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Larsen-English v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

June 14, 1996

LISA B. LARSEN-ENGLISH Petitioner
v.
LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for JB'S RESTAURANT, INCORPORATED Employer.

          Submitted June 11, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: 28 year old waitress, with a history of knee problems, slipped at work, aggravating an existing knee condition. When she slipped, she was following a cook who playfully stole a pan from her, after tossing whipped cream on her. Credible testimony indicated some horseplay occurred and was tolerated by management. Insurer denied liability, contending claimant was not acting in the course and scope of her employment.

         Held: Aggravation of claimant's knee injury is compensable. Insurer's contention claimant was acting outside the course and scope of employment is not only unreasonable, but also mean-spirited, where the clear facts show the incident was precipitated for a work-related reason, that claimant did not initiate the incident, and that some horseplay, in any event, was tolerated. Insurer's reliance on out-of-state cases regarding horseplay was not reasonable where it ignored reasonably clear Montana precedents. Penalty and attorneys' fees awarded to claimant.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-611, MCA (1993). Attorneys' fees awarded where insurer's denial of liability was unreasonable. When claimant, a waitress, slipped and aggravated her existing knee condition, she was following a cook who playfully stole a pan from her after tossing whipped cream on her. Insurer's contention claimant was acting outside the course and scope of employment was not only unreasonable, but also mean-spirited, where the clear facts show the incident was precipitated for a work-related reason, that claimant did not initiate the incident, and that some horseplay, in any event, was tolerated by the employer.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2907, MCA (1993). When claimant, a waitress, slipped and aggravated her existing knee condition, she was following a cook who playfully stole a pan from her after tossing whipped cream on her. Insurer's contention claimant was acting outside the course and scope of employment was not only unreasonable, but also mean-spirited, where the clear facts show the incident was precipitated for a work-related reason, that claimant did not initiate the incident, and that some horseplay, in any event, was tolerated by the employer. Insurer's reliance on out-of-state cases regarding horseplay was not reasonable where it ignored reasonably clear Montana precedents.

         Attorney Fees: Unreasonable Denial or Delay of Payment. Penalty awarded where insurer's denial of liability was unreasonable. When claimant, a waitress, slipped and aggravated her existing knee condition, she was following a cook who playfully stole a pan from her after tossing whipped cream on her. Insurer's contention claimant was acting outside the course and scope of employment was not only unreasonable, but also mean-spirited, where the clear facts show the incident was precipitated for a work-related reason, that claimant did not initiate the incident, and that some horseplay, in any event, was tolerated by the employer.

         Briefs: Citation to Authority: Out of State Cases. Insurer's reliance on out-of-state cases involving horseplay in denying liability for knee injury was not reasonable where it ignored reasonably clear Montana precedent, the injury was precipitated by a work-related incident not initiated by claimant, and the employer, in any event, tolerated some horseplay.

         Employment: Course and Scope: Horseplay. When claimant, a waitress, slipped and aggravated her existing knee condition, she was following a cook who playfully stole a pan from her after tossing whipped cream on her. Insurer's contention claimant was acting outside the course and scope of employment was not only unreasonable, but also mean-spirited, where the clear facts show the incident was precipitated for a work-related reason, that claimant did not initiate the incident, and that some horseplay, in any event, was tolerated by the employer. Insurer's reliance on out-of-state cases regarding horseplay was not reasonable where it ignored reasonably clear Montana precedents. Penalty and attorneys' fees awarded to claimant.

         Injury and Accident: Generally. When claimant, a waitress, slipped and aggravated her existing knee condition, she was following a cook who playfully stole a pan from her after tossing whipped cream on her. Insurer's contention claimant was acting outside the course and scope of employment was not only unreasonable, but also mean-spirited, where the clear facts show the incident was precipitated for a work-related reason, that claimant did not initiate the incident, and that some horseplay, in any event, was tolerated by the employer.

         Penalties: Insurers. When claimant, a waitress, slipped and aggravated her existing knee condition, she was following a cook who playfully stole a pan from her after tossing whipped cream on her. Insurer's contention claimant was acting outside the course and scope of employment was not only unreasonable, but also mean-spirited, where the clear facts show the incident was precipitated for a work-related reason, that claimant did not initiate the incident, and that some horseplay, in any event, was tolerated by the employer. Insurer's reliance on out-of-state cases regarding horseplay was not reasonable where it ignored reasonably clear Montana precedents.

         The trial in this matter was held in Great Falls, Montana on May 1, 1996. Petitioner, Lisa B. Larsen-English (claimant), was present and represented by Mr. Richard J. Martin. Respondent, Lumbermens Mutual Casualty Company (Lumbermens), was represented by Mr. Thomas A. Marra and Mr. Jason G. Dykstra.

         Exhibits: Exhibits 1 through 19 and 22 were admitted. Exhibit 21 was admitted over the objection of Mr. Marra. Exhibit 20 was refused.

         Depositions: The parties submitted the depositions of Lisa B. Larsen-English, Donovan (Mickey) Demontiney, Vickie Martinez, Sherry Raiche, Marilyn Thorton, Joe Williams, Judy McCurdie, Doug Wahl, and Artie Wong for the Court's consideration.

         Witnesses: The claimant, Dr. Paul Melvin, Joe Williams, and Mickey Demontiney testified at trial.

         Issues presented: Claimant seeks compensation and medical benefits for a knee injury she alleges she suffered at work on March 26, 1996. Her claim has been denied by Lumbermens on the grounds (1) that claimant did not suffer an industrial injury and (2) that assuming she did injure herself at work, her injury occurred during horseplay and was therefore outside the course and scope of her employment. In addition to seeking compensation, claimant seeks attorney fees, a penalty and costs.

         Bench Ruling: At the close of trial the Court solicited final arguments from counsel. Following those arguments I entered a bench ruling finding that claimant suffered a compensable industrial injury while working in the course and scope of her employment. I further found Lumbermens denial and defense of the claim to be unreasonable, determined that claimant is entitled to attorney fees, a penalty and costs, and directed the parties to address the amount of the attorney fee in post-trial affidavits and briefs. That matter has now been submitted and the following findings of fact, conclusions of law and judgment will finally dispose of all issues.

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

         FINDINGS OF FACT

         1.Claimant is 28 years old. She graduated from high school and has attended college for one year. She has two children.

         Knee problems: The early years.

         2.Claimant has a history of knee problems dating back to her teenage years. She was first treated for problem knees when she was 14 years old. She reported to Dr. Paul M. Melvin on April 15, 1981, that both her knees gave out when climbing or descending stairs and were painful when she ran. Dr. Melvin diagnosed recurrent patellar subluxation. (Ex. 10 at 12.) The doctor described "patellar subluxation" as where the patella (knee cap) is partially but not wholly outside of the joint or its normal location. "Patellar dislocation", on the other hand, is where the patella is entirely outside the knee joint.

         3.Dr. Melvin treated claimant conservatively, recommending that claimant wrap her knees, take aspirin and decrease her activities. In a follow-up visit on May 13, 1981, Dr. Melvin reported she was "entirely asymptomatic and no treatment is indicated." (Ex. 10 at 12.)

         4.Painful knees caused claimant to return to Dr. Melvin on April 24, 1983. Dr. Melvin noted that her left knee "definitely [had] some crepitous [sic] and slides to the lateral side." He recommended that she wrap her knees and return if she had more trouble. (Id.)

         5.Claimant's next visit to Dr. Melvin was on May 17, 1985. At that time she reported pain when climbing stairs and that her knee was giving way. Dr. Melvin's note does not indicate which knee was giving way. Id.

         6.In March of 1986 claimant was seen in the emergency room with a painful left knee. Dr. Melvin saw her shortly thereafter and recommended that she continue to self-treat according to his prior recommendations. (Id.)

         Knee problems: The Army years.

         7.Claimant enlisted in the United States Army in December of 1986. (Ex. 7 at 29.) On May 22, 1990, while serving in the Army, she stepped into a pothole and dislocated the patella of her left knee. (Ex. 7 at 13.)

         8.On May 24, 1990, she underwent a left knee arthrotomy with repair of medial retinacula tissue. (Ex. 3 at 13-14.) Following surgery, claimant was in a leg cast for five weeks. After removal of the cast she underwent physical therapy.

         9.Claimant continued to have difficulty with her left knee and was unable to pass a required physical fitness test. The Army found her 10% disabled (Ex. 3 at 1) and honorably discharged her in February 1991. (Ex. 7 at 13.)

         Knee problems: February 1991 to March 25, 1995

         10.After leaving the Army, Claimant returned to Great Falls and began working as a waitress. Over the next three to four years she worked two full-time jobs, waitressing at Elmer's during the day and at JB's at night. Claimant then had a child and quit her job at Elmer's, thereafter working exclusively at JB's.

         11.Claimant's residual knee problems did not interfere with her employment. She worked continuously from the time of her discharge from the Army until March 26, 1995.

         12.The only medical care she received for her knees was in late 1993 and early 1994. She was treated for right knee pain by Dr. John A. Belt on November 3, 1993, with follow-up visits in December and January. (Ex. 12 at 10-16.) She was then seen by Dr. Paul M. Melvin on February 15, 1994. (Ex. 10 at 11.)

         13.Thereafter, she did not seek medical care until the incident at issue in this case.

         The March 26, 1995 incident.

         14.On March 26, 1995, claimant was still employed by JB's in Great Falls as a server. A "server" is a waitress or waiter. Claimant's job duties included serving customers and performing side work. "Side work" involves tasks such as cleaning and stocking.

         15.At approximately 2:45 p.m., near the end of her work-shift, claimant was doing sidework. Specifically, she was replenishing the whipped cream used to make desserts.

         16.Claimant was working in the servers' area of the restaurant. That area is located in front of a cooking/kitchen area. The two areas are separated by a counter on which the cooks set cooked dishes for servers to pick up and take to tables. (Ex. 17.) Generally the cooks stay on the kitchen side of the counter and the waitresses on the server's side.

         17.Whipped cream comes in disposable plastic bags. In the serving area the bags were generally kept in a shallow metal pan on a cooling table. On March 26th, claimant was cleaning out the pan and preparing it for more whipped cream.

         18.Donovan Demontiney (Mickey), a JB's cook, went into the serving area and attempted to take the pan from claimant. According to claimant, he said that he needed the pan. Claimant also needed it and took it back from him. It is undisputed that a whipped cream fight of sorts ensued. Claimant said that Mickey initiated the incident by spraying her with whipped cream, getting much of it in her hair. Mickey then took off through the doors that led to the kitchen area, past the dish room, and turned right toward the ice machine. Claimant followed at what she said was a fast walk but not a run, intending to get him back. As she turned right toward the ice machine, she slipped on the wet floor and fell. She experienced immediate pain in her left knee and had to have help getting up.

         19.Mickey testified at trial and by deposition. For the most part, his testimony did not contradict claimant's testimony. He conceded he was in the servers' area and that he sprayed claimant with whipped cream but was unable to recall whether he or the claimant initiated the exchange. He also was unsure whether he had gone into the serving area to get a drink or to retrieve a pan. (Dep. of Demontiney at 22-23.) During his testimony he repeatedly told the Court that he did not have a very good memory of the events. He also testified that after claimant fell he was afraid he would be would be reprimanded for "horsing around."

         20.Marilyn Thorton is a server at JB's. She was working at the restaurant the night claimant fell. She observed the events immediately prior to the fall.

Lisa brought out a pan to put down in to that table. Mickey came out wanting it. And I believe Lisa leaned over it to keep it there. And Mickey grabbed some whipped cream and threw it on Lisa. Lisa tossed it back. And it went back and forth maybe a time or two. And then it was taken into the kitchen.

(Thorton Dep. at 5-6.)

         21.Vicki Martinez, another server, also was working the night claimant fell. She described the events:

See, the easiest way to explain it is we had these metal pans, and we had very few of them, and we put our whipped cream in them. And the cooks would try to steal them for the kitchen, instead of having to clean their own -- clean the other ones out. They would come out and steal ours.
Well, he went to steal it, and Lisa put her hand on it and wouldn't let him have it. So he squirted whipped cream all over her. And when she let go of it, he took off with it. And she went in the back to get it back from him.
After she went through the door, the door closed; and I heard her squeal. And when I went back -- When I went through the door, she was laying on her back and she was soaking wet. She had, I am assuming, slipped and fell.

(Martinez Dep. at 5.)

         22.Claimant testified that some degree of horseplay was tolerated at JB's. She said that employees sometimes tossed small bits of food at each other and squirted water, and that employees leaving JB's ...


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