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Walling v. Argonaut Insurance

Court of Workers Compensation of Montana

October 28, 1996

PHIL WALLING Petitioner
v.
ARGONAUT INSURANCE Respondent/Insurer for U.S. PIPELINE Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: 58-year old construction worker with a history of back pain claimed to have hurt his back when lifting the hood of a backhoe to check the oil. His wife and two friends testified he told them about the injury shortly after it happened. Two co-workers, both members of claimant's union and with no apparent grudge against claimant, denied that claimant told them of the alleged back injury, contradicting claimant's testimony.

         Held: No injury occurred. WCC credited the two co-workers, who testified claimant mentioned a long history of back problems, but no work injury. Neither claimant, nor his witnesses, were credible.

         Topics:

Injury and Accident: Accident. 58-year old construction worker with a history of back pain claimed to have hurt his back when lifting the hood of a backhoe to check the oil. WCC credited two co-workers, who testified claimant mentioned a long history of back problems, but no work injury. Neither claimant, nor his witnesses, were credible. Claim denied.

         The trial in this matter was held in Great Falls, Montana, on October 7, 1996. Petitioner, Phil Walling (claimant), was present and represented by Mr. Torger S. Oaas. Respondent, Argonaut Insurance (Argonaut), was represented by Mr. Peter J. Stokstad.

         Exhibits: Exhibits 1 through 3 and 6 through 10 were admitted at trial without objection by either party. There were no exhibits 4 and 5.

         Witnesses and Depositions: Jack Styer, Kyle Carlisle, Leona Walling, Elizabeth Carrico, and claimant testified at trial. In addition the parties submitted depositions of Jerry Lubinsky, Dr. Jack D. Culley, Allen L. Collier, Jack Styer, Kyle Carlisle and Jerry Ramsey for the Court's consideration.

         Issues Presented: Claimant alleges that on September 9, 1995, he suffered a compensable injury to his lower back while in the course and scope of his employment. He seeks temporary total disability benefits, 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, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant is 58 years old and resides in Lewistown, Montana.

         2. Claimant has worked mostly in construction as a heavy equipment operator. He also has some work experience training race horses. He is a member of the Operating Engineers Union and has customarily obtained employment through the local unit of his union.

         3. On or about September 7, 1995, claimant was hired through his local union hall by U.S. Pipeline. At the time of his hire, U.S. Pipeline was constructing a pipeline in northern Montana south of Shelby. The project was scheduled to last until November 1995.

         4. Claimant was hired by U.S. Pipeline to work as an oiler. He was assigned to a backhoe and his job was to check the oil in the backhoe, add oil as necessary, and grease the backhoe as needed. At times during his employment he was also required to measure the depth of the ditch being dug by the backhoe and set stakes for the backhoe operator. Claimant did not operate the backhoe.

         5. At the time of his hire, claimant was told that he was to work ...


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