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MacNeeley v. Everest National Insurance Company6/12/2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on April 3, 2002, in Great Falls, Montana. Petitioner, Herbert MacNeeley (claimant), was present and represented by Ms. Charla K. Tadlock. Respondent, Everest National Insurance Company (Everest), was represented by Mr. Leo S. Ward.
Exhibits: Exhibits 1, 3 through 10, and 12 through 16 were admitted without objection. Exhibit 2 was withdrawn. Exhibits 11, 17, and 18 were admitted over objection.
Witnesses and Depositions: Claimant, Daniel Johnstone, Sandy Mayernik, and David Barrick testified at trial. In addition, the parties submitted the depositions of Michael R. Yorgason, M.D., Charles Jennings, M.D., and the claimant for the Court's Consideration.
Issues Presented: The issues as set forth in the Pre-trial Order are:
1. Whether Petitioner suffered a compensable occupational disease as a result of his employment with Dick Olson Construction.
2. Whether Petitioner is entitled to temporary total disability benefits beginning on 9/25/00, and continuing to the present.
3. Whether Petitioner is entitled to payment of past and future medical benefits.
4. Whether Petitioner is entitled to future benefits allowed by the Workers' Compensation/Occupational Disease Acts.
5. Whether Petitioner is entitled to his attorney fees, costs, and penalty in this action. (Pre-trial Order at 2.)
Having considered the Pre-trial 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 48 years old. He is a carpenter by trade and has worked in the construction industry for 27 years, all of it as a carpenter except for a short stint as a roofer early in his career.
Claimant moved to Montana approximately five years ago. He has worked for three construction firms in Montana, the latest of which is Dick Olson Construction (Olson). He started working for Olson June 11, 1999. (Ex. 1.)
Sometime in January 2000 claimant experienced a sharp pain in his right wrist while "mudding" drywall on an Olson job. He did not recall it being associated with any specific event, only that he experienced sudden pain while working.
Claimant reported the onset of his pain to Dan Johnstone (Johnstone) the next day. Johnstone is a vice president of Olson. Notice is not an issue in the case.
Claimant continued working but continued to experience pain in his right wrist. Finally, on April 25, 2000, he went to see his family physician, Dr. Mark H. Nicholson. (Ex. 8 at 3.) Dr. Nicholson noted that claimant was complaining his right wrist was "really sore especially after a day of working." He diagnosed tendinitis and prescribed a splint.
Dave Barrick (Barrick), an Olson foreman who has worked for Olson for 25 years, and Dan Johnstone testified that claimant complained about his wrist prior to January 2000. According to Johnstone, he complained "from day 1." They also testified that claimant bragged that he had been in a lot of "tough-man" tournaments and been involved in karate and kick boxing in California. Claimant readily admitted to being involved in one tough man contest four years prior to his symptoms but denied involvement in other tough-man contests or in karate or kick boxing. He also admitted that he had been involved in an incident at the Other Place Bar where he hit his head when pulled off a bar stool but testified that the incident occurred before he went to
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