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Lewis v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

June 4, 1997

RONNI LEWIS Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for NORTHERN ROCKY MOUNTAIN EASTER SEAL SOCIETY/GOODWILL INDUSTRIES Employer.

          Submitted: February 5, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: 48-year old in-home care attendant claimed wrist injury while moving a bed. Insurer disputed occurrence of injury and notice to the employer or insurer.

         Held: Where claimant was not credible regarding the occurrence of an workplace accident, the Court finds she has not proven any entitlement to benefits. WCC does not reach an issue of notice to the employer/insurer where it concludes no accident occurred.

         Topics:

Injury and Accident: Accident. Where claimant was not credible regarding the occurrence of an workplace accident, the Court finds she has not proven any entitlement to benefits. WCC does not reach an issue of notice to the employer/insurer where it concludes no accident occurred.

         The trial in this matter was held on February 4 and February 5, 1997, in Billings, Montana. Petitioner, Ronni Lewis (claimant), was present and represented by Mr. Jerrold L. Nye. Liberty Northwest Insurance Corporation (Liberty) was represented by Mr. Larry W. Jones. No transcript of the trial has been prepared.

         Exhibits: Exhibits 1 through 6 and 10 through 15 were admitted without objection. Exhibits 7 and 8 were admitted over claimant's objections. Exhibit 9 was not offered into evidence. Exhibits 16 and 17 were made part of the record but not admitted.

         Witnesses and Depositions: Claimant, Robin Burns, Renee Lovelace, Tracie Auers Hunt, Sherry Parks, Pat Wagner, Layne Graham, Sharon Graham Fisk, and Will Johnson were sworn and testified. In addition, the parties submitted two depositions of claimant[1]and depositions of Dr. Richard Lewallen, Florence Gray, Tracie Auers (Hunt), Layne Graham, and Sherry Parks. Issues Presented: The following issues are presented for resolution by the Court:

(1)Whether claimant notified her employer or whether the employer had actual knowledge of claimant's alleged industrial accident within 30 days of its occurrence, as required by section 39-71-603(1), MCA.
(2)Whether claimant sustained a compensable injury in the course and scope of her employment as an in-home care attendant with Easter Seal.
(3)Whether claimant is entitled to a penalty, attorney fees, and costs.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, the Court makes the following:

         FINDINGS OF FACT

         1.Claimant is 48 years old and resides in Billings, Montana.

         2.Claimant began working for Northern Rocky Mountain Easter Seal Society (Easter Seal) as an in-home care attendant (attendant) in early July 1995. As an attendant, claimant cooked, cleaned, and provided transportation for disabled and elderly clients.

         3.A few months prior to going to work for Easter Seal, claimant injured her right wrist. On January 21, 1995, she slipped on ice outside of her home and fell. (Lewis Dep. I at 48.) She was treated for the injury with a lace up splint, which she testified she wore for three to six weeks. She last sought medical care for this injury on January 25, 1995. (Ex. 2.)

         4.Claimant testified in her deposition that her right wrist had completely healed by the time she went to work for Easter Seal. (Lewis Dep. I at 51.) She alleges in this proceeding that she suffered a new and different injury to her right wrist while working for Easter Seal. Specifically, she claims that she injured her wrist on September 9, 1995, when she was moving a heavy hospital bed for an Easter Seal client, Layne Graham (Graham). Claimant was providing in-home services to Graham, who was recovering from a rotator cuff injury to her right shoulder and was wearing a sling on her right arm. Claimant testified that Graham asked her to move the bed from one side of the room to the other so that it would be easier for Graham to get in and out of bed. According to claimant, while pushing and pulling on the bed she heard her wrist "pop" and felt sharp, throbbing pain. (Lewis Dep. I at 10-11.)

         5.Claimant submitted a written claim for compensation in December 1995.

         6.At the time of the alleged injury, Easter Seal was insured by Liberty. Liberty denied her claim. It disputes claimant's assertion that she injured her wrist in a work-related accident. It further alleges that claimant failed to notify her employer of the alleged injury within 30 days as required by section 39-71-603(a), MCA.

         7.Initially, there is little question that claimant is presently suffering from a new and different wrist injury than she suffered in January 1995. Dr. Richard Lewallen, who treated claimant in January 1995, and who began treating claimant anew in September 1995, testified without contradiction that claimant's pain on and after September 1995 was in a different area of her wrist than in January 1995, and that it was "probably a different injury." (Lewallen Dep. at 9-10, 24.) X-rays taken on September 12, 1995, disclosed an abnormal distance between the scaphoid and the lunate, which are two bones in the wrist, and Dr. Lewallen later recommended surgical fusion of the bones. (Id. at 21, 33.) Thus, the issue which the Court must address is not whether claimant suffers from a wrist condition which is distinct from her January 1995 condition, but whether the condition diagnosed in September 1995 was the result of an industrial accident.

         8.Resolution of the question stated in the last sentence of the paragraph above turns on this Court's assessment of the credibility of the witnesses, especially the credibility of claimant. After listening to all of the testimony, reviewing the depositions and exhibits, including a statement given by claimant to Robin Burns (Burns), a claims adjuster for Liberty, on November 21, 1995, and considering the inconsistencies in claimant's trial testimony, deposition testimony, and the November 21st statement, the Court finds that claimant is not a credible witness and does not believe her testimony concerning the alleged accident.

         9.Both Graham and her adult daughter, Sherry Fisk (Fisk), were present at Graham's house on the date and time of the alleged accident. Claimant has provided inconsistent stories as to what they saw and knew.

a) Burns interviewed claimant by telephone on November 21, 1995. (Ex. 10.) At that time, claimant stated that her accident was witnessed by both Graham and Fisk. "[S]he [Graham] was in there - they [Graham and Fisk] were both - I think Sherry [Fisk] was in the room there, they were both like standing there. I know Sherry [Fisk] was there . . . ." (Ex. 10 at 10-11, emphasis added.) Claimant stated that when she injured her wrist she said: "Yow I hurt my wrist - I popped my wrist." (Ex. 10 at 10-11.)
b) In her deposition, claimant placed Fisk and Graham in the living room when she injured her wrist. (Lewis Dep. I at 13.) But she insisted that there was no doubt in her mind that she told Fisk on that day: "I hurt my wrist." (Id. at 13.) Claimant also testified that she told Graham of the ...

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