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Flansburg v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 15, 1998

WILLIAM FLANSBURG, Petitioner
v.
STATE COMPENSATION INSURANCE FUND, Respondent/Insurer for AAA FENCING & WELDING, INCORPORATED, Employer.,

          Submitted: September 28, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: On December 4, 1997, a first report was filed indicating claimant had received an electrical shock at work on October 29, 1997. Claimant testified he told the president of the company about the shock on the day of the incident. The president did not recall the event and testified he would recall such an occurrence, noting he recalls many less serious incidents at work.

         Held: The credible evidence indicates claimant did not report an electrical shock within thirty days of the alleged occurrence. In addition to the Court's observation of the witnesses' credibility, factors considered include: that medical reports relatively close to the incident involving claimant's headaches do not mention the alleged incident, there were conflicts between the testimony of claimant and his corroborative witness, the corroborative witness testified he did not recall hearing the report to the president, and other evidence suggests a motive for the late attempt to link claimant's headaches with an incident at work. Petition dismissed.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-603(1), MCA (1995). The credible evidence indicates claimant did not report an electrical shock within thirty days of the alleged occurrence. In addition to the Court's observation of the witnesses' credibility, factors considered include: that medical reports relatively close to the incident involving claimant's headaches do not mention the alleged incident, there were conflicts between the testimony of claimant and his corroborative witness, the corroborative witness testified he did not recall hearing the report to the president, and other evidence suggests a motive for the late attempt to link claimant's headaches with an incident at work.
Claims: Limitations Period. The credible evidence indicates claimant did not report an electrical shock within thirty days of the alleged occurrence. In addition to the Court's observation of the witnesses' credibility, factors considered include: that medical reports relatively close to the incident involving claimant's headaches do not mention the alleged incident, there were conflicts between the testimony of claimant and his corroborative witness, the corroborative witness testified he did not recall hearing the report to the president, and other evidence suggests a motive for the late attempt to link claimant's headaches with an incident at work.
Limitations Periods: Notice to Employer. The credible evidence indicates claimant did not report an electrical shock within thirty days of the alleged occurrence. In addition to the Court's observation of the witnesses' credibility, factors considered include: that medical reports relatively close to the incident involving claimant's headaches do not mention the alleged incident, there were conflicts between the testimony of claimant and his corroborative witness, the corroborative witness testified he did not recall hearing the report to the president, and other evidence suggests a motive for the late attempt to link claimant's headaches with an incident at work.

         ¶1 The trial in this matter was held on September 28, 1998, in Missoula, Montana. Petitioner, William Flansburg (claimant), was present and represented by Mr. Andrew F. Scott. Respondent, State Compensation Insurance Fund (State Fund), was represented by Ms. Carrie L. Garber. No transcript has been prepared of this proceeding.

         ¶2 Exhibits: Exhibits1 through 4 were admitted without objection.

         ¶3 Witnesses: Claimant, Lex Herbert and Ron Cochrane were sworn and testified.

         ¶4 Issue: As set forth in the Pretrial Order, the sole issue to be determined is:

Whether or not the claimant gave notice of his injury to his employer within 30 days of his injury.

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

         FINDINGS OF FACT

         ¶6 Claimant was employed by AAA Fencing & Welding, Incorporated (AAA), on October 29, 1997. On that date he claims that at approximately 2:30 p.m. he suffered an electrical shock and was ...


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