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Phillips v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

October 9, 1998

PAUL PHILLIPS Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for THOMPSON RIVER LUMBER COMPANY Employer.,

          Submitted: October 2, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: Claimant worked for a lumber company for several months during 1995 and 1996. During January 1998, he completed and submitted a claim for compensation alleging he had injured his back on his last day of employment, February 16, 1996. He claimed that he told his supervisor about the injury the day it happened, that his supervisor completed paperwork which looked similar to the 1998 claim, and that claimant signed the paperwork. The insurer disputed the occurrence and reporting of the injury. Respondent also alleged claimant did not file a claim within one year.

         Held: WCC finds it more probable that claimant did not report a back injury as he claimed. Supervisor and safety inspector who would have received claim credibly testified they had no knowledge of the alleged incident and did not complete or receive a claim relating to the incident. The medical history claimant gave to medical providers indicates he did seek treatment around the time at issue, but failed to mention any particular injury, rather indicating a gradual onset and giving other descriptions inconsistent with the present claim.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-601, MCA (1995). Credible evidence makes it more probable than not that claimant did not file claim for back injury within one year of the alleged accident. Supervisor and safety inspector who would have received claim credibly testified they had no knowledge of the alleged incident and did not complete or receive a claim relating to the incident. The medical history claimant gave to medical providers indicates he did seek treatment around the time at issue, but failed to mention any particular injury, rather indicating a gradual onset and giving other descriptions inconsistent with the present claim.
Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-603(1), MCA (1995). Credible evidence makes it more probable than not that claimant did not report back injury within thirty days of the alleged accident. Supervisor and safety inspector who would have received report credibly testified they had no knowledge of the alleged incident and did not complete or receive a claim relating to the incident. The medical history claimant gave to medical providers indicates he did seek treatment around the time at issue, but failed to mention any particular injury, rather indicating a gradual onset and giving other descriptions inconsistent with the present claim.
Claims: Limitations Period. Credible evidence makes it more probable than not that claimant did not report back injury within thirty days of the alleged accident or file a claim within one year. Supervisor and safety inspector who would have received report credibly testified they had no knowledge of the alleged incident and did not complete or receive a claim relating to the incident. The medical history claimant gave to medical providers indicates he did seek treatment around the time at issue, but failed to mention any particular injury, rather indicating a gradual onset and giving other descriptions inconsistent with the present claim.
Limitations Periods: Claim Filing: Generally. Credible evidence makes it more probable than not that claimant did not file claim for back injury within one year of the alleged accident. Supervisor and safety inspector who would have received report credibly testified they had no knowledge of the alleged incident and did not complete or receive a claim relating to the incident. The medical history claimant gave to medical providers indicates he did seek treatment around the time at issue, but failed to mention any particular injury, rather indicating a gradual onset and giving other descriptions inconsistent with the present claim.
Limitations Periods: Notice to Employer. Credible evidence makes it more probable than not that claimant did not report back injury within thirty days of the alleged accident. Supervisor and safety inspector who would have received report credibly testified they had no knowledge of the alleged incident and did not complete or receive a claim relating to the incident. The medical history claimant gave to medical providers indicates he did seek treatment around the time at issue, but failed to mention any particular injury, rather indicating a gradual onset and giving other descriptions inconsistent with the present claim.
Proof: Inferences. The rule of Harmon v. Deaconess Hospital, 191 Mont. 285, 289, 623 P.2d 1372, 1374 (1981), which holds that the testimony of a witness that he does not recall whether a certain event or conversation took place does not contradict the positive testimony that such an event or conversation took place, does not require the Court to find in favor of claimant, who recalled reporting an injury, where claimant's supervisor testified he did not recall the report, because other evidence impacts the Court's consideration of the issue, including the supervisor's testimony it was his regular practice to fill out incident reports, no incident report concerning this matter existed, and claimant's version of events was contradicted by other credible evidence.

         ¶1 The trial in this matter was held on August 31, 1998, in Kalispell, Montana. Petitioner, Paul Phillips (claimant), was present and represented by Mr. David W. Lauridsen. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones.

         ¶2 Exhibits: Exhibits 1 through 10 were admitted without objection.

         ¶3 Witnesses and Depositions: Paul Phillips and Joe Sol were sworn and testified. In addition, the parties agreed that the Court may consider the depositions of the claimant, Mindy Phillips, David Alexander, Joe Sol, Cindy Lieski, Daniel Tyler, P.C., Jill Hart, and Gary Ritter. The parties also agreed that the Court may consider the post-trial deposition of Charles E. Clinkenbeard.

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

1.Whether claimant suffered a compensable industrial injury arising out of and in the course of his employment.
2.Whether claimant gave proper notice to his employer and whether claimant met the one-year filing requirement.
3.Whether Liberty's denial was unreasonable entitling claimant to an increase in award. 4.Whether claimant 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 Claimant went to work for Thompson River Lumber (TRL) in August of 1995. He was hired to perform work as a piler, a job which required him to pull wood from the green chain or the dry chain and to pile it. The work involved heavy, repetitious labor.

         ¶7 Claimant alleges that on or about February 19, 1996, he injured his back ...


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