JAMES L. SMITH Petitioner
STATE COMPENSATION INSURANCE FUND Respondent.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
Claimant seeks indemnity and rehabilitation benefits,
attorneys fees, and costs based on accident while driving in
the course and scope of employment.
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.
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.
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.
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.
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.
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
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.
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).
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.
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'
2. The amount and extent of Claimant's entitlement to
permanent total disability benefits under the Workers'
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
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).)
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.)
* * *
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:
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.)
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.)
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.)
October 18, 1991, claimant applied for employment with Yaeger
Trucking and was hired.
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.
Claimant was thrown about the truck cabin and injured.
of Liability and Payment of Benefits
the time of the October 24, 1991 accident, Yaeger Trucking
was insured by the State Fund.
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.
and Medical Treatment Following Injury
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
Claimant returned by bus to Bozeman, Montana, where he was
residing. (Smith Dep. at 109.)
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
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.
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.
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.)
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.)
Claimant failed to keep a follow-up appointment scheduled
with Dr. Campbell for November 8, 1991.
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.
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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