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Harger v. Montana Contractor Compensation Fund12/26/2003
that shortly after April 5th he started wearing a back brace he had from his 1988 injury and that the brace would have been visible to Rieker (and presumably to Fisk).
22 Fisk denied that during 2001 claimant reported any physical problems due to equipment or with his back, or that he ever observed claimant experiencing any physical problems. (Fisk Dep. at 7-9.) Shell similarly denied that claimant ever mentioned any injury or physical problems prior to July 2001. (Schell Dep. at 8, 11.) Schell, who saw claimant several times a day while working in 2001 (id. at 10), was specifically asked if he saw claimant wearing a back brace and he did not (id. at 11). Rieker also denied that claimant ever indicated he was hurt or that he observed claimant with a back brace. While all three testified by deposition, I found claimant's testimony on key points so incredible that lacking confirmation by Fisk, Schell, and Rieker, I do not believe his present claim that he reported he was hurting or that he wore a back brace. Accordingly, I find that claimant not only did not report an injury but he failed to give his supervisors any indication whatsoever that he was hurt in any way.
I now turn to the question of whether claimant was injured at all at work.
Initially, I note that claimant was not candid about his history of prior low-back pain. At trial and in deposition he denied any history of low-back pain. However, his medical records disclose that in 1988 he suffered a low-back injury in addition to a thoracic spine injury. While the thoracic injury was his primary complaint, medical records of Dr. David McLaughlin, the physician treating him for his 1988 injury, document "lumbar spine strain," as well as thoracic strain. (Ex. 2 at 51.) Two years after the 1988 injury, on April 17, 1990, the doctor wrote that "Mr. Harger is still being followed by me for his low-back strain that was acquired during work." (Id. at 52.) In April 17, 1990, Dr. McLaughlin wrote to a State Fund claims adjuster, "Mr Harger is still being followed by me for his low back strain that was acquired during work." (McDowell Dep. Ex. 1.)
Moreover, when claimant initially sought chiropractic treatment on April 24, 2001, for low-back pain he answered a written questionnaire. In his answers he indicated he had "Sciatica or Chronic Back Problems." (Ex. 2 at 18.) He further wrote that he had similar problems for "Life." (Id. at 19.) There is no doubt in my mind that his reference to "lifetime" and "chronic problems" was to "lumbar spine problems" because he specifically wrote "lumbar spine" in response to the question asking, "Where is your pain located?" (Id.)
The chiropractic questionnaire also specifically asked claimant whether his condition was the result of a motor vehicle accident, a job injury or a personal injury. He marked personal injury and underlined "personal." (Ex. 2 at 19.) The claimant also wrote that his pain started "Sunday - April 22 '01." (Ex. 2 at 19.) The chiropractor's office note recorded the onset of pain as on "Sunday driving from Missoula - Ran Loader All day Monday." (Id. at 23; sic.) There is no evidence implicating an on-the-job injury or exacerbation on Monday, April 23rd. Claimant last drove the loader with the bad seat on April 6th. He testified that he did not drive that loader again until three to four weeks later and that the seat had been fixed by then. At trial claimant attempted to explain away the entries in the questionnaire by saying that April 22nd was the date his "real pain" started. This testimony, too, was incredible. It flies in the face of his trial testimony that by the end of the day on April 5th, he had pain of a magnitude of eight on a scale of t
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