NO. $2-485 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

CHARLES J. ACKEFWAN, 

Claimant and Appellant, 

PIERCE PACKING CO., Employer, 

and 

ILJTERMOUNTAIN INSUPANCE CO. , 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelleher Law Offices; Robert C. Kelleher argued, 

Billings, Montana 

For Respondent : 

Crowley Law Firm; Terry G. Spear argued, Billings, 

Montana 

Submitted: June 7, 1983 

Decided: November 17, 1983 

Filed: , - l$a3 a 

.- 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Claimant Charles J. Ackerman, appeals an order of the 

Workers' Compensation Court barring his claim for 

compensation because he had not notified his employer of the 

injury within 60 days of the injury. We reverse and hold 

that the notice to the employer was established on the day of 

the injury, December 22, 1980, by claimant t-elling the nurse 

of his accident, and we further hold that notice was 

established because the nurse had actual notice and can be 

considered for purposes of notification of injuries, as the 

managing agent. 

Aside from the notice issue, claimant would also have 

this Court decide his case on the merits and fix his 

disability rating. Claimant also asks this Court to order 

cost reimbursement, attorney fees and the 20 percent penalty 

as provided for bv statute. We decline to rule on these 

questions as they are properly questions for the Workers' 

Compensation Court to first decide. 

Claimant injured his back while working at Pierce 

Packing Company when he was lifting a box containing pork 

loins. He went to the company nurse and reported his 

problem--that his back hurt--and she referred him to a 

doctor. She made no further inquiry as to when or how 

claimant injured his back. The doctor's report turned out to 

be a misdiagnosis--he found that the claimant suffered from 

prostatitis. Because the nurse did not believe that 

prostatitis was work related, she did not fill out and begin 

the processing of a compensation form. 
However, claimant was later referred to an orthopedic 

specialist on Februa.ry 25, 1981 (more than 60 days after the 

injury) and a back injury was then diagnosed. After learning 

of this diagnosis, the nurse prepared the compensation forms 

for the claimant and he signed them on March 4, 1.981.. The 

employer, however, contested liability on the ground that it 

had not been notified of the accident within 60 days as 

required by section 39-71-603, MCA. 

This statute provides that in all cases other than a 

death claim the employer must be notified of the time and 

place of injury and the nature of injury--within 60 days of 

the injury. The statute also provides that notice to the 

employer can be satisfied if the employer or the employer's 

managing agent or superintendent in charge of the work has 

actual knowledge of the injury. 

The trial court expressly found that claimant had told 

the company nurse on duty at the employer's premises, that he 

had injured his back that day while lifting a loin box at 

work. However, the court then found that this actual notice 

was not notice to "a managing agent or the employer, or a 

superintendent in charge of the work on which the claimant 

was engaqed,. . ." and therefore that the notice coul-d not 

constitute actual knowledge. Therefore, the claim for 

compensation was denied. 

We conclude that the employer was given notice of the 

injury and that the employer had actual knowledge of the 

injurv. The claimant came to the company nurse and 

complained of his injury, and she referred him to a doctor. 

Although it may be true that claimant did not provide her 

with the details of the injurv, the nurse was free to obtain 

this information but did not do so. This failure cannot 
operate to bar the claimant's claim, for the information was 

readily available to the nurse and to the employer upon the 

mere asking of the questions. 

Several states have held that the notice to employer 

required in a Workers' Compensation case is satisfied by 

telling the company nurse. In Aluminum Co. of America. v. 

Baker (Tenn. 19761, 542 S.W.2d 819, the court held. that 

claimant's calling the company nurse was sufficient notice to 

the employer. In Hollingsworth v. Auto Specialties Mfg. Co. 

(Mich. 1958), 89 N.W.2d 431, the court held that reporting an 

injury to an industrial nurse on the date of its occurrence 

gave the employer sufficient notice. In Firestone Tire and 

Rubber Co. v. Workmen's Compensation Appea.1 Bd. (Penn. 1979), 

396 A.2d 902, the court held that notice to an employer is 

complied with by reporting an accident to an employer's 

nurse. In Thrall Car. Mfg. Co. v. Industrial Commission 

(Ill. 1976), 356 N.E.2d 516, the court held that sufficient 

notice was given when the claimant told a company nurse that 

he ha.d "trouble in his knees" and that he "wanted to see a 

doctor. " 

We have no doubt that notice was given to the employer 

under the first part of section 39-71-603, MCA, and if any 

defects existed in the information imparted to the nurse, 

those defects must be ascribed to the failure of the nurse, 

the company's agent, to obtain the necessary j-nformation. 

We further hold that under the second part of the 

statute dealing with actual notice as another method of 

compliance with the notice requirement, the nurse can be held 

to be the maria-ging agent insofar as notice of the injury is 

concerned. Nurses are present on the employer's premises to 

help workmen when they are injured, and no doubt they are in 
a better position than anyone else not only to render 

immediate aid to the injured workman but also to obtain the 

necessary information concerning the time and place of the 

injury. To hold that actual knowledge of a company nurse 

would not be sufficient compliance with the statute would be 

to exalt form over substance. We must liberally construe the 

Workers' Compensation Act (section 39-71-104, MCA), and there 

is probably no area more important to apply a liberal 

construction than on the question of whether sufficient 

notice was given of the accident. A liberal construction 

here leads us to conclude that the company nurse was in 

effect the managing agent insofar as receipt of notice of 

injuries is concerned. 

As we have already indicated, claimant's disability 

rating is not now properly before this Court, nor is his 

claim for costs, attorney fees and the statutory penalty. 

The order of the Workers' Compensation Court is reversed 

and this cause is remanded for further consideration of the 

merits of the claim as well as the question of whether the 

employer must pay costs, attorney fees and the statutory 20 

percent penalty. 

We Concur: 

~d$,yd,u-9_~0 Chief Justice 
Justices 
Mr. Justice L.C. Gulbrandson dissenting. 

I respectfully dissent. 

Section 39-71-603, MCA, reads as follows: 

"Notice of injuries other than death to 

be submitted within sixty days. No claim 

to recover benefits under the Workers ' 

Compensation Act, for injuries not 

resulting in death, may be considered 

cornpensable unless, within 60 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." 

In the case of Hart1 v. Big Sky of Mont., Inc. (1978), 

176 Mont. 540, 579 P.2d 1239, this Court construed Section 

39-71-603, MCA, and found that, "In the instant case, the 

information was conveyed to the agents specified in the 

statute, and they thereby acquired actual knowledge of the 

accident and the injury. " (emphasis supplied) 

In the earlier case of Maki v. Anaconda Copper Min. 

Co. (1930), 87 Mont. 314, 287 P. 170, the claimant had 

attempted to present his claim to the company through its 

claim agent and safety engineer. This Court stated: 

"Again, the record fails to show that any 

information imparted by the claimant to 

the safety engineer was communicated to 

the 'employer, managing agent or 

superintendent.' Of course , a 

corporation can only have such actual 

knowledge as is possessed by its agents, 

but our statute declares, in this 

instance, the actual knowledge of what 

agents shall be deemed the knowledge of 

the employer." 
"We agree that provisions of the 

Compensation Act should be given a 

liberal construction in order to do 

justice, and, for this reason, we have 

gone to greater lengths than did his 

learned cousel in seeking to discover in 

the record some evidence on which we 

could say that the claimant showed either 

timely w-ritten notice, or its equivalent 

of actual knowledge on the part of those 

persons enumerated in the statute, but 

have found no evidence on which we can 

relieve the claimant from the declared 

result of his own neglect. 

"No rule of construction can justify the 

disregard of the plain mandate of the 

law. 'In the construction of a statute 

the office of the judge is simply to 

ascertain and declare what is in terms or 

in substance contained therein, not to 

insert what has been omitted, or to omit 

what has been inserted." (emphasis 

supplied ) 

Here, claimant Ackerman testified regarding a previous 

injury while employed at Pierce, as follows: 

"Q. And in October of 1977, you were off 

work for approximately a week with a neck 

injury; is that correct? 

"A. Yes. 

"Q. And you did not initially report 

that you'd injured your neck to anyone? 

"A. Not that day it happened. 

"Q. As a result of that, there was some 

problem about whether it was an 

industrial accident? 

"A. Right. 

"Q. After that, I imagine you were 

pretty faithful about reporting injuries? 

"A. I tried to be, yeah." 

The claimant further testified: 

(a) That in February, 1979, he hurt his back when a 

barrel1 slipped off a pallet and that he reported it to his 
supervisor; 

(b) that in May, 1979, he strained a back muscle 

lifting bags of sugar, reported it to his supervisor and 

received benefits; 

(c) that in October, 1979, he had stomach pains at 

work and immediately reported the incident; 

(d) that in July, 1980, he pulled a back muscle, 

reported the incident the same day to his supervisor and 

received treatments from Dr. Cabberra. 

Regarding the December 22, 1980, incident, the 

claimant testified that he told the company nurse that his 

back hurt while lifting boxes; that she told him to see his 

family physician, Dr. Cabberra; that his doctor treated him 

for approximately two months for an infected prostate; that 

he was then referred to a urologist who referred the 

claimant to Dr. Daniels, who recommended exercises and 

physical therapy; that in June, 1981, the claimant requested 

a leave of absence from Pierce because he had secured a 

position as landman with a different company. 

In my view, the claimant had knowledge of the 

required reporting procedures from past personal experience. 

He neither reported the incident to a specified agent, nor 

gave notice within sixty days to the employer. 

Based upon the facts of this case, and the prior 

decisions of this Court, I would aff irm the decision of the 

Workers' Compensation Judge. 

/r 

,/'