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Weatherwax v. State Compensation Insurance Fund3/22/2000
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT RESPECTING INJURY VERSUS OCCUPATIONAL DISEASE
The trial in this matter was held on February 22, 2000, in Helena, Montana. Petitioner, Robert J. Weatherwax (claimant), was present and represented by Mr. Thomas A. Budewitz. Respondent, State Compensation Insurance Fund, was represented by Ms. Carrie L. Garber.
Exhibits: Exhibits 1 though 48, 55 and 56 were admitted without objection. Ruling on Exhibit 49 was reserved and is now refused. Page 5 of Exhibit 50 and page 2 of Exhibit 52 were admitted but the other pages of those exhibits were refused. Exhibit 51 and 53 were withdrawn. Exhibit 54 was admitted over objections.
Witnesses and Depositions: Claimant and Vickie R. Hirschi testified. In addition, the parties submitted depositions of Jack Williams and Dr. Thomas L. Schumann for the Court's consideration.
Issues: The Court restates the issues as follows:
1. Did claimant suffer an injury on July 10, 1991, or does he suffer from an occupational disease?
2. If claimant suffers from an occupational disease, does the failure of the Occupational Disease Act to provide an impairment award and permanent partial disability benefits violate claimant's constitutional right to equal protection of the laws?
3. Did claimant suffer a wage loss as a result of his injury or occupational disease?
The second issue was deferred pending a determination as to whether claimant suffered an injury. Since the Court finds that claimant in fact suffered an injury on July 10, 1991, it is unnecessary to address the constitutional challenge. The third issue is deferred until the parties can confer and determine whether additional briefs should be filed.
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 a carpenter and worked for many years as a construction superintendent.
Claimant's Employment with Final Phase
In 1978 claimant's ex-wife, Susan Weatherwax, started up a small company to perform "final cleaning" at construction projects. The company was known and thereafter operated as "Final Phase."
Final Phase initially subcontracted to perform final cleanup at a construction project in Billings, Montana. Claimant was the superintendent supervising the project. At the time he and Susan were not married.
Sometime thereafter the claimant began working for Final Phase.
In 1981 claimant and Susan married. They divorced in 1999 after being separated for several years.
Claimant was a superintendent for Final Phase. He estimated and bid jobs. He also supervised and worked alongside other employees. Susan acted as the company's bookkeeper and financial officer, and performed other administrative functions.
While it appears that claimant and Susan operated Final Phase much like a partnership, it was more likely than not a sole proprietorship of Susan's. Claimant was paid an hourly wage and his wages were reported on W-2 forms. Susan was not paid a wage and took draws, albeit infrequently.
In the mid-1980s, Final Phase began subcontracting for the installation of laboratory fixtures and equipment in chemistry labs. Final phase subcontracted for the work with Kewaunee Scientific Corporation, which manufactured and sold the fixtures and equipment. Its first major project was in 1986 and/or 1987 at the University of Kansas.
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