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Hand v. Uninsured Employers' Fund8/28/2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on March 6, 2002, in Helena, Montana. Petitioner, Dennis Hand (claimant), was present and represented by Mr. Tom L. Lewis. Respondent, Uninsured Employers' Fund (UEF), was represented by Mr. Mark Cadwallader.
Exhibits: Exhibits 1 through 10 were admitted through stipulation.
Witnesses: Claimant, Kathy Brown, Keith Messmer, and Bernadette Rice testified at trial. No depositions were submitted.
Issues: The dispositive issues, as restated by the Court, are:
a Whether the UEF is precluded from asserting defenses to the claim for OD benefits because it did not "appeal" or "cross-appeal" from a February 1, 1999 Order of Determination of the Department of Labor and Industry.
b Whether the claimant's comprehensive general release of his employer bars his claim for OD benefits from the UEF.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant worked as a ranch hand/manager for G. Jon Roush (Roush) for approximately 12 years. He last worked for Roush on or about January 15, 1993. (Uncontested Fact 1.)
During claimant's employment at the ranch, Roush was an uninsured employer within the meaning of section 39-71-501, MCA (1991). (Uncontested Fact 2.)
Around 1984, claimant fell while loading hay and injured one or both of his knees. There is no record of medical treatment at that time. The first mention of the injury is in 1989, when claimant was treated by Dr. Patrick R. Robins. At that time, claimant reported twisting his left knee quite severely four years earlier, following which he developed prominent swelling and pain. (Ex. 8 at 1.) Claimant reported that his symptoms had continued since the 1984 incident. He sought treatment from Dr. Robins in 1989 because his knee had recently "went out on him and became swollen." (Id.) Dr. Robins's impression was "internal derangement, left knee, likely secondary to torn meniscus." (Id.) He recommended arthroscopic surgery, but surgery was evidently not performed at that time.
Claimant did not return to Dr. Robins until September 1992. (Id.) At that time he reported problems with both knees and told the doctor that his right knee sometimes locked. (Id.) Claimant was still managing the ranch, but indicated that work would "end as of the end of next month." (Id.) Dr. Robins recommended outpatient arthroscopic evaluation of both knees. (Id.)
On October 10, 1992, claimant filed a claim with the UEF for a back injury. Bernadette Rice (Rice), the claims adjuster for the UEF, testified that a narrative attached to the October 10, 1992 claim mentioned knee problems arising from a fall in 1983. Rice accepted the back claim but denied liability for any knee injury.
In mid-October 1992, claimant underwent bilateral knee arthroscopy. (Id.) During the next several months, claimant made "gradual improvement" from his surgery. (Id. at 2.)
On March 31, 1993, claimant filed a second claim with the UEF in which he claimed he suffered from an OD of both knees. (Uncontested Fact 3.) Apparently that claim was denied, at least there is no contention that it was accepted, and there is no evidence that claimant did anything further to pursue the claim until 1998, some 5 years later.
Following the filing of the claim, claimant continued to have knee problems. In April 1993, Dr. Robins recommended further arth
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