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Bonan v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

January 12, 1996

DONALD BONAN Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for IKE & SUSAN'S LOUNGE & CASINO Employer.

          Submitted: October 24, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE.

         Summary: A 44-year old bartender claimed a cut to his finger at work gave rise to a potentially life-threatening necrotizing fasciitis, for which he was hospitalized for almost a month.

         Held: WCC was not persuaded claimant cut his finger at work. Emergency room record indicates infection followed crack in thumb after claimant pulled a hangnail. Bar manager testified claimant had called her after hospitalization asking her to consider the injury as a workers' compensation injury because he did not have other insurance, conceding during that conversation that he had not been injured at work.

         Topics:

Injury and Accident: Accident. WCC denied claim of 44-year old bartended relating to necrotizing fasciitis, a potentially life-threatening infection, which claimant alleged arose after he cut his thumb at work. Emergency room record indicates infection followed crack in thumb after claimant pulled a hangnail. Bar manager testified claimant had called her after hospitalization asking her to consider the injury as a workers' compensation injury because he did not have other insurance, conceding during that conversation that he had not been injured at work.

         The trial in this matter came on October 10, 1995, in Great Falls, Montana. Petitioner, Donald Bonan (claimant), was present and represented by Mr. Richard J. Martin. Respondent, State Compensation Insurance Fund, was represented by Mr. Daniel J. Whyte. Exhibits 1, 2, 4 through 7, 10, 19 and 21 were admitted without objection. Exhibits 9 and 16 through 18 were admitted over the claimant's objection. Exhibits 3, 8, 20, 22 and 23 were refused. Exhibits 11 through 15 were withdrawn. The claimant, Gail Honkomp, Dr. Raymond A. Geyer, Katherine Kyle, Carlene Torick and Lila Stortz were sworn and testified. The parties agreed the depositions of claimant and Katherine Kyle may be considered by the Court.

         Issues presented: The claimant seeks a determination that he suffered a compensable injury to his right thumb while in the course and scope of his employment; that he gave timely notice of the injury to the employer; and that he is entitled to compensation and medical benefits. The State Fund denies that the accident occurred. It further denies that he reported any accident to his employer within the 30 days provided under section 39-71-603, MCA.

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

         FINDINGS OF FACT

         1. Claimant is 44 years old. He has a high school education, attended a trade school for carpentry, and is a certified nurses aide. He has worked as a bartender, general laborer, construction worker, and nurses aide.

         2. On February 19, 1994, claimant began working as a bartender for Ike & Susan's Lounge & Casino. He was required to prepare drinks, serve customers, wait on casino patrons, perform cleaning duties, and make payouts to casino customers.

         3. In the early morning hours of April 11, 1994, claimant went to the emergency room of Columbus Hospital in Great Falls, Montana, for treatment of severe swelling and pain in his right hand and forearm. He was examined by Dr. W.L. Gorsuch, who diagnosed a massive infection of the right hand and forearm. Dr. Gorsuch took a history concerning the onset of claimant's painful condition. That history was as follows:

He [claimant] describes having a crack on the tip of his right distal thumb approximately a week ago after pulling a hangnail. This crack was painful and he describes having an infection in it. He kept it covered with a rubber glove. He noted that it improved some. However, approximately 48 hours ago on 4/9/94 he noted increasing pain in the forearm and hand with swelling. He stated that he worked all day as a bartender until approximately 3 o'clock in the morning on Sunday morning. Apparently last evening 4/10/94 he reports falling dancing and hurting his wrist. During the night the pain worsened and he finally came to the Emergency Room and noted severe pain. By this time there was such swelling of the hand and forearm that he could not move the fingers and he had blebs raised. He was noted to have fever and shaking chills. (Ex. 4 at 4; emphasis added.)

         4. Claimant's condition was diagnosed as necrotizing fasciitis (Ex. 4 at 6), popularly referred to as "flesh eating bacteria." Necrotizing fasciitis is an explosive infection. Unless aggressive treatment, consisting of debridement of dead flesh and massive doses of antibiotics, is initiated immediately, it is life threatening. (Ex. 6 at 5.)

         5. Claimant was hospitalized immediately and aggressively treated. During an almost month long hospitalization, claimant required several surgeries, as follows:

1. April 11, 1994: right hand and forearm decompressive fasciotomy of ulnar and median nerves, excision of ...

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