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Taylor v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 8, 1995

EDWIN TAYLOR Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for MONTANA DEPARTMENT OF HIGHWAYS Employer.

          September 29, 1995

          ORDER SUPPLEMENTING FINDINGS OF FACT AND OTHERWISE DENYING CLAIMANT'S POST-TRIAL MOTIONS

          Mike McCarter Judge

         Summary: After Worker's Compensation Court entered Findings of Fact, Conclusions of Law and Judgment finding that two of claimant's three workers' compensation claims were fraudulent, claimant filed motion asking Court to set aside findings or grant a new hearing. In addition, former counsel for claimant wrote Court indicating that he read the Court's findings as suggesting that he had intimidated a witness.

         Held: After re-review of evidence, Court clarifies that it found the witness felt intimated by counsel, but not that counsel had intended to intimidate the witness or had acted improperly. Supplemental findings of fact are provided in narrative by the Court, but the claimant's motion to set aside findings or grant a new hearing is denied.

         Topics:

Witnesses: Credibility. Though Court did not find all of the testimony of witness credible, her testimony that claimant told her he was scamming the system was credible when placed in context of the actions and behavior of the witness, as well as her demeanor when testifying.
Witnesses: Intimidation. Though Court found witness felt intimated by claimant's counsel, and believed this contributed to her signing prior affidavit that contradicted her in-court testimony, the Court did not find that counsel had intended to intimidate the witness or had acted improperly.

         On August 21, 1995, this Court entered its Findings of Fact, Conclusions of Law and Judgment finding that two of three workers' compensation claims filed by claimant were fraudulent.

         On August 28, 1995, the Court received claimant's motion asking that the Court set aside or amend its findings or grant a new hearing. At approximately the same time, I also received a letter from Mr. Bernard J. Everett, one of claimant's counsel, indicating that he read my decision as finding that he had intimidated one of the witnesses (Elizabeth Larain) in this case. (August 26, 1995 letter of Everett to Judge McCarter.) In discussions with counsel, some of which have been transcribed, I have notified counsel that Everett misread my findings. On the other hand, after reviewing the finding which refers to Everett, I also acknowledged that I left the matter of Everett's conduct more ambiguous than I should have. The claimant's present motions, therefore, provide me an opportunity to clarify my finding regarding Everett and Larain, as well as address the claimant's other contentions regarding the evidence in this case.

         At trial Larain testified that Edwin Taylor told her in the spring of 1991 that he had ?faked" his March 4, 1991 injury and was ?scamming" the system. Her testimony contradicted an earlier affidavit she had signed in which she stated that she basically did not have a recollection of conversations in 1991 because of ?memory erasure" drugs she took later on. The affidavit was prepared for her by Everett, who was representing Taylor, and who had talked to Larain at length on June 29, 1994. The affidavit was the principal basis for Taylor's attack on Larain's credibility.

         During a deposition of Larain on August 3, 1994, Larain repudiated critical portions of the affidavit and testified that she signed it only after Everett told her she was going to be ?dragged through the court", that her personal medical history would be brought up, and that if she signed the affidavit the case against Taylor would be thrown out of court and she would not have to testify. (Larain Dep. at 51-53.) Everett, whose cross-examination elicited these accusations, was plainly upset and interjected, ?Hey, you're going to go to Court, Liz, because you're lying through your teeth, and you're going to go to Court." (Id. at 53.) The deposition was then stopped and I was contacted by telephone. After listening at length to what the attorneys and Larain had to say (Larain Dep. at 54-98), it became clear that the accusations of Larain against Everett created a hostile atmosphere not conducive to continuing the deposition. It also became clear to me that Everett was likely to be a witness in the case and that I could not judge Larain's credibility merely by reading her deposition.

         Thereafter, I issued an order disqualifying Everett from acting as trial counsel. (Order Disqualifying Petitioner's Counsel, November 30, 1994.) At the request of Mr. Oliver H. Goe, who represented the State Fund, I subsequently issued orders and subpoenas directing Larain to personally appear at trial.

         Both Larain and Everett testified at trial. Ultimately, I found Larain's testimony concerning her conversations with claimant to be credible. I also found that her ?explanation that she signed the affidavit because she felt intimidated by claimant's counsel and did not want to have to testify . . . credible." (Finding 62, emphasis added.) I did not find that Everett had in fact intentionally intimidated her or that he had done anything improper. Nonetheless, I understand that in light of my prior disqualification of Everett, my failure to say anything more about the matter could be construed as insinuating such a finding. It is therefore incumbent upon me to specifically address Everett's conduct and to amplify my findings regarding Larain's credibility.

         I must also address Taylor's arguments in support of his motion. He has directed my attention to testimony and exhibits he believes I overlooked or ignored. He also renews his attack on Larain's credibility.

         I have reread Larain's testimony, not only the specific portions identified by claimant in his supporting brief, but her entire testimony. I have also reread Everett's written account of the conversation he had with Larain on June 29, 1994 (Ex. 26) and the affidavit Everett prepared for Larain following the conversation. (Ex. 25(B).) In addition, I have reread the testimony of Lance Zanto, Robert Beebe, Carol McKeon, and Edward Taylor and the exhibits which Taylor identifies in his supporting brief. After doing all of this, and considering the arguments made by counsel, I reach the same conclusions I reached in my original Findings of Fact, Conclusions of Law and Judgment but make additional supplemental findings regarding Everett and the arguments presented by the post-trial motion. These findings, as follow, are in narrative form but shall constitute supplementary findings of fact.

         Larain testified at trial that claimant had admitted faking his March 4, 1991 injury and ?scamming the system." (Larain Trial Testimony at 17-18.) That testimony was inconsistent with the affidavit which Everett prepared and she signed. According to the affidavit, she was suspicious of the claim but Taylor did not tell her he did not fall. The affidavit further stated that by October 1993, her memory as to what Taylor told her was very limited because she had ?taken two prescription drugs that erased my memory." It went on to say, ?As a result, I have a very limited ability to remember what MR. TAYLOR or anyone else told me in 1991." The affidavit further stated that her best recollection of her conversations with Taylor would be what she told investigator Bryan Costigan on September 21, 1992. Because the affidavit is the cornerstone of claimant's attack on Larain's testimony, I set it out in full here:

         AFFIDAVIT OF ELIZABETH WHITE

STATE OF MONTANA, }
ss:
County of Deer Lodge. }
I, ELIZABETH WHITE, also known as ELIZABETH LARAIN, being first duly sworn upon my oath, depose and say as follows:

         I

I was an acquaintance of EDWIN A. TAYLOR during the year 1991.

         II

In early March 1991 I visited EDWIN A. TAYLOR while he was hospitalized at Bozeman Deaconess Hospital. He told me that he had been injured while working for the Highway Department ...

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