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Benson v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

August 21, 2013

TED BENSON Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent/Third-Party Petitioner
v.
McCORMICK SUNSET GUEST RANCH, LLC Employer/Third-Party Respondent.

Submitted: April 18, 2012

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

Summary: Petitioner claims a bite from a tick carrying Rocky Mountain spotted fever infected him with the disease while employed as a hunting guide. Employer and Respondent dispute the claim on the basis that Petitioner did not contract the disease and that if he did, he cannot prove that he became infected while at work.

Held: Petitioner has failed to prove by a preponderance of the evidence that he is entitled to the benefits he seeks.

JAMES JEREMIAH SHEA JUDGE

¶ 1 The trial in this matter was held on April 18, 2012, at 8:30 a.m. in the Workers' Compensation Court in Helena, Montana. Petitioner Ted Benson was present and represented by John T. Johnston. Respondent Uninsured Employers' Fund (UEF) was represented by Leanora O. Coles. Bernadette Rice was also present for the UEF. Employer McCormick Sunset Guest Ranch, LLC (McCormick) was represented by Douglas G. Skjelset.

¶ 2 Exhibits: I admitted Exhibits 1 through 8, 11, 16 through 18, 20, and 24 without objection. I overruled all relevancy objections and admitted Exhibits 15 and 19 pursuant to this ruling. I sustained the UEF's foundation objection and did not admit Exhibit 9; however, the exhibit shall be retained in the exhibit book and will be considered for demonstrative purposes only. McCormick withdrew its foundation objection and I admitted Exhibit 10.

¶ 3 I sustained Benson's hearsay objection and did not admit Exhibit 12 as to the first-party claim. I admitted Exhibit 12 as to the third-party claim between the UEF and McCormick. Benson's objection that Exhibit 12 was not disclosed in the exchange of exhibits was deemed moot. I sustained Benson's hearsay objections and did not admit Exhibits 13, 25, 27, and 29; the objections that the exhibits were not disclosed in the exchange of exhibits were deemed moot.

¶ 4 I overruled Benson's objection that the exhibit was not disclosed in the exchange of exhibits and admitted Exhibit 14.

¶ 5 McCormick withdrew Exhibits 26 and 28, and the exhibits were not admitted.

¶ 6 As a result of the following stipulation, Benson withdrew his objections that the exhibits were not disclosed in the exchange of exhibits and I admitted Exhibits 21, 22, and 23.

¶ 7 Stipulations: Counsel stipulated that Benson would not pursue a claim for benefits for reactive arthritis as a resulting complication of his claim of contracting Rocky Mountain spotted fever (RMSF).

¶ 8 Witnesses and Depositions: The parties agreed that the depositions of Benson, Fredrick J. Bartoletti, M.D., Claude Tonnerre, M.D., and Leslie F. Whitney, M.D., can be considered part of the record. Benson, Bernadette Rice, John Beckman, Jodi Feltz, and Lori McCormick were sworn and testified. Benson was recalled to testify on rebuttal.

¶ 9 Issues Presented: The Pretrial Order sets forth the following issues:[1]

Issue One: Whether on or about November 17, 2009, or November 19, 2009, Petitioner sustained an accident resulting in an injury as defined by § 39-71-119, MCA (2009) during the course and scope of employment as defined by § 39-71-407, MCA (2009).
Issue Two: Whether Petitioner is entitled to benefits under the Workers' Compensation Act as a result of an industrial injury.
Issue Three: Whether Third-Party Respondent, McCormick Sunset Guest Ranch, LLC, is obligated to indemnify the UEF for all benefits paid or payable by the UEF to Petitioner pursuant to § 39-71-504, MCA (2009) and § 39-71-541, MCA (2009).

FINDINGS OF FACT

¶ 10 On or around December 15, 2009, Benson filed a First Report of Injury, alleging he sustained an injury on or about November 17, 2009, while employed with McCormick in Helmville, Powell County, Montana.[2]

¶ 11 At the time of Benson's alleged injury, McCormick was not enrolled under Montana Compensation Plan No. 1, No. 2, or No. 3.[3]

¶ 12 On or around December 29, 2009, the UEF put McCormick on notice of Benson's claim for benefits and its potential liability for all medical and compensation benefits if Benson's claim was found compensable.[4]

¶ 13 At the time of Benson's alleged injury, McCormick was an "uninsured employer" within the meaning of § 39-71-501, MCA.[5]

¶ 14 On January 26, 2010, the UEF denied Benson's claim for benefits.[6]

¶ 15 McCormick employed Benson as a hunting guide from September 15, 2009, through November 24, 2009, during which time Benson worked 44 days. McCormick paid Benson a flat rate of $75.00 for each day he worked. From October 29 through November 10, 2009, Benson worked 13 consecutive days. From November 15 through November 24, 2009, Benson worked 10 consecutive days.[7]

¶ 16 On November 17, 2009, while in the course and scope of his employment with McCormick, Benson handled an elk and a deer that had been shot by one of McCormick's customers.[8]

¶ 17 On November 19, 2009, while in the course and scope of his employment with McCormick, Benson handled a deer that had been shot by one of McCormick's customers.[9]

¶ 18 Benson handled an elk on November 10 and again on November 11, 2009 outside the course and scope of his employment with McCormick.[10]

¶ 19 Ted Benson testified at trial. I found Benson to be a credible witness. Benson stated that he was born and raised in the Phillipsburg area where he attended grade school, then was homeschooled until grade 8 or 9. After that, Benson went to work with his father, logging in the woods.[11]

ΒΆ 20 Benson was raised as a hunter, and he testified that most of his family's meat came from hunting. In the fall of 2009, Benson was hired by McCormick to guide hunters on the guest ranch and surrounding lands and to help retrieve game animals. He also performed other ...


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