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McClure v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

May 29, 1996

ROBERT McCLURE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for ELK LAKE CAMP RESORT, INCORPORATED Employer.

          Submitted: April 29, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: 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.

         Held: Claimant and his witnesses were completely incredible. The Court was not persuaded claimant was hurt at work.

         Topics:

         Witnesses: 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.

         The 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: 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.

         Witnesses: Petitioner was sworn and testified. Additionally, the Court heard testimony from Helen McClure, James Carey, Michelle Dawson, J.T. Johnson, and Gary Coppin.

         Issues 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.

         Having 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 the following:

         FINDINGS OF FACT

         1.Claimant 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.

         2.Gary 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.

         3.In 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.

         4.At 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.

         5.In 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.

         6.During 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.

         7.Due 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.

         8.As 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 manager.

         9.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.

         10.Gary 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 telephone.

         11.James 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.

         12.Jim 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 present case.

         The "Accident" -- The Testimony

         13.On 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 snowmobile.

         14.Each had their own snowmobile. Jim rode the repaired vehicle.

         15.Bojay, 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 ...


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