Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Yarborough v. Montana Municipal Insurance Authority

Court of Workers Compensation of Montana

June 28, 1996

JOE YARBOROUGH Petitioner
v.
MONTANA MUNICIPAL INSURANCE AUTHORITY Respondent/Insurer for CITY OF BILLINGS Employer.

          Submitted: June 12, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: 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.

         Held: 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 (1997).)

         Topics:

         Constitutions, 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 679 (1997).)

         Injury 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).)

         Trial 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 trial.

         Issues 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 penalty.

         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 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.

         2. From 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 automobile extrication.

         3. The Court found claimant's testimony fully credible. In the findings that follow, his testimony is adopted as true.

         4. 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 hand.

         5. In 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.

         6. 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.)

         7. 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 pizzas.

         8. 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.

         9. On 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.

         10. On 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.)

         11. 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.)

         12. 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.

         13. 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.)

         14. 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 --
A. Uh-uh.
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 like that.
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 source.
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 matches.

(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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.