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Harger v. Montana Contractor Compensation Fund12/26/2003
en, and difficulty walking and standing. It also contradicts his further trial testimony that on Monday, April 9th, he was "barely capable of walking."
I must also consider claimant's description of what occurred on April 5th. As noted earlier, he testified that the seat in the loader dropped twelve to fourteen inches and bottomed out; that he drove the loader over rough ground, causing the seat to bottom out "thousands of times"; and that he was also thrown about when shifting the transmission. Both Rieker and Schell testified as to their driving the same loader, Rieker two or three times during the winter of 2001 and Schell on a more regular basis. (Schell Dep. at 6-7; Rieker Dep. at 12.) Both individuals are substantial men: Schell weighs 220 (Shell Dep. at 6.), Rieker weighs 300 (Rieker Dep. at 12). Both men denied that there was a problem with the transmission. (Schell Dep. at 7; Rieker Dep. at 15.) Both denied that the seat bottomed out. Schell noticed no problem with the seat. (Schell Dep. at 6.) Rieker testified that the seat of the loader had only "6 inches of travel from the utmost position to where they are down all the way." (Rieker Dep. at 13.) Shell described the terrain over which claimant drove the loader as "smooth" and Rieker described it as "flat and level." (Schell Dep. at 8; Rieker Dep. at 17.) Based on my assessment of claimant's credibility, and in light of the testimony of Schell and Rieker, I am persuaded that while there may have been problems with the seat of the loader, claimant has grossly exaggerated the problems and has fabricated or exaggerated the problems with the transmission and terrain.
Ultimately, I am unpersuaded that claimant suffered a repetitive injury to his low back either on April 5, 2001 or over the course of two days, April 5 and April 6. He did not report an injury to his employer, going so far as to check the "No" box next to the statement "I was injured" on his time card. Further, his reports to the chiropractor on April 24, 2001, are incompatible with his claim of an injury or occupational disease. Indeed, the history he gave the chiropractor indicates he had a chronic low-back problem which was exacerbated by a long drive to Missoula on Sunday, April 22, 2001. Finally, his testimony concerning the seat bottoming out, the transmission throwing him around, and the rough terrain were not credible.
CONCLUSIONS OF LAW
This case is governed by the 1999 version of the Montana Workers' Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Claimant bears the burden of proving by a preponderance of the evidence that he is entitled to the benefits he seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
An industrial injury is defined in section 39-71-119(2), MCA (1999), as a work-related accident which is:
(a) an unexpected traumatic incident or unusual strain;
(b) identifiable by time and place of occurrence;
(c) identifiable by member or part of the body affected; and
(d) caused by a specific event on a single day or during a single work shift.
The "specific event" language of subsection (1)(d) encompasses repetitive trauma occurring over a single day or work shift. Welch v. American Mine Services, Inc., 253 Mont. 76, 82, 831 P.2d 580, 584 (1992) (foot infection due to abscess which was caused by new boots rubbing claimant's feet during a single work shift is an injury under the criteria id
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