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McGuin v. State Compensation Insurance Fund12/16/1999
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on Monday, May 24, 1999, in Kalispell, Montana. Petitioner, Bradley H. McGuin (claimant), was present and represented by Ms. Sydney E. McKenna. Respondent, State Compensation Insurance Fund was represented by Mr. Greg E. Overturf.
Exhibits: Exhibits 1, 3 through 11, and 13 through 20 were admitted without objection. Exhibit 2 was admitted, with the exclusion of pages 249-254 as being irrelevant. Exhibit 12 was admitted over the State Fund's objection.
Witnesses and Depositions: Claimant, Kitty Presnell, and Richard William Emerson were sworn and testified. Depositions of Dr. Peter G. Von Doersten, Dr. Karl Oehrtman, Sheriff Daryl Anderson, Steven Linton, and David Holzer were submitted for the Court's consideration. Pursuant to leave granted by the Court, a post-trial deposition was also taken of Dr. David A. Youngblood. That deposition was filed with the Court on July 19, 1999, at which time the case was deemed submitted for decision.
Issues Presented: The following issues, as restated by the Court, are presented for decision:
1. Did claimant sustain an industrial injury during a dive training school he attended between June l6 and 20, 1986?
2. Did claimant provide his employer with notice of his alleged injury within the time prescribed by section 39-71-603, MCA?
3. Is the claim barred by the statute of limitations, section 39-71-601, MCA (1985)? If so, was the statute of limitations tolled by reasonable excuse due to a latent injury ?
4. If claimant suffered an injury between June 16-20, 1986, was his injury materially and substantially aggravated by dives in 1988 and/or 1991?
Bifurcated and reserved for decision in the event that the Court finds that claimant's petition is barred by sections 39-71-601 and/or 39-71-603, MCA, is the following, fifth issue:
5. If the Workers' Compensation Act, specifically sections 39-71-601 and 603, MCA (1985), bars claimant's claim then is he denied due process as guaranteed by the Montana Constitution Article II section 17 and are his constitutional rights violated under Montana Constitution Article II section 16?
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 is 49 years old. He has an associate of arts degree in law enforcement and a bachelor of science degree in sociology.
Claimant is a credible witness.
In 1979 claimant was hired as a deputy sheriff for Lincoln County, Montana, and assigned to Eureka, Montana. He worked in that position until June 22, 1997.
As part of his training while a deputy sheriff, claimant attended law enforcement schools in water search and rescue.
Claimant's initial training in scuba diving actually occurred prior to his employment in law enforcement. In 1971 he took a YMCA scuba diving course in Spokane, Washington. (McGuin Dep. at 26; Dep. Ex. 2.) During the course he successfully completed a dive to a depth of 100 feet. (Id.) He thereafter participated in a number of dives. (Id.)
In 1985 claimant attended a course called Dive Rescue I. The course involved classroom instruction and dives in ponds. Claimant was taught techniques for underwater searching and use of rope. (McGuin Dep. at 16.) He completed the schooling and dives without difficulty.
In June 1986 claimant attended Dive Res
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