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Pinnow v. Halverson, Sheehy & Plath, P.C.

Court of Workers Compensation of Montana

October 13, 2009

GAYLE PINNOW Petitioner
v.
HALVERSON, SHEEHY & PLATH, P.C. Respondent.

          ORDER

         Summary: In the Findings of Fact of Pinnow v. Halverson, Sheehy & Plath, P.C., 2008 MTWCC 53, based on Petitioner's trial testimony, I found that Petitioner had filed a medical complaint against Michael H. Schabacker, M.D., because she was upset with him. On September 6, 2009, Dr. Schabacker wrote to the Workers' Compensation Court and stated that he had read the Court's findings in Pinnow, and he asserted that Petitioner had never filed a complaint against him. Dr. Schabacker requested that the Court clarify the record accordingly.

         Held: Although Petitioner ultimately responded affirmatively to a question about bringing a claim against Dr. Schabacker, she began her answer by testifying that she did not remember whether she brought a claim but that she knew she "sent something to the medical." In light of the ambiguities in Petitioner's testimony, I believe it is appropriate to strike the final sentence of ¶ 43 and amend the Court's finding nunc pro tune.

         ¶ 1 In the Findings of Fact of Pinnow v. Halverson, Sheehy & Plath, P. C., 2008 MTWCC 53, based on Petitioner Gayle Pinnow's trial testimony, I found that Pinnow had filed a medical complaint against Michael H. Schabacker, M.D., because she was upset with him. On September 6, 2009, Dr. Schabacker wrote to the Workers' Compensation Court and stated that he had read the Court's findings in Pinnow, and asserted that Pinnow had never filed a complaint against him. Dr. Schabacker requested that the Court clarify the record accordingly.[1]

         ¶ 2 The final sentence of Pinnow, ¶ 43, states:

Petitioner later filed a medical complaint against Dr. Schabacker because she was upset with him.

         ¶ 3 This finding was based on the following trial testimony elicited from Pinnow on cross-examination:

Q. Were you upset enough with Dr. Schabacker[, ] dissatisfied enough with Dr. Schabacker[, ] that you subsequently brought a claim against him?
A. I don't remember. I know I sent something to the medical, yes.
Q. Okay. And that obviously was fueled by your dissatisfaction with him?
A. Yes.[2]

         ¶ 4 Pinnow's testimony led me to find that she had filed a medical complaint against Dr. Schabacker. However, although she ultimately responded affirmatively to the question about bringing "a claim" against Dr. Schabacker, she began her answer by testifying that she did not remember whether she brought a claim but that she knew she "sent something to the medical." Although I interpreted that "something" to be a medical complaint in light of the question that was put to her, her testimony is actually unclear as to what that "something" may have been. Moreover, I did not find Pinnow's recollection of the events in her case to be credible where her recollections contradicted other evidence in the record.[3] Although the parties presented no other evidence regarding this issue other than Pinnow's testimony excerpted above, in light of the ambiguities in her testimony I am striking the final sentence of ¶43 and amending the Court's Findings of Fact, Conclusions of Law and Judgment, nunc pro tune.

         ¶5 IT IS SO ORDERED.

         Dear Judge Shea:

         This letter is in reference the document completed 12/19/08 entitled Findings of Fact, Conclusion of Law and Judgment concerning Ms. Pinnow's ...


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