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Allen v. Travelers Indemnity Co. of Connecticut12/17/2003
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on October 31, 2003, in Missoula, Montana. Petitioner, Kevin Allen, was present and represented by Mr. Randy J. Cox and Ms. Natasha Prinzing Jones. Respondent, Travelers Indemnity Company of Connecticut (Travelers), was represented by Mr. Charles G. Adams.
Exhibits: Exhibits 1 through 6 were admitted without objection. Exhibits 7 and 9 were admitted over objections. Exhibit 8 was withdrawn.
Witnesses and Depositions: Kevin Allen, Karen Stephan, Roberta Douglas, Tim Supola, and Julie Hurd testified. In addition the parties submitted the depositions of Kevin Allen and Dr. Mark Rotar for the Court's consideration.
Issues Presented: The issues as set forth in the Pretrial Order are:
4a. Whether Petitioner suffered an industrial injury arising out of and in the course and scope of his employment on July 30, 2001, while employed by Homes America.
4b. Whether Respondent is liable for benefits under the Workers' Compensation Act?
4c. Whether Respondent's conduct has been unreasonable so as to warrant the award of attorney fees and costs and assessment of a penalty.
(Pretrial Order at 2.)
Bench Ruling: At the conclusion of trial the Court found as a matter of fact that the claimant suffered an industrial injury as alleged and that Travelers is liable for benefits on account of the injury. However, based on the conflicting stories of witnesses, I also held that the insurer acted reasonably in denying benefits. I therefore denied attorney fees and a penalty.
The present findings of fact, conclusions of law and judgment affirm and, to a limited extent, amplify my bench ruling.
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 was employed by Homes America in Missoula, Montana, from April 9, 2001 to August 1, 2003.
On July 30, 2001, claimant worked from 5:00 p.m. to 7:00 p.m. While at work on that date, claimant and Julie Hurd (Julie), who was a co-worker, moved a dresser in one of the model homes at Homes America. The task was within the scope and course of their employment.
According to claimant, he grabbed the bottom of the dresser with his left hand and twisted his shoulder when Julie let go of the dresser. He felt a pull in his shoulder.
Claimant initially thought he had merely pulled a muscle in his shoulder. However, his shoulder became more painful and on August 6, 2001, he sought care from Dr. Don R. Butler, a chiropractor.
Subsequently, claimant was diagnosed by Dr. Mark Rotar, an orthopedic surgeon, as suffering from impingement syndrome of his left shoulder. Dr. Rotar has to date treated claimant conservatively, prescribing physical therapy and at least one injection of steroid and novacain medication. Claimant's shoulder pain has not resolved and in his deposition, Dr. Rotar testified that he now recommends shoulder surgery.
Based on claimant's report concerning the July 30th incident, and the mechanism of the injury described by claimant, Dr. Rotar causally related claimant's impingement syndrome to the July 30th incident.
On July 30, 2001, Homes America was insured by Travelers.
Claimant submitted a claim for compensation with respect to his shoulder. Travelers denied the claim.
At trial Travelers presented testimon
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