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Kuykendall v. Liberty Northwest

Court of Workers Compensation of Montana

March 17, 1997

STEVEN KUYKENDALL Petitioner
v.
LIBERTY NORTHWEST Respondent/Insurer for STIMSON LUMBER COMPANY Employer.

          January 30, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         Summary: 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 separated.

         Held: 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 provocation.

         Topics:

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 of provocation.

         The 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.

         At the 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: Exhibits 1 through 12 and demonstrative Exhibits A, A-1, A-2, B, and B-1 were admitted without objection.

         Witnesses 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.

         Issue 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.

         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

         Claimant is 31 years old and resides in Clinton, Montana. He is a high school graduate. He has a learning disability and speech impediment.

         Claimant 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."

         Claimant was employed by Stimson. During his last nine months of employment in 1995 and 1996, he worked as a "plugger."

         On May 25, 1996, claimant injured his left elbow in a fight with a co-employee. He thereafter submitted a claim for workers' compensation benefits.

         At the 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 when injured.

         Stimson's Bonner Mill

         Stimson 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.

         Production 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.

         A 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.

         The 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 purpose.

         The 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.

         The 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 plugger tables.

         Located 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.

         The Dry 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 stack.

         Diagrams 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, ...


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