LARRY D. CHANEY Petitioner
U.S. FIDELITY & GUARANTY Respondent/Insurer for OWENS-HURST LUMBER COMPANY Employer STATE COMPENSATION INSURANCE FUND Intervenor.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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.
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.
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.
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.
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:
the time of trial claimant was thirty-two years old. He has
completed high school.
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.
Early Work History
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.
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.)
Claimant then worked for a short period of time driving a
truck for Orin Stright. (Tr. at 188-189.)
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.)
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.)
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
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.
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
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.
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
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?
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
Larry Dean Chaney
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?
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,
A Could be. I'm not sure.
(Tr. at 166.)
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