No. 13862
IN THE S P E E COUHT O THE STATE O PllON'I3NA
UR M F F
1978
WENZEL HAFU'L,
C l a k t and Respondent,
-VS-
BIG SKY QF MXfI?ANA, INC., Ehployer,
and
Comm UNION ASSURANCE COMPANY,
Defendant-Insurer and Appellant,
and
TRAsIEuRs I
N- CQMPANY,
Defendant-Insurer and Respondent.
Appeal f r m : Wrkers' Ccanpensation Court
Hon. William E. Hunt, Judge presiding.
Counsel of Record:
For Apwllant:
Berg, Angel, Andriolo and Mrgan, B o z m , Wntana
Charles Angel argued, Bozeman, mntana
For Respondents:
Pbrrow, Nash an Sedivy, Bozeman, Wntana
Edrnund Sedivy, Jr. argued, ( H a r t l ) Bozeman, Mntana
m a , Wenz, I m a d Johnson, Great F a l l s , Wntana
Charles Johnson argued, Travelers Ins., Great F a l l s , Wntana
Sutranitted: A p r i l 28, 1978
Decided: June 13, 1978
Filed: June 13, 1978
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendant Commercial Union Assurance Company appeals from
the findings and conclusions of the Workers' Compensation Court.
The Court found claimnant Wenzel Hartl entitled to disability
benefits from Commercial Union, imposed a 10 percent penalty, and
awarded attorney fees to claimant.
Claimant was injured Friday, April 4, 1975, when he slipped
and fell on ice and snow while working for Big Sky of Montana, Inc.
Claimant's son Jay Hartl and another worker were with claimant and
witnessed the accident. Claimant worked the rest of his shift with
considerable discomfort. He did not tell his supervisor, Lehri
Evanson, about the accident, but Evanson testified he heard about
the accident that day.
Claimant's wife called Dr. Frank W. Humberger the next
day. Dr. Hwnberger recommended bed rest and valium for the dis-
comfort. Claimant did not work the next week and had difficulty
even getting out of bed.
On the Monday following the accident, claimant's wife
phoned Lehri Evanson and discussed the accident with him. That
week, claimant's son Jay prepared a written report of the accident
on a form provided by Big Sky. Jay did not sign the form but he
delivered it to the employer. Jay also testified that he discussed
the details of the accident with John McCullough (Evanson's super-
visor) and Gus Raaum, the president of Big Sky. Evanson, M c C U ~ ~ O U ~ ~ ,
and Raaum all visited claimant in the hospital.
Claimant's condition did not improve, so he was taken to
the hospital and surgery was performed by Dr. Hurnberger. The sur-
gery consisted of a wide decompressive laminectomy at two levels
with a fusion involving the L4-L5 and the L5-S1 areas.
Claimant recuperated in the hospital and later at home.
He was able to return to work September 11, 1975, with the under-
standing that he would act only in a supervisory capacity and not
do any bending or lifting. He found that he could not do the
physicial work that was expected, and he was terminated by Big
Sky in March 1976. The stated reason for the termination was a
"reduction in the work force". He has since moved to Idaho and
is employed doing light mechanical work at a reduced wage.
Claimant had other back injuries prior to the April 4,
1975 accident. On May 3, 1973, claimant suffered a ruptured disk
in the lumbar area of his back. Dr. Humberger performed a success-
ful laminectomy on the L4-L5 left side area, and claimant returned
to work with instructions to avoid lifting, twisting, or bending.
He injured the same area again in May 1974, and he again required
surgery very similar to his initial operation. Dr. Humberger saw
claimant again July 29, 1974, and he reported that claimant was
healing properly. Claimant was working about ten hours per day
with minimal lifting, twisting or bending.
Travelers Insurance Company was the insurer for Big Sky
up to December 31, 1974. Since that time, Commercial Union has
been the insurer.
Soon after the April 4, 1975 accident, representatives of
Big Sky informed Mr. Fitzgerald, an agent for Commercial Union,
that there were going to be hospital bills as the result of an
injury to an employee, Wenzel Hartl. Fitzgerald assumed that
this this related to an accident that occurred when Travelers was
the insurer, so he referred the bills to Travelers. Travelers
paid weekly benefits from April 4, 1975 through September 9, 1975.
Claimant filed a claim for compensation with the Workers'
Compensation Division in February 1976. Commercial Union denied
the claim on the basis that there was no record of the injury in
the employer's files. A hearing was requested before the Workers'
Compensation Court. Such hearing was held October 26, 1976.
The Workers' Compensation Court entered its findings and
conclusions April 8, 1977. The Court found Commercial Union solely
liable for the payment of partial disability benefits, and ordered
Commercial Union to reimburse Travelers for the amount Travelers
had paid. The award was increased by 10 percent pursuant to sec-
tion 92-849, R.C.M. 1947, and attorney fees were awarded under the
provisions of section 92-616, R.C.M. 1947.
Two issues are presented to this Court for review:
1. Whether claimant complied with the notice require-
ments contained in section 92-807, R.C.M. 1947, to entitle him to
compensation; and
2. Whether the Court erred in refusing to apportion the
liability between Commercial Union and Travelers.
The first issue may be decided by reference to section
92-807, R.C.M. 1947:
"Notice of claims for injuries other than
death. No claims to recover compensation
under this act for injuries not resulting
in death shall be maintained unless, within
sixty (60) days after the occurrence of the
accident which is claimed to have caused the
injury, notice in writing stating the name
and address of the person injured, the time
and place where the accident occurred, and
the nature of the injury, and signed by the
person injured, or someone in his behalf,
shall be served upon the employer or the
insurer, except as otherwise provided in
section 92-602; provided, however, that ac-
tual knowledge of such accident and injury
on the part of such employer or his managing
agent or superintendent in charge of the work
upon which the injured employee was engaged
at the time of the injury shall be equivalent
to such service."
Claimant contends there was substantial compliance with
the requirement of a written notice, and in any event, there is
evidence of "actual knowledge" within the meaning of the statute.
We decline to rule on the sufficiency of the written report because
we find substantial evidence to support the finding of the Workers'
Compensation Court of actual knowledge on the part of the persons
named in the statute.
The record indicates that claimant's supervisor Evanson
knew about the accident the day it happened, and later discusses
the details of the accident with claimant's wife. Jay Hart1 testi-
fied that he informed Evanson's supervisor and also the president
of Big Sky of the accident and the injury soon thereafter. All of
these officials visited claimant in the hospital.
Commercial Union concedes that these persons fall within
the category of "employer or his managing agent, or superintendent"
but argues that they did not have "actual knowledge" as interpreted
in Maki v. Anaconda Copper Mining Co., (1930), 87 Mont. 314, 287
P. 170. In Maki, the claimant attempted to rely upon the fact that
he informed the safety engineer of the employer corporation of the
accident. This Court held that such "information conveyed" was
insufficient proof of "actual knowledge". The point of Maki, how-
ever, was that such oral information was conveyed to an agent of
the employer who was not an "employer or his managing agent or
superintendent". A holding that such oral notice is sufficient
would have eliminated the requirement of written notice. The Court
stated:
"Again, the record fails to show that any
information imparted by the claimant to the
safety engineer was communicated to the
'employer, managing agent, or superintendent.'
Of course, a corporation can only have such
actual knowledge as is possessed by its agents,
but our statute declares, in this instance,
the actual knowledge of what agents shall be
deemed the knowledge of the employer." 87
Mont. 322.
In the instant case, the information was conveyed to the
agents specified in the statute, and they thereby acquired actual
knowledge of the accident and the injury. Apparently, Commercial
union's position would require that the specified agent actually
witness the accident before he could be found to have actual
knowledge. We see no basis in reason or precedent for such a
result. We hold the statute was satisfied by the actual knowledge
of the accident and injury on the part~ofEvanson, McCullough and
Raaum .
The second issue involves Commercial Union's contention
that the Workers' Compensation Court erred in refusing to appor-
tion the loss between Commercial Union and Travelers. Commercial
Union was the insurer for Big Sky at the time of claimant's last
accident, but Travelers was the insurer when claimant's other back
injuries occurred.
Commercial admits there is no statutory basis for appor-
tioning loss among successive insurers under the Montana Workers'
Compensation Act, but argues that other states have recognized
apportionment by judicial decision. See: Tri-State Insurance Co.
v. Industrial Cornrn'n, (1963), 151 Colo. 494, 379 P.2d 388; Fire-
man's Fund Indemnity Co. v. State Industrial Accident Comm'n,
(1952), 39 C.2d 831, 250 P.2d 148; Colonial Insurance Co. v.
Industrial Accident Comm'n, (1946), 29 C.2d 79, 172 P.2d 884.
This doctrine has never been recognized in Montana, however, and
we find no compelling reason to adopt it in this case. Such an
issue is properly a question for the legislature.
In this state, "we are committed to the doctrine that the
particular injury must be the proximate cause of the present con-
dition for which the claimant seeks compensation * * *." Newrnan
v. Kamp, (1962), 140 Mont. 487, 495, 374 P.2d 100. Here, the
treating physician did testify that all of claimant's back injuries
contributed to his present condition, and it is impossible to
separate the accidents as to cause of his disability, but he also
testified that the April 4, 1975, injury was a separate and dis-
tinct injury and his present impairment is greater as the result
of it. Following claimant's 1974 surgery and before his April 5,
1975, accident, claimant "got along quite nicely with no signifi-
cant impairment". In view of these facts, we hold the evidence
supports the conclusion that the proximate cause of claimant's
present disability is his injury sustained on April 4, 1975, for
which Commercial Union is responsible.
The judgment of the Workers' Compensation Court is affirmed.
We Concur:
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Justices u