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Jacobs v. Liberty Northwest Insurance

Court of Workers Compensation of Montana

September 25, 1998

HENRY THOMAS JACOBS Petitioner
v.
LIBERTY NORTHWEST INSURANCE Respondent/Insurer for YELLOWSTONE ELECTRIC COMPANY Employer.,

          Submitted: August 28, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: 47-year old electrician/laborer claimed new injury to his elbow and aggravation of preexisting shoulder condition. Insurer contended claimant did not report the injuries within 30 days and denied claimant sustained an injury as reported.

         Held: Claimant's testimony concerning his report of injury to his immediate supervisor, considered in the context of testimony of other witnesses, is credible. The WCC is also convinced claimant suffered a temporary aggravation of pre-existing conditions, but finds claimant did not prove injury on a specific day as required by section 39-71-119(2)(d), MCA (1997) to sustain a claim under the Workers' Compensation Act. While his petition is dismissed and he is denied costs, the insurer has an obligation to adjust his claim under the Occupational Disease Act where elements of an OD have been proven.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-119, MCA (1997). While claimant proved that electrician work for his employer caused a temporary exacerbation of preexisting shoulder and left limb problems, he did not prove injury on a single day or work shift. His petition for a compensable injury is dismissed, but the WCC notes the insurer is obligated to adjust his claim under the Occupational Disease Act where elements of an OD have been proven.
Injury and Accident: Accident. While claimant proved that electrician work for his employer caused a temporary exacerbation of preexisting shoulder and left limb problems, he did not prove injury on a single day or work shift. His petition for a compensable injury is dismissed, but the WCC notes the insurer is obligated to adjust his claim under the Occupational Disease Act where elements of an OD have been proven.
Occupational Disease: Disease. While claimant proved that electrician work for his employer caused a temporary exacerbation of preexisting shoulder and left limb problems, he did not prove injury on a single day or work shift. His petition for a compensable injury is dismissed, but the WCC notes the insurer is obligated to adjust his claim under the Occupational Disease Act where elements of an OD have been proven.

         ¶1 The trial in this matter was held on August 21, 1998, in Butte, Montana, and recessed at 1:50 p.m. Petitioner, Henry Thomas Jacobs (claimant), was present and represented by Mr. Charles F. Angel and Mr. Christopher R. Angel. Respondent, Liberty Northwest Insurance (Liberty), was represented by Mr. Larry W. Jones. The trial reconvened and was completed on August 28, 1998, in Helena, Montana. Claimant waived his right to be present and was not present at that time.

         ¶2 Exhibits: Exhibits 1 through 5 and 10 through 16 were admitted without objection. Exhibit 6 was withdrawn. Exhibit 7 was admitted after claimant withdrew his objection. Exhibits 8, 9, 14 and 15 were admitted over claimant's objections. Respondent's demonstrative Exhibits 11 through 13 were deferred but were not thereafter offered.

         ¶3 Witnesses and Depositions: Henry Thomas Jacobs, Marsha Jacobs, Jeffrey M. Hodges, Dave Weaver, Corey Green and Gary W. Pemble were sworn and testified. In addition, the parties agreed the Court may consider the depositions of the claimant, Gary W. Pemble and Dr. Lowell M. Anderson. Wathen Strong's deposition was attached as an exhibit to Dr. Anderson's deposition and will be cited as the Strong deposition (Strong Dep.).

         ¶4 Issues Presented: The following issues, as restated by the Court, are raised by the Pre-Trial Order:

1. Whether claimant suffered a compensable industrial injury on or about August 15, 1997.
2. If claimant suffered an industrial injury, whether he gave timely notice of the injury to his employer.

         ¶5 Having considered the Pre-Trial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the parties' arguments, the Court makes the following:

         FINDINGS OF FACT

         ¶6 Claimant is 47 years old. He has worked for approximately 16 years as a laborer and installer of electrical wiring. He is licensed to install residential wiring.

         ¶7 Claimant, who is left-handed, has experienced left shoulder, elbow and hand problems for many years. His history ...


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