Submitted: January 19, 1998
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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
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.
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
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.
Exhibits: Exhibits 1 through 5 were admitted without
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.
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
C. Whether the Petitioner is entitled to an increase in any
award of 20% pursuant to MCA Section 39-71-2907 (1997).
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.
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:
Claimant is 27 years old.
Martin's Peat, Inc. (Martin's) is a Kalispell
business which packages and sells peat moss, steer manure,
and other soil products.
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
The workers on the soil bagging line rotate among the
positions throughout the day.
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.
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 ...