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Smith v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

May 3, 1995

JAMES L. SMITH Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Claimant seeks indemnity and rehabilitation benefits, attorneys fees, and costs based on accident while driving in the course and scope of employment.

         Held: Based on evidence in the case, including numerous discrepancies in statements and claims made by claimant, the Court reached a firm conviction that claimant has lied about his back condition in the attempt to obtain workers' compensation benefits. Claimant is not entitled to benefits.

         Topics:

Witnesses: Credibility. Based on evidence in the case, including numerous discrepancies in statements and claims made by claimant, the Court reached a firm conviction that claimant has lied about his back condition in the attempt to obtain workers' compensation benefits. Claimant is not entitled to benefits.

         The trial of this case was initially set for the week of May 10, 1993, but was set over to the fall term of Court for Helena. The trial was held on October 26, 1993, in Helena, Montana. The petitioner, James L. Smith (claimant), was not present but was represented by Mr. Stephen C. Pohl. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Oliver H. Goe. The case was not submitted for decision until December 2, 1994, due to post-trial depositions, motions and extensions of time for the submission of proposed findings of fact and conclusions of law.

         Trial transcript: The transcript of this case is in two parts. One part contains the Court's preliminary discussion with counsel and the opening statements. It is entitled Partial Transcript and will be referred to as Tr. I. The other part contains the testimony of Harold Lesh and Paul Bogumill. It is entitled Excerpt From The Court Proceedings and will be referred to as Tr. II.

         Witnesses at trial and by deposition: Harold Lesh and Paul Bogumill testified at trial. In addition, the parties have submitted the depositions of claimant, Dr. John Campbell, Bryan Gillette, Kent Lombard, Fred Yaeger, Kenneth Madden, Ronald Sexton, Monte Ewald, Rob Christi, Paul Tunkis, Bob Boyd, Sandy Maus, Dwaine Cline, Larry Cloninger and Dr. Philip Cory.

         Exhibits: Trial exhibits 1 and 4 were admitted. Exhibits 2 and 3 were refused. Exhibit 2 is a report of Dr. Cheryl Blank, a psychologist. Exhibit 3 consists of medical notes for claimant during his incarceration at the Gallatin County Detention Center. Both exhibits were offered by claimant and were refused because they were not timely identified. (Tr. I at 83-84.)

         On June 3, 1994, the claimant again requested that the Court admit the records of Dr. Blank, the Detention Center physician, and two other physicians. After a hearing on the request, the Court granted claimant leave to take depositions of Dr. Blank and the other physicians. (June 3, 1994 Minute Book Hearing #2509.) Claimant did not avail himself of that opportunity.

         Numerous exhibits were also attached to the various depositions. In their proposed findings of fact and conclusions of law, neither party has pursued any objection to any of those exhibits. Therefore, these exhibits are admitted into evidence. ARM 24.5.322(5).

         Judicial notice: Subsequent to trial the Court took judicial notice of official records of the Eighteenth Judicial District Court for Gallatin County in the matter of State of Montana v. James Leroy Smith, No. 94-03. It did so because the documents that were attached to the State Fund's Request for Judicial Notice were part of the Court record, and had already been brought to the Court's attention. The basic information concerning claimant's criminal conviction for defrauding the State Fund had already been furnished to the Court preceding the trial. (Tr. I.) Claimant was convicted of drawing temporary total disability benefits while working. The issue in this case is his permanent disability, if any. The Court has made its own determination concerning the present claims and has given no weight to the criminal proceedings and conviction.

         Issues: The parties have phrased the issues to be determined by the Court as follows:

1. The amount and extent of Claimant's entitlement to temporary total disability benefits under the Workers' Compensation Act.
2. The amount and extent of Claimant's entitlement to permanent total disability benefits under the Workers' Compensation Act.
3. Alternatively, the amount and extent of Claimant's entitlement to permanent partial disability benefits under the Workers' Compensation Act. Subject to Defendant's Motion for Partial Summary Ruling.
4. Alternatively, the amount and extent of Claimant's entitlement to retraining benefits under the Workers' Compensation Act. Subject to Defendant's Motion for Partial Summary Ruling.
5. Whether Claimant is entitled to an award of costs and attorney's fees.
6. Whether Defendant is liable for a 20 percent increase in benefits for unreasonable delay and refusal to pay benefits under Mont. Code Ann. § 39-71-2907.

(Final Pretrial Order at 3.) The italicized language is contained in the Final Pretrial Order. The motion to which the italicized language refers is a motion filed by the State Fund on March 30, 1993. The motion sought dismissal of claimant's alternative requests for permanent partial and retraining benefits on the ground that those issues had not been mediated. The State Fund subsequently moved to withdraw the motion and the motion to withdraw was granted. (Order Dismissing Motion for Summary Ruling (May 7, 1993).)

         The issues are further limited by representations the parties made at trial. Claimant's attorney represented that claimant has been incarcerated since May 26, 1993. (Tr. I at 69.) Since prisoners are precluded from receiving workers' compensation benefits, § 39-71-744, MCA, the Court will only consider claimant's entitlement to benefits, if any, accruing through May 25, 1993. Claimant's attorney also conceded that claimant had reached maximum healing at the time his temporary total disability benefits were terminated on September 21, 1992, and that temporary total disability benefits are not at issue. (Tr. I at 54-55, 68-69.)

         * * *

         Having considered the Final 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 46 years old. (Smith Dep. at 47.) On some of his employment applications he has represented that he attended high school through grade 12. (Smith Dep. Exs. 17 and 18.) In fact he attended school only until the tenth grade and did not graduate. (Smith Dep. at 116, 118.) He does not have a GED. (Id. at 116.)

         2. Primarily, claimant has worked on dairy farms and as a truck driver. Several of his adult years were spent in prison. His recent work history has been as a truck driver and has been unstable. He has had difficulty with each of the last six reported employers who employed him as a truck driver. He was discharged by Bob Boyd Trucking (Boyd) for failing to show up for loading his truck. (Boyd Dep. at 28.) He was discharged by Yaeger Trucking (Yaeger) after he wrecked a truck and was cited for careless driving. (Yaeger Dep. at 8.) On an application for employment with Boyd Trucking, he stated that his reason for leaving V.K. Putman was "because of having wife on truck" (Smith Dep. Ex. 18), while on another application made with Yaeger Trucking he stated that he left because "just had words." (Smith Dep. Ex. 17.) On the Boyd application he stated that he left Big Sky Asphalt because he "got put in jail and put me on part time" (Smith Dep. Ex. 18), while on his Boyd application he stated he left because "wouldn't pay." (Smith Dep. Ex. 17.) He listed Tri-Line as a prior employer on his Boyd application but not on his Yaeger application (Id.), and stated that he left because "stayed out too long." (Smith Dep. Ex. 18.) On his Yaeger application, but not on his Boyd application, he listed K&K Trucking and stated that he left because "messing with my money." (Smith Dep. Ex. 17.)

         3. On November 26, 1990, claimant told Larry Cloninger, a Bozeman Job Service employee, that he could no longer do physical work. (Cloninger Dep. at 16.) He said that "he had medical problems, heart and diabetes." (Id.)

         4. On October 18, 1991, claimant applied for employment with Yaeger Trucking and was hired.

         5. On October 24, 1991, while driving in the course and scope of his employment with Yaeger, his semi-trailer truck went off the road and overturned. The cause of the accident is disputed; the fact of the accident is not.

         6. Claimant was thrown about the truck cabin and injured.

         Acceptance of Liability and Payment of Benefits

         7. At the time of the October 24, 1991 accident, Yaeger Trucking was insured by the State Fund.

         8. The State Fund accepted liability for the accident and it commenced paying temporary total disability benefits effective November 1, 1991. (Tr. II at 26-27; Smith Dep. Ex. 1.)

         Events and Medical Treatment Following Injury

         9. Claimant was taken to the emergency room at a hospital in Glendive, Montana, following the accident. He testified that the staff at the emergency room kicked him out of the hospital because he refused to permit doctors to stitch a laceration of his scalp. (Smith Dep. at 109.) No record of the Glendive emergency room treatment has been submitted to the Court

         10. Claimant returned by bus to Bozeman, Montana, where he was residing. (Smith Dep. at 109.)

         11. On October 26, 1991, claimant sought treatment at the emergency room of the Bozeman Deaconess Hospital. (Ex. 1 at 6.) The emergency room record reads in part:

Rolled a semi & was seen in Glendive. Pt. says he was "told to leave the hospital." Came to Bozeman via bus. Pt. is sore & has great difficulty with movement. Mainly c/o (L) hip pain (L) leg pain. Moves all extremities. Currently alert & oriented but states he was confused this AM..

(Id.)

         12. On October 28, 1991, claimant called his probation officer, Kent Lombard (Lombard), and told him he had been injured on the job and "was now on crutches and neck brace." (Lombard Dep. at 20.) No credible evidence has been presented to the Court to show that claimant needed either crutches or a neck brace, or that he in fact ever used either.

         13. On October 30, 1991, claimant was seen by Dr. John C. Campbell, an orthopedic surgeon practicing in Bozeman. Dr. Campbell's office note for the visit reads in part:

He evidently had jackknifed and caused him to have an accident. He was seen in a hospital where he was evaluated and they performed some x-rays on his neck and back, he says (he is not a good historian, however). He is here com-plaining of neck and back pain. He describes his lumbar pain as being in the left lumbar area going into this buttock going into this foot.

         (Ex. 1 at 34.) Dr. Campbell observed a large bruise, fifteen to twenty centimeters in diameter, on claimant's lower back. (Campbell Dep. at 18.) He also observed that claimant was unable to toe and heel walk because of pain on the left side of his back and "assume[d] that he was putting most of his weight on his right leg." (Id. at 19, emphasis added.)

         14. Between October 24, 1991 and November 11, 1991, claimant called Mr. Yaeger two or three times requesting that he be allowed to return to work. (Yaeger Dep. at 8; Smith Dep. at 109-110.) Claimant told Yaeger that he was ready to go back to work. (Id.) When asked at his deposition whether he told Yaeger that he "would be back to work in about a week" claimant testified, "I think I said something of that sort." (Smith Dep. at 109-110.) Mr. Yaeger "held him [claimant] off" because he was waiting to see if his insurance company would provide coverage for claimant in light of his accident. (Yaeger Dep. at 8.)

         15. Claimant failed to keep a follow-up appointment scheduled with Dr. Campbell for November 8, 1991.

         16. On November 11, 1991, Yaeger's insurance company excluded claimant from coverage under Yaeger's policy. (Yaeger Dep. at 7.) In a telephone call on or shortly after November 11, 1991, Yaeger informed claimant that he could no longer employ him because of the insurance exclusion. (Id. at 8-9.)

         17. On November 15, 1991, claimant asked his probation officer, Kent Lombard, for permission to leave Montana so he could take a job at a dairy in Minneapolis. (Lombard Dep. at 21.)

         18. Claimant returned to Dr. Campbell on November 20, 1991. (Ex. 1 at 34.) He told Dr. Campbell that he was still having back pain but that his neck pain had improved significantly. (Id.) His range of motion of the neck was within normal limits. (Campbell Dep. at 20.) He was able to move around a lot better. (Id.) Dr. Campbell reviewed x-rays of the lumbar and neck region and noted degenerative changes consistent with aging. (Id. at 21.) He diagnosed claimant as having a cervicolumbar strain that was resolving. (Ex. 1 at 33.) He told claimant that his condition was resolving and told him to take another three weeks off of work. (Campbell Dep. at 22-23.)

         19. Dr. Campbell told claimant on November 20, 1991, that a majority of patients with conditions similar to that of claimant "get well" within three weeks without any permanent disability. (Campbell Dep. at 22.)

         20. Claimant returned to Dr. Campbell on November 25, 1991, with a new complaint of pain in his right buttock. (Campbell Dep. at 23.) No neck pain was noted and his condition was otherwise unchanged. (Id. at 23-24.)

         21. On December 2, 1991, claimant drove to Billings, where the wrecked truck was being repaired. He retrieved his personal belongings and took a number of items belonging to Yaeger. (Yaeger Dep. at 10-11 and Dep. Ex. 1.)

         22. On December 4, 1991, Probation Officer Lombard received a call from a job service employee complaining that claimant was at the job service office and was abusive and threatening. (Lombard Dep. at 22.) In later discussing the incident with Lombard, claimant said that "[h]e wanted a job, and he wanted top-of-the-line jobs." (Id.)

         23. On December 6, 1991, claimant called Lombard and told him that he was not going to take the dairy job in Minnesota because of his injuries. (Lombard Dep. at 21.)

         24. On December 10, 1991, claimant was again seen by Dr. Campbell. (Ex. 1 at 33; Campbell Dep. at 25.) At that time he complained that his pain had expanded to include his left shoulder and arm and his left leg and ankle. (Id.) Dr. Campbell ordered an MRI. (Id.)

         25. On December 11, 1991, claimant went to the Bozeman Job Service in search of a job. He told job service employees that "he was totally cured and he could do anything and was really trying to get out on very, very physical jobs." (Cloninger Dep. at 19.)

         26. Claimant underwent an MRI on December 18, 1991. (Ex. 1 at 33.) His cervical MRI showed some mild herniation at C3-4 on the left side as well as at C4-5; his lumbar spine was normal. (Id. at 32-33.) Dr. Campbell testified that the C4-5 bulge is insignificant. (Campbell Dep. at 80.) In his office note of December 18th, the doctor commented, "I am at a loss as to anything I can do for this man." (Ex. 1 at 32.) He was also unable to determine the reason for claimant's continued complaints of pain ...


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