DENNIS M. GRIFFIN Petitioner
ASSOCIATED LOGGERS EXCHANGE Respondent/Insurer.
Submitted: April 26, 2017
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE
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.
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
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
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
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
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
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
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
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
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
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
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 ...