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Kiefer v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

March 23, 1998

LAURENCE GAYLE KIEFER Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for MARTINS PEAT, INCORPORATED Employer.,

          Submitted: January 19, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: Laborer/supervisor for package/seller of soil products alleged back injury at work. White it was undisputed claimant suffered an earlier back injury, credible evidence from employees and representatives of the employer suggested claimant alleged the new work injury out of anger at the employer, which he thought was unfairly checking the work of his "line." Claimant's statements to a doctor around the time of the alleged second accident also did not support he existence of a second injury. Further, claimant was working a second job at the time of the alleged second injury, which he quit around the time he asserted the work injury.

         Held: Claim denied where Court found no traumatic incident occurred as alleged. Claimant was not a credible witness but the insurer's witnesses were. Even if claimant did suffer a second industrial injury, he did not suffer a total loss of wages as the result of that injury where he continued to work a second job, quitting that job for reasons not related to his alleged injury.

         Topics:

Injury and Accident: Accident. Laborer/supervisors claim based on alleged second back injury denied where Court did not credit claimant's testimony, but credited witnesses from employer, whose story indicates claimant quit and filed a workers' compensation claim in anger because he believed the employer was unfairly checking the work of his "line."
Wages: Wage Loss. Even if Court had believed and accident occurred as alleged by claimant, claimant did not suffer a total loss of wages as a result of the alleged accident where he continued to work a second job after the alleged accident and quit the second job not on the advice of a physician and for reasons not related to his alleged condition.

         ¶1 The trial in this matter was held on Monday, January 19, 1998, in Big Fork, Montana. Petitioner, Laurence Gayle Kiefer (claimant), was present and represented by Mr. Darrell S. Worm. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones.

         ¶2 Exhibits: Exhibits 1 through 5 were admitted without objection.

         3 Witnesses and Depositions: Laurence Gayle Kiefer, Gabrielle Elmer, Sandy Scholl, Tim Berry, Carol Field, Carol Searcy and Kristi Martin were sworn and testified. In addition the parties agreed that the Court may consider the depositions of claimant, Tim Berry, James E. McCreedy, M.D. and Ned A. Wilson, M.D.

         ¶4 Issues: This is a disputed liability case. Claimant alleges, and Liberty denies, that he suffered a work-related injury on or about July 15, 1997 and was thereafter temporarily totally disabled on account of the injury. The Pretrial Order phrases the issues for decision as follows:

A. Whether the Petitioner is entitled to wage loss benefits pursuant to MCA Section 39-71-701 (1997) [sic].
B. Whether the Petitioner is entitled to costs and attorney fees, pursuant to MCA Section MCA [sic] 39-71-611 or -612 (1997).
C. Whether the Petitioner is entitled to an increase in any award of 20% pursuant to MCA Section 39-71-2907 (1997).

         ¶5 Partial Bench Ruling: At the conclusion of claimant's case-in-chief, Liberty moved for a directed verdict as to the penalty and attorney fee issues. Claimant's attorney did not object to the motion and the motion was granted.

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

         FINDINGS OF FACT

         ¶7 Claimant is 27 years old.

         ¶8 Martin's Peat, Inc. (Martin's) is a Kalispell business which packages and sells peat moss, steer manure, and other soil products.

         ¶9 In February 1997, claimant began working for Martin's in a laboring position on a "soil bagging line." Peat, manure and other soils (collectively referred to as "soil") are bagged in assembly line fashion. The assembly line employs four workers, one at the head of the line who hangs the bag and fills it, a second worker who then seals the bag, and third and fourth workers who pick up the bags and stack them on pallets. At the end of the day, the pallets are taken by forklift to a separate warehouse building.

         ¶10 The workers on the soil bagging line rotate among the positions throughout the day.

         ¶11 The filled bags weigh from as little as 10 pounds up to 50 pounds. The soil bagging line workers were required to lift the bags without assistance.

         ¶12 During his employment with Martin's, claimant was promoted to supervisor of the soil bagging line. As supervisor, he worked one of the four line positions but supervised the ...


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