King v. Credit General Insurance Co.11/10/1999
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on August 26, 1999, in Missoula, Montana. Claimant, Kathleen M. King, was represented by Ms. Sydney E. McKenna. Respondent, Credit General Insurance Company (Credit General), was represented by Mr. Robert E. Sheridan. A trial transcript has not been prepared.
Exhibits: Exhibits 1 through 5 and 7 through 18 were admitted without objection. Exhibit 6 was admitted in part (only the weather report from Westminster Station, Maryland.) Exhibit 19 was admitted for demonstrative purposes only.
Witnesses and Depositions: The depositions of Dennis J. Chute, M.D., Kathleen King, Mark E. Long, Anthony Mack, James H. Oury, M.D., Daniel Joseph Squires, and Stan Wilson, M.D. were submitted for the Court's consideration. James H. Oury, M.D., Stan Wilson, M.D., and Daniel Joseph Squires were sworn and testified at trial.
Issues Presented: The issues presented for decision are restated by the Court as follows:
1. Whether Russell King's death on June 26, 1995 is compensable under the Workers' Compensation Act of 1993?
2. If so, whether claimant should be awarded attorney's fees and costs.
In the event the Court finds against claimant, a third issue is presented. That issue was phrased in the PRETRIAL ORDER as follows:
3. If King's death and/or heart attack are excluded as not compensable under the Montana Workers' Compensation Act, is that a violation of Petitioner's Constitutional right to equal protection under the law?
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
Russell King (King) died on June 26, 1995, at the age of 45. At the time of his death, he was employed as an over-the-road truck driver for TTC Illinois, Incorporated (TTC). Under a leasing arrangement, King was driving a truck owned by Sammons Trucking.
At the time of his death, King was married to claimant Kathleen King. He was survived by six children, three of whom were minors when he died (Philip, Mary and Sarah). Melissa, who was an adult at the time of her father's death, has spina bifida and hydrocephalus and is an invalid.
On June 26, 1995, TTC was insured by Credit General Company under Plan II of the Montana Worker's Compensation Act. Credit General has denied liability for the death claim filed by King's beneficiaries.
Circumstances of Death
On June 26, 1995, around 1:00 p.m., King arrived at the Powrmatic plant in Finksburg, Maryland to pick up heating units. Upon arriving, King unstrapped two folded tarps he carried on the flat bed trailer of his truck. Powrmatic's shipping and receiving employee, Tony Mack (Mack), then brought a forklift along side the trailer and "raised the forks up to the height of the bed right where the tarps were." (Mack Dep. at 39.) He and King then slid the tarps from the trailer onto the forklift. They had no difficulty sliding the tarps onto the forklift (id. at 40) and Mack testified that King did not appear to have unusually exerted himself. (Id. at 58.)
The tarps were made of vinyl with a slick exterior surface. (Squires Tr. Test. And Squires Dep. at 29, 44.) Although weighing 60 to 70 pounds, they slid easily. (Id. at 44.) Mack characterized the tarps as "kind of a light material" and "not really super heavy." (Mack Dep. at 10, 40.)
King and Mack slid the tarps approximately four feet. (Squires Test.)<
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