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McClanahan v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

July 5, 1996

DARRELL McCLANAHAN Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for EUGENE SIMPSON Employer.

          Date Submitted: June 21, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: 28 year old laborer for excavating contractor filed claim for foot and back injury. Claimant consistently described incident in which contractor's grandson released trailer, could not hold it, and trailer pinned claimant's foot, causing him to twist, fall, and hurt his back. Grandson testified tongue of trailer hit claimant's foot and claimant did not fall. Contractor testified claimant walked off the job and was seen working on a roofing job. Claimant testified he asked for leave to seek additional medical care and employer told him not to come back. Claimant sought TTD benefits, medical benefits, penalty and attorneys fees.

         Held: Claimant was credible; the insurer's witnesses were not. In particular, Court finds that grandson minimized events to avoid criticism from grandfather. Benefits awarded, including penalty and attorneys fees. Insurer's conduct was unreasonable for failure to investigate. Insurer took employer's story at face-value, failing to interview witnesses, ignoring consistent medical records, and not facing conflicts within employer's version.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: 39-71-611, MCA (1995). Attorneys fees awarded where Insurer's conduct was unreasonable for failure to investigate. Insurer took employer's story that claimant did not injure his back at face-value, failing to interview witnesses, ignoring consistent medical records, and not facing conflicts within employer's version of events.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: 39-71-2907, MCA (1995). Penalty awarded where Insurer's conduct was unreasonable for failure to investigate. Insurer took employer's story that claimant did not injure his back at face-value, failing to interview witnesses, ignoring consistent medical records, and not facing conflicts within employer's version of events.
Attorney Fees: Cases Awarded. Attorneys fees awarded where Insurer's conduct was unreasonable for failure to investigate. Insurer took employer's story that claimant did not injure his back at face-value, failing to interview witnesses, ignoring consistent medical records, and not facing conflicts within employer's version of events.
Attorney Fees: Unreasonable Denial or Delay of Payment. Attorneys fees awarded where Insurer's conduct was unreasonable for failure to investigate. Insurer took employer's story that claimant did not injure his back at face-value, failing to interview witnesses, ignoring consistent medical records, and not facing conflicts within employer's version of events.
Injury and Accident: Accident. Where claimant consistently described accident in which trailer released by employer's grandson pinned his foot and caused him to twist and fall, hurting his back, his testimony is more credible than that of grandson and employer, who appeared to minimize what happened to avoid responsibility.
Penalties: Insurers. Penalty awarded where Insurer's conduct was unreasonable for failure to investigate. Insurer took employer's story that claimant did not injure his back at face-value, failing to interview witnesses, ignoring consistent medical records, and not facing conflicts within employer's version of events.

         Trial in this matter was held on June 21, 1996, in Butte, Montana. Petitioner, Darrell McClanahan (claimant), was present and represented by Mr. Kevin E. Vainio. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams. Exhibits 1 through 13 were admitted without objection. The parties agreed that the depositions of claimant and Dr. Mark W. Borke may be considered as part of the record. The claimant, Chris Hiatt, and Eugene Simpson were sworn and testified. At the close of trial, Judge McCarter issued a bench ruling which is incorporated in these findings.

         Issues presented: Claimant contends he injured his foot and back in an industrial accident occurring on June 20, 1995. The State Fund admitted liability for the injured foot but denies that the back injury was caused by the accident. It has refused to pay wage loss and medical benefits. Through his Petition for Hearing the claimant seeks medical and wage-loss benefits, as well as attorney fees, costs, and a penalty.

         Having considered the Final 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. He is married and has four children. He has less than a high school education.

         2. Claimant began working as a laborer for Eugene Simpson (Simpson) in January of 1995. (McClanahan Dep. at 41-42.) Simpson is in the excavating business. He principally digs water and gas lines and basements.

         3. On June 20, 1995, claimant was working for Simpson at a house in Butte, Montana. The project involved lifting the house up off its existing foundation and putting a new basement underneath. The house was jacked up off its existing foundation. Holes were then knocked through the foundation and long timbers were run underneath the house to support its weight while the basement was dug. A jackhammer was used to knock the holes through the foundation.

          4. In addition to claimant, Simpson employed his grandson, Chris Hiatt (Hiatt) on the project. At the time of the industrial accident which is at issue in this case, Hiatt was 15 years old.

         5. At approximately 10:00 a.m. on Tuesday, June 20, 1995, claimant and Hiatt obtained an air compressor and jackhammer from an equipment rental store. The air compressor was mounted on a trailer. Claimant and Hiatt hitched the trailer to the back of Hiatt's pickup truck. They then drove back to the job site.

         6. Upon arriving at the job site, Hiatt parked the pickup and trailer parallel to the curb. Claimant sought out Simpson to ask where they should put the trailer. Simpson was busy operating a backhoe and did not immediately answer. Claimant returned to the trailer, suggested to Hiatt that they wait until they could get direction from Simpson, and then stood between the trailer and the curb.

         7. Claimant's description of what happened next is contained in the record in several places. In his Claim for Compensation dated July 3, 1995, he wrote:

I was waiting for directions when Chris unhooked a trailer. The trailer was on a hill. It rolled and hit me.

         (Ex. 7 at 1.) In an August 10, 1995 recorded statement taken by field adjuster Steve Miser of the State Fund, ...


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