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Harger v. Montana Contractor Compensation Fund12/26/2003
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial of this matter was held on October 27, 2003, in Helena, Montana. Petitioner, George Stephen Harger (claimant), was represented by Mr. Paul E. Toennis. Respondent, Montana Contractor Compensation Fund (MCCF), was represented by Mr. Bradley J. Luck.
Exhibits: Exhibits 1 through 6, 10 and 11 were admitted without objection. Exhibits 7 through 9 were withdrawn. Exhibits 22 and 23 of the Harger deposition are hearsay and were deemed by the Court as unhelpful.
Witnesses and Depositions: Claimant was the only witness at trial. The parties also submitted the depositions of claimant, Dr. Gregory S. McDowell, Dr. Dean Sukin, Doug Rieker, Douglas Schell, and Duane Pisk for the Court's consideration.
Issues Presented: The issues as set forth in the Pretrial Order are:
Is the insurer liable for the Petitioner's alleged occupational disease filed in this matter?
In the alternative is the Insurer liable for the Petitioner's condition as a workers' compensation injury?
Did the insurer prove sufficient notice of accident or injury pursuant to ยง 39-71-603?
(Pretrial Order at 2.)
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant is sixty-one years of age. He has a two year, Associate of Arts degree in math and physics from a community college.
Claimant has worked as a heavy equipment and construction vehicle operator all his adult life and has operated a wide range of equipment. He is a union member and has the highest equipment operator designation ("A") given by the union. According to claimant, he can operate almost any equipment, although he would need brief training for some equipment. (Harger Dep. at 24.)
At least in recent years, claimant has been dispatched to jobs from the Union Hall of the International Association of Operating Engineers located in Billings.
On April 5, 2001, claimant was dispatched to Empire Sand & Gravel (Empire) for work. He had previously worked for Empire in 1998 and 2000.
Claimant was initially assigned work at Empire's cement plant in Billings. His initial job on April 5th was running a Cat 936, which is a small loader. His job entailed scooping and loading material into hoppers used in making cement.
Claimant testified that the seat and transmission of the Cat 936 were defective. According to claimant, the adjustable shock for the seat was broken and the seat dropped twelve to fourteen inches, bottoming out, when going over rough ground. He also testified that when shifting the transmission the loader abruptly stopped, throwing him against the back of the seat.
Claimant worked ten hours on April 5th. In his deposition he testified that the seat bottomed out "thousands" of times during his shift. (Harger Dep. at 16.) According to claimant, by the end of his shift his "butt was numb, and both legs were hurting and [it was] difficult standing, straighten up, or kind of walking." (Id.) At trial he testified that by the end of the day he had pain of a magnitude of eight on a scale of ten, difficulty walking and standing, back and butt numbness, and difficulty standing straight.
While he worked five hours the next day (April 6th) driving the same loader, claimant testified at trial and in his deposition that there was no doubt in his mind that he was injured on April 5th. (Trial
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