No. 90-086 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

JANET ROESSEL, 

Claimant and Appellant, 

-vRIVENDELL OF BILLINGS, 

Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Insurer and Respondent. 

APPEAL FROM: Workers' Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jerrold L. Nye; Nye & Meyer; Billings, Montana 

For Respondent: 

Richard E. Bach; State Compensation Mutual Insurance 

Fund; Helena, Montana 

Filed: 

Submitted on Briefs: May 30, 1990 

Decided: August 9, 1990 

1 

Clerk 
Justice John C. Harrison delivered the Opinion of the Court. 

This is an appeal from the Workers' Compensation Court of the 

State of Montana of a denial of an award of disability benefits by 

the State Compensation Insurance Fund to the claimant, Janet 

Roessel. The matter was tried before a hearings examiner, whose 

proposed findings of fact and conclusions of law were, for the most 

part, adopted by the Workers1 Compensation Court. Those findings 

adjudged that the claimant was not entitled to workers1 

compensation benefits on the basis that the employer was not 

notified of the injury within thirty days of the date of the 

claimed injury as required by 5 39-71-603, MCA. From that denial 

claimant appeals to this Court. We affirm. 

Claimant/appellant presents five issues for review: 

1. Did the employer have notice or knowledge of the 

claimant's injury within 30 days as required by 5 39-71-603; MCA? 

2. Is the claimant entitled to extend the 30-day notice 

requirement of 5 39-71-603, MCA, due to the latent nature of her 

injury? 

3. Is the claimant entitled to workers' compensation benefits 

as a result of her injury? 

4. Is the claimant entitled to an award of her reasonable 

attorney's fees? 

5. Is the claimant entitled to a twenty percent increase in 

her workers1 compensation benefits under 5 39-71-2907, MCA? 
Claimant's employment with Rivendell of Billings began in 

March, 1987. She was employed by Rivendell as a cook and kitchen 

helper. While working at Rivendell sometime in the latter part of 

June, 1988, claimant allegedly slipped and fell in a puddle of 

water which had accumulated near a salad bar in the dining area. 

Claimant alleges that when she fell she hit her head and neck 

against a concrete pillar. Several co-workers witnessed her slip 

and fall and the lead cook and part-time supervisor knew of her 

fall. 

At the time claimant submitted her claim with the Workers1 

Compensation Court, August 1, 1988, claimant gave the date of her 

injury as being July 1, 1988. It was not until sometime later, 

after depositions were taken, that it was determined that July 1, 

1988 was not the proper date of the claimed injury and that the 

most likely date was June 24, 1988. This date was determined by 

reviewing Rivendell's time records which showed that June 24, 1988 

was the only date in approximately a two-week period when the 

various persons who testified were all working with claimant on the 

same shift. 

At the time of trial, evidence was presented by the State Fund 

which refuted the claim that claimant could have injured her head 

and neck. The three witnesses who saw the claimant fall each 

testified that the claimant was facing the pillar at the time she 

fell and that when she was helped up, or got up, her feet were 

pointed toward the pillar and her head was in the opposite 

direction. After she arose and went about her duties she did not 
tell any of her co-workers that she had injured her head and neck 

in the fall. 

Claimant did not provide actual notice to Rivendell or her 

supervisor that an accident had occurred until sometime in August, 

1988. Testimony was given which revealed that on June 30, 1988, 

approximately one week after the claimant's alleged slip and fall 

incident, a staff meeting was held. Claimant was present at that 

staff meeting and safety concerns and work-related accidents were 

discussed at the meeting. At that June 30, 1988 staff meeting 

claimant did not mention the incident of June 24, 1988 to her 

supervisor. 

After claimant started her employment with Rivendell in March 

of 1987, she began having problems with her arms, and she 

experienced burning and numbness in her body. Claimant sought 

treatment for this condition in the latter part of 1987. 

Claimant's co-employees and her supervisor testified that she 

continued to complain about her arms up until the time of the slip 

and fall incident in June, 1988. The record indicates that in 

early April, 1988, some two and one-half months prior to the 

accident, the claimant informed her employer that she was unable 

to attend a staff meeting because of a doctor's appointment to test 

her arms. 

On July 7, 1988, claimant sought medical treatment from Dr. 

Espinoza, but failed to mentioned to him any problems with 

headaches, bruising, or pain in her neck or back resulting from a 

fall. She did mention to Dr. Espinoza that she had a developing 
problem in coordination and pain with her right arm. Claimant was 

later seen by Dr. Buchanan at a local hospital emergency room, but 

did not mention to him that she had slipped and fallen at work 

striking her head or back. 

The claimant called Milford Burke, her supervisor, on July 

12, 1988, to tell him that she could not come to work and she has 

not worked since that date. Later in July, 1988, claimant twice 

saw Dr. R.A. Nelson. During the initial visit, the claimant denied 

any trauma or injuries to her head, neck or back, and never 

informed the doctor of the incident at work after she was informed 

of the findings pertaining to her x-rays. Claimant was referred 

by Dr. Nelson to Dr. James Johnson, a neurologist in August of 

1988, and that was the first time the medical records indicate that 

she told the doctor of striking her head on a pillar while at work 

at Rivendell. 

The first notice that the employer or insurer had of the 

claimant's slip and fall incident was on or about August 10, 1988. 

This came about while claimant was awaiting surgery in a hospital 

and she told a fellow employee that she intended to file a claim. 

This was reported to her supervisor Mr. Burke. He testified that 

this was the first time he had heard of claimant's slip and fall. 

The claimant Is request for benefits was denied by the Workers ' 

Compensation Court on the basis that no notice was given by the 

claimant to her employer within thirty days of the claimed injury 

as required by § 39-71-603, MCA. 

It is the claimant's position that due to the latent nature 
of her injury she was prevented from properly getting notice to 

her employer. It is interesting to note that even though she had 

been instructed by Rivendell as to how and when to report any 

injury, there was no direct action taken by the claimant which gave 

notice of her injury claim to her employer. It was only through 

a conversation with a fellow employee just prior to her surgery, 

which was later reported back to the employer, that Rivendell knew 

of her pending claim. 

Here, the proposed judgment of the Workers' Compensation 

hearing examiner, which was adopted by the Workers' Compensation 

Court, only determined that the appellant failed to prove that her 

employer had either notice or actual knowledge of the alleged 

accident within thirty days as required by statute. 

No findings were made as to whether the claimant actually 

struck her head and back against the pillar at work as she 

contends, nor were there findings as to whether the claimant had 

proven that her medical problems were causally related to the fall 

at work. There is no question, and it is admitted that she did 

fall at work. However, the Workers' Compensation Court never 

established that her fall was the cause of her injury and 

subsequent surgery. 

Five issues are presented on appeal. The controlling issue 

is whether the employer had notice or knowledge of claimant's 

injury within 30 days as required by 5 39-71-603, MCA. As set 

forth in this opinion and under the facts in the record before us, 

the employer did not have notice within 30 days as required by 
statute and case law. We affirm the decision of the Workers1 

Compensation Court. 

w 

Justices 
Justice William E. Hunt, Sr., dissenting: 

I dissent. The majority's failure to apply the latent injury 

doctrine in this case leads to absurd, unjust results. 

The facts relating to notice in this case are undisputed. 

Claimant slipped and fell on June 24, 1988, during the course and 

scope of employment with Rivendell. Although her fellow employees 

witnessed the fall, and other employees knew of the fall, her 

supervisor in charge at the time was unaware of the accident. (It 

is important to note that the lead cook and part-time supervisor 

who knew of the accident was not the supervisor in charge at the 

time of the incident.) The supervisor did not receive notice that 

claimant had fallen until on or about August 10, 1988, 

approximately 47 days following the accident. 

Claimant's fall did not cause her any immediate pain. Indeed, 

she did not notice any problems with her arm or leg until 

approximately eight or nine days later. Because she had had 

difficulties with her extremities before the accident, she did not 

attribute the new problems to her fall at work. 

Claimant promptly soughtmedical treatment for the progressive 

pain in her arm and leg. However, her physical problems were nonspecific and difficult to diagnose. Upon the suggestion of one of 

the nurses at work, claimant made an appointment with a local 

neurologist. Unfortunately, the earliest appointment she could 

obtain entailed a two-week wait. When she finally saw the 

neurologist, he was unable to diagnose her ailment without using 

medical diagnostic procedures. It was not until the doctor 

8 
received the results of the diagnostic tests on July 26, 1988, that 

he was able to diagnose claimant's problems as stemming from a disc 

protrusion and herniation in her back. 

The neurologist referred claimant to a neurosurgeon. After 

the neurosurgeon told her that her condition would most likely have 

been caused by a car accident or fall, claimant connected her 

injury with the slip and fall of June 24. 

In Bowerman v. Employment Sec. Commtn, 207 Mont. 314, 673 P. 2d 

476 (1983), we held that the one-year statute of limitations for 

filing written workers1 compensation claims found in 5 39-71-601, 

MCA, should be tolled for latent injuries. We stated, 

[Slection 39-71-601, MCA, should be interpreted, in cases 

of latent injury, so that the time period for notice of 

claim does not begin to run until the claimant, as a 

reasonable man, should recognize the nature, seriousness 

and probable, compensable character of his latent injury. 

Bowerman, 207 Mont. at 319, 673 P.2d at 479. 

The same test should apply to the 30-day notice period 

provided in 5 39-71-603, MCA, the statute the majority relies on 

to bar claimant's claim in this case. 

The purposes behind 5 39-71-603, MCA, which requires an 

employee promptly to give notice of an injury to her employer, are 

twofold. First, early notice enables the employer to provide 

immediate medical diagnosis and treatment in order to minimize the 

seriousness of the injury. Second, early notice facilitates 

investigation of the facts surrounding the injury. 

In the present case, the employer was not prejudiced by the 

delay in notice. Claimant received prompt medical attention for 

9 
her injuries. Furthermore, claimant's supervisor admitted that the 

delay did not hamper his investigation of the accident. Therefore, 

the stringent adherence to the 30-day rule serves unjustly to deny 

claimant benefits to which she may be entitled. Such a result is 

intolerable. It requires a claimant to speculate as to the 

seriousness of any trauma she may encounter on the workplace 

regardless of how trivial the incident may seem at the time. 

Not all injuries manifest themselves within 30 days. In many 

cases, the manifestation of pain or other physical ailment may have 

a number of causes that may take time to sort out. Therefore, the 

Bowerman approach presents a much more rational answer to the 

problems inherent in latent injuries. It does not require a 

claimant to do more than is reasonable under the circumstances. 

It tolls the notice provisions until the claimant, under an 

objective standard, recognizes the nature, seriousness and probable 

compensable character of her injury. 

In the present case, claimant did not realize the nature, 

seriousness and probable compensable character of her injury until 

30 days after the accident occurred. She suffered no immediate 

pain from the fall. When the injury began to manifest itself, it 

was through pain and loss of strength and coordination in the right 

hand and leg, non-specific types of complaints that took time to 

diagnose. By the time the injury was diagnosed by her neurologist, 

the 30-day period had expired. 

The majority opinion should serve as a warning to all 

employees. Immediately inform your employer of all on-the-job 
incidents, no matter how trivial or inconsequential. Unless you 

notify the employer of every bump, scrape, bruise or hangnail, you 

may forfeit your right to compensation. 

I would reverse the Workers' Compensgtion Court on this issue. 

Justice John C. Sheehy: 

I concur in the dissent of Justice Hunt. 

G;