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Heichel v. Liberty Mutual Insurance

Court of Workers Compensation of Montana

March 12, 2018

CARMEN HEICHEL Petitioner
v.
LIBERTY MUTUAL INSURANCE Respondent/Insurer.

          Submitted: February 22, 2018

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

          DAVID M. SANDLER JUDGE.

         Summary: Petitioner asserts she injured her neck and shoulder in an industrial accident and told her manager of the accident and injury later that shift. Petitioner also asserts she told two other managers of her accident and injury within 30 days. The managers deny that Petitioner told them she suffered an industrial injury. Two of the managers testified that Petitioner initially said she was injured in a fall at her home.

         Held: After weighing the evidence, this Court finds that Petitioner did not give her employer notice of her alleged industrial accident and injury within 30 days. Therefore, Petitioner's claim is not compensable under § 39-71-603(1), MCA.

         ¶ 1 The trial in this matter was held on February 22, 2018, in Kalispell. Kraig W. Moore represented Petitioner Carmen Heichel. Morgan M. Weber represented Respondent Liberty Mutual Insurance (Liberty).

         ¶ 2 Exhibits: This Court admitted Exhibits 1 through 26, 28 through 30, and 32 through 58 without objection. Petitioner withdrew her hearsay objections to Exhibits 27 and 31, and this Court admitted them.

         ¶ 3 Witnesses and Depositions: This Court admitted the depositions of Heichel, Donna Hadley, Brandon Hice, Mark McCollom, Justin Ridinger, Allen Reidhead, and Heidi Brown into evidence. Heichel, Deanna Guertin, f/k/a Deanna Hegdahl (Guertin), Ridinger, and Brown were sworn and testified at trial.

          ¶ 4 Issues Presented: This Court restates the issues in the Pretrial Order as follows:

Issue One: Did Heichel timely notify her employer of her alleged industrial injury under § 39-71-603(1), MCA?
Issue Two: Did Heichel suffer an injury to her shoulder and neck at work on September 21, 2015?
Issue Three: Did Liberty unreasonably refuse to accept liability for Heichel's claim, thereby entitling Heichel to her attorney fees under § 39-71-611 and -612, MCA, and a penalty under § 39-71-2907, MCA?

         FINDINGS OF FACT

         ¶ 5 The following facts are established by a preponderance of the evidence.

         ¶ 6 Heichel worked as an assistant baker at Manito Super 1 Foods (Super 1) in Kalispell. Super 1 is open 24 hours a day, and always has a manager on duty.

         ¶ 7 Super 1's Employee Handbook states that employees are required to report all injuries to a manager, who is to have the employee fill out an incident report. The managers do not receive a bonus, or any other incentive, based on the number of Super 1's workers' compensation claims.

         ¶ 8 In the fall of 2015, Guertin was the store director. Ridinger was the grocery manager. Brown was the bakery manager. Guertin, Ridinger, and Brown each had a good working relationship with Heichel.

         ¶ 9 Heichel worked alone from 1:00 a.m. until around 5:00 a.m., when the assistant bakery manager and/or Brown would start their shift. Heichel worked until 9:00 or 10:00 a.m., depending on the bakery's needs.

         ¶ 10 Heichel alleges that on Monday, September 21, 2015, at some point between 1:00 a.m. and 2:30 a.m., she injured her right shoulder and neck while lifting a 50- to 60-pound bucket of corn syrup. Heichel testified that she lifted the bucket to the countertop to open it, but that she got the bucket only partly on the countertop, and that as the bucket began to fall, she tried to grab it, and the bucket yanked her arm. She testified that she heard a loud "popping" in her shoulder and neck and felt pain and a burning sensation.

         ¶ 11 Heichel did not inform the manager on duty that night of her alleged accident and injury.

         ¶ 12 Heichel testified that shortly after this accident, she told McCollom, who worked the night shift as a stocker, about the accident and that she hurt her neck and shoulder, but that she was going to continue working. However, McCollom did not recall Heichel telling him that she injured her neck and shoulder in the bakery and did not know if Heichel had ever been injured in the bakery.

         ¶ 13 Heichel also testified that shortly after Brown arrived at work, she told Brown about the accident, describing it in detail, and told Brown she thought she was injured. Heichel testified that she told Brown she thought she would need to see a doctor, but could finish her shift and would let Brown know if "it starts acting up." According to Heichel, Brown encouraged her to see a doctor. Heichel testified that she thought Brown would report her accident and injury to Guertin.

         ¶ 14 Brown denied that Heichel said she had an accident or suffered an injury in the bakery on September 21, 2015. If Heichel had, Brown would have instructed her to go to the office and fill out an incident report with the manager and would have followed up with Heichel and the manager, as Brown had done with another employee who reported that she injured her knee in the bakery. Brown also denied that Heichel said anything about lifting a bucket of corn syrup, said anything about her shoulder hurting, and denied that Heichel exhibited any signs of pain, or asked for any help with her work duties. Brown explained that she would have remembered if Heichel had said she injured herself, because "it would just be something that would stick with you." Brown also explained that she would have remembered if Heichel stated she had injured herself lifting a bucket of corn syrup to the counter, because the only time bakery employees lift full buckets of corn syrup is when they move them from a pallet onto a flat cart, which is then wheeled around the bakery. Brown trained Heichel to open the buckets of corn syrup while they are on the floor, which is easily done. Brown explained that there is no reason to lift the buckets of corn syrup to the counter and that she had not seen any of her employees do that. Brown had observed Heichel opening buckets of corn syrup while they were on the floor.

         ¶ 15 Heichel was not scheduled to work on Tuesday, September 22, or Wednesday, September 23, but returned to work on Thursday, September 24, 2015. Heichel testified at trial that she told Brown her shoulder was sore but she was "going to try and work through it." At her deposition, Heichel testified that she again told Brown she hurt her shoulder while lifting a bucket of corn syrup. But at trial, Heichel testified that she did not tell Brown the cause of her should pain "because I had already told her that on the 21st. I didn't feel I had to repeat it over again when she knew that I had already hurt it." Heichel testified that she again told Brown she thought she needed to see a doctor. Heichel testified that Brown again encouraged her to schedule a doctor's appointment.

         ¶ 16 Brown denied that Heichel said anything about her shoulder hurting on September 24, 2015. Brown did not recall Heichel moving as if she had hurt her shoulder, nor asking for help with her work duties.

         ¶ 17 Heichel worked on Friday, September 25, and Saturday, September 26, 2015. Super 1 had doughnut holes and old-fashioned doughnuts on sale that weekend. Consequently, Heichel spent hours cranking doughnuts, which required her to continuously use her right arm and shoulder. Heichel testified that her shoulder pain worsened.

         ¶ 18 On Sunday, September 27, 2015, Heichel tripped and fell over one of her dogs in her driveway. She testified that she had a "little" road rash on her elbow. She denies injuring her shoulder in this fall.

         ¶ 19 Heichel worked on Monday, September 28, 2015. When Heichel was washing dishes, Brown and Heichel had a conversation about their weekends. Brown saw the scab on Heichel's arm, which she described as "large, " and asked Heichel what had occurred. Heichel told Brown about falling over her dog. They laughed about Heichel's story, as Brown explained that it did not appear that Heichel was seriously injured in this fall, and it was a light-hearted conversation. Heichel testified that Brown was the only person at Super 1 she told about falling over her dog. Heichel testified that, during this shift, she again told Brown her shoulder pain was worsening and she thought she needed to see a doctor.

         ¶ 20 Heichel was not scheduled to work on Tuesday, September 29 or Wednesday, September 30, 2015. On September 30, 2015, Heichel made a doctor's appointment for the following day. She called Brown at 8:21 p.m. and told Brown she could not work her shift starting at 1:00 a.m., because she had unbearable shoulder pain and she needed to be seen by a doctor. Heichel did not tell Brown she injured her shoulder in an accident in the bakery; Heichel testified that because she told Brown on September 21, 2015, that she injured her shoulder in the bakery, she assumed that Brown knew that was why her shoulder was hurting. On the Absent Report, Brown wrote "called in sick."

         ¶ 21 On October 1, 2015, Heichel saw Timothy J. Stutzman, MD. Heichel testified that she told Dr. Stutzman and his nurse her injury occurred on September 21, 2015, when she lifted a bucket of corn syrup at work. She testified that she also told Dr. Stutzman she had fallen over her dog. However, in the history section of his report, Dr. Stutzman did not document a workplace injury. He wrote:

10 days of right shoulder/neck pain. Not sure what triggered the pain. Significant pain with adduction of the right shoulder. Worse with movements of the neck with radiation down into the right arm. Fell a couple of days ago on the right arm. Severe pain with lifting. Burning and sharp pain that is constant with severe jolting pains with movement. Unable to sleep due to the pain. 10/10 pain. Taking [Aleve] and did ...

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