NO. 91-279
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
CHARLES T. KILLEBREW,
Claimant and Appellant, 8 Fa.-?9
V. :3 &x4
m
2d.:,>a?t I;%*.;,:, '
LARSON CATTLE COMPANY,
AJ63 P 1992
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy W. Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Paul E. Toennis argued, Toennis Law Firm,
Billings, Montana
For Respondent:
Jerrold F. Nye argued, Nye & Meyer, Billings,
Montana; Daniel B. McGregor, Legal Counsel,
Department of Labor and Industry, Helena, Montana
For Amicus Curiae:
Charles G. Adams argued, State Compensation
Mutual Insurance Fund, Helena, Montana:
Michael P. Heringer, Brown Law Firm,
Billings, Montana
Submitted: December 10, 1991
Decided: August 31, 1992
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On June 13, 1990, the Uninsured Employers Fund of the
Department of Labor and Industry issued an order requiring that the
Larson Cattle Company pay workers' compensation disability benefits
to Charles Killebrew, the claimant. On June 26, 1990, the employer
denied liability for disability benefits and requested mediation
under 5 39-71-2401, MCA. On December 17, 1990, a hearing examiner
for the Department of Labor and Industry concluded that claimant
was not entitled to disability benefits because he had not given
adequate notice under 5 39-71-603, MCA (1987). That decision was
affirmed by the Workers' Compensation Court on May 9, 1991.
Claimant appeals from the judgment of the Workers' Compensation
Court. We reverse and remand for further proceedings.
The issue on appeal is whether the information which claimant
alleges he provided to his employer was sufficient to satisfy the
notice requirements under 3 39-71-603, MCA (1987).
FACTUAL BACKGROUND
Claimant went to work for his employer as a ranch hand during
July 1989 and worked in that capacity until mid-May 1990.
Claimant testified that while working for his employer on
December 17, 1989, he was operating a tractor when he was forced
off the road by a pickup approaching him in the opposite direction.
As a result of this accident, the tractor was tipped over on its
side. Claimant testified that when the tractor hit the ground it
jerked his hands loose from the steering wheel and he fell against
the side of the cab, striking his shoulder.
2
Claimant testified that he saw his employer, Clifford Larson,
on either the day following the tractor accident or two days later.
He testified that he told Larson about the accident, stating, "I
hurt my shoulder a little bit, but I said you know 'I'm okay it's
no big deal I don't think."'
Claimant testified that he then continued to perform his ranch
duties, but that as time passed his shoulder became increasingly
uncomfortable, his use of that shoulder became increasingly
limited, and he finally went to a physician on February 14, 1990.
The medical records of R. R. Whiting, M.D., a physician in
Hardin, indicate that he first examined the claimant regarding the
shoulder injury on February 14, 1990. Dr. Whiting's records
indicate that on that occasion claimant stated that he had injured
the shoulder when he was operating a tractor which overturned. Dr.
Whiting diagnosed a rotator cuff tear which he concluded was
causally related to the accident that claimant had described. The
shoulder injury was later diagnosed by an orthopedic surgeon as an
impingement syndrome for which surgery was performed on August 10,
1990.
On May 15, 1990, as a result of his shoulder injury, claimant
filed a written claim for compensation pursuant to fj 39-71-601,
MCA .
Claimant's employer, Clifford Larson, testified that on the
date of claimant's tractor accident he came out to the ranch, saw
the tractor lying on its side, and knew that claimant had been
involved in an accident. However, he denied that claimant had ever
3
advised him of any injury or physical discomfort resulting from
that accident.
On March 17, 1990, while attempting to tag a newborn calf for
his employer, claimant was run into and then run over by a cow. He
testified that he was generally beat up and bruised as a result of
the experience. However, he did not seek immediate medical
attention.
Claimant testified that on the day following the incident with
the cattle he told his employer he had been beaten up by a couple
of cows and that he showed his employer the physical marks on his
body which resulted from that experience. He did not describe any
specific injury to his employer, and there is no evidence that he
was aware of any specific injury at that time.
After being run into and over by the cattle, claimant's knee
began to swell. He packed it with ice for a period of time and
tried to continue working. However, when the ice did not relieve
the swelling, he went to see Dr. Whiting for treatment of his knee
injury. Dr. Whiting's records indicate that he first examined the
claimant regarding a knee and ankle injury on April 19, 1990. He
referred him for further diagnostic exams and an evaluation by an
orthopedic surgeon in Billings. That surgeon diagnosed a tear of
the medial meniscus in the right knee and an impingement syndrome
on the right ankle. Surgery was performed on the right knee on
June 13, 1990, and on the right ankle on August 10, 1990.
4
As a result of his knee and ankle injuries, claimant filed a
claim for compensation on May 15, 1990, pursuant to 5 39-71-601,
MCA .
Clifford Larson acknowledged that in March 1990 he was aware
that his employee had been "in a wreck with the cows." However, he
denied having been advised that claimant was injured as a result of
that incident.
Because Larson carried no workers' compensation insurance,
claimant entered into an agreement with the Uninsured Employers
Fund of the Department of Labor and Industry which authorized the
Fund to recover benefits it paid to the employee directly from the
employer.
The Fund ordered Larson to pay to claimant those benefits to
which he was entitled under the Workers' Compensation Act on
June 13, 1990. Larson sought mediation of that order and denied
liability to claimant for several reasons. He contended that
claimant had never been his employee; that any injury claimant
received was sustained while performing work beyond the scope of
his duties; and that claimant never notified him of his injuries
within 30 days as required by § 39-71-603, MCA (1987).
On September 28, 1990, a hearing was held before the hearing
examiner from the Department of Labor. The hearing examiner
considered testimony from the claimant and his employer and several
other witnesses. However, the only testimony regarding the notice
given by claimant to his employer came from Killebrew and Larson.
5
As a result of the evidence produced at that hearing, the
hearing examiner concluded that:
1. There was an employer-employee relationship between
Larson and Killebrew;
2. Claimant injured his shoulder on December 17, 1989, and
his knee and ankle on March 17, 1990;
3. Both of claimant's injuries were related to his
employment by Larson: but that
4. Even though Larson was aware of both accidents within 30
days from the time that they occurred, claimant did not disclose
the nature of his injuries with sufficient specificity to comply
with 5 39-71-603, MCA.
In concluding that the claimant had not satisfied the notice
requirement, the hearing examiner did not specifically resolve the
direct conflict between the testimony of Killebrew and Larson. He
simply drew the following conclusion based on previous language
employed by this Court:
In Lee v. Lee, d/b/a Wilderness Ranch and Lodqe, 234
Mont. 197, 761 P.2d 835 (1988), the Supreme Court adopted
the standard set forth in 3 Larson, Sec. 78.31(a) (2), pp.
15-126 to 15-136 (1988), which states:
It is not enough, however, that the
employer, through his representatives, be
aware that claimant "feels sick", or has a
headache, or fell down, or walks with a limp,
or has a pain in his thumb, or has suffered a
heart attack. There must in addition be some
knowledge of accompanying facts connecting the
injury or illness with the employment, and
indicating to a reasonably conscientious
manager that the case might involve a
potential compensation claim.
6
Though there is conflicting evidence, it is found as
fact Mr. L [Larson] was aware of the accidents within the
statutory time period set forth in § 39-71-603, MCA. The
information imparted to him, however, would not meet the
standards of notification cited in Lee, s u m a , and set
forth in Section 603. While being aware of the
accidents, constructive knowledge of the injuries which
resulted from those accidents cannot be imputed to him.
It was incumbent upon Mr. K [Killebrew] to advise his
employer of the specific injuries in a timely manner, but he
failed to do so. [Italics added.]
It is not clear, therefore, whether the hearing examiner found
that Killebrew had given Larson no description of any physical
consequences from the accidents he described, or whether the
hearing examiner simply concluded that, presuming Killebrew's
testimony was true, his description of his injury was inadequate.
The Workers' Compensation Court affirmed the decision of the
hearing examiner for the following reason:
We cannot conclude that the hearing examiner abused
his discretion on the basis argued by the claimant, since
the claimant never reported anv injury within the 30-day
period.
However, as pointed out previously, it is not clear that that
is in fact what the hearing examiner found.
The Workers' Compensation Court went on to conclude that since
no notice of any injury had been given to the employer within the
30-day period required by 5 39-71-603, MCA (1987), claimant's claim
was barred pursuant to our decision in Rei1 v. Billiiigs Processors, Ztzc.
(1987), 229 Mont. 305, 746 P.2d 617, in which we held that "latent
injuries" did not exclude strict compliance with the notice
requirements of 5 603.
7
On appeal, claimant contends that the hearing examiner and the
Workers' Compensation Court misconstrued the nature of the notice
that is required under § 39-71-603, MCA. Claimant contends that
the hearing examiner was incorrect as a matter of law pursuant to
our decision in Wight v Hughes Livestock Co., Inc. (1981), 194 Mont. 109,
.
634 P.2d 1189, and Wi~oitv.SLiitRiverCaftleCo.(1983), 206 Mont. 63, 670
P.2d 931.
The employer, on the other hand, contends that claimant simply
seeks to toll the notice requirements under 5 603 on the basis that
his injury was latent and that our decision is controlled by our
prior decision in Rei1 and Roessel v. Riveridell of Billings (1990), 244 Mont.
175, 797 P.2d 174.
STANDARD OF REVIEW
On appeal from the decision of the hearing examiner for the
Department of Labor and Industry, claimant did not challenge the
hearing examiner's findings of fact. He challenged the hearing
examiner's application of the law as set forth in Lee to the facts
in this case.
We have previously held that when reviewing conclusions of law
by an agency, the Workers' Compensation Court, or a trial court, we
will review those conclusions to determine if they are correct.
Steerv. DOR (1990), 245 Mont. 470, 803 ~ . 2 d
601, 603.
DISCUSSION OF LAW
Section 39-71-601, MCA (1987), provides a statute of
limitations for filing claims for disability benefits under the
8
Workers' Compensation Act. Written claims for benefits must be
filed within 12 months, unless extended by the Department of Labor
and Industry for a latent injury or unknown disability. However,
we have previously held that under § 601, in cases of latent
injury, the time for filing does not begin to run until the
claimant does or should recognize the nature, seriousness, and
compensable character of his injury. Bowermait v. State Compensation Fuizd
(1983), 207 Mont. 314, 673 P.2d 476.
Section 39-71-603, MCA (1987), is the "notice" provision of
the Workers' Compensation Act. It provides as follows:
No claim to recover benefits under the Workers'
Compensation Act, for injuries not resulting in death,
may be considered compensable unless, within 30 days of
the occurrence of the accident which is claimed to have
caused the injury, notice of the time and place where the
accident occurred and the nature of the injury is given
to the employer or the employer's insurer by the injured
employee or someone on the employee's behalf. Actual
knowledge of the accident and injury on the part of the
employer or the employer's managing agent or
superintendent in charge of the work upon which the
injured employee was engaged at the time of the injury,
is equivalent to notice.
We have previously held that unlike 5 601, the notice
requirement of 5 603 is not tolled where the employee is unaware of
the severity or compensable nature of his injury. Reil v Billiizgs
.
Processors, IIZC. (1987), 229 Mont. 305, 746 P.2d 617; Roessel v. Riveitdell of
Billings (1990), 244 Mont. 175, 797 P.2d 174.
It is the Reil and Roessel decisions which the employer contends
are controlling in this case. However, neither case presented a
factual situation similar to the one in this case.
9
In ReiI, the employer was generally aware of complaints of
discomfort by the claimant. However, the employer was not provided
with any notice that those complaints of pain or discomfort were
related to any accident that occurred during the course of
claimant's employment, or to any work related activities until well
after the time for providing notice under 5 603.
In Roessel, the employer was not provided with notice of any
work-related accident or of the claimant's complaints about
physical discomfort until after the 30-day period of time provided
for under 5 603.
In other words, in neither Rei1 nor Roessel was the employer
provided with notice of an accident or activity which could have
led to injury so that it could protect itself by prompt
investigation of the accident and providing whatever medical
examination or treatment was necessary for the claimant.
In this case, it is undisputed that the employer was aware of
both accidents which are the basis for claimant's claims for
compensation. Furthermore, if the claimant's testimony is
believed, then the employer was also provided with all the
information available to the claimant at that time regarding the
physical impact of these accidents on the claimant. We are not
presented, in this case, with a situation where the employer did
not have notice which would enable him to promptly investigate the
accident or secure the necessary examination and treatment of the
claimant. The question in this case is whether, if the claimant's
10
testimony is correct, the description of his injuries was adequate
to meet the requirements of 5 603.
Our decision is controlled by our previous decision in Wight.
In that case, claimant was injured while doing ranch work when he
was pinned between the steering wheel on the tractor that he was
driving and an uplifted front-end loader of another tractor. He
originally reported only injuries to his ribs and chest. Two years
later he filed an additional claim for benefits alleging that he
sustained injuries to his back in the same accident. Benefits were
denied on the basis that he had not notified his employer of the
specific injury for which he sought benefits as required under
5 39-71-603, MCA. In affirming the Workers' Compensation Court's
judgment for the claimant, we held that:
'#Thepurpose of the notice requirement ... is to
enable the employer to protect himself by prompt
investigation of the claimed accident and prompt
treatment of the injury involved with a view toward
minimizing its effects by proper medical care." Bender v .
RouizdupMiiiingCo. (1960), 138 Mont. 306, 313, 356 P.2d 469,
473. The purpose underlying the requirement for early
reporting of injuries was fulfilled in this case. The
claim form submitted by Wight provided the insurer with
all the information it needed to enable it to investigate
the accident and determine the extent of Wight's
injuries .
Wight, 634 P.2d at 1189.
We arrived at a similar conclusion in Wilsoit where the claimant
originally only reported an injury to his leg, but later filed a
claim for disability benefits due to a back injury arising out of
the same accident.
11
Based on these decisions, we conclude that the requirements of
5 39-71-603, MCA (1987), are satisfied when an employee who is
involved in a work-related accident reports that accident to his
employer within 30 days from the date of its occurrence and
apprises his employer, to the best of his ability, whether he
suffered any adverse physical consequences from that accident. An
employee who has a reasonable belief at the time of an accident
that he has suffered no injury which will require treatment or is
otherwise compensable, is not barred from recovery under 5 603
because he learns otherwise beyond the 30-day period.
Following his December 17, 1989, tractor accident, claimant
testified that he advised his employer he had hurt his shoulder a
little bit butthat he thought it was going to be okay. Following
his March 17, 1990, accident in which he was run into and trampled
on by cattle, claimant testified that he showed his employer the
physical evidence of trauma on his body and that his employer
observed him limping thereafter when he had not limped before.
This information following both incidents was sufficient to enable
the employer to protect himself by prompt investigation of the
accidents and to require prompt treatment or examination for any
injuries that might have resulted from those accidents.
Claimant was not in a position to provide more information
than he described because it was not until after 30 days that his
injury from each of the above accidents worsened to the point where
he sought medical treatment and was informed of the specific causes
for his physical complaints. To interpret the requirements of
12
1
g 603 any more strictly than we have would defeat the public policy
objective for the Workers' Compensation Act as set forth in
I 5 39-71-105(1), MCA (1987). That section provides that:
It is an objective of the Montana workers'
compensation system to provide, without regard to fault,
wage supplement and medical benefits to a worker
suffering from a work-related injury or disease.
That objective cannot be accomplished if we construe 5 603 so
narrowly that it erects insurmountable barriers to collection of
disability benefits, when they are unrelated to any legitimate
public policy.
However, in this case, the factual dispute created by the
testimony of the claimant and his employer was not resolved by the
hearing examiner. We cannot determine from his findings and
conclusions whether he accepted the claimant's description of the
notice given to his employer and simply concluded that it was
legally inadequate, or whether he accepted the employer's testimony
that no notice was given of any physical consequences from the
accidents that occurred. The hearing examiner concluded that under
our decision in Lee, that vague complaints or ill health were not
sufficiently specific to satisfy the requirements of g 603.
However, the Lee decision has no bearing on the issue presented in
this case. In that case, claimant was employed by his father who
operated an outfitting business. He was injured at about 2 a.m.
when thrown out of the back of a friend's pickup while returning
home from a bar. His father was aware of the accident and
injuries, but unaware of the son's claim that he was working on his
13
father's behalf at the time of the injury. The issue in that case
was whether 603 required notice that an accident and injury are
work related. That case had nothing to do with how specific a
claimant's description of his injuries has to be in order to
satisfy 5 603.
For these reasons, the judgment of the Workers' Compensation
Court is reversed, and this case is remanded to the hearing
examiner for the Department of Labor and Industry for the purpose
of resolving the factual dispute created by the testimony of the
claimant and his employer. After entering findings regarding the
substance of claimant's notice to his employer, or the extent of
the employer's actual knowledge regarding claimant's accident and
injury, judgment shall be entered which is consistent with the rule
set forth in this opinion.
Reversed and remanded.
We concur:
Chief Justice
$
14
Justices
15
Justice Fred 3. Weber specially concurs as follows:
I agree with the conclusion of the majority opinion that the
hearing examiner failed to resolve the factual dispute regarding
notice of the injury which resulted from the conflicting testimony
of the claimant and employer. As a result, I agree that it is
appropriate to remand in order to resolve that factual dispute. I
therefore concur in the reversal and remand.
The majority opinion analyzes the claimant's testimony and
concludes that the information furnished by the claimant
establishedthat both incidents involving injury were sufficient to
enable the employer to protect himself by prompt investigation of
the accident. I point out there are no findings of fact by the
Workers' Compensation Court on this testimony. It is the absence
of this factual determination by the lower court which has required
the majority to reverse and remand. Under those circumstances, I
conclude it is not appropriate to reach the factual conclusion upon
which the majority opinion is founded.
Because there has been no factual determination, I conclude
that it is inappropriate to reach the central conclusion of the
majority opinion which is stated as follows:
Based on these decisions, we conclude that the
requirements of 5 39-71-603, MCA (1987), are satisfied
when an employee who is involved in a work-related
accident reports that accident to his employer within 30
days from the date of its occurrence and apprises his
employer, to the best of his ability, whether he suffered
any adverse physical consequences fromthat accident. An
employee who has a reasonable belief at the time of an
accident that he has suffered no injury which will
16
require treatment or is otherwise compensable, is not
barred from recovery under 5 603 because he learns
otherwise beyond the 30-day period.
Because the foregoing conclusion is not based upon facts presented
to us, it is advisory in nature. It appears to expand our holdings
from previous cases. I do not concur in that conclusion.
I also disagree with the conclusion that under there is
nothing which has any bearing on this case. It was in Lee that
this Court adopted the following standard from Larson:
It is not enough, however, that the employer,
through his representatives, be aware that claimant
"feels sick", or has a headache, or fell down, or walks
with a limp, or has a pain in his back, or shoulder, or
is in the hospital, or has a blister, or swollen thumb,
or has suffered a heart attack. There must in addition
be some knowledge of accompanying facts connecting the
injury or illness with the employment, and indicating to
a reasonably conscientious manager that the case might
involve a potential compensation claim.
Because we do not yet have the factual determination from the trier
of fact, I do not find it appropriate to state that the quotation
Chief Justice 3 . A. Turnage:
17