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Ronemus v. Business Insurance Co.

Court of Workers Compensation of Montana

July 28, 1998

DAVID RONEMUS Petitioner
v.
BUSINESS INSURANCE COMPANY Respondent/Insurer for AMERICAN RENOVATION AND CONSTRUCTION COMPANY Employer.,

          Submitted: June 8, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE.

         Summary: Construction worker claimed shoulder injury. Insurer denied the claim, arguing claimant did not work the date he claimed injury, had told a supervisor he injured his shoulder lifting weights, did heavy labor for a plumber after the claimed injury, and was considered not truthful by two supervisors. Insurer also argued claimant did not report the injury within 30 days.

         Held: Claimant was injured in the course and scope of employment. Claimant was a credible witness and conflicts in evidence were resolved in his favor. The insurer's argument that claimant was not at work on the date he claimed injury is undermined by evidence claimant at first thought the injury was minimal and did not seek medical treatment and, when he did seek treatment, could give only an approximate date of injury. The Court was persuaded the earlier shoulder injury occurred much earlier and that claimant's shoulder was not symptomatic when he began the construction project at issue. In weighing opinion evidence that claimant was untruthful, the court considered the fact the evidence came from the employer's supervisors and not from disinterested members of the community. WCC found claimant did in fact tell his supervisor about the injury within 30 days. Although both claimant and the supervisor did not consider the injury serious, it was nonetheless reported.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-603, MCA (1997). WCC found claimant did in fact tell his supervisor about shoulder injury within 30 days. Although the matter arose in the context of discussing some weekend volunteer work claimant might do, and both claimant and the supervisor did not consider the injury serious, it was nonetheless reported. Notice as to the time and place of the injury was inherent in claimant's statement to the supervisor. Because claimant was working at one construction project, there could be no misunderstanding as to the place of injury. From the context of the conversation, and the lack of claimant's prior complaints of injury or pain, the conversation also provided a plain indication that claimant was indicated that day. There is no requirement in the statute that claimant provide an exact minute or hour of his injury.
Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-611, MCA (1997). Although Court found claimant credible and was not persuaded by insurer's witnesses on issues of occurrence of accident and reporting, insurer's conduct in resisting claim was not unreasonable where a legitimate credibility issue existed.
Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-2907, MCA (1997). Although Court found claimant credible and was not persuaded by insurer's witnesses on issues of occurrence of accident and reporting, insurer's conduct in resisting claim was not unreasonable where a legitimate credibility issue existed.
Attorney Fees: Unreasonable Denial or Delay of Payment. Although Court found claimant credible and was not persuaded by insurer's witnesses on issues of occurrence of accident and reporting, insurer's conduct in resisting claim was not unreasonable where a legitimate credibility issue existed.
Claims: Notice to the Employer or Insurer. WCC found claimant did in fact tell his supervisor about shoulder injury within 30 days. Although the matter arose in the context of discussing some weekend volunteer work claimant might do, and both claimant and the supervisor did not consider the injury serious, it was nonetheless reported. Notice as to the time and place of the injury was inherent in claimant's statement to the supervisor. Because claimant was working at one construction project, there could be no misunderstanding as to the place of injury. From the context of the conversation, and the lack of claimant's prior complaints of injury or pain, the conversation also provided a plain indication that claimant was indicated that day. There is no requirement in the statute that claimant provide an exact minute or hour of his injury.
Injury and Accident: Generally. Insurer denied claim of shoulder injury from construction worker, arguing he did not work the date of claimed injury, that he told a supervisor he injured his shoulder lifting weights, that he did heavy labor for a plumber after the claimed injury, and that he was considered not truthful by two supervisors. Finding claimant a credible witness, the WCC resolved conflicts in the evidence in his favor and found he was injured during employment. The insurer's argument that claimant was not at work on the claimed injury date was undermined by evidence claimant at first thought the injury was minimal and did not seek medical treatment and, when he did seek treatment, could give only an approximate date of injury. The Court was persuaded the earlier shoulder injury occurred much earlier and that the alleged work for the plumber occurred prior to the injury. In weighing opinion evidence that claimant was untruthful, the court noted the evidence came from the employer's supervisors and not from disinterested members of the community.
Limitations Periods: Notice to Employer. WCC found claimant did in fact tell his supervisor about shoulder injury within 30 days. Although the matter arose in the context of discussing some weekend volunteer work claimant might do, and both claimant and the supervisor did not consider the injury serious, it was nonetheless reported.
Penalties: Insurers. Although Court found claimant credible and was not persuaded by insurer's witnesses on issues of occurrence of accident and reporting, insurer's conduct in resisting claim was not unreasonable where a legitimate credibility issue existed.
Witnesses: Credibility. Insurer denied claim of shoulder injury from construction worker, arguing he did not work the date of claimed injury, that he told a supervisor he injured his shoulder lifting weights, that he did heavy labor for a plumber after the claimed injury, and that he was considered not truthful by two supervisors. Finding claimant a credible witness, the WCC resolved conflicts in the evidence in his favor and found he was injured during employment. The insurer's argument that claimant was not at work on the claimed injury date was undermined by evidence claimant at first thought the injury was minimal and did not seek medical treatment and, when he did seek treatment, could give only an approximate date of injury. The Court was persuaded the earlier shoulder injury occurred much earlier and that the alleged work for the plumber occurred prior to the injury. In weighing opinion evidence that claimant was untruthful, the WCC noted the evidence came from the employer's supervisors and not from disinterested members of the community.

         ¶1 The trial in this matter was held on June 8, 1998, in Great Falls, Montana. Petitioner, David Ronemus (claimant), was present and represented by Mr. Norman L. Newhall. Respondent, Business Insurance Company (Business), was represented by Mr. Jason G. Dykstra. A transcript of the trial has not been prepared.

         ¶2 Exhibits: Exhibits 1 through 18 and 20 were admitted without objection. Exhibit 19 was refused.

         ¶3 Witnesses and Depositions: David Ronemus, Darryl Sellers, Robert C. Berger, Robert Chimarusti and John Fennel were sworn and testified. In addition the parties agreed that the Court may consider the deposition of the claimant.

         ¶4 Issues Presented: As set forth in the Pretrial Order, the following issues are presented for decision:

1.Whether Petitioner/Claimant suffered an injury within the course and scope of his employment.
2.Whether Petitioner/Claimant gave timely notice of the injury or whether Employer had actual notice.
3.Whether Petitioner/Claimant is entitled to medical, wage-loss and other benefits. 4.Whether Petitioner/Claimant is entitled to an award of attorney's fees, costs and a 20% penalty.

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

         FINDINGS OF FACT

         ¶6 On August 11, 1997, claimant was hired by American Renovation and Construction Company (American) to work on a construction and remodeling project at Malmstrom Air Force Base in Great Falls, Montana. He was hired to perform work as a carpenter, as a general laborer, and as the "tree man". As tree man, claimant felled and limbed trees.

         ¶7 Claimant alleges that on or about September 5, 1997, he injured his right shoulder while working for American.

         ¶8 At the time of his alleged injury, American was insured by Business.

         ¶9 Claimant submitted a claim for compensation but Business denied the claim. Business continues to resist his claim, urging that claimant was not injured in the course and scope of his employment with American and that he failed to timely report the alleged accident to American.

         I. Alleged Accident

         ¶10 Claimant suffers from a painful right shoulder. Medical information concerning his shoulder pain was presented by way of the medical records of Benefis Convenience Care Center of Great Falls and the records of Dr. J.W. Bloemendaal, an orthopedic surgeon who has treated claimant since November 1997. Dr. Bloemendaal diagnosed an AC ...


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