January 30, 1997
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
Lumber mill worker was injured during a fight following
horseplay-type conduct that escalated into a fight,
culminating with a co-worker throwing two-by-fours onto
claimant's work table, claimant swinging a two-by-four at
the co-worker, and the two fighting on the ground until
Claimant was injured within the course and scope of
employment where there was a "reasonable connection
between" the fight and "the conditions under which
[claimant] pursued his employment." Pinyerd v. State
Comp. Ins. Fund, 271 Mont. 115 (1995). Although claimant
seriously escalated the confrontation by swinging the
two-by-four, he was goaded into his anger when the other
employee threw two-by-fours onto his work table as an act of
Constitutions, Statutes, Regulations and Rules:
Montana Code Annotated: section 39-71-407(1), MCA
(1995). Claimant injured in fight with co-worker at
lumber mill was injured within course and scope of employment
where there was a "reasonable connection between"
the fight and "the conditions under which [claimant]
pursued his employment." Pinyerd v. State Comp. Ins.
Fund, 271 Mont. 115 (1995). "It is universally agreed
that if the assault grew out of an argument over the
performance of the work, the possession of tools or equipment
used in the work, . . . the assault is compensable."
Larson's Worker's Compensation Law, section 11.12
(b). Although claimant seriously escalated the confrontation
by swinging a two-by-four, he was goaded into his anger by an
employee who threw two-by-fours onto claimant's work
table as an act of provocation.
Employment: Course and Scope: Fights.
Claimant injured in fight with co-worker at lumber mill was
injured within course and scope of employment where there was
a "reasonable connection between" the fight and
"the conditions under which [claimant] pursued his
employment." Pinyerd v. State Comp. Ins. Fund, 271 Mont.
115 (1995). "It is universally agreed that if the
assault grew out of an argument over the performance of the
work, the possession of tools or equipment used in the work,
. . . the assault is compensable." Larson's
Worker's Compensation Law, section 11.12 (b). Although
claimant seriously escalated the confrontation by swingng a
two-by-four, he was goaded into his anger by an employee who
threw two-by-fours onto claimant's work table as an act
trial in this matter was held in Missoula, Montana, on
January 21 and January 22, 1997. Petitioner, Steven
Kuykendall (claimant), was present and represented by Mr. Rex
Palmer. Respondent, Liberty Northwest (Liberty), was
represented by Mr. Larry W. Jones.
parties' request, on the morning of January
21st the Court viewed the Stimson Lumber Company
(Stimson) plant site where claimant's injury occurred.
Immediately thereafter the trial commenced in Courtroom 1 of
the Missoula County Courthouse.
Exhibits 1 through 12 and demonstrative Exhibits A, A-1, A-2,
B, and B-1 were admitted without objection.
and Depositions: Claimant, William R. Cady, Lorraine
Larson, Tory Bagaoisan, Jenny Dain, Harriet Rose Hill, Eric
Lief Halverson, Douglas Alan Reinertson, Jerome
"Jamie" Jarvis, Catherine "Kate" Stang,
and Mike Eichenlaub were sworn and testified. In addition,
the parties submitted the depositions of claimant and William
R. Cady for the Court's consideration. No transcript of
the trial has been prepared.
Presented: The sole issue presented for determination is
whether injuries claimant suffered in a fight with a
co-employee occurred in the course and scope of his
employment with Stimson Lumber Company.
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:
is 31 years old and resides in Clinton, Montana. He is a high
school graduate. He has a learning disability and speech
was in the United States Navy for five and one-half years.
He, as many of the others mentioned in this decision, curses
"like a sailor."
was employed by Stimson. During his last nine months of
employment in 1995 and 1996, he worked as a
25, 1996, claimant injured his left elbow in a fight with a
co-employee. He thereafter submitted a claim for workers'
time of his injury, Stimson was insured by Liberty. Liberty
denied liability for the claim on the ground that claimant
was not working in the course and scope of his employment
operates a plywood mill in Bonner, Montana. It purchased the
mill from Champion Lumber Company in the fall of 1993 and has
operated it since that time. Liberty Northwest Ins. Co.
v. Champion Int'l, WCC No. 9601-7477
(6/25/97) at 2.
of plywood involves numerous steps and is done on a large
scale. Initially, logs are peeled, producing a thin veneer
which is then cut into sheets. The veneer sheets are dried
and then sorted by grade. Defects, such as knots, in the
sheets are then "plugged." Plugging is done with a
machine which is affixed to a large table on which sheets of
plywood veneer can be moved and manipulated. The machine
punches out an elongated piece of the veneer, approximately
three inches by two inches (estimated), containing a defect.
It simultaneously replaces the punched-out piece with an
identically sized, unblemished piece of wood. The new piece
is instantly glued into place.
constant supply of veneer sheets is maintained at the end of
each plugger table. A machine operator, who is aptly named a
"plugger," takes the top piece off the stack and
pulls it onto the table. The plugger then slides the veneer
sheet around the table, going from one defect to the next,
centering each one under the head of the plugger machine,
then activating the machine with a foot pedal. When all
defects are plugged, the plugger slides the completed sheet
onto a conveyor belt or rollers which then transport the
sheet to a round table where it is graded, sorted and sent on
for further production steps.
plugger machine is fed by a tray containing plugs. The
punched-out defects fall through a hole in the table and are
collected in a bucket placed beneath the hole for that
Stimson plant has eight plugger tables. They are set up in
two groups of four. At the end of each group there is a round
table to which the completed, plugged sheets are sent.
mill operates 24 hours a day. Storage lockers are provided
for the personal effects of the pluggers working each shift.
There are three lockers located at the end of each of the
across from the plugger tables is the dry stacker which
consists of several bins into which the rough veneer is
sorted. The veneer is transported to the Dry Stacker by
conveyor. Before entering the Dry Stacker, an operator
eyeballs each sheet of veneer, determines which bin it should
go to, and designates the bin by pressing a control button.
The sheet is then deposited in the appropriate bin.
Stacker is staffed by two stacker operators. One of the
operators inspects the incoming veneer sheets and designates
the bins into which they are sent. The second operator,
hereinafter referred to as the "stacker observer,"
sits in the plugger area across from the dry stacker and
keeps watch over the stacker bins. When the veneer in a bin
reaches 25 inches, it automatically drops onto a cart. On
occasion the stack does not drop onto the cart properly. The
observer must then reposition the stack using a two-by-four
or some other lever. The observer also spray paints
identifying numerals or letters on the side of each veneer
of the mill area where the plugger tables are located are set
forth at the end of this decision. Diagram 1, which is part
of Exhibit 2, shows the general layout of the mill. The
plugger tables are at the top of the diagram below the
plywood office and electrical room. Diagram 2 is an enlarged
drawing of a portion of Diagram 1, specifically of the
plugger and stacker area. It is a reproduction of the second
page of Exhibit 2 but has been edited by labeling the plugger
tables with large numerals, labeling the round table,
identifying the plywood carts adjacent to the tables,
identifying the location of the lockers at the end of table
2, and identifying the area where Jamie Jarvis (Jamie), one
of the participants in the fight, worked. Only one plywood
cart and one locker are identified by labels, ...