Limitation Periods: Notice To Employer

MONTANA SUPREME COURT DECISIONS
Siebken v. Liberty Mut. Ins. Co. [10/21/08] 2008 MT 353 The claimant incorrectly asserts that he had up to 12 months to provide his employer with notice from the date the claimant learned of the nature of his injury; the 12-month time limitation which arises in § 39-71-601, MCA, requires that employees file claims for compensation within 12 months from the date of an accident. The 30-day statute of limitations for providing employers with notice of the accident is a separate and distinct statutory time requirement.
Siebken v. Liberty [10/21/08] 2008 MT 353 An employee may satisfy § 39-71-603(1), MCA, by providing the employer with the required notice within 30 days of the accident. Alternatively, “actual knowledge” of the required information by the employer satisfies the statute. Under either method, the employer must be notified of both the accident and injury.
Kuzara v. State Compensation Ins. Fund, 279 Mont. 223, 928 P.2d 136 (1996) (No. 96-016). Although notice of injury given by dragline ground worker to coal company was vague in terms of specific time, place, and event, it was not so legally insufficient as to support directed verdict for insurer where worker told supervisor she required back surgery, the problem was work-related, and more information could be obtained from co-worker.
Kuzara v. State Compensation Ins. Fund, 279 Mont. 223, 928 P.2d 136 (1996) (No. 96-016). Where employer provided employees incentive not to report work injuries, encouraged injured worker to file nonwork-related claim with health insurer, and told her it would “take care of everything,” employer and insurer may be estopped from claiming employee failed to provide sufficient notice of injury under section 39-71-603, MCA (1993).
 
WORKERS' COMPENSATION COURT DECISIONS

Morse v. Liberty Northwest Ins. Corp. [05/03/12] 2012 MTWCC 16 Where Petitioner testified that he notified both his supervisor and the safety officer trainee about one industrial accident, and the trainee about a second industrial accident, and the trainee testified that he clearly recalled Petitioner reporting both industrial accidents to him, the Court concluded that Petitioner complied with the notice requirements of § 39-71-603, MCA.
Purkey v. AIG and Liberty Mut. Fire Ins. Co. [01/13/05] 2005 MTWCC 2 A claim for benefits is barred where the claimant fails to give his or her supervisor or other manager notice of an industrial accident within thirty days following the accident. § 39-71-603(1), MCA (2003).
Bain v. Liberty Mutual Fire Ins. [5/27/04] 2004 MTWCC 45 The thirty-day period for notifying the employer of an industrial injury is tolled during the period the employee was unaware an incident caused physical harm requiring medical treatment but begins running again after claimant requires medical treatment and believes that the work-incident caused the need for treatment. § 39-71-603, MCA (1995-2003).
Harger v. Montana Contractor Compensation Fund [12/26/03] 2003 MTWCC 72 Failure of an employee to give his employer notice of his alleged industrial accident within 30 days bars any claim for compensation. § 39-71-603(1), MCA (1999).
Flikkema v. Mont. Contractor Comp. Fund [3/2/04] 2004 MTWCC 20 Where the employer learned of the accident the same day it occurred and was aware that the claimant was picking up lunch for two employees, it had timely notice of the accident under section 39-71-603, MCA (2001).
Mosca v. American Home Assurance [2/13/04] 2004 MTWCC 6 Where a claimant wakes up the morning after a heavy laboring job and has back and leg pain, and initially believes that his condition was caused by an unrelated spur on the heel of his foot, but within thirty days tells his employer of his condition and the possibility that it was caused by his job, the notice requirement of section 39-71-603, MCA (2001), is satisfied.
Maddalena v. Indemnity Ins. [2/27/03] 2003 MTWCC 14 Where claimant failed to report his alleged industrial injury within 30 days, or provide the employer with facts which put it on notice that he had suffered a work-related injury, his claim is barred by section 39-71-603(1), MCA (1999), which requires notice to the employer within 30 days of the injury.
Jordan v. Liberty Northwest [11/19/02] 2002 MTWCC 58 Notice to an employer that the claimant has shoulder pain is insufficient under section 39-71-603, MCA (1999), where the claimant does not identify any work-related event, has complained on several occasions during recent weeks of shoulder pain, and had suffered a prior shoulder injury.
Hanks v. Liberty Northwest [3/22/02] 2002 MTWCC 19 The 30-day notice provision of section 39-71-603(1), MCA, may be tolled if the employee has a reasonable belief at the time of an accident that he or she has suffered no injury which will require treatment or is otherwise compensable until he or she learns otherwise. Where the employee's own testimony confirms that severe pain followed within a few days after an incident where she felt a "krik" in her back, her testimony indicated she was on notice of the possible relationship between the "krik" incident and her increasing pain. Where notice was not given within 30 days of the pain commencing, claimant was barred from recovery. (Affirmed in Hanks v. Liberty Northwest, 2002 MT 334.)

Hanks v. Liberty Northwest [3/22/02] 2002 MTWCC 19 The 30-day requirement for notice to the employer, § 39-71-603, MCA (1999), begins to run when the claimant is aware of a work-related event and realizes that she may need medical care. Cf. Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992). (Affirmed in Hanks v. Liberty Northwest, 2002 MT 334.)
Hanks v. Liberty Northwest [3/22/02] 2002 MTWCC 19 Where the claimant heard a pop in her back and experienced pain in a work-related incident and thereafter her back pain increases and extends to her leg, triggering medical care, she was aware of facts sufficient to require her to report the incident to her employer. The 30-day reporting requirement of section 39-71-603(1), MCA (1999), was therefore triggered and applicable. (Affirmed in Hanks v. Liberty Northwest, 2002 MT 334.)
Whitlock v. Fremont [2/26/02] 2002 MTWCC 12 The 30-day requirement for notice to the employer, § 39-71-603, MCA (1999), does not begin to run until the claimant realizes that she may need medical care or recognizes the possible compensability of her injury. Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992).
Whitlock v. Fremont [2/26/02] 2002 MTWCC 12 Where a worker experiences a fleeting sting between her neck and shoulder and thereafter has some mild aching which does not affect her ability to work or indicate the need for medical care, the 30-day period for notifying her employer, § 39-71-603, MCA (1999), does not begin running until some other, more significant symptom emerges. See Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992). Where the worker thereafter experiences the onset of numbness in the arm and begins dropping things, those symptoms trigger the running of the 30-day period.
Thune v. MSGIA [1/25/02] 2002 MTWCC 5 Lacking the employer's actual knowledge that claimant suffered a work-related injury, failure to provide notice of a work-related injury within 30 days bars recovery of benefits. § 39-71-603(1), MCA (1999). Notice is mandatory and indispensable to maintaining a claim for compensation.
Thune v. MSGIA [1/25/02] 2002 MTWCC 5 Knowledge by the employer that the claimant was injured or is suffering from a medical condition does not constitute actual notice that claimant suffered a work-related injury where there is nothing to indicate that the injury or condition is work-related. The employer is not on inquiry notice where the employee has given notice of previous work-related injuries but fails to do so with respect to the injury at issue, where the claimant was apparently uninjured at a company party the day before she reported to work injured, and she had not worked in the meantime, or where a supervisor actually inquires whether the injury is work related and the claimant denies that it is. Kuzara v. State Compensation Ins. Fund, 279 Mont. 223, 928 P.2d 136 (1996), distinguished.
Mametieff v. Liberty Northwest Ins. Corp. [7/14/99] 1999 MTWCC 40. Claimant's inquiry to supervisor about whether employer had "compensation," which supervisor reasonably understood as inquiring about medical benefits, was not sufficient to give notice within section 39-71-603, MCA (1997). Claimant did not prove, in any event, that the inquiry came within thirty days of her accident.

Absent evidence the employer discouraged claim filing, claimant's subjective concern that reporting an injury would jeopardize her employment does not justify ignoring the thirty day notice requirement.

Alsbury v. State Fund [2/9/01] 2001 MTWCC 8 Latent injury doctrine is inapplicable where at the time of the industrial accident the claimant is aware he had injured himself and reported the injury to a co-employee.
Alsbury v. State Fund [2/9/01] 2001 MTWCC 8 A more experienced carpenter, who provides advice and instruction to another carpenter in response to questions arising during work assigned and overseen on a daily basis by the construction company's owner, and who was off work on the day of the claimant's injury and the week thereafter, was not claimant's supervisor. Claimant's report of his injury to him did not constitute notice to the employer under section 39-71-603, MCA.
Baker v. State Fund [6/15/00] 2000 MTWCC 35 Where claimant's testimony was contradicted by other witnesses and logs kept in employment, and claimant himself was not a credible witness, he failed to convince the WCC he had reported a work injury to the employer.
Davis v. State Fund [6/9/00] 2000 MTWCC 34 Insurer denied claim on ground that owner-operator, who was himself covered under WC policy, failed to notify insurer of injury within 30 days, as required by 39-71-603(2), MCA (1997). Where insurer had for several years undertaken to provide policy-holders notice of important statutory changes and coverage requirements, but did not provide notice that a covered "owner" must inform insurer, not just employer, within 30 days of injury, insurer was equitably estopped from asserting limitations period.
UEF v. Frank Helstowski [5/23/00] 2000 MTWCC 29 Uninsured employer had notice of accident under section 39-71-603, MCA (1997) where he was present when claimant hurt his back moving a computer and was later told by claimant that his back continued to hurt. Further, certified letter sent by claimant to employer, who refused to accept letter, would have been sufficient even if verbal notice not given. Employer cannot refuse to accept certified mail, then complain about a lack of the information contained in the letter.
McGuin v. State Fund [12/16/99] 1999 MTWCC 82 Claimant who did not realize until years later that incident occurring during 1986 diving training resulted in serious ear problems was not barred by his failure to give notice to his employer within 60 days of the incident. Section 39-71-603, MCA requires a claimant only to disclose what he knows, it does not require the impossible. Because he was unaware of his condition or that it arose during the work incident, he properly gave notice within 60 days of his diagnosis.
LaPlante v. Town Pump, Inc. [1/26/99] 1999 MTWCC 8 WCC credited Town Pump supervisors who testified claimant, a merchandise stocker, did not report a work injury to them and that they had no knowledge of the alleged injury until well past the 30 day reporting period under section 39-71-603, MCA (1989). The Court did not credit a co-employee who claimed she had been a supervisor and was told of the accident. The credible evidence indicated the co-employee may have had lead cashier duties, but had no supervisory responsibility for claimant, who was a merchandise stocker. Notice to a co-employee is insufficient; notice must be given to the employer or the employer's managing agent or supervisor in charge of the employee's work, or one of them must have knowledge of the accident.
Flansburg v. State Fund [10/15/98] 1998 MTWCC 72 The credible evidence indicates claimant did not report an electrical shock within thirty days of the alleged occurrence. In addition to the Court's observation of the witnesses' credibility, factors considered include: that medical reports relatively close to the incident involving claimant's headaches do not mention the alleged incident, there were conflicts between the testimony of claimant and his corroborative witness, the corroborative witness testified he did not recall hearing the report to the president, and other evidence suggests a motive for the late attempt to link claimant's headaches with an incident at work.
Phillips v. Liberty Northwest Ins. Corp. [10/9/98] 1998 MTWCC 71 Credible evidence makes it more probable than not that claimant did not report back injury within thirty days of the alleged accident. Supervisor and safety inspector who would have received report credibly testified they had no knowledge of the alleged incident and did not complete or receive a claim relating to the incident. The medical history claimant gave to medical providers indicates he did seek treatment around the time at issue, but failed to mention any particular injury, rather indicating a gradual onset and giving other descriptions inconsistent with the present claim.
Ronemus v. Business Ins. Co. [7/28/98] 1998 MTWCC 59 WCC found claimant did in fact tell his supervisor about shoulder injury within 30 days. Although the matter arose in the context of discussing some weekend volunteer work claimant might do, and both claimant and the supervisor did not consider the injury serious, it was nonetheless reported.
Kuzara v. State Fund/Curtis Bartell [2/2/98] 1998 MTWCC 5 Following reversal and remand by the Montana Supreme Court, hearing was held before the Hon. Russell C. Fagg on whether State Fund could rebut claimant's evidence that she gave notice to her employer of a back injury. The Court rejected the testimony of respondent's witnesses, finding that claimant did in fact give notice.
Good v. State Fund [7/16/97] 1997 MTWCC 44 Lead welder's claim for back injury denied where WCC found he did not report the injury within 30 days. Employer had clear practice regarding reporting of injuries which claimant had previously followed. Employees to whom claimant should have reported injury credibly testified they did not receive notice. While claimant's wife testified she told employer's secretary claimant hurt his back at work, the secretary credibly denied receiving that information. Moreover, this is not a case in which a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority. Ostensible agency is established "when the principal intentionally or by want of ordinary care causes a third person to believe another to be an agent." Larson v. Barry Smith Logging, Inc., 267 Mont. 444, 447, 884 P.2d 786, 788 (1994). Here, claimant acknowledged that the secretary was not one of the people to whom he could report an injury.
Delaney v. Legion Ins. Co. [11/27/95] 1995 MTWCC 98 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.
Delaney v. Legion Ins. Co. [11/27/95] 1995 MTWCC 98 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.

Liberty Northwest Ins. Corp. v. Bevis [04/17/95] 1995 MTWCC 28 As the words of section 39-71-603, MCA (1991) plainly require, an injured worker must give notice not only of a particular incident but of the “nature of the injury.” Although claimant told his supervisors about an incident in which an ore loader hit the rack of his truck, he denied having been injured and did not notify his employer of an injury until three months later. While the most likely reason for claimant’s failure was that he continued to have upper back and arm pain following an earlier industrial accident, and did not believe this accident was all that significant, he nonetheless failed to report. Where he testified that he knew immediately that he was injured, and saw a physician within the thirty day period for his injury, he cannot now claim he was not aware he was hurt.

[1991] Moore v. State Compensation Insurance Fund [3/24/95] 1995 MTWCC 22 Although motel housekeeper testified that she immediately reported fall down stairs to her immediate supervisor, and had further conversation about workers’ compensation a couple of weeks later, supervisor contradicted that testimony. Where Court credited supervisor’s testimony and disbelieved claimant, claimant has not proved the notice required under section 39-71-603, MCA (1991) and her petition is dismissed.