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Thoreson v. Uninsured Employers' Fund Respondent

Court of Workers Compensation of Montana

September 18, 2000

LEONARD L. THORESON Petitioner/Employer
v.
UNINSURED EMPLOYERS' FUND Respondent and RODNEY HINKLE Claimant/Respondent.

          Submitted: July 31, 2000

         Affirmed in nonciteable decision 2002 MT 6

          ORDER AMENDING FINDINGS OF FACT

          Mike McCarter JUDGE

         Summary: Petitioner moved to amend Court's Findings of Fact, Conclusions of Law and Judgment, arguing the record did not support some factual findings. Prior Order Amending Findings of Fact neglected to respond to one of petitioner's contentions.

         Held: One paragraph is corrected; other requests denied.

         ¶1 Petitioner has moved to amend the Court's Findings of Fact, Conclusions of Law and Judgment which were filed June 28, 2000. 2000 MTWCC 40. I have reviewed a rough electronic transcript of the trial and respond to each of the contentions made in the motion.

         ¶2 The following are the petitioner's contentions and the Court's responses.

         ¶3 Contention 1: Petitioner contends as follows:

1. Regarding ¶31, Leonard Thoreson states that this is not supported by the record and is an inaccurate summary of the evidence presented in the following respects: a.Leonard was not located on the porch of his house at the time Pat Malatare and Hinkle were smoking, but rather went out some time later.
b. Leonard did not smell marijuana smoke at that time Malatare and Hinkle were on the porch, but rather some time later after they had left. Consequently, he did not know who had smoked (rather than "was smoking") marijuana, if either of them. This is significant as the court faults Leonard for failing to inquire, but by the time he would have had a basis to inquire, discourage or stop the activity, Malatare and Hinkle were gone. (The next time Thoreson saw Hinkle, it was at the job site after the accident had occurred.) It is further significant in light of the court's finding in ¶32, that Leonard did not observe Hinkle stumbling or slurring words at this time, which was more than an hour prior to Hinkle's injury. The knowledge required under Section 39-71-407(4), M.C.A. 1995, would have to be of impairment sufficient to be a major contributing cause of the accident, which is lacking on this record.
c. The court has held that Leonard Thoreson was Rodney Hinkle's employer at the time of this accident. ¶52. Without conceding this issue, and for the purpose of the current argument, this Court must then further consider that, at the time of this injury, employers were under particular restrictions against requiring blood or urine tests for detection of drugs or alcohol as a condition for employment under M.C.A. [sic] 39-2-304(1)(b), M.C.A. 1995, and for continued employment after an initial hire, to have sufficient information to believe that a particular employee's faculties are impaired on the job (-304(c)(i)). Any violation by an employer of that section in any regard was a criminal misdemeanor. Section 39-2-304(5), M.C.A. 1995. Therefore, the amount of action an employer could take at that time even with sufficient actual knowledge was very limited.
d. The evidence in this record does not establish sufficient particularized knowledge by the employer (as held) of the particular person impaired, the level of impairment at the time of the accident, and the possible effect of the level of impairment on ability to perform the work expected [n. The court has found that Hinkle acted recklessly at the time of his injury in ¶46.] to relieve Rodney Hinkle of responsibility for his own injuries and shift it to his employer. The term "knowledge" is generally considered to be of a higher order than mere notice; knowledge is considered sufficient to satisfy a requirement of notice. See Sundheim v. Reef Oil Corporation, 247 Mont 244, 252, 806 P.2d 503, (1991); Philadelphia & R.R.Co. V. Smith, 64 Fed. 679, 682 (3rd Cir. 1894); Moore v. Kenockee Tp., Mich., 42 N.W. 944, 947 (1889). Knowledge is defined as the act, fact or state of knowing, which is in turn defined as having a clear perception or understanding of; being sure or well informed about. Webster's New Word College Dictionary, 1997. The definitions lead to the conclusion that knowledge is the possession of actual, specific and particularized information, and is not satisfied by speculation, notice or further inquiry, which terms are not contained in Section 39-91-407(4), M.C.A. 1995. Just as Hinkle has been given the benefit of a literal interpretation of the requirements of the independent contractor law, Section 39-71-120 M.C.A. !995 [sic], so should Leonard Thoreson be given the benefit of a literal application of the standard knowledge on the part of the employer in terms of employee use of intoxicants under Section 39-71-407(4).

(Petition to Amend Findings of Fact, Conclusions of Law and Judgment or for New Trial at 1-3.)

         ¶4 Response to (a) and (b): Leonard Thoreson (Thoreson) testified that he was in the house when he observed claimant and Pat Malatare (Malatare), through a window, smoking on the porch. He further testified that when he later walked out onto the porch, while the claimant and Malatare were getting "ready to go in the pickup," he could smell marijuana. Thoreson also testified that he arrived at the house before the accident and saw claimant go up the ladder to the roof. Malatare, who was the most credible witness at trial, testified that Thoreson had the ladders in his truck and they had to wait for him to arrive at the job site before they could carry the shingles to the roof; after Thoreson arrived they got the ladders and carried the shingles to the roof. Whether or ...


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