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Daenzer v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

January 29, 1998

JIM DAENZER Petitioner
v.
STATE COMPENSATION INSURANCE FUND/CURTIS BARTELL Respondent/Insurer.

          Submitted: November 7, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: Curtis Bartell claimed a back injury while performing logging work for Jim Daenzer, who had contracted with North Idaho Post and Pole for the work. Because Daenzer did not carry workers' compensation insurance, the claim was tendered to State Fund, North Idaho's insurer, pursuant to section 39-71-405, MCA (1993). State Fund accepted the claim, paid some benefits, and settled the indemnity claim. State Fund demanded indemnification from Daenzer, who then filed the present petition, alleging that Bartell was not injured in the course and scope of employment and filed a fraudulent claim.

         Held: Claimant was injured as claimed, which entitles State Fund to indemnity. As claimant's employer, Daenzer was required by law to maintain workers' compensation coverage for claimant, §39-71-401, MCA (1993), and in failing to do so is personally liable for benefits, §39-71-515(4), MCA (1993). State Fund was secondarily liable only due to section 39-71-405, MCA (1993), a statutory provision imposing derivative liability on its insured for it's subcontractor's failure to meet statutory obligations. The Court rejects Daenzer's arguments that claimant was in fact injured in a bar fight and/or not at work as alleged. Time records kept by claimant support his version of events and render the employer's testimony not credible. The timing of statements in medical records also support's claimant's testimony.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-405, MCA (1993). As the logger claimant's employer, petitioner was required to maintain workers' compensation insurance, §39-71-401, MCA (1993), and in failing to do so is personally liable for benefits, §39-71-515(4), MCA (1993). As insurer for the logging company with which petitioner had contracted, State Fund was secondarily liable under section 39-71-405, MCA (1993), but is entitled to indemnification from petitioner.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-515(4), MCA (1993). As the logger claimant's employer, petitioner was required to maintain workers' compensation insurance, §39-71-401, MCA (1993), and in failing to do so is personally liable for benefits, §39-71-515(4), MCA (1993). As insurer for the logging company with which petitioner had contracted, State Fund was secondarily liable under section 39-71-405, MCA (1993), but is entitled to indemnification from petitioner.

         Employment: Employee. As the logger claimant's employer, petitioner was required to maintain workers' compensation insurance, §39-71-401, MCA (1993), and in failing to do so is personally liable for benefits, §39-71-515(4), MCA (1993). As insurer for the logging company with which petitioner had contracted, State Fund was secondarily liable under section 39-71-405, MCA (1993), but is entitled to indemnification from petitioner.

         Independent Contractor: Generally. As the logger claimant's employer, petitioner was required to maintain workers' compensation insurance, §39-71-401, MCA (1993), and in failing to do so is personally liable for benefits, §39-71-515(4), MCA (1993). As insurer for the logging company with which petitioner had contracted, State Fund was secondarily liable under section 39-71-405, MCA (1993), but is entitled to indemnification from petitioner.

         Injury and Accident: Accident. In case where uninsured employer seeks to avoid personal liability on claim, WCC rejects employer's arguments that claimant was in fact injured in a bar fight and/or not at work as alleged. Time records kept by claimant support his version of events and render the employer's testimony not credible. The timing of statements in medical records also support's claimant's testimony.

         ¶1 The trial in this matter commenced on October 23, 1997, in Helena, Montana, and recessed until November 7, 1997, at which time it was completed. Petitioner, Jim Daenzer (Daenzer), was present and represented by Mr. Douglas Anderson during the October 23 proceedings. Respondent, Curtis Bartell (claimant or Bartell), appearing on his own behalf, was also present during the October 23 proceedings. All three individuals (Daenzer, Anderson and Bartell) requested that they be allowed to participate by telephone in the November 7 proceedings and did so. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Laurence A. Hubbard, who was personally present on both dates.

         ¶2 Witnesses and Depositions: Jim Daenzer, Allan Delahoussaye, Lori Hunt, Gina Huot, Curtis Bartell and Billie Jette were sworn testified at the trial. In addition the parties agreed that the Court may consider the deposition of Chriss A. Mack, M.D.

         ¶3 Exhibits: Exhibits 1 through 7 and 9 through 22 were admitted without objection. Exhibit 8 was refused.

         ¶4 At the close of the trial, the Court requested the parties to obtain a typewritten version of the office notes of Patrick R. Montgomery, D.C. Dr. Montgomery's handwritten notes were admitted as Exhibit 10 but are difficult to read. In the alternative, the Court offered the parties the opportunity to depose Dr. Montgomery for the purpose of his reading his notes to a court reporter. Dr. Montgomery thereafter supplied a typewritten version of the notes, and the parties agreed that those notes be submitted to the Court. They have been made part of the Court file.

         ¶5 Issues: This proceeding arises out of an industrial accident which Bartell alleges he suffered on June 10, 1995, while working for Daenzer. At the time of the alleged accident, Daenzer was uninsured. Pursuant to section 39-71-405, MCA, the State Fund, which insured the contractor employing Daenzer, accepted liability for Bartell's claim. Daenzer disputes the claim for compensation and State Fund's acceptance of it. He requests the Court to find that the claim was fraudulent. The Pre-trial Order phrases the issues for decision as follows:

1. The first issue presented to the Court is whether the State Fund correctly determined that Respondent Bartell was injured in the course and scope of his employment.
2. The second issue is whether Respondent Bartell filed a fraudulent claim for workers' compensation benefits.
3. The third issue is if Respondent Bartell was injured in the course and scope of his employment what amount of money is the State Fund entitled to recover under MCA §39-71-405.

         ¶6 Having considered the trial testimony, the demeanor and credibility of the witnesses, the exhibits, the deposition, and the arguments of the parties, the Court makes the following:

         FINDINGS ...


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