NO. 94-014
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
JAMES D. LARSON,
Petitioner and Appellant,
v.
BARRY SMITH LOGGING, INC.,
Employer,
NIV 7 4 1994
and
STATE COMPENSATION INSURANCE FUND,
STATE OF MONTANA
Defendant and Respondent.
APPEAL FROM: Workers I Compensation Court, The
Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Timothy J. Lape, Attorney at Law,
Missoula, Montana
For Respondent:
Susan C. Witte, Legal Counsel,
State Compensation Insurance Fund,
Helena, Montana
Submitted on Briefs: August 11, 1994
Decided: November 14, 1994
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Petitioner James D. Larson appeals the judgment of the
Workers' Compensation Court entered December 17, 1993, which
concluded that because Larson failed to provide his employer with
notice of his alleged injury within the 30 days prescribed by
5 39-71-603, MCA, he was not entitled to benefits.
Affirmed.
We state the issue as follows:
Is there substantial evidence to support the Workers'
Compensation Court's decision that Larson was not entitled to
benefits?
Larson is 42 years old and has worked in the timber industry
for 20 years. For 14 of those 20 years, Larson has worked as a
sawyer. Barry Smith Logging employed Larson as a sawyer from
January 1992 to June 5, 1992. Larson alleges he injured his back
on April 9, 1992, while working for Barry Smith Logging at a timber
site near Schwartz Creek. At the time of the alleged injury, Barry
Smith Logging was insured by the State Fund.
On the same day as the alleged injury, Larson told John
Rockenbaugh, a co-sawyer working at the Schwartz Creek site, that
he had "taken a bad spill" and was "feeling kind of poorly."
Larson began a series of four chiropractic treatments
beginning April 17, 1992, and ending May 1, 1992. Larson paid for
the treatments and did not submit a first report of treatment to
the State Fund until early June 1992.
2
On May 18, 1992, 39 days after the April 9, 1992, accident,
Larson notified his employer, Barry Smith, of the alleged injury.
Larson filed a written claim for workers' compensation on
June 3, 1992. On June 24, 1992, the State Fund denied Larson's
claim because Larson failed to notify his employer of his injury
within 30 days.
On June 8, 1993, Larson filed a petition with the Workers'
Compensation Court. A trial was held on September 22, 1993, and
judgment was entered on December 17, 1993. The court concluded
that Larson was not entitled to benefits because he failed to
provide his employer with notice of the alleged injury within
30 days pursuant to 5 39-71-603, MCA. Larson appeals the decision
of the Workers' Compensation Court.
IS there substantial evidence to support the Workers'
Compensation Court's decision that Larson was not entitled to
benefits?
On review, this Court will not substitute its judgment for
that of the Workers' Compensation Court and will uphold its
findings if there is substantial evidence to support them.
Reeverts v. Sears (Mont. 1994), 51 St. Rep. 894, 895; Buckentin v.
State Fund, (Mont. 1994), 818 P.2d 262, 263, 51 St. Rep. 656, 657;
Plainbull v. Transamerica Insurance (Mont. 1994), 870 P.2d 76, 80,
51 St. Rep. 181, 184; Houts v. Kare-Mor, Inc. (1993), 257 Mont. 65,
68, 847 P.2d 701,703. "We will uphold the court's conclusions of
law if its interpretation of the law is correct." Reeverts, 51
St. Rep. at 895; Stordalen v. Ricci's Food Farm (1993), 261 Mont.
3
256, 257, 862 P.2d 393, 394; Martelliv. Anaconda-Deer Lodge County
(19931, 258 Mont. 166, 167, 852 P.2d 579, 580.
Larson notified his employer, Smith, of the injury 39 days
after sustaining it on April 9, 1992. On the day of the accident,
Larson told co-worker John Rockenbaugh that he had "taken a bad
spill." Larson maintains that he informed Rockenbaugh of the
injury, rather than his employer, because believed that Rockenbaugh
was a managing agent or superintendent in charge of the work site.
Larson asserts that by informing Rockenbaugh of the injury, he
satisfied the 30 day notice requirement of § 39-71-603, MCA, which
provides:
N o claim to recover benefits under the Workers'
Compensation Act, for injuries not resulting in death,
may be considered compensable unless, within 30 days
after 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.
The record shows that Smith is the sole owner and the only
managing agent or superintendent at Barry Smith Logging. The
company office is located in Smith's home. John Rockenbaugh was
employed by Smith as a sawyer. Both Rockenbaugh and Larson were
paid by the piece, and as sawyers, they performed the same tasks.
There is nothing in the record to show that Rockenbaugh was
employed as a supervisor or that he supervised Larson's work on
April 9, 1992.
4
Larson argues that if Rockenbaugh was not a managing agent or
superintendent in fact, he was at least an ostensible supervisor.
"An agency is ostensible when the principle intentionally or by
want of ordinary care causes a third person to believe another to
be his agent." Section 28-10-103, MCA. The belief that another is
an agent must be reasonable. Bogle V. State Compensation Mutual
Insurance Fund (1994), 264 Mont. 515, 519, 872 P.2d 800, 802;
Butler Mfg. Co. v. J & L Implement Company (1975), 167 Mont. 519,
527, 540 P.2d 962, 965.
Larson asserts that he reasonably believed Rockenbaugh was a
managing agent or superintendent because Rockenbaugh was the only
person at the work site who gave him instructions. While the
record shows that Rockenbaugh was the only person at the work site
to give Larson instructions, the record also shows that it could
have been Larson giving instructions to Rockenbaugh on April 9,
1992. Smith testified that sawyers usually worked in pairs. Smith
would give the location of the next work site, along with cutting
specifications, to whichever sawyer was handy at the time. Once at
the site, the informed sawyer would then relay the cutting
specifications to the other sawyer. Smith instructed Larson to
meet Rockenbaugh at the Schwartz Creek site on April 9, 1992. Once
there, Rockenbaugh relayed the cutting specifications to Larson.
Thereafter, both sawyers worked independently: were paid based on
their individual work output: and neither supervised the work of
the other.
5
Larson contends that Smith failed to give him any directions
about reporting accidents. Larson contends further that he
reported the injury to Rockenbaugh because Smith was hard to
contact. The record does not support these contentions. Six weeks
prior to the accident in the present case, Larson cut his lip while
on the job and reported that injury directly to Smith at the
company office by telephone within the prescribed 30 days. Larson
then filed an unsuccessful workers' compensation claim as a result
of the cut lip.
There is nothing in the record to suggest that Smith
intentionally or by want of ordinary care held Rockenbaugh out to
be an ostensible agent. Rockenbaugh did not supervise Larson's
work, nor did he hold himself out to be a supervisor. At no time
did either Smith or Rockenbaugh tell Larson that Rockenbaugh was a
supervisor. We note from the record that when asked by a claims
examiner for the State Fund whether he worked with a supervisor he
could have notified about his injury, Larson replied "No."
Larson next argues that the 30 day notice requirement of
c, 39-71-603, MCA, was substantially complied with, and that the
purpose of the statute was satisfied. We have held that the
purpose 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 to minimize its effect. Bender v.
Roundup Mining Co. (1960), 138 Mont. 306, 312-13, 356 P.2d 469,
472. Smith was not able to start investigating the accident until
May 18, 1992, nine days after the allowable statutory period had
6
expired. Larson's four chiropractic treatments ended 18 days
before Smith was notified of the accident. Larson's injury was not
diagnosed until mid-June 1992, after he underwent an MRI 27 days
after Smith should have been notified of the injury. The purpose
of the notice requirement, protection of the employer's interests,
was at least compromised, if not frustrated, by Larson's failure to
report his injury to Smith within 30 days.
As to substantial compliance, the statute clearly states that
no claim shall be considered compensable unless the employer or
employer's insurer is notified within 30 days. Notice under the
statute is mandatory, and compliance is indispensable to
maintaining a claim for compensation. Buckentin, 878 P.2d at 265:
Reil v. Billings Processors, Inc. (1987), 229 Mont. 305, 308, 746
P.2d 617, 619; Masters v. Davis Logging (1987), 228 Mont. 441, 443,
743 P.2d 104, 106.
Larson argues that although he knew that he injured himself on
April 9, 1992, he did not realize the severity of the injury until
30 days had passed, thereby tolling the 30 day notice requirement.
To support his position, Larson relies on Killebrew v. Larson
Cattle Co. (1992), 254 Mont. 513, 839 P.2d 1260. In Killebrew, we
concluded that an employee who reasonably believes at the time of
an accident that he suffered no injury requiring medical treatment,
is not barred by the 30 day notice requirement of 5 39-71-603, MCA,
when he discovers otherwise after the 30 day period has elapsed.
The record shows that following the accident Larson took several
days off from work because of the injury, and that he received a
7
series of chiropractic treatments thereafter. These facts do not
indicate a latent injury. We have held that "'simple ignorance of
compensability, absent any evidence of estoppel by the employer or
medical disinformation [is insufficient] to toll the notice
requirement.'" Buckentin, 878 P.2d at 265 (quoting -I 746 P.2d
Reil
at 623) (alteration in original). There is no evidence in the
record to show that Larson's employer prevented him from reporting
the injury or that he was misinformed about the extent of the
injury by medical personnel.
Larson did not comply with the mandatory 30 day notice
requirement of § 39-71-603, MCA. Based on his past experience,
Larson understood how and when to notify his employer of injury,
and he understood the procedure for filing a workers' compensation
claim. Larson was aware that he suffered an injury and he sought
medical treatment shortly after the accident. The Workers'
Compensation Court concluded, and we agree, that Larson did not
notify his employer within the 30 days as required under
5 39-71-603, MCA.
We hold that there is substantial evidence to support the
Workers' Compensation Court's decision that Larson was not entitled
to benefits.
Affirmed.
8
we concur:
November 14, 1994
CERTIFICATE OF SERVI(x
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Timothy J. Lape
Attorney at Law
P. 0. Box 8164
Missoula, MT 59807-8164
Susan C. Witte
STATE FUND
P. 0. Box 4759
Helena, MT 59604-4759
ED SMITH
CLERK OF THE SUPREME COURT