Law on the road

Montana's workers' compensation law pays employees for injuries suffered on the job, but is it the proper recourse for a woman sexually assaulted at work?

That issue came before the Montana Supreme Court on Friday as the court made its annual appearance in Missoula in conjunction with the University of Montana School of Law.

In September 1997, Katie Onstad worked for a Payless Shoe Store in Billings. While working alone one evening, Onstad was attacked by Timothy Luplow, a Wyoming man who had previously exposed himself to employees at the store where Onstad worked and at another Payless store in Billings. Onstad had only worked at the store for two months before the attack and hadn't been told about the previous exposure incidents.

Onstad was not raped by Luplow but was forced to her knees by the man, who then exposed himself. Onstad was hospitalized briefly for shock but suffered no serious physical injury. She did, however, suffer post-traumatic stress disorder after the incident.

Onstad did not file a workers-comp claim. Her attorney, Cliff Edwards of Billings, claimed Onstad, who was 18 at the time, was barred from such a claim because she didn't suffer a physical injury.

Instead, Onstad sued the Kansas-based shoe store, alleging negligence because the store had no security, no cameras, required women to work alone and failed to notify her about previous incidents, including an armed robbery in February 1997.

The case went to trial in May 1999, and the jury awarded Onstad $1.5 million - $500,000 for compensatory damages and $1 million for punitive damages.

In affirming the jury award, Yellowstone County District Judge Russell Fagg determined that the jury properly found that the previous incidents at Payless should have put the store on notice that some level of security was needed.

In fact, the jury found actual malice on the store's part. That meant the store knew or should have known that the situation at the store - the lack of security at a store having a problem with crime - created a probability of injury to the plaintiff.

Payless then appealed the case to the state Supreme Court.

The central issue on appeal is this: Was Onstad's psychological trauma caused - literally - by a physical injury, or did it arise as a result of being attacked?

In arguments Friday, Payless attorney James Jones tried to couch the issue in such a way as to make it sound that Onstad had been deprived of workers-comp benefits. How could a woman be physically assaulted at work and not be entitled to workers' compensation, Jones said to the court.

Having Onstad's case handled by the workers-comp system would have benefited Payless because those payments are limited only to lost wages and actual medical expenses, an amount that wouldn't come close to the $1.5 million awarded by the Yellowstone County jury.

Jones drew sharp questions from Justice Terry Trieweiler, who wanted specific proof of Jones' claim that Onstad had been injured and that the injury itself caused Onstad's ongoing emotional trauma. Jones had no proof other than evidence that Onstad had a red spot on her neck where Luplow pressed his hand.

Payless mounted a twofold argument Friday, with attorney Thomas Singer claiming that the punitive damages were improperly awarded because malice wasn't proved, and that Fagg had wrongly allowed expert testimony from several police officers.

"This number," Singer said, referring to the compensatory damages, "is completely out of proportion. This is a huge amount of money."

In fact, the award represented one-eighth of one day's profit for the shoe company.

Edwards, Onstad's attorney, put on an argument usually seen at jury trials rather than Supreme Court hearings. He brought Onstad onstage so the justices could see "the real human being" whose life their decision would effect. He used a string of pictures, charts and highlighted testimony to make his point that the assault on Onstad was anything other than a workers-comp case.

Onstad said both legislation and workers-comp rules destined the case for District Court rather than workers-comp court.

The court took the case under advisement and will rule in several months.

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