Submitted: February 22, 2018
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE.
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
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 §
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
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?
5 The following facts are established by a preponderance of
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 ...