LORETTA J. DELANEY

Petitioner

vs.

LEGION INSURANCE COMPANY

Respondent/Insurer for

LANTIS ENTERPRISES, d/b/a FRIENDSHIP VILLA

Employer.

Summary: Nurses aide at nursing home, who acknowledged she was told that charge nurse was her supervisor, told LPN that she injured her wrist, that she believed LPN was her supervisor that day, and that LPN told her to complete accident form, which she did. Claimant conceded that LPN had never before supervised her.

Held: Where claimant was not credible in her assertion that LPN was acting as “charge nurse” for that day or that she completed accident form, no accident form was found, and list of assigned charge nurses was posted in break room, claimant failed to provide adequate notice of her injury. While there may be cases where a co-employee may be deemed an employer’s supervisor or agent under a doctrine of ostensible authority, this is not one of them. Ostensible authority must arise, if at all, from statements or actions of the principal that lead the third party to believe that agency exists.

Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-603, MCA (1993). Where nurses aide was not credible in her assertion that LPN was acting as “charge nurse” or that she completed accident form, and where list of assigned charge nurses was posted in break room, claimant did not prove requisite statutory notice of injury through testimony that she told LPN she injured her wrist.

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-603, MCA (1993). While there may be cases where a co-employee may be deemed an employer’s supervisor or agent under a doctrine of ostensible authority for purposes of receiving statutory notice of injury, ostensible authority must arise, if at all, from statements or actions of the principal that lead the third party to believe that agency exists. Where nursing home did not lead nurses aide to believe that LPN was acting as her supervisor, where claimant was told that charge nurse was her supervisor, and where list of charge nurse assignments was posted in break room, alleged notice to LPN was insufficient.

Limitations Periods: Notice to Employer. Where nurses aide was not credible in her assertion that LPN was acting as “charge nurse” or that she completed accident form, and where list of assigned charge nurses was posted in break room, claimant did not prove requisite statutory notice of injury through testimony that she told LPN she injured her wrist.

Limitations Periods: Notice to Employer. While there may be cases where a co-employee may be deemed an employer’s supervisor or agent under a doctrine of ostensible authority for purposes of receiving statutory notice of injury, ostensible authority must arise, if at all, from statements or actions of the principal that lead the third party to believe that agency exists. Where nursing home did not lead nurses aide to believe that LPN was acting as her supervisor, where claimant was told that charge nurse was her supervisor, and where list of charge nurse assignments was posted in break room, alleged notice to LPN was insufficient.

The trial in the above-entitled matter came on Monday, November 13, 1995, in Billings, Montana. The Honorable Mike McCarter presided. Petitioner, Loretta J. Delaney, was present and represented by Mr. Terry J. Hanson. Respondent was represented by Mr. Steven S. Carey. Exhibits 1 through 10 were admitted by stipulation. Exhibits 7 and 9 were demonstrative exhibits only and were returned to Mr. Carey at the conclusion of the trial. The parties agreed that the depositions of Loretta J. Delaney, Gary Holt, Donna Kirkaldie and Mary Price can be considered part of the record. Loretta J. Delaney, Mary Price, Donna Kirkaldie, Janice Sparbi, Connie Hubbell, Bob Zadow and Teresa Wagner were sworn and testified.

Having considered the Pre-trial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, the Court makes the following:

1. Claimant is 38 years old and is a high school graduate. She is a certified nurses aide.

2. In April 1994 claimant was employed by Friendship Villa (Friendship) as a nurses aide. Friendship is a nursing home.

3. She claims that on October 29, 1994, she injured her right wrist when a patient she was bathing struck her with a showerhead.

4. At the time of the alleged injury, Friendship was insured by Legion Insurance Company.

5. Claimant filed a written claim for compensation on December 9, 1994. The claim was made in the Employer's First Report. (Ex. 4-1.)

6. Legion has denied liability for the claim. It contends that claimant failed to notify her supervisor of the injury within 30 days. It contends that the first notice was provided to the employer on December 9, 1994, which was 41 days after the alleged accident.

7. Claimant testified that immediately after and on the same day as the accident she told Donna Kirkaldie, a Licensed Practical Nurse (LPN) at the facility, about her accident. She further testified that Kirkaldie was her immediate supervisor on that day.

8. Claimant also testified that Kirkaldie told her to fill out an accident form and that she did so by retrieving a blank form from a brown notebook at the nurses' station, filling out the form, and placing the completed form back in the notebook. She testified that the brown notebook contained both blank and completed accident reports.

9. Claimant and Mary Price, who testified on claimant's behalf, were not credible witnesses.

10. In fact Kirkaldie was not claimant's supervisor and claimant had no reasonable basis to believe that she was.

a. Kirkaldie was employed to dispense medications to patients. At the time of the alleged accident she had no supervisory authority and had never previously had supervisory authority.

b. Nurses assistants were instructed that the charge nurse was their supervisor. Claimant conceded she was aware of that policy.

c. Claimant admitted that Kirkaldie had never previously supervised her but contended that she reasonably believed Kirkaldie to be her supervisor that particular day because another nurse-in-training was dispensing medications that day and Kirkaldie was not pushing around a medication cart. She further testified that the nurses and aides on that date were paired into two different teams, an A and B team, and that each team had responsibility for patients on different wings. Claimant testified that those circumstances led her to assume that Kirkaldie was the "charge nurse" for that day and that she was therefore her supervisor.

d. Claimant's testimony was not credible and her testimony was contradicted by other witnesses. Kirkaldie testified that she was dispensing medications and had the medications cart. She further testified that October 29, 1994, was a Saturday and that new nurses were not trained or oriented on weekends; that no other nurse was being orientated that day; and that Friendship did not establish A and B teams until December 15, 1994. Finally, she testified that the two new wings of the nursing home, which claimant had indicated were covered by one of the teams, were not even fully operational and had only two or three patients. Janice Sparbi, an RN who was in fact the charge nurse and supervisor on October 29, 1994, confirmed Kirkaldie's testimony. Sparbi did the scheduling for that day. Connie Hubbell, also an RN and director of nursing, similarly confirmed that medication nurses were not supervisors, that Sparbi was the supervisor, and that the A and B teams were not yet operational. Kirkaldie, Sparbi and Hubbell were credible witnesses.

e. A weekly schedule listing the name of the charge nurse on each shift and the assignments of nurses assistants was kept in the break room at Friendship. Nurses assistants were required to consult the schedule when arriving at work and could also look at it when in the break room on breaks. Thus, claimant could have readily ascertained that Sparbi, not Kirkaldie, was her charge nurse and supervisor.

f. Claimant testified that she did not look at the schedule because she already knew that she was assigned to bathe patients that day. Nonetheless, it was her responsibility to do so. She had no reasonable basis to ignore the schedule and assume that Kirkaldie, who had never supervised her before, was her supervisor that day.

11. I do not believe claimant's testimony that she filled out an accident form on the day of her accident and find that she in fact did not do so.

a. Kirkaldie confirmed that claimant mentioned the accident to her and that she told claimant that she should fill out an accident report. Claimant testified that she replied, and I paraphrase here, "What's the use, it's happened before and it'll happen again." Kirkaldie confirmed that claimant responded in that fashion.

b. None of the other witnesses were aware of any brown notebook .

c. Other witnesses established to the Court's satisfaction that blank incident reports were kept in a purple notebook at the nurses' desk and that completed forms were filed in a black notebook which was kept under lock and key in Teresa Wagner's office for confidentiality reasons. Wagner was the Friendship's environmental supervisor and was responsible for workers' compensation claims and worker safety.

d. A completed claim form was never found.

e. Kirkaldie testified credibly that claimant never went behind the nurses' station where the notebook was kept and that the claimant left the area before she (Kirkaldie) did.

12. Claimant did not inform supervisory personnel of her industrial accident until December 9, 1994, which was more than 30 days after the accident.

13. Despite suggestions of claimant's counsel that Kirkaldie should be deemed one of claimant's supervisors because she could give occasional orders to nurses aides, the evidence fails to support that contention. A chain of command was clearly established. The charge nurse supervised all nurses aides. Claimant was aware of that fact. Moreover, at best Kirkaldie could only point out errors by nurses aides and was required to report those errors to the charge nurse, who in turn was responsible for rectifying them.

1. An injured worker is required to give notice to her employer within 30 days of her industrial accident. Section 39-71-603, MCA (1993) 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 notice requirement is "'mandatory and compliance with [the requirements of the statute] are indispensable to [maintaining] a claim for compensation . . . . '" Buckentin v. State Fund, 265 Mont. 518, 523, 878 P.2d 262 (1994) (quoting from Reil v. Billings Processors, Inc., 229 Mont. 305, 308, 746 P.2d 617, 619 (1987) (brackets in original).

2. Notice to or knowledge of a non-supervisory co-employee does not satisfy section 39-71-603, MCA. Maki v. Anaconda Copper Mining Co., 87 Mont. 314, 320-22, 287 P. 170, 172-74 (1930); Hartl v. Big Sky of Montana, Inc., 176 Mont. 540, 544, 579 P.2d 1239, 1241 (1978). The notice requirement is satisfied only where someone with supervisory status or authority is notified or has actual knowledge of the injury. Bender v. Roundup Mining Co., 138 Mont. 306, 312-3, 356 P.2d 469, 472 (1960).

3. Claimant's attorney suggested through questions put to some witnesses that Kirkaldie could nonetheless be deemed a supervisor since she could give occasional orders to claimant. The evidence did not support the suggestion. At best, Kirkaldie and other LPNs could bring errors to the attention of nurses aides, but they were required to report the errors to the charge nurse who, in turn, was responsible for directing the nurses aides. The chain of command was clear. The charge nurse was the supervisor. Claimant was well aware of that fact.

4. While there may be cases where a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority, this is not one of them. Ostensible authority must arise, if at all, from statements or actions of the principal which have led the third party to believe that an agency relationship existed. § 28-10-103, MCA; Hartt v. Jahn, 59 Mont. 173, 182, 196 P. 153, 156 (1921); Elkins v. Husky Oil Co., 153 Mont. 159, 168, 455 P.2d 329, 333 (1969); Miller v. Cascade Northern Co., 181 Mont 66, 68-9, 592 P.2d 156, 157-58 (1979). The employer in this case did not act in a manner which could have led claimant to reasonably believe the Kirkaldie was her supervisor. To the contrary, it made sure that the supervisor was specifically identified.

5. The claim in this case is barred under section 39-71-603, MCA (1993), since claimant did not provide timely notice to her supervisor or any supervisory personnel of her employer.

6. Since claimant has not prevailed in this action, she is not entitled to attorney fees and costs.

1. Claimant is not entitled to compensation or medical benefits on account of her October 29, 1994 injury because she failed to give her employer notice of her injury and accident within the time provided by section 39-71-603, MCA (1993).

2. Claimant is not entitled to costs or attorney fees.

3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.

4. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.

DATED in Helena, Montana, this 27th day of November, 1995.

(SEAL)

/S/ Mike McCarter
JUDGE

c: Mr. Terry J. Hanson
Mr. Steven S. Carey
Submitted: November 13, 1995