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 5 1994 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, 1994 
Chief 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 Insurance Fund because it determined that the claimant 

failed to notify his employer, Ownerrent Rent to Own, of an alleged 

work-related accident as required by § 39-71-603, MCA. We affirm. 

The claimant presents the following issue for review: Whether 

the Workers' 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 the machine 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 

the washer, the dolly came back down on top of him." The next day 

claimant called his manager at Ownerrent, David Robinson, and 

informed Robinson that claimant would be taking sick leave because 

"[he] was hurting where [he] could not get off the couch . . . . I@ 

Both parties agree that claimant did not notify Robinson of a workrelated accident at that time. 
After two days' sick leave claimant resumed his work at 

Ownerrent. On January 15, 1993, he was 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 8 and 

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 of his spine. Claimant testified 

that he subsequently had reconstructive disc surgery in March 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 I understand your testimony, and I want to 

make sure that I am understanding you correctly, when you 

called Mr. Robinson the day after the injury, you didn't 

tell him about the accident. You just told him that you 

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: So your 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 reviewed to determine 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, credible evidence supports his belief that Collins was 

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 obtain workers1 compensation benefits from the State Fund, 

an employee who is injured on the job or involved in a work-related 

accident must, within thirty days, notify the employer of the time 

and place where the accident occurred and the nature 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 the decision of the Workers1 Compensation 

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, and within two days personally 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 

accident and injuries, thereby satisfying the requirement of 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 superintendent within thirty days of the claimed injury as 

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 the back injury. See Lee v. Lee (1988), 234 Mont. 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 Collins were hired the same day and held identical positions at 

Ownerrent. When asked about whether he held himself out as the 

claimant's supervisor, Collins stated: 

[Wlhat I said was 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 

warehouse manager. . . . 

It's possible that I could have said it in a way that he 

thought I was the warehouse manager, yes, but when we 

were talking about it I said in my 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 

from all facts and circumstances surrounding the matter. 

"The test is found in a determination of the exact extent 

to which the principal held the agent out or permitted 

him to hold himself out as authorized, and what a prudent 

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). The belief 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 an ostensible agency. Robinson, not Collins, assigned 

deliveries, determined work schedules, and signed off on 

time sheets. Collins performed no supervisory functions. 

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's decision 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: