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Andersen v. Zurich American Insurance Company6/26/2003
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on April 11, 2003, in Missoula, Montana. Petitioner, James R. Anderson (claimant), was present and represented by Mr. Howard Toole. Respondent, Zurich American Insurance Company (Zurich), was represented by Mr. James R. Hintz.
Exhibits: Exhibits 1 through 10 and 12 through 15 were admitted without objection. The statement of Thomas Murray in Exhibit 11 was admitted. The other statements in Exhibit 11 were refused and were not considered.
Witnesses and Depositions: James R. Anderson, Jeremy Moore, Dr. John Schumpert, and Thomas Murray testified at trial. In addition, the Court participated by telephone in the depositions of Dr. Kenneth C. Brewington, Dr. Mark G. Weston, Dr. Gregory H. Kazemi, and Brett Hollis, nurse practitioner. Those depositions were transcribed, are part of the record, and are considered in reaching the decision in this case. The deposition of James R. Anderson was also submitted for the consideration of the Court.
Issues Presented: The issues as set forth in the Pretrial Order are:
a Whether Petitioner suffered a compensable injury within the course and scope of employment at Roscoe Steel and Culvert on or about August 1, 2001;
b Whether Petitioner reached MMI from that injury prior to March 17, 2003;
c Whether Petitioner suffered an acute herniated disk at L4-5 with extruded disk material compressing the L5 nerve root on or about August 1, 2001 or in a non-work related accident at the Marshall Mountain ski area in mid March 2002;
d Whether the surgery performed by Dr. Brewington on March 23, 2002 was related to the claimed injury of August 1, 2001; and
e Whether Petitioner is entitled to compensation .
(Pretrial Order at 2.)
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant, who is presently twenty-four years old, was hired by Roscoe Steel and Culvert Company (hereafter, "Roscoe") of Missoula, Montana, on approximately July 1, 2001. He was hired as a welder. His work involved grinding and welding metal.
On or about August 1, 2001, claimant and a co-worker were attempting to turn over a large piece of inch thick steel on which they were working. The steel piece rested on two saw horses. They were using a hoist to lift it, with claimant guiding the piece on one end and his co-worker on the other. The steel piece became unbalanced, swung free of the saw horses, and tilted towards claimant. He attempted to hold onto it but the piece was too heavy. He let go of the steel and it fell to the floor.
Claimant testified that when he dropped the steel it felt like "somebody kicked me in the back." (Trial Test.)
The claimant reported the incident to his supervisor and indicated his "back hurt." (Anderson Dep. at 13.) No accident report was filled out at that time and although claimant testified that his supervisor later offered to have him fill one out he did not recall ever doing so. (Id. at 14-15.)
At that time of the incident, Roscoe was insured by Zurich.
A claim for compensation was completed by claimant on July 11, 2002, and submitted to Zurich. (Ex. 8 at 2-3.) Zurich has denied liability for the claim and has paid no benefits. (Pretrial Order, Uncontested Fact c at 2.) It's denial of liability is premised on its contention that the back condition for w
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