Submitted: June 12, 1996
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
40 year old firefighter sustained injuries at work during
August and October 1987. The August injury involved a
lightning strike near him, which knocked him unconscious, but
did not cause permanent physical injury. The October incident
involved a fireball emerging from a burning residence
knocking claimant over, giving him singes and relatively
minor burns, leading to no permanent restrictions. Claimant,
however, testified he "lost his nerve" to do
firefighting work after the October incident, though he had
no physical problems. Diagnosed with post-traumatic stress
disorder, a mental condition, claimant seeks medical and
permanent partial wage loss benefits.
While finding claimant entirely credible, the Court held as a
matter of law that claimant's psychological condition is
not a compensable injury within the Workers' Compensation
Act as amended in 1987. Unlike earlier cases (O'Neil v.
Industrial Accident Board, 107 Mont. 176, 81 P.2d 688 (1938)
and Schumacher v. Empire Steel Manufacturing, 175 Mont. 411,
574 P.2d 987 (1977)), there is no evidence here that
claimant's mental condition (PTSD) was caused by physical
injuries he suffered on the job. The injuries were resolved
in a short time and were inconsequential. Where the evidence
demonstrates that it was mental shock or mental fright that
gave rise to claimant's disability, his allegedly
disabling condition is one "arising from....emotional or
mental stress" and is excluded from the definition of
compensable injury within section 39-71-119(3), MCA (1987).
(Note: this decision was affirmed in Yarborough v. Montana
Municipal Insurance Authority, 282 Mont. 475, 938 P.2d 679
Statutes, Regulations and Rules: Montana Code Annotated:
section 39-71-119(3), MCA (1987). Where the evidence
demonstrates that it was mental shock or mental fright that
gave rise to firefighter claimant's post traumatic stress
disorder, his allegedly disabling condition is one
"arising from....emotional or mental stress" and is
excluded from the definition of compensable injury within
section 39-71-119(3), MCA (1987). (Note:
this decision was affirmed in Yarborough v. Montana
Municipal Insurance Authority, 282 Mont. 475, 938 P.2d
and Accident: Mental or Psychological Stress. Where
the evidence demonstrates that it was mental shock or mental
fright that gave rise to firefighter claimant's post
traumatic stress disorder, his allegedly disabling condition
is one "arising from....emotional or mental stress"
and is excluded from the definition of compensable injury
within section 39-71-119(3), MCA (1987).
(Note: this decision was affirmed in
Yarborough v. Montana Municipal Insurance Authority,
282 Mont. 475, 938 P.2d 679 (1997).)
in this matter was held on May 7, 1996, in Billings, Montana.
Petitioner, Joe Yarborough (claimant), was present and
represented by Mr. Patrick R. Sheehy. Respondent, Montana
Municipal Insurance Authority (MMIA), was represented by Mr.
Oliver H. Goe. Exhibits 1 through 8, 10 and 11 were admitted
without objection. Exhibits 9 and 13 were admitted over Mr.
Goe's objection. Exhibit 12 was admitted over Mr.
Sheehy's objection. Exhibit 14 was refused. Additionally,
the depositions of claimant, Dr. Thomas Van Dyke, and Dr.
Fred Olson were submitted for the Court's consideration.
Claimant, Thomas Van Dyke, and Joseph McElhinny testified at
presented: Claimant contends he suffers from post
traumatic stress disorder (PTSD) as the result of two
industrial injuries he suffered while working as a
firefighter for the City of Billings. He seeks medical
benefits and permanent partial wage loss benefits. He also
contends the respondent has been unreasonable in handling his
claim and therefore asks for attorney fees, costs, and a
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:
Claimant is 40 years old. He is a high school graduate and
needs 9-12 credits to complete an associate degree in Fire
Science. (An associate degree is based on completion of a
two-year program.) He is divorced and has two children. He
presently lives in Basin, Wyoming.
1977 to 1981 claimant served in the Air Force. While
stationed in England, he was trained in both crash and
structural fire fighting techniques. After finishing his tour
in England, claimant returned to the United States and was
stationed in Missouri where he received further training in
Court found claimant's testimony fully credible. In the
findings that follow, his testimony is adopted as true.
Claimant was honorably discharged from the Air Force in 1981.
Over the next two years he worked assembling circuit boards,
making pizzas, as a rough-neck on an oil rig, and as a ranch
June 1983 claimant was hired as a firefighter for the city of
Billings. In addition to fighting fires, his job duties
included business and structure inspections, first aid calls,
and public education.
Claimant's work schedule as a firefighter was 24 hours on
followed by 48 hours off. From 1985 to 1987 he was rotated
between stations, filling in for other firefighters. He was
permanently assigned to Station 5 in the summer of 1987.
(Yarborough Dep. at 33-34.)
Claimant enjoyed his work as a firefighter. He liked the
excitement of fighting the fires, his public education
duties, and the work schedule. His schedule allowed him to
spend time with his children and work a second job delivering
However other aspects of the jobs were distasteful. He
disliked first aid calls involving serious car accidents and
performing CPR on persons who could not be resuscitated. He
said that the job was also boring at times.
August 14, 1987, claimant was at work and saw an approaching
thunderstorm. He ran outside to close his car window and
apparently was either hit by or very near a lightning strike.
Claimant testified that he saw a flash, heard a clap of
thunder, and the next thing he knew he was being worked on by
some of the other firefighters. He was taken to the hospital
and kept overnight for observation. He was released the
following day and advised he could return to work on August
17, 1987. (Ex. 5 at 3-5.) After the lightning incident,
claimant took a previously planned vacation, visiting his
family in Florida. (Yarborough Dep. at 40.) He returned to
work after his vacation. He presented no evidence of any
permanent physical injury caused by the lightning incident.
October 22, 1987, claimant responded to a fire at a
residential home in Billings. He dragged a hose to the back
of the house and began fighting the fire. He first sprayed a
wooden fence to the rear. Another firefighter, Don Regnier,
came to assist him and the two of them prepared to spray the
house. Standing about 10 to 15 feet away, claimant adjusted
the hose to a fog pattern to protect himself and Regnier from
the heat as they approached the house. A stream of water hit
a soffit, knocking it down. He heard a "whoosh" and
was hit with what he described as a "fireball." He
was knocked backwards into the fence losing both the hose and
his helmet. He crawled over to Don Regnier and they then
retreated to the front of the house. (Yarborough Dep. at
45-48; Trial Test.)
Claimant was taken to Saint Vincent Hospital where he was
examined by Dr. Evan Buchan:
[T]he hair on the head is singed. There are a 1st and a few
2nd degree burns throughout the face. Very small amount of
singing [sic] of the nasal hair. There is no soot in the
nose, mouth, or throat. Eye exam is benign. Neck is supple.
Lungs are clear throughout. No burns noted at all on the
trunk or on the right hand. He does have some 1st and 2nd
degree burns on the left hand. These mainly involve the
thenar area and the last 3 digits. There are no areas of
circumferential burn and he has normal sensation,
circulation, and function throughout the hand. Chest x-ray
was taken, was unremarkable. He continued to be comfortable
throughout this time in the Dept. He was observed for a
little over 2 hours and developed no respiratory difficulty
or cough at all. His burns were cleansed and dressed with
Silvadene to the hand and Neosporin to the face.
(Ex. 5 at 9.)
Claimant returned to the hospital the next day and his wounds
were again cleaned and dressed. Claimant testified in his
deposition that he returned to the hospital daily for a week
to have his wounds cleaned and dressed. (Yarborough Dep. at
56.) The hospital notes for one such visit are contained in
the record. (Ex. 5 at 11.) He thereafter required no more
treatment for his burns.
Claimant suffered no permanent physical restrictions. He was
off work approximately two and a half weeks. He then returned
to work without restriction. (Yarborough Dep. at 56.)
Claimant testified that he was able to perform all physical
aspects of the firefighting job following the October 22
injury, however, he had "lost his nerve" to do the
job. In his deposition he described the problems he had
following the injury:
Q. [By respondent's counsel.] What type of problems, if
any, did you have after that . . .?
A. As far as physical, I don't think I had any physical
problems. At home, I couldn't get rid of that fireball in
my eyes. Every time I closed my eyes, even during the day, if
I just blinked, It's [sic] like it was burned onto my
retina. I couldn't -- if I closed my eyes to go to sleep,
it would take three or three [sic] hours. I couldn't get
rid of that orange and dark black coming at me.
And I had nightmares. I woke up a few times beating on my
wife putting her out because I thought she was on fire. I
slammed her against the wall one time, rolled her and pushed
her into the wall trying to put her out.
Crying when I had to go to work in the morning; hugging my
kids good-bye like I wasn't going to see them again.
Q. But physically you didn't have any problems --
Q. -- but emotionally you were?
A. Yeah -- yes.
Q. Any other emotional symptoms outside of what you just
talked about at all?
A. Just fear that something was going to go wrong every time
I got near a fire.
My first call back was a big propane tank leaking in a
garage. And it had not caught on fire; it was just leaking .
I mean, this lady knocked it over and sheared the top off of
it. So it was just venting 200 pounds of propane or something
And we had to go down there and shut that down and put a
dowel in it to plug it.
Q. Mm - hmm.
A. And I didn't go in, but I stood next to the garage
fanning and putting a straight stream --or fog, a pattern
into the window where the vent was coming out to dissipate so
it didn't find a source, a spark, and [sic] ignition
And it was the most miserable 20 minutes of my life. I
thought for sure that garage was in -- I'd seen propane
tanks go before, and they don't leave anything but
(Yarborough Dep. at 59-61.)
A. I can't remember any other calls that we had during
that period. There were a bunch, but I just ...