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Copley v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

July 22, 1998

DEBRA COPLEY Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent/Insurer for WAYNE AND MARY ELLEN BUNTING Employer.,

          Submitted: June 9, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: Head waitress for a steakhouse claimed she injured her back lifting a tray from the salad bar on December 2, 1996, a date on which the steakhouse was uninsured. Claimant did not report the injury to her employer until December 16, after she had visited a doctor, but she filed a timely claim for compensation, which was forwarded to the UEF. The UEF denied the claim on the ground that claimant did not hurt her back as she claimed.

         Held: Although the UEF and employer did not affirmatively prove claimant injured her back in another way, their evidence regarding claimant's snowmobiling, care for her husband after hernia surgery, and activity moving to a new home, along with the Court's observation and evaluation of the testimony of claimant and her witnesses, leads the Court to include claimant was not injured during employment. Factors considered by the Court include: claimant in fact worked after the claimed injury and did not complain of pain; claimant complained to numerous people about the burdens of assisting her husband after surgery, which occurred after her own claimed injury, but failed to mention her own alleged back injury; credible evidence indicated claimant packed belongings and participated in the move of her household after the alleged injury and before reporting it; her employers were also her friends and co-workers, making it unlikely she would not have mentioned a back injury.

         Topics:

Injury and Accident: Accident. Head waitress for a steakhouse claimed she injured her back lifting a tray from the salad bar on December 2, 1996, a date on which the steakhouse was uninsured. Although the UEF and employer did not affirmatively prove claimant injured her back in another way, their evidence regarding claimant's snowmobiling, care for her husband after hernia surgery, and activity moving to a new home, along with the Court's observation and evaluation of the testimony of claimant and her witnesses, leads the Court to include claimant was not injured during employment. Factors considered by the Court include: claimant in fact worked after the claimed injury and did not complain of pain; claimant complained to numerous people about the burdens of assisting her husband after surgery, which occurred after her own claimed injury, but failed to mention her own alleged back injury; credible evidence indicated claimant packed belongings and participated in the move of her household after the alleged injury and before reporting it; her employers were also her friends and co-workers, making it unlikely she would not have mentioned a back injury.
Witnesses: Credibility. Head waitress for a steakhouse claimed she injured her back lifting a tray from the salad bar on December 2, 1996, a date on which the steakhouse was uninsured. Although the UEF and employer did not affirmatively prove claimant injured her back in another way, their evidence regarding claimant's snowmobiling, care for her husband after hernia surgery, and activity moving to a new home, along with the Court's observation and evaluation of the testimony of claimant and her witnesses, leads the Court to include claimant was not injured during employment. Factors considered by the Court include: claimant in fact worked after the claimed injury and did not complain of pain; claimant complained to numerous people about the burdens of assisting her husband after surgery, which occurred after her own claimed injury, but failed to mention her own alleged back injury; credible evidence indicated claimant packed belongings and participated in the move of her household after the alleged injury and before reporting it; her employers were also her friends and co-workers, making it unlikely she would not have mentioned a back injury.

         ¶1 The trial in this matter was held on Monday and Tuesday, June 8 and 9, 1998, in Great Falls, Montana. Petitioner, Debra Copley (claimant), was present and represented by Mr. David W. Lauridsen. Respondents Wayne and Mary Ellen Bunting were represented by Mr. Cameron Ferguson. Respondent Uninsured Employers' Fund was represented by Mr. Mark E. Cadwallader.

         ¶2 Exhibits: Exhibits 1 through 5 and 7 through 14 were admitted without objection. Exhibit 6 was refused. Exhibit 15 was admitted over the objection of the petitioner. Exhibit 16 was admitted for demonstrative purposes.

         ¶3 Witnesses and Depositions: Debra Copley, John Howard Poush, Michael Camenzind, Mark Spitler, Elmer West, Frieda Ross, Julie Hollar, Shannon Martinsen, Carolyn Wentz, Greg Copley, Louise Miskey, Mary Ellen Bunting, Ruth Jensen (by telephone) and Wayne Bunting were sworn and testified. Claimant was recalled as a rebuttal witness. The parties agreed that the depositions of Gregory L. Copley and Debra Copley may be considered by the Court. No trial transcript was prepared of this proceeding.

         ¶4 Issues: The following issues are set forth in the Pretrial Order:

1.Whether Petitioner suffered a compensable industrial injury arising out of and in the course and scope of her employment with Employers on December 2, 1996.
2.Whether Petitioner is entitled to an increase in award for unreasonable delay or refusal to accept liability and to pay proper workers' compensation benefits pursuant to §39-71-2907, MCA.
3.Whether Petitioner is entitled to costs and attorneys' fees, pursuant to §39-71-611, MCA.

         ¶5 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

         ¶6 Wayne and Mary Ellen Bunting own and operate the Choteau Seafood and ...


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