in the kitchen. (Tr. at 109-110; L. Chaney Dep. at 16-19.)

         5. Claimant then worked for a short period of time driving a truck for Orin Stright. (Tr. at 188-189.)

         6. On or about October 15, 1983, claimant went to work for Owens-Hurst, which is a wood products mill. (Tr. at 110; L. Chaney Dep. at 19-20.) Claimant worked the green chain, pulling green, wet lumber from a conveyer belt and stacking it. (Tr. at 110-111.)

         1983 Industrial Accident

         7. Claimant testified at trial that he was injured on November 3, 1983, when he fell from a pile of railroad ties while working the green chain. (Tr. at 112-113.) He testified that he fell approximately four (4) feet, breaking his fall with his forearms and wrists, ultimately landing between the green chain and the wood, and scraping his legs and back. (Tr. at 115-116.) He further testified that as soon as his shift ended he reported the fall to his supervisor and told a "gal" in the office that he was experiencing numbness in his fingertips. (Tr. at 113.)

         8. On November 11, 1983, claimant filed a workers' compensation claim for the injury he claimed occurred on November 3, 1983 while working for Owens-Hurst. (Uncontested Fact 1; see Ex. 3 at 15.)

         9. At the time of the alleged fall, Owens-Hurst was insured by USF&G. USF&G has no record of any acceptance or denial of the claim in this case. Its file folder for claims made by employees of Owens-Hurst does record a claim made by Mr. Chaney for a November 3, 1983 accident. (Ex. 10.) USF&G paid no benefits (Ex. 10) with regard to the claim but it is possible that Owens-Hurst paid directly for a subsequent medical examination by Dr. Schroeder. Lacking any evidence that the claim was timely denied, the Court finds that the claim was accepted by USF&G.

         10. Claimant's trial testimony concerning his 1983 industrial accident was inconsistent with what he reported at the time of the injury and with other parts of his trial and deposition testimony.

         a. The Employer's First Report, which was signed by claimant, describes the accident as follows:

Arms and Hands started to go to sleep and get num [sic] while working and after work. Stacking 2x6s and Tye's [sic].

(Ex. 3 at 15.) No fall is mentioned.

         b. Claimant did not mention the fall to any doctor until he saw Dr. Galvas in February of 1994. He claims that he told Dr. Schroeder about the fall but Dr. Schroeder's Attending Physician's First Report made no mention of a fall. (Ex. 3 at 14.) Instead, where asked to "[s]tate in the patient's own words, how accident occurred," Dr. Schroeder responded, "Gradual onset of pain in shoulder and arms." (Id.) Following the question, "Is present condition due to work related accident?" Dr. Schroeder wrote in "(conditions)". (Id.)

         c. At his deposition the claimant testified that he did not report his injury to his supervisor. (L. Chaney Dep. at 80; Tr. at 162.) His deposition testimony was:

Q. So you never reported that injury to your supervisor?
A. No. I didn't feel it was an injury at that time.
Q. So you didn't feel that getting scraped up was enough to complain about?
A. Right.

         At trial claimant testified that his recollection was refreshed by new documentation and he could now remember reporting the fall to his supervisor. (Tr. at 162-164.) The document jogging his memory was the USF&G file folder for Owens-Hurst. (Ex. 10.) The back of the file folder contains three columns to record the names of claimants, the dates of their injuries and the amounts paid on account of the injuries. The specific entry purportedly jogging claimant's memory was line 16 of the third column, which reads:

Claimant

Date Injured

Amount Paid

Larry Dean Chaney

11-3-83

-------

       However, the quoted entry does not appear to have been made on November 3, 1983. Rather, it appears to have been made no earlier than November 10, 1983. That is because the three injuries immediately preceding the quoted one were for injury dates of 11-3-83, 11-9-83, and 11-10-83. Moreover, the file folder entry does not mention any fall or any report to a supervisor. The Court is left wondering how the entry could have jogged claimant's memory.

       d. During his deposition claimant also testified that he did not have numbness in his fingers or hands until several days after the fall:

Q. Okay. Dr. Galvas said that, in his report, "Patient states that his complaints with his hands began in 1982 when he was working in a sawmill, fell and caught himself on both hands. He experienced pain in his hands right afterwards. Patient states he was working outside in about 40 degrees below zero level weather."
Did you tell Dr. Galvas that?
A. Yes.
Q. Is that when your problems with your hands started? A. Well, I fell and I didn't have no real problems right then, but it was like a week or so afterwards my fingers started going numb.
. . . .
Q. When did your hands start going numb?
A. During the snowstorm.
Q. I mean in relation to your fall.
A. It was after the fall.
Q. The next day?
A. No. It was -- It could have been three days. It could have been seven days. I just remember that my hands started going numb, my fingertips. . . .

(L. Chaney Dep. at 74 and 82.) And, on cross-examination at trial, claimant testified:

Q So based on your testimony, your deposition, it was about a week or two after the fall your hands started bothering you, correct?
A Could be. I'm not sure.

(Tr. at 166.)

       e. Claimant testified that he is unsure whether his alleged fall caused his current symptoms or whether they were caused by his repetitive work on the green chain.

       11. Based on my assessment of claimant's credibility, the Employer's First Report, and Dr. Schroeder's report, I find that claimant did not fall as he now claims. More probably he experienced a gradual onset of numbness in his hands, arms ...


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