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Mosca v. American Home Assurance Co.2/13/2004
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on January 22, 2004, in Butte, Montana. Petitioner, Michael E.Mosca (claimant), was present and represented by Mr. Robert G. McCarthy. Respondent, American Home Assurance Company (American), was represented by Mr. William O. Bronson.
Exhibits: Exhibits 1 through 33 were admitted without objection.
Witnesses and Depositions: Michael E. Mosca, Dayleen Mosca, Michael Downey, Sandra Messer, and Kathy Henningsen were sworn and testified. In addition the parties submitted the depositions of Dr. Gus G. Varnavas, Todd D. Mohr, PA, Delores Giacomino, Michael E. Mosca, and Dayleen Mosca for the Court's consideration.
Issues Presented: The issues as set forth in the Pretrial Order are:
4a Whether Petitioner properly notified his employer concerning his injury in a timely manner.
4b Whether Petitioner suffered a workplace injury .
4c Whether Petitioner is entitled to the following benefits:
1) Medical benefits.
2) Temporary total disability benefits.
4d Whether Mr. Mosca is entitled to Occupational Disease benefits and if so in what amount.
(Pretrial Order at 2.)
Bench Ruling: At the conclusion of trial, the Court found as a matter of fact that the claimant suffered either an industrial injury or occupational disease and that American is liable for benefits on account of the injury. The Court further found the insurer's denial of the claim unreasonable, entitling claimant to an award of both attorney fees and a penalty. The present findings of fact, conclusions of law and judgment affirm and amplify the Court's bench ruling.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant is forty-two years old. He was a credible witness.
For approximately two years prior to November 8, 2002, claimant was employed by Spherion, Incorporated in Butte, Montana. Spherion is a temporary employment agency providing temporary workers to businesses.
During his two years with Spherion, claimant actually worked for MRI (Montana Resources), Mungas, and O'Keefe Drilling (O'Keefe). He drove truck for MRI and Mungas. He worked as a driller's helper for O'Keefe.
During the eight months immediately preceding November 8, 2002, claimant worked continuously as a driller's helper for O'Keefe and was paid $8 an hour. He worked full time during that period and sometimes worked overtime. In the fall of 2002, he worked on water wells.
Claimant's work as a driller's helper involved heavy labor. He helped move 20 foot sections of steel pipe into place and handled wrenches and steel plates. Michael Downey (Downey), the driller with whom claimant worked, and who was called by respondent as a witness, confirmed that claimant's job involved frequent heavy lifting, pushing, and pulling. He noted that the pipe sections weighed up to 350 pounds. Even though a wench was used to move the pipe, the driller and driller's helper often had to "manhandle" the pipe into tight spots. Downey testified that dragging and positioning the pipe involved loads of 100-110 pounds even with the assistance of the wench. He also testified that claimant had to lift steel plates weighing 60 pounds each, and that in a single day involving a 300 foot well plates were lifted and moved up to 300 times. In light of his and claimant's testi
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