NO. 93-556
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
GREGORY S. BUCKENTIN,
Petitioner and Appellant,
-v-
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: Workers1 Compensation Court
State of Montana
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Torger S. Oaas, Lewistown, Montana
For Respondent:
Thomas E. Martello, State Compensation Mutual
Insurance Fund, Helena, Montana
Submitted on Briefs: April 28, 1994
Decided: July 12, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from a Workers1 Compensation Court decision
denying Buckentin1sWorkers1 Compensation claim because he did not
notify his employer of the injury within 30 days as required by 6
39-71-603, MCA. We affirm.
The sole issue on appeal is whether the claimant, Gregory
Buckentin (Buckentin) failed to report his injury to his employer,
Bost Construction, within 30 days after the occurrence of the
accident as required by 5 39-71-603, MCA.
FACTUAL BACKGROUND
On December 1, 1992, Buckentin was unloading sheetrock for his
employer, Bost Construction, when he injured his back. Buckentin
testified that on the date of the injury in question, he was aware
that he had injured his back when he felt it wpull.ll He had
experienced lower back problems before, requiring at least 6
chiropractic appointments to correct his back. Oftentimes,
however, his back injuries would resolve themselves without
chiropractic adjustments.
The day after the December 1 injury occurred, Buckentin
returned to work and related to a co-worker that he hurt his back.
The co-worker was not an employer nor manager of the company.
Buckentin continued to work until December 18, 1992, when the
entire company commenced a winter break which was to last through
January 4, 1993. He decided to rest his back over the winter break
in the hope that the injury would resolve itself. However, he
continued to feel pain and discomfort from the back injury. He
2
testified that even during the last of work before the break,
"nerves started running down my leg. It was something different
than the other times when I pulled my lower back out.I1
On January 5, 1993, Buckentin and the rest of the company
returned to work. Buckentin was again assigned to unload
sheetrock. This proved extremely painful and he could lghardlysit
in the truckw upon returning from the work assignment. He called
his family physician on that same day and made an appointment for
January 11, 1993. At his medical appointment, the doctor informed
him that he had a herniated disk.
Buckentin informed his employer on January 11 that he had been
injured on December 1, 1992. Buckentin had filled out workersg
compensation claim forms for previous injuries with the company and
he knew that he should report injuries as soon as possible.
Buckentin also testified at trial that he had opportunities to
discuss the December 1, 1992, injury with his employer. In
addition, he had opportunities to inform his employer in writing
about the injury, through daily reports to the employer. He failed
to record his injury in the daily log/record on December 1, 1992,
under the caption, MProblems, Delays and Accidents.Ig
Buckentin filed a petition for an emergency trial on May 13,
1993, contending that he had been injured on December 1, 1992, and
had given proper notice to his employer. A trial was held on
September 8, 1993, in Great Falls, Montana. The Workersg
Compensation Court filed its Findings of Fact, Conclusions of Law
and Judgment on October 19, 1993, concluding that Buckentin failed
to report his injury within 30 days of the injury as required by 5
39-71-603, MCA. Therefore, his claim was barred. This appeal
followed.
STANDARD OF REVIEW
When we review a Workers1 Compensation Courtls decision, we
determine whether it is supported by substantial credible evidence.
Plainbull v. Transamerica Insurance (Mont. 1994), 870 P.2d 76, 80,
51 St. Rep. 181, 184. Where conflicting evidence has been
presented, we examine whether substantial evidence will support the
decision of the Workers1 Compensation Court--not whether the
evidence might have supported contrary findings. Smith-Carter v.
Amoco Oil (1991), 248 Mont. 505, 510, 813 P.2d 405, 408. In
passing, we note that in Bogle v. Ownerrent Rent to Own (1994), 51
%.Rep. 380, 381, - Mont. -, - P.2d , we stated that the
appropriate standard of review for the Workers' Compensation
Courtls findings of fact was whether the findings were clearly
erroneous. Our statement to that effect in Bosle, while it would
not change the result in that case, was in error.
DECISION
Buckentin argues that he did not realize that he had a
herniated disk in his back until after the 30 day notice period had
expired. He asserts that he falls under the Bodily exception to
the requirements of 5 39-71-603, MCA. Bodily v. John Jump
Trucking, Inc. (1991), 250 Mont. 274, 819 P.2d 1262. State Fund
counters that the claimant simply did not comply with the notice
requirement of 5 39-71-603, MCA, and Bodily is not applicable.
Buckentin testified that he was injured unloading sheetrock on
December 1, 1992. At the time of the injury, he felt something
llpullll his lower back and knew that he had injured his back. He
in
did relate the story of his injury to a fellow employee the
following day but did not report the injury to his employer. He
worked, albeit with continued pain, until December 18, 1992, when
the company operations closed down until January 5, 1993.
He stated that he had pain at that time which was not typical
of the previous back problems. He told Dr. Thompson, the family
physician, whom he visited on January 11, 1993, that he had pain
into his leg during the winter break, which was not typical of
previous back injuries. He further stated that he rested during
the winter break, hoping that his back would heal.
He returned to work on January 5, 1993, but he was again
assigned to unload sheetrock and this activity caused considerable
pain so he called the family physician and set up the appointment
for January 11, 1993. He notified his employer of his December 1,
1992, injury on the same day. The notification occurred 41 days
after the day of the accident.
Buckentin knew he injured his back on December 1, 1992.
However, he did not report the injury even though he knew that this
was the standard policy. Buckentin had previous experience with
workers1 compensation claims and thus knew the proper procedure.
He also had numerous opportunities within the 30 day period in
which to notify his employer of the injury sustained on December 1,
1992. Moreover, he had an indication within 30 days of his injury
that this was unlike previous injuries.
Buckentin states that this Court should apply the principles
of Bodilv to the instant case but our analysis leads us to conclude
that Bodilv is inapplicable. Bodily involved a claimant who was
plagued by degenerative changes in his cervical spine which were
accelerated by the repeated trauma to his spine from the jolting
and jarring he experienced as a logging trucker. He had been
previously injured when a log rolled off his truck, causing serious
injuries. He recovered sufficiently from those injuries to return
to work but that injury left him predisposed to the spinal
degeneration which caused him later problems. Eventually, the
claimant could not work at all because of the severe pain.
The claimant's doctor stated that he received a series of
small injuries which cumulatively became a substantial injury and
that although Bodily's spine continued to degenerate over the
entire period he worked for his employer, the onset of the
disabling symptoms could have manifested themselves suddenly.
This Court held in Bodilv that:
[slince claimant's disability was the result of
cumulative traumas which occurred over a period of time,
the date of injury, for purposes of complying with the
notice requirement, is the date on which claimant was
first unable to continue with his employment due to his
physical condition. That date was July 8, 1986.
Applying a liberal construction to S 39-71-603, MCA
(1985), we conclude that by providing his employer with
all the information available to him on that date
regarding the nature of his injuries, the fact that his
condition was aggravated by his employment, and the
nature of job duties which appeared to aggravate his
condition, claimant complied with the Workers'
Compensation Act's notice requirements.
Bodilv, 819 P.2d at 1267, 1268. Bodily had a slowly-developing
injury and because this type of injury does not lend itself to
precise notification, notification was found to be sufficient
because Bodily gave "the employer sufficient information to lead a
reasonably conscientious person to conclude that there may be a
connection between the worker's condition and his job." Bodily,
819 P.2d at 1267.
The present case is easily distinguishable. Buckentin did not
have a slowly-developing injury which made it difficult to provide
precise notice to his employer. His injury occurred in a single
incident, which he indicated was on December 1, 1992, while he was
unloading sheetrock. He testified that when he felt something
*'pull1'in his back on that day, he knew he had been injured.
Moreover, Buckentin, unlike Bodily, failed to keep his employer
apprised of all the information he had available about his injury
nor did he associate his symptoms with activities occurring during
employment. Although he had several opportunities to provide
proper notice of the injuries, Buckentin did not tell his employer
about the December 1 accident until 41 days after the incident
occurred. Also, Bodily's doctor testified that his previous injury
left him predisposed to the cumulative trauma that he suffered over
a period of years; the cumulative trauma being the result of many
small injuries which resulted in a substantial injury. There was
no evidence in the instant case, that Buckentin's previous injuries
were related to or impacted upon by the December 1, 1992 injury.
Further, although Bodilv was decided in 1991, the "date of
injury1' for Bodily occurred in 1986, so the Bodily decision was
based on 1985 law, before § 39-71-104, MCA, was repealed. Section
39-71-104, MCA, stated that the Workers' Compensation Act must be
liberally construed. Buckentin's injury occurred in 1992 and the
applicable statute in effect at that time, 5 39-71-105, MCA, stated
that "Title 39, chapters 71 and 72, must be considered according to
their terms and not liberally in favor of any party." Therefore,
Buckentin is not entitled to the liberal construction of § 39-71-
603, MCA, that was afforded to Bodily.
Section 39-71-603, MCA, provides:
Notice of injuries other than death to be submitted
within thirty days. No 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 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 with [the requirements of the statute] are indispensable
to [maintaining] a claim for compensation ..." Reil v. Billings
Processors, Inc. (1987), 229 Mont. 305, 308, 746 P.2d 617, 619.
Buckentin knew he had injured himself on December 1, 1992, and he
testified that in some respects, it was unlike his previous
injuries which he had been able to overcome more easily. Even
though Buckentin stated he did not report his injury because they
usually improved without medical assistance or with chiropractic
adjustment, and he did not realize the severity of the injury,
I1simple ignorance of compensability, absent any evidence of
estoppel by the employer or medical disinformation [is
insufficient] to toll the notice requirement." IReil 746 P.2d at
623. There is no evidence here that Buckentinlsemployer prevented
him from reporting his injury or that he was misinformed by medical
personnel as to his condition.
Buckentin simply did not follow the proper notification
requirements mandated by 5 39-71-603, MCA. He knew the necessary
procedure for a successful claim for workers1 compensation benefits
from prior experience but did not follow the procedure. We hold
that the Workers1 Compensation Court correctly concluded that
Buckentin simply did not notify his employer of his injury within
30 days as required under 39-71-603, MCA. Therefore, his injury
is not compensable.
Affinned.