McColley v. State Fund

• Court: Montana Supreme Court
• Decided: February 23, 1995
• Docket: 94-374
• Status: Published

Opinion

No. 94-374 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

SHARON McCOLLEY, Claimant and Appellant, v. STATE COMPENSATION MUTUAL INSURANCE FUND, RR 23 1995 Respondent and Insurer for CLERK OF 5lJPROME. COURT OMO CONSTRUCTION, INC., SPATE OF MONTANA

Employer.

APPEAL FROM: The Workers' Compensation Court, The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD: For Appellant: Don Edgar Burris, Billings, Montana For Respondent: Thomas E. Martello, State Compensation Insurance Fund, Helena, Montana

Submitted on Briefs: January 19, 1995 Decided: February 23, 1995 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. Sharon McColley (McColley) appeals the decision of the Workers' Compensation Court denying her claim for workers'

compensation benefits. We affirm.

We find the following issue dispositive:

Did McColley suffer a compensable workers' compensation injury

during the course and scope of her employment on September 28,

1992?

In December 1983 McColley suffered a work-related injury to

her back and neck. Her employer's insurer, State Compensation

Mutual Insurance Fund (State Fund) accepted liability. McColley

received a variety of medical, compensatory and retraining

benefits. She ultimately settled her claim for 500 weeks of

permanent partial disability benefits. McColley experienced

continuing pain in her back and neck and was classified as having

a 3 percent impairment rating.

McColley returned to work as a laborer in July 1990. After

approximately one week on the job, McColley suffered another work-

related injury. Her employer's insurer, Industrial Indemnity,

accepted liability. McColley received disability benefits and

ultimately settled her claim in March 1992 for 465 weeks of

permanent partial disability benefits. Her impairment rating was

increased to 7 percent. McColley again experienced continuing

physical impairment in her neck, back and extremities due to the

injury. In September 1992 McColley again returned to work, this time

as a "flagger" on a road construction crew for Omo Construction,

Inc. She worked one twelve-hour day, consisting of long periods of

continual standing holding a traffic control sign. She did not

return to work after the first day McColley claims that she suffered another work-related injury

as a result of gravel trucks "speeding" by her, creating air

currents which buffeted her about. McColley's claim of speeding

trucks was not corroborated but rather was contradicted by various

witnesses present at the job site on the day in question. Despite

frequent contact with her supervisor, McColley did not report the

speeding trucks. Omo's insurer, State Fund, denied liability.

Issue

Did McColley suffer a compensable workers' compensation injury

during the course and scope of her employment on September 28,

1992? Section 39-71-119, MCA (lYYl), in relevant part, states:

Injury and accident defined. (1) "Injury" or "injured" means: (a) internal or external physical harm to the body; (b) damage to prosthetic devices or appliances, except for damage to eyeglasses, contact lenses, den- tures, or hearing aids; or (c) death.

(2) An injury is caused by an accident. An accident is: (a) an unexpected traumatic incident or unusual strain; (b) identifiable by time and place of occurrence; Cc) identifiable by member or part of the body affected; and (d) caused by a specific event on a single day or during a single work shift. [Emphasis added.1

3 Pursuant to the terms of this section, a compensable injury must be

caused by an unexpected traumatic incident or unusual strain

The Workers' Compensation Court did not find McColley's testimony concerning the purported speeding trucks credible. The court stated:

After personally observing the claimant, and considering the substance of her t e s t i m o n y , the circumstances surrounding her claim, the demeanor and testimony of other witnesses appearing at trial, and the exhibits, the Court has reached a firm conviction that claimant is not credible and her description of what occurred is not believable. I am persuaded that the trucks going by claimant on September 28 were traveling at 20 to 25 miles per hour and that no significant wind currents or buffeting occurred.

We will not reweigh the evidence presented at trial and will uphold

the findings of the Workers' Compensation Court if they are

supported by substantial credible evidence. Nelson v. Semi-Tool,

Inc. (1992), 252 Mont. 286, 829 P.2d 1; Buckentin v. State

Compensation Insurance Fund (1994), 265 Mont. 518, 878 P.2d 262.

We review the conclusions of the Workers' Compensation Court to

determine if the court's interpretation of law is correct.

Stordalen v. Ricci's Food Farm (1993), 261Mont. 256, 862 P.2d 393. After a thorough review of the record, we conclude that the

findings of the Workers' Compensation Court were supported by

substantial credible evidence and that its interpretation of § 39-

71-119, MCA (19911, was correct. State Fund presented evidence

from individuals working at the construction site on September 28,

1992. Omo's traffic control supervisor and another flagger

testified that the gravel trucks were not traveling at a high rate

4 of speed through the construction zone. Witnesses also testified that the road's general state of disrepair and the operation of

various other pieces of heavy machinery in the vicinity prohibited

the gravel trucks from speeding. Various supervisors who would have been notified of dangerous activities such as speeding trucks

testified that they received no complaints concerning the operation

of the gravel trucks on the day in question. State Fund's witnesses provided substantial credible evidence

that the gravel trucks were not operating at a high rate of speed

through the construction zone on September 28, 1992. Therefore,

there was no unexpected traumatic incident or unusual strain as required by § 39-71-119, MCA (1991). Based on our holding as to

this issue, we need not address the other issues raised on appeal.

We affirm the decision of the Workers' Compensation Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Montana Supreme Court and by a report of its

result to the State Reporter and West Publishing Company.

5 we concur:

6 February 23, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the following named:

Don Edgar Burris, Esq. P.O. Box 2344 Billings, MT 59103-2344

Thomas E. Martello, Legal Counsel State Compensation Ins. Fund P.O. Box 4759 Helena, MT 59604-4759

ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA