Submitted: April 29, 1996
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
43-year old resort manager, after being discharged by the
lodge owner, filed claim alleging his low back condition was
caused by alleged job-related incident with snow mobile. His
wife and friends described in detail an alleged incident in
which a snow-mobile landed in claimant's lap. Another
witness, not part of claimant's friend group, described a
much less serious incident. The record indicates claimant did
not seek medical attention after the incident, though he said
he initially thought his leg was broken, and had a
"rough and tumble past" that could have led to a
pre-existing low back condition.
Claimant and his witnesses were completely incredible. The
Court was not persuaded claimant was hurt at work.
Credibility. Although claimant and his friends
testified in detail about an alleged accident with a snow
mobile, the Court disbelieved their testimony and credited
the testimony of another individual that the incident was not
serious and did not occur as described by claimant.
trial in this matter was held on two days, March 19 and April
29, 1996. The first day of trial was in Kalispell, Montana,
and the second in Helena, Montana. Petitioner, Robert
McClure, was represented by Ms. Laurie Wallace. Respondent,
State Compensation Insurance Fund, was represented by Mr.
Charles G. Adams.
Exhibits 1 through 3, 9, 11 through 13 were admitted by
stipulation. Exhibits 5 through 8 were objected to by Ms.
Wallace and were not admitted. Ms. Wallace withdrew the
objections to Exhibits 4 and 10 and they were admitted.
Exhibit 14 is a demonstrative drawing made during trial.
Petitioner was sworn and testified. Additionally, the Court
heard testimony from Helen McClure, James Carey, Michelle
Dawson, J.T. Johnson, and Gary Coppin.
presented: Whether petitioner suffered an industrial
injury on March 1, 1995, while working at Elk Lake Camp
Resort and, if so, whether he gave his employer timely notice
of his injury. Petitioner also asks the Court to determine
his temporary total disability rate and award him attorney
fees and a penalty.
considered the Pretrial Order, the testimony presented at
trial, the demeanor and credibility of the witnesses, the
exhibits, and the arguments of the parties, the Court makes
is 43 years old and has an eleventh grade education. He goes
by the nickname of "Bojay," which the Court will
use in this decision. Bojay is married to Helen, who
testified on his behalf.
Coppin is the owner of Elk Lake Camp Resort ("the
resort" or "Elk Lake Camp"), which is located
near West Yellowstone. The resort is located in a remote
area; during the winter months it can be reached only by
snowmobile. It has a main lodge which consists of a
restaurant, bar, and rooms for its employees. It also has
several cabins which it rents to guests. During the summer
the resort caters to fishermen, during the fall to hunters,
and during the winter to snowmobilers.
April or May of 1994, Gary Coppin (Gary) hired Bojay and
Helen to work at the resort. Their initial duties included
cooking, cleaning, and taking reservations.
the time Bojay and Helen were hired, the resort was managed
by J.T. Johnson (J.T.) J.T. had managed the resort since 1990
but was considering taking another job. In hiring Bojay and
Helen, Gary intended that they learn the business so Bojay
could assume management of the resort if J.T. left.
fact, J.T. took another job in the spring of 1994 and Bojay
thereafter became manager of the resort. During that summer
the resort was additionally staffed with a cook and
dishwasher. Gary was also at the resort during most of the
summer and did much of the actual managing.
that summer Bojay performed his job duties adequately.
However, he exhibited some exaggerated behaviors. He fancied
himself as a mountain man and wore a sidearm and large knife
until counseled to take them off. He also engaged guests in
long-winded accounts of his experiences.
to seasonal variations, the resort business slowed during the
fall and the dishwasher and cook were laid off. In
mid-October Gary also left the resort and moved to
California, where he spends the winters. He left Bojay and
Helen in charge.
the snow fell and accumulated in the late fall and early
winter, Elk Lake Camp's business picked up as
snowmobilers began making day trips to the resort. The resort
became accessible only by snowmobiling from West Yellowstone.
Bojay and Helen were marginal if not inept snowmobilers but
nonetheless were responsible for snowmobiling to and from
West Yellowstone to ferry supplies. Sometime in December they
were forced to abandon a snowmobile mid-route. J.T., a
proficient snowmobiler, came to the rescue. In need of
reemployment, J.T., along with his girlfriend, Janice Wroble,
returned to work at the resort. Bojay, however, continued as
the winter wore on, Bojay began drinking excessively. He
became abusive towards guests and at times his abusive
behavior frightened guests. J.T., who was a credible witness,
testified that the entire time he knew Bojay, he (Bojay)
complained "constantly" about various aches and
pains, including pain in his legs, back, arms and head. J.T.
commented that he had never seen anyone with so many
complaints or anyone who drank as much as Bojay.
returned to Elk Lake Camp in January for a short stay. He
noted that Bojay had taken up wearing a sidearm and knife
again, and appeared to be drinking more. Gary counseled Bojay
and suggested he remain upstairs in his room and "out of
the way." Gary noted that the resort could be adequately
run by J.T., Helen, and Janice. He returned to California,
keeping in touch with the resort one or two times a week by
Carey (Jim) and Michelle Dawson (Michelle) are long-time,
close friends of Bojay and Helen. In January 1995 they
snowmobiled into Elk Lake Camp and stayed for over a week.
During their stay Jim noted that one of the resort's
snowmobiles was broken down and thought he could repair it.
Bojay contacted Gary, who agreed that Jim and Michelle could
return to the resort later on and stay for free in return for
Jim fixing the snowmobile.
and Michelle returned to the resort at the end of February.
Jim proceeded to repair the snowmobile. The alleged events
which immediately followed that repair are the focus of the
"Accident" -- The Testimony
the evening of March 1, 1995, Bojay, Jim, Michelle, and J.T.
went snowmobiling. The event was recreational but intended to
demonstrate Jim's successful repair of the wounded
had their own snowmobile. Jim rode the repaired vehicle.
Michelle and J.T. proceeded up the road a bit while Jim was
firing up the mended machine. The three stopped, J.T. a bit
uphill from the road, Bojay and Michelle next to a break in a
fence adjacent to the road. While testimony of the four
friends (Bojay, Helen, Jim and Michelle) put J.T. elsewhere,
the Court did not find any of them ...