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Rose v. Montana State Fund

Court of Workers Compensation of Montana

October 13, 2004

PERRY A. ROSE Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

          Submitted: August 25, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: 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 Logging.

         Held: 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.

         Topics:

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.

         ¶1 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. McGregor.

         ¶2 Exhibits: Exhibits 1 through 19 were admitted without objection.

         ¶3 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 its consideration.

         ¶4 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, 2003 injury.

(Pretrial Order at 2.)

         ¶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 Perry Rose (claimant) is 33 years old. He has worked as a logger for most of his adult life.

         ¶7 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 ...


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