NO. 93-605 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

ALVA DARRELL BOGLE, Petitioner and Appellant,


### v. OWNERRENT RENT TO OWN, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Respondent. 

### APR

### 2

## 51994

APPEAL FROM: The Workers' Compensation Court, The HonorableMike McCarter, Judge presiding.

COUNSEL OF RECORD: ForAppellant: John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, Montana For Respondent: Daniel 

### J. Whyte, State Compensation Mutual Insurance Fund, Helena,Montana

Filed: Submitted on Briefs: March 31, 1994 Decided: April 25, 1994Chief Justice J. 

### A. Turnage delivered the Opinion of the Court. Alva Darrell Bogle, claimant, appeals from a decision of the Workers' Compensation Court of the State of Montana. The court denied claimant's request for an award of benefits by the State Compensation InsuranceFundbecause itdeterminedthat theclaimant failed tonotifyhis employer,OwnerrentRent to Own, of analleged work-related accident as required by § 39-71-603, MCA. We affirm. The claimant presents the following issue for review: Whether theWorkers' Compensation Court erred in determining that claimant failed to notify his employer of an alleged work-related accident

as required by 

### 5 39-71-603, MCA. Claimant and T. C. Collins were both hired by Ownerrent as drivers/deliverers during December 1992. On January 6, 1993, claimant and Collins were in the process of repossessing one of Ownerrent's washing machines. As they loaded themachine into the delivery van, claimant alleges that he fell and that the machine landed on top of him. Collins stated

## o that claimant "slipped and thewasher, the dolly came back down on top of him." The next day claimant called his manager at Ownerrent, David Robinson, and informedRobinson that claimantwould be taking sick leavebecause "[he] was hurting where [he] could not get off the couch 

# . . . .I@ Both parties agree that claimantdid not notify Robinson of aworkrelated accident at that time.After two days' sick leave claimant resumed his work at Ownerrent. On January 15, 1993,hewas terminated from employment for reasons not relevant to this appeal. According to medical records, claimant visited Dr. Allen Weinert regarding back pain on January 27, 1993. On February 8and 12, 1993, claimant visited Dr. Brooke Hunter. On February 8 Dr. Hunter ordered an MRI examination. On February 12,Dr. Hunter gave the claimant the results of the MRI which showed claimant had a herniated disc on the right side ofhis spine. Claimant testified thathe subsequentlyhad reconstructive disc surgery inMarch 1993. On February 25, 1993, claimant filed a claim for benefits alleging that his back injury was a result of the work-related accident mentioned above. The State Compensation Insurance Fund

(State Fund) denied the claim because claimant failed to comply with the notification requirements set forth in § 39-71-603, MCA. The Workers' Compensation Court determined that the claim for benefits was barred because of claimant's failure to notify his employer of a work-related accident within thirty days of the January 6, 1993 accident. From the transcripts of proceedings before the Workers' Compensation Court, the record discloses the following: JUDGE MCCARTER: Mr. Bogle, I do have a couple of questions. As Iunderstandyour testimony, and Iwant to make sure that Iamunderstandingyoucorrectly, whenyou calledMr. Robinson the day after the injury,you didn't tell him about the accident. You just told him thatyou were hurting and couldn't come in to work?THE WITNESS: Right. JUDGE MCCARTER: If I understand you further, the first time you specifically told him about the accident was after you had the MRI? THE WITNESS: Right. JUDGE MCCARTER: Soyour conversations with him prior to that had been about your hurting? THE WITNESS: Right. At trial, claimant further testified that he believed Collins to be a supervisor for Ownerrent, and that Collins' actual knowledge of the accident satisfied the notice requirements of 

### 5 39-71-603, MCA. The court, however, determined that claimant's testimony that he believed Collins to be his supervisor was not credible or reasonable. After analyzing the inapplicability of ostensible authority in this case, the court entered judgment for the State Fund. Claimant appeals.

Did the Workers' Compensation Court err in determining that claimant failed to notify his employer of an alleged work-related accident as required by 

### 5 39-71-603, MCA? In reviewing the Workers' Compensation Court's findings of fact, we will not substitute our judgment for the trier of fact unless the findings are clearly erroneous, and the court's conclusions of law are reviewedtodetermine if the conclusions are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.Claimant argues that the object and purpose of 

### 5 39-71-603, MCA, have been met. In support of his argument, he asserts that substantial, credibleevidence supportshisbelief that Collinswas his supervisor; that because of the nature of his injury he was prohibited from notifying his employer of the work-related injury within thirty days of the accident; and that the court erred in finding that Robinson was not aware of claimant's work-related accident within thirty days of the accident. We disagree. To obtainworkers1compensation benefits from the State Fund, an employeewho is injured on the job or involved in a work-related accidentmust, within thirty days, notify the employer of the time and place where the accident occurredand thenature of the injury. Section 39-71-603, MCA. Actual knowledge of the accident and injury by the employer, manager or superintendent of the employer is also notice under $3 39-71-603, MCA. Claimant argues that thedecisionof theWorkers1Compensation Court should be reversed based upon our decision in Killebrew v. Larson Cattle Company (1992), 254 Mont. 513, 839 P.2d 1260. We disagree. In Killebrew the claimant suffered an industrial accident on December 17, 1989,andwithin two dayspersonally told his employer that he had hurt his shoulder in the accident. On March 17, 1990, claimant suffered another industrial accident and on the next day claimant told his employer of the accident and showed him physical injuries to his body. 5

### Clearly in Killebrew the employer had actual knowledge 

### of the accidentand injuries,thereby satisfyingtherequirementof notice under 5 

### 39-71-603,MCA. The facts in Killebrew are not comparable to those in this case. No knowledge of the claimed industrial accident was made available by claimant to the employer, the employer's managing agent or superintendentwithin thirtydays of the claimed injuryas required by the statute. In this case claimant failed to timely notify the employer or its manager, David Robinson, of the accident which is alleged to have caused theback injury. See Leev. Lee (1988), 234Mont. 197,

Further, claimant's contention that he believed Collins occupied a supervisory position at Ownerrent is equally insufficient to give his employer actual notice in this case. Claimant and Collinswerehired the sameday and held identical positions at Ownerrent. When asked about whether he held himself out as the claimant's supervisor, Collins stated: [Wlhat I 

### saidwas that when I

### had my interview there the manager that gave me my interview had said that he was looking for somebody to be--that he could appoint to warehousemanager. 

# . . .

It's possible that 

### Icould have said it in a way that he thought I 

### was the warehouse manager, yes, but when we were talking about it I 

### said inmy interview that David

[Robinson] said he was looking for somebody 

## -- He had told me he was looking for somebody to appoint to

### warehouse manager, somebody he didn't have to watch all the time. Claimant contended that his belief in Collins' supervisory authority was reasonable because Collins "always jump[edl in the driver's seat and [did] the paper work and what have you." In rejecting the claimant's argument that Collins was an ostensible supervisory agent, the court found: Whether ostensible authority existed must be determined fromall factsand circumstances surroundingthematter. "Thetest is found inadetermination of the exact extent to which the principal held the agent out or permitted him tohold himself out as authorized,andwhat aprudent person, acting in good faith, under the circumstances would reasonably believe the authority to be.["] Butler Mfg. Co. v. J & L 

### Imp. Co., 167 Mont. 519, 527, 540

### P.2d 962 (1975). Thebelief that another is an agent must be reasonable. Kraus v. Treasure Belt Mining Co., 146 Mont. 432, 435-6, 408 P.2d 151 (1965). The circumstances in this case are inconsistent with the creation of anostensibleagency. Robinson, not Collins,assigned deliveries,determinedwork schedules,and signed off on time sheets. Collinsperformedno supervisoryfunctions. Collins' ''jumping1'into the driver's seat when he made deliveries does not amount to supervision or provide a basis for petitioner to reasonably believe that Collins was his supervisor. After reviewing the record,we conclude the court'sdecision that, under the facts in the record, the employer did not have notice within thirty days of the alleged work-related injury is not clearly erroneous. We affirm the decision of the Workers'We concur: