No. 80-403
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
LARRY PAUL HUNT,
Claimant and Appellant,
-vs-
ÿ RAM^
THE -WEE&&N WILLIAMS COMPANY,
Employer,
and
AETNA CASUALTY & SURETY CO.,
Defendant and Respondent.
Appeal from: Workers' Compensation Court, The Honorable
Jack Green, Judge presiding.
Counsel of Record:
For Appellant:
Keefer, Roybal & Hanson, Billings, Montana
For Respondent :
Anderson, Symmes, Brown, Gerbase, Cebull &
Jones, Billings, Montana
Submitted on Briefs: January 8, 1981
Decided: March 4, 1981
Filed: Rb.R 4 - 1981
M r . J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n of t h e
Court .
L a r r y P a u l Hunt ( H u n t ) a p p e a l s from t h e d e c i s i o n o f t h e
Workers' Compensation C o u r t d e n y i n g h i s c l a i m f o r b e n e f i t s
f o r back i n j u r i e s c l a i m e d t o have b e e n s u f f e r e d w h i l e Hunt
was employed by t h e Sherwin-Williams Company (Sherwin-
Williams). W e a f f i r m t h e decision.
Hunt was employed a s t h e manager o f t h e Sherwin-Williams
p a i n t s t o r e i n M i s s o u l a , Montana, from O c t o b e r 1976 t o
September 1 2 , 1979. Hunt was manager of Sherwin-Williams a t
t h e t i m e of t h e claimed i n j u r i e s . H i s immediate s u p e r v i s o r
was t h e d i s t r i c t manager s t a t i o n e d a t S a l t Lake C i t y , Utah.
Hunt t e s t i f i e d t o t h e f o l l o w i n g i n j u r i e s t o h i s b a c k :
(1) Hunt t e s t i f i e d t h a t he i n j u r e d h i s back w h i l e
l i f t i n g a r o l l o f c a r p e t i n g a t work i n September 1977. He
l o s t no t i m e from work f o l l o w i n g t h i s i n j u r y . A s hereafter
d e s c r i b e d , Hunt g a v e no n o t i c e u n t i l September 1979.
( 2 ) Hunt t e s t i f i e d t h a t h e a g a i n i n j u r e d h i s back a t
work w h i l e l i f t i n g a f i v e - g a l l o n c a n o f p a i n t on November
27, 1978. H e l o s t no t i m e from work. A s hereafter described,
Hunt g a v e no n o t i c e u n t i l September 1979. Hunt t e s t i f i e d t o
l i m i t e d medical treatment a f t e r t h i s i n j u r y . Payment f o r
s u c h t r e a t m e n t was t h r o u g h h i s h e a l t h i n s u r a n c e and o u t of
h i s own p o c k e t .
( 3 ) Hunt t e s t i f i e d t h a t on A u g u s t 1 0 , 1979, w h i l e v a c a -
t i o n i n g i n C a l i f o r n i a , h e h u r t h i s back w h i l e g o l f i n g . Hunt
saw a c h i r o p r a c t o r f o r t r e a t m e n t of t h i s i n j u r y .
( 4 ) Hunt t e s t i f i e d t h a t on A u g u s t 1 9 , 1979, h e i n j u r e d
h i s back w h i l e g o l f i n g i n M i s s o u l a . H e was a d m i t t e d t o S t .
P a t r i c k ' s H o s p i t a l on A u g u s t 21, 1 9 7 9 , and was t r e a t e d f o r a
p e r i o d of e i g h t d a y s f o r h i s back. Hunt d o e s n o t c o n t e n d
these golfing injuries are related to employment by Sherwin-
Williams.
Hunt returned to work for a short time, and resigned
from Sherwin-~illiamson September 12, 1979. Hunt filed for
workers' compensation on September 17, 1979. Sherwin-
Williams first received written notice of the alleged on-
the-job injuries and first obtained actual knowledge thereof
in September 1979. No other written notice was received by
Aetna Casualty & Surety Company (Aetna), the compensation
carrier for Sherwin-Williams.
A workers' compensation hearing was held on February 7,
1980, before Sam Haddon, hearings officer. 'Mr. Haddon
reported that "the record contains no substantial creditable
evidence that the back pain first reported on September 12,
1979 was the result of an injury as that term is defined in
the Workers' Compensation Act." Mr. Haddon also stated that
the record was wholly lacking creditable medical evidence of
a causal connection between the back pain referred to in the
claim for compensation and either of the injuries referred
to in the claim form.
Judge Jack Green, acting Workers' Compensation Judge,
ruled against Hunt. Judge Green made extensive findings,
including findings that until September 12, 1979, Hunt did
not give notice either orally or in writing to his immediate
supervisor or to Sherwin-Williams. He further found that
Sherwin-Williams and Hunt's district manager did not have
actual knowledge of either of the claimed injuries until
September 1979. Judge Green's conclusions of law included
the conclusion that the actual knowledge exception in section
39-71-603, MCA, was not satisfied by Hunt giving notice to
himself. In addition Judge Green made the following con-
clusion of law:
"The Claimant failed to prove, by a preponderance of
probative credible evidence that the back pain for
which the claim for compensation was submitted was
the result of a compensable injury in the course and
scope of his employment with the Employer."
Despite the finding that he suffered no compensable
injury, appellant Hunt raises only one issue on the appeal:
when the employer's managing agent is injured, does the mere
occurrence of the accident and injury constitute actual
knowledge on the part of the employer or his managing agent
so as to satisfy the actual knowledge requirement of section
39L71-603, MCA? That section read as follows at the time of
appellant's claimed injuries in 1977 and 1978:
"Notice of claims for injuries other than death to be
submitted within sixty days--exception--actual notice.
No claims to recover compensation under this [act] for
injuries not resulting in death shall be maintained
unless, within sixty days af ter 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 39-71-602. However, actual
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 equiv-
alent to such service."
Hunt admitted in his testimony that he had not notified
Sherwin-Williams or Aetna in writing (or orally for that
matter) of the injuries which he claimed occurred in September
1977 and November 1978, until September 1979, far beyond the
60-day period required in the statute. Neither Sherwin-
Williams nor Aetna had actual knowledge of the claimed
injuries prior to September 1979, when Hunt resigned and
filed his compensation claim. Hunt argues that if one of
Hunt's subordinates at Sherwin-Williams had injured himself
at work, and if Hunt as manager had obtained actual know]-edge
of t h e i n j u r y , t h e s t a t u t e would have been s a t i s f i e d .
A c c o r d i n g l y , Hunt a r g u e s t h a t h i s a c t u a l knowledge o f h i s
own p e r s o n a l i n j u r y m e t t h e knowledge r e q u i r e m e n t s o f t h e
statute. T h i s argument i g n o r e s t h e purpose of t h e n o t i c e o r
knowledge r e q u i r e m e n t .
"The p u r p o s e o f t h e n o t i c e r e q u i r e m e n t o r a c t u a l knowledge
i n l i e u t h e r e o f i s t o e n a b l e t h e employer t o p r o t e c t h i m s e l f
by prompt i n v e s t i g a t i o n o f t h e c l a i m e d a c c i d e n t and prompt
t r e a t m e n t o f t h e i n j u r y i n v o l v e d w i t h a v i e w toward m i n i m i z i n g
i t s e f f e c t s by p r o p e r m e d i c a l c a r e . " Bender v . Roundup
Mining Co. ( 1 9 6 0 ) , 138 Mont. 306, 313, 356 P.2d 469, 473.
The Bender c a s e f u r t h e r p o i n t s o u t t h a t t h e n o t i c e o r knowledge
p r o v i s i o n o f t h e s t a t u t e i s "mandatory a n d c o m p l i a n c e w i t h i t s
requirements i s i n d i s p e n s a b l e t o t h e maintenance of a claim
f o r compensation." Bender, 356 P.2d 470, and c a s e s t h e r e c i t e d .
I n t h e p r e s e n t c a s e , Hunt c l e a r l y was a n employee o f
Sherwin-Williams. He failed t o give written notice t o
e i t h e r Sherwin-Williams o r A e t n a . Sherwin-Williams had no
a c t u a l knowledge o f a c l a i m e d i n j u r y u n t i l a t l e a s t e l e v e n
months a f t e r t h e s e c o n d c l a i m e d i n j u r y . The r e s u l t was t h a t
n e i t h e r Sherwin-Williams n o r Aetna c o u l d p r o t e c t t h e m s e l v e s
by prompt i n v e s t i g a t i o n o f t h e c l a i m e d a c c i d e n t and prompt
t r e a t m e n t of t h e i n j u r y . W e h o l d t h a t knowledge by Hunt o f
h i s c l a i m e d i n j u r y , e v e n though h e was manager o f t h e M i s s o u l a
s t o r e , d o e s n o t c o n s t i t u t e a c t u a l knowledge by a managing
a g e n t o r s u p e r i n t e n d e n t u n d e r s e c t i o n 39-71-603, MCA.
A p p e l l a n t Hunt h a s n o t t a k e n i s s u e w i t h t h e f i n d i n g by
t h e c o m p e n s a t i o n c o u r t o f t h e a b s e n c e o f compensable i n j u r y .
Hunt f a i l e d t o s u b m i t a m e d i c a l r e p o r t o r m e d i c a l o r o t h e r
evidence t o prove e i t h e r i n j u r y o r a c a u s a l connection t o
employment. " F i n d i n g s of f a c t s h a l l n o t b e s e t a s i d e u n l e s s
c l e a r l y e r r o n e o u s , and d u e r e g a r d s h a l l b e g i v e n t o t h e
o p p o r t u n i t y o f t h e t r i a l c o u r t t o judge t h e c r e d i b i l i t y o f
the witnesses." R u l e 5 2 ( a ) , M.R.Civ.P. W e conclude t h a t
t h e lower c o u r t ' s f i n d i n g o f a n a b s e n c e o f a compensable
i n j u r y was n o t c l e a r l y e r r o n e o u s .
Because Hunt f a i l e d t o p r o v e a compensable i n j u r y and
f a i l e d t o m e e t t h e n o t i c e o r a c t u a l knowledge r e q u i r e m e n t s
o f t h e Workers' Compensation A c t , t h e d e c i s i o n of t h e
compensation c o u r t i s a f f i r m e d .
W e concur: