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Griffin v. Associated Loggers Exchange

Court of Workers Compensation of Montana

July 27, 2018


          Submitted: April 26, 2017




         After returning to work after an industrial injury, Petitioner, who had previously been warned about arguing with coworkers, was in a fight with a coworker. Petitioner's employer terminated him from his employment pursuant to a clause in its Employee Handbook providing that fighting could result in discipline up to immediate termination. Petitioner disputes that he instigated the fight, and argues he is entitled to TTD benefits retroactive to the date of his termination. Petitioner also challenges Respondent's calculated TTD benefit rate and its denial of liability for a September 29, 2015, medical bill.


         This court ruled in Respondent's favor. Petitioner is not entitled to TTD retroactive to the date of his termination because he was terminated for disciplinary reasons as he could not get along with his coworkers and instigated a fight, for which the Employee Handbook authorized immediate dismissal. Petitioner is not entitled to additional TTD for the time he was unable to work because Respondent correctly calculated his TTD rate. Petitioner is not entitled to reimbursement for the September 29, 2015, medical bill, because Petitioner scheduled the appointment on his own and did not receive any primary or secondary medical services; rather, it was a consultation with the physician to discuss his concerns about the appropriateness of his medical care and Respondent's adjusting of his claim.

         ¶ 1 The trial in this matter was held on March 20, 2017, and April 4, 2017, in Helena, and on April 26, 2017, in Deer Lodge. Petitioner Dennis Griffin appeared as a self-represented litigant. Kelly Wills represented Associated Loggers Exchange (Associated Loggers).

         ¶ 2 Exhibits: This Court admitted Exhibits 1, 2, 3, 6, 10, 11, 13 through 17, 19, 27 through 29, 32, 33, 34, 37, 39 through 42, 44 through 50, 51-3, 51-4, 51-5, 54-1 through 54-7, 54-9, 54-17, 54-32, 54-33, and 55.

         ¶ 3 Witnesses and Depositions: This Court admitted Griffin's deposition into evidence and he was also sworn and testified during trial. Additionally, the following witnesses were sworn and testified: Bruce Thomas, Kerri Wilson, Matthew Anderson, Troy Anderson, Mark Gough, Pete Balen, April Kersch, Tony Colter, Sherman Anderson, Nicolas Hunter, Teri Jo Anderson, and Bonnie Anderson.

         ¶ 4 Issues Presented:

Issue One: Did Sun-up terminate Griffin from his employment for disciplinary reasons caused by his violation of its employment policies, thus excluding Griffin from further eligibility for TTD benefits when modified duty was available, pursuant to § 39-71-701(4), MCA?
Issue Two: Did Associated Loggers properly calculate Griffin's TTD rate?
Issue Three: Is Associated Loggers liable for the medical bill from Griffin's September 29, 2015, consultation with Dr. Sullivan?
Issue Four: Is Griffin entitled to costs, attorney fees, and/or a penalty, pursuant to § 39-71-611, MCA, and § 39-71-2907, MCA?


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

         ¶ 6 Sun-up Ventures, LLC (Sun-up) is a company affiliated with Sun Mountain Lumber. Sherman (Sherm) and Bonnie Anderson own Sun Mountain Lumber and its affiliated companies, and they run them as family businesses in Deer Lodge. There are around 300 employees working for Sun Mountain Lumber and its affiliated companies, but Sunup is a small construction company, generally consisting of three employees. The construction crew's primary purpose is to do whatever construction work needs to be done for Sun Mountain Lumber and its affiliated companies, which include a sawmill, a logging shop, a fitness center, and a ranch. Although Sun-up had a supervisor on its crew, Sherm directly supervised the three employees.

         ¶ 7 Griffin was friends with Sherm's son, Troy Anderson, and Troy's wife, Teri Jo. Troy supervised the repair shop at Sun Mountain Logging, another company affiliated with Sun Mountain Lumber.

         ¶ 8 After the construction crew's supervisor left Sun-up, Troy recommended Griffin to Sherm.

         ¶ 9 In May 2015, Sherm hired Griffin to work for Sun-up. Griffin was hired as a full- time employee. Sherm told Griffin he could work all the hours he wanted as long as there was work. Sun Mountain Lumber and its affiliated companies have an Employee Handbook, which states, in relevant part: "A Regular-Full-Time employee is regularly expected to work 40 hours or more per week." Sherm agreed to pay Griffin $16 per hour. Sun Mountain Lumber and its affiliated companies pay all of their employees who work away from home $25 per day in "camp pay" or "per diem," and it is intended to be an expense reimbursement for the expenses associated with working away from home. Because Griffin's permanent residence was in Belgrade and he was going to rent a house in Gold Creek, Sherm agreed to pay Griffin $25 per day worked in "camp pay" or "per diem" as an expense reimbursement.

         ¶ 10 Shortly after Griffin was hired, Troy gave Griffin a rifle, stating that it was a "signing bonus." However, Troy did not have authority to give a "company signing bonus" and neither Sun Mountain Lumber or any of its affiliated companies reimbursed Troy for the value of the rifle. In actuality, the rifle was a personal gift from Troy and Teri Jo, in large part to thank Griffin for volunteer work he did on the deck at Teri Jo's parents' ranch.

         ¶ 11 The Employee Handbook states, in relevant part: "Violence in the Sun Mountain Lumber workplace is not tolerated and is grounds for corrective action up to and including termination." The Employee Handbook has a progressive discipline policy, but states that an employee who engages in fighting or other types of violence is subject to immediate termination. At the beginning of his employment, Griffin was provided a copy of the Employee Handbook.

         ¶ 12 There was a misunderstanding between Sherm and Griffin. When Sherm interviewed Griffin, Sherm told Griffin that he had a supervisory position open, and that it was a possibility that Griffin would be the supervisor. But, when Sherm hired Griffin, Sherm, in his mind, did not make Griffin the supervisor. Because Sherm supervised the construction crew and had been satisfied with their work, he expected Griffin to work alongside the other two employees. However, because Sherm had mentioned that the position open was a supervisory position, Griffin thought he was being hired as the supervisor. For this same reason, the employees in the office at Sun Mountain Lumber thought that Griffin was a supervisor.

         ¶ 13 When Griffin started, Sun-up's other employees were Mark Gough and Nick Hunter. Hunter had worked for Sun-up for more than 10 years. Gough had worked for Sun-up for three months but had been in construction since 2004, when his service in the Army ended. Sherm was satisfied with their work. Sherm was lenient with their work schedules. Hunter had his own tow truck business, and Sherm allowed him to leave work when he received a call for a tow. Gough was in the process of starting his own business installing windows, doors, and remodeling houses, and Sherm allowed him to take time off at Sun-up so he could work on his own projects.

         ¶ 14 The working relationship between Griffin, on one hand, and Gough and Hunter, on the other hand, quickly deteriorated. Sherm did not tell Gough or Hunter that Griffin was the supervisor, so they were surprised when Griffin immediately asserted himself as "the boss." Griffin's supervisory style was confrontational, which created significant tension. Gough credibly testified that Griffin was "the type of guy that knows everything," that Griffin refused to listen, and that Griffin was one of the most difficult people with whom he had ever worked. Griffin was extremely bossy, overly critical of Gough's and Hunter's work, argumentative, and extremely demanding. Because Gough did not like confrontation, he frequently walked away from Griffin. Hunter did not mind confrontation, and he and Griffin frequently argued. Neither Gough nor Hunter liked working with Griffin and told Sherm of the problems they were having. Indeed, Gough and Hunter each told Sherm that he could not work with Griffin. On two occasions within Griffin's first month, Sherm met with Griffin and told him that he needed to get along and work with Gough and Hunter. However, Griffin did not change. When Gough quit, one of the reasons was that he did not want to work with Griffin.

         ¶ 15 On July 7, 2014, Griffin suffered an industrial injury within the course and scope of his employment with Sun-up. Specifically, Griffin was using a table saw and severely cut fingers on his left hand. Griffin was transported to Missoula, where he treated with Charles Sullivan, MD, at Missoula Bone & Joint. Dr. Sullivan performed revision amputations of Griffin's little finger and ring finger, and nerve repair of the ulnar digital nerve of his index finger.

         ¶ 16 At the time of Griffin's injury, Sun-up was enrolled under Compensation Plan No. 2 of the Montana Workers' Compensation Act and was insured by Associated Loggers. Associated Loggers accepted liability.

         ¶ 17 In the six weeks before his injury, Griffin worked Monday through Friday, with days off for Memorial Day and Independence Day. He worked 9 hours on most regular work days, 9½ on two days, and 8½ hours on three days, averaging 8.66 hours per day worked. However, like most construction companies, Sun-up's workload varied throughout the year, a point with which Griffin agreed, and Sherm expected that Griffin would average 40 hours per week. This Court finds that Griffin was hired to work 40 hours per week.

         ¶ 18 In its payroll records, Sun-up kept Griffin's "camp pay" or "per diem" separate from his hourly wages.

         ¶ 19 Because Griffin worked only three pay periods before his injury, Associated Loggers calculated his temporary total disability (TTD) rate by multiplying the hours he was hired to work, which it deemed to be 40, by his $16 hourly wage. It did not include the $25 per day worked in "camp pay" or "per diem," nor the value of the rifle Troy gave to Griffin. Thus, it calculated his TTD rate to be $426.69.

         ¶ 20 Griffin returned to work on July 8, 2014, the day following his injury, in modified duty.

         ¶ 21 On August 1, 2014, Griffin was involved in a fight with Hunter in the shop. Griffin claims that he did not instigate the fight; however, the Court finds that Griffin's testimony in this regard was not entirely credible. Hunter was installing titanium underlayment on a roof they were building. Griffin did not think Hunter should have used such an expensive material and that Hunter was not using the correct fastener, though Griffin admitted that it did not matter for this particular application. Nevertheless, Griffin asked Hunter, "What the hell is this shit?" They started arguing, with Griffin criticizing Hunter's work. Hunter got off the roof and began walking out of the shop. Griffin followed Hunter and continued to antagonize him. Hunter was getting angrier and turned around and told Griffin something along the lines of, "I am walking away so I don't thump you." In response, Griffin poked Hunter in the chest and told Hunter that he did not "have to put up with this shit." Hunter grabbed Griffin, and they began pushing and shoving each other. Hunter pushed Griffin down on a welding table and pinned him. Pete Balen, a truck driver who was in the shop, intervened and started separating them. Hunter backed away, but Griffin took a swing at Hunter, landing a glancing blow around Hunter's eyes. Hunter reengaged and pushed Griffin into a pole, and Balen again separated them. Griffin then said, "Nick, you just screwed yourself."

         ¶ 22 This Court finds that Griffin instigated the fight by starting the argument, by following Hunter and antagonizing him when Hunter was walking away, and by poking Hunter in the chest, an action that Griffin knew was likely to elicit a physical response. Moreover, he continued to be ...

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