PERRY A. ROSE Petitioner
MONTANA STATE FUND Respondent/Insurer.
Submitted: August 25, 2004
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
The claimant, who had worked in logging for many years and
had a history of low-back injuries, claims that he reinjured
his back on July 22, 2003, while working for Treasure State
The claimant's testimony that he fell from a log and
reinjured his back was not credible and I find that the
alleged accident did not in fact occur. Accordingly, his
claim for compensation is denied.
Evidence: Credibility. The claimant's
assertion that he suffered a new industrial injury to his low
back while working in logging is found not credible where:
(1) he had suffered prior injuries to his back; (2) he worked
only one day for the employer; (3) at the time of the alleged
accident he was either taking narcotic drugs for his back
pain or had run out of narcotic drugs because he had taken
more than prescribed; (4) his wife attempted to prevent him
from going back to work in logging in part because of his
preexisting back pain; (5) his symptoms after the accident
were the same as before, albeit he claimed that they were
more severe; (6) his assertion that another employee had
witnessed the accident was disputed by the other employee;
(7) his description of the accident was incompatible with the
mechanical operation during which he claims he was injured;
and (8) he was in dire financial straits.
The trial in this matter was held in Kalispell, Montana, on
August 25, 2004. The petitioner, Mr. Perry A. Rose, was
present and represented by Mr. Richard J. Martin. Respondent,
Montana State Fund, was represented by Mr. Daniel B.
Exhibits: Exhibits 1 through 19 were admitted
Witnesses and Depositions: Perry Rose, Rebecca Rose,
Bob Muth, Ann Muth, Jack May, Tony Lietz, and Kevin Bartsch
testified at trial. In addition, the parties submitted the
depositions of Perry Rose and Rebecca Rose to the Court for
Issues Presented: The issues are stated in the
Pretrial Order as follows:
¶4a Whether Petitioner suffered a work-related injury on
July 22, 2003.
¶4b Whether Petitioner is entitled to past and future
medical benefits for the July 22, 2003 injury.
¶4c Whether Petitioner is entitled to temporary total
disability [TTD] benefits retroactive to the time that the
Petitioner was unable to work as a result of the July 22,
(Pretrial Order at 2.)
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:
Perry Rose (claimant) is 33 years old. He has worked as a
logger for most of his adult life.
The present case involves an alleged low-back injury
occurring on July 22, 2003, while the claimant was working
for Treasure State Timber, Incorporated (Treasurer State). At
the time of the alleged accident, the Montana State Fund
(State Fund) insured Treasure State. It has denied liability
for the claim ...