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Uninsured Employers' Fund v. Helstowski

Court of Workers Compensation of Montana

May 23, 2000

UNINSURED EMPLOYERS' FUND Petitioner
v.
FRANK HELSTOWSKI Claimant/Respondent AUTO FINANCING USA Employer/Respondent.

          Submitted: May 11, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: 52-year-old car salesman claimed injury while lifting computer at workplace. Employer, who was sole proprietor, did not carry workers' compensation insurance and claimed the injury did not occur and was not reported to him in any event. Uninsured Employers' Fund (UEF) denied benefits based on employer's statement.

         Held: WCC credited claimant's testimony that injury occurred, that employer was present when injury occurred, and that employer knew claimant claimed injury. UEF ordered to pay benefits. Employer ordered to reimburse UEF.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: 39-71-603, MCA (1997). Uninsured employer had notice of accident under section 39-71-603, MCA (1997) where he was present when claimant hurt his back moving a computer and was later told by claimant that his back continued to hurt. Further, certified letter sent by claimant to employer, who refused to accept letter, would have been sufficient even if verbal notice not given. Employer cannot refuse to accept certified mail, then complain about a lack of the information contained in the letter.
Attorneys Fees: Unreasonable Denial or Delay. In absence of any statutory provision, WCC has no authority to order uninsured employer in WCC proceeding to pay attorneys fees of claimant.
Indemnification: Uninsured Employers Fund. Where court resolved credibility conflict to find injury did occur in uninsured employer's presence, UEF entitled to indemnification for compensation and medical benefits it paid to injured worker.
Limitations Periods: Notice to Employer. Uninsured employer had notice of accident under section 39-71-603, MCA (1997) where he was present when claimant hurt his back moving a computer and was later told by claimant that his back continued to hurt. Further, certified letter sent by claimant to employer, who refused to accept letter, would have been sufficient even if verbal notice not given. Employer cannot refuse to accept certified mail, then complain about a lack of the information contained in the letter.
Uninsured Employers' Fund: Indemnification. Where court resolved credibility conflict to find injury did occur in uninsured employer's presence, UEF entitled to indemnification for compensation and medical benefits it paid to injured worker.

         ¶1 The trial in this matter was held on May 11, 2000, in Butte, Montana. The Uninsured Employers' Fund (UEF), which is the petitioner in the case, was represented by Mr. Charles K. Hail. Claimant, Frank Helstowski (claimant), was present and represented by Mr. Mark L. Guenther. Pete Borup, the alleged uninsured employer and owner of Auto Financing USA, was present and represented by Mr. Karl Knuchel.

         ¶2 Although the UEF filed the petition in this matter, claimant's response included a cross-claim against Pete Borup, owner of Auto Financing USA. At trial, claimant's counsel confirmed that claimant presently wishes to pursue his claim in this Court.

         ¶3 Exhibits: Exhibits 1 through 12 were admitted without objection. No depositions were presented to the Court.

         ¶4 Witnesses: Claimant, Jennifer Helstowski, and Pete Borup testified at trial.

         ¶5 Issues: The issues stated in the Pretrial Order are as follows:

1.Whether Frank Helstowski suffered a compensable workers' compensation injury while employed by Auto Financing USA.
2.If Mr. Helstowski is successful in his claim, whether UEF is entitled to indemnification from the Employer for benefits that it may be ordered to pay.
3.If he is successful in his claim, whether Mr. Helstowski is entitled to an award of reasonable costs and attorneys' fees against the Employer?

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

         FINDINGS OF FACT

         ¶7 Claimant is presently 52 years old. (Ex. 1 at 1.) His employment history includes military service, insurance sales, work as a disc jockey, and car sales.

         ¶8 During 1998, Pete Borup (Borup) started a business known as Auto Financing USA. He did not incorporate the business.

         ¶9 Borup bought cars at auction, then offered them for sale at a small lot (a former gas station) in Livingston, Montana. Borup testified he acted as a broker between lending institutions and people who needed credit for cars.

         ¶10 Borup was in business for only a short time. Auto Financing USA folded in December 1998.

         ¶11 Claimant and Borup had known each other prior to 1998. Around May 1998, claimant talked to Borup and told him he was looking for work. Borup hired claimant to sell cars and help in the business. Claimant began work around the beginning of June 1998.

         ¶12 According to claimant, Borup agreed to pay him on a wage and commission basis. The claim for benefits (ex. 10) states a wage rate of $5.25 per hour. According to Borup, he originally agreed to pay claimant only commissions, but claimant thereafter sold only one vehicle, so he then put claimant on "like a minimum wage" because he (Borup) needed someone to answer the phones and deal with people who came into the lot when he was not present. Borup acknowledged paying claimant "close to $300" every two weeks. He also provided him with a car to use.

         ¶13 Borup did not withhold taxes from amounts he paid claimant. He testified that the reason he did not withhold taxes was because claimant refused to complete necessary forms. According to Borup, claimant was afraid his wages would be garnished for support.

         ¶14 Borup and claimant were the only persons working at Auto Financing USA.

         ¶15 Borup admitted not having workers' compensation insurance. He testified: "I didn't think I needed it."

         ¶16 Claimant alleges he suffered a herniated disk while working for Borup at Auto Financing USA on August 31, 1998, a Monday. Borup disputes the allegation. Resolution of the dispute involves the Court's assessment of each individual's credibility.

         ¶17 Claimant testified both he and Borup were working on August 31st when Borup decided to move the office computer. Claimant picked up the computer and monitor, then waited for instructions but Borup hesitated. According to claimant he then turned to put down the equipment and felt a "twinge" or pulling in his lower back, which took his breath away. He testified that he told Borup, "Hold on, I have to sit down." He then sat for approximately ten or fifteen minutes. According to claimant, Borup asked him how his back was feeling ...


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