NO. 96-016 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

ELIZABETH M. KUZm, 

Petitioner and Appellant, 

v. 

STATE COMPENSATION INSURANCE FUND, 

Employer and Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Elizabeth M. Kuzara, Sheridan, Wyoming (Pro Se) 

For Respondent: 

Charles G. Adams, State Compensation Insurance 

Fund, Helena, Montana 

Filed: 

Submitted on Briefs: October 24, 1996 

Decided: November 14, 1996 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Elizabeth Kuzara appeals the judgment of the Workers' 

Compensation Court granting a directed verdict in favor of the 

State Compensation Insurance Fund (State Fund). We reverse and 

remand with instructions consistent with this opinion. 

The sole issue on appeal is whether the Workers' Compensation 

Court erred when it granted the State Fund's motion for a directed 

verdict because Elizabeth Kuzara presented insufficient proof of 

notice of a work-related injury as required by § 39-71-603, MCA 

(1993). 

FACTUAL BACKGROUND 

All references to the facts of this case are obtained from the 

sworn testimony of Elizabeth Kuzara at the trial held before the 

Workers' Compensation Court. It is noted that the judge found 

Kuzara to be a credible witness, stating, "I can at this point and 

do assume that she is telling me the truth about her conversations. 

And indeed I don't have any reason to disbelieve her and sitting 

here listening to her and observing her, she impresses me as 

credible up to this point." It is further noted that the State 

Fund did not offer any testimony or evidence at trial rebutting or 

contradicting the testimony of Kuzara, although it had the 

opportunity and chose not to do so. 

Kuzara was employed as a dragline groundsman by the Spring 

Creek Coal Company at an open pit coal mine near Decker, Montana. 

Spring Creek is insured by the State Fund. Kuzara claims that she 

sustained a work-related injury on July 18, 1993. While cleaning 

dried mud from a dragline machine shoe, Kuzara suffered intense 

2 
pain in her lower back, through her hips, and down her right leg. 

At trial she described the pain as "enough that I had to cease what 

I was doing--it was like getting an electrical shock almost." No 

one other than Kuzara witnessed this incident. 

Kuzara worked with Ed Bebee, a dragline operator. Kuzara 

testified that she did not specifically tell Bebee, a co-worker, 

about the July 18 incident on the day that it occurred. However, 

the next day Kuzara could not complete her shift due to back pain. 

Bebee allowed her to rest inside his dragline cab for the remainder 

of the shift. While in the cab, Kuzara and Bebee talked about 

their back injuries for several hours. During that discussion 

Kuzara informed Bebee, "I thought I'd hurt my back." She also 

testified, "I told him at that time that--as far as what led to 

this, that I thought I had done it when I was down cleaning on the 

shoe." 

Spring Creek employees participated in a gain-sharing program. 

Spring Creek set aside a percentage of its profits to be distributed to employees every three months. The program was based on a 

number of factors, including the number of lost-time accidents 

reported by employees. Thus, when an employee reported an 

accident, lost time was subtracted from the employee's overall gain 

share, and all other employees' shares were also reduced. In the 

quarter immediately preceding her injury, Kuzara earned approximately $950 through Spring Creek's gain-sharing program. 

Kuzara was not scheduled to work on July 20 and 21, 1993. 

Because she had experienced difficulty sleeping since July 18 and 

was still in pain, Kuzara called Dr. Robert Wood, a neurosurgeon in 

3 
Billings, Montana, and scheduled an appointment for August 5, 1993. 

Kuzara worked for the next two weeks after the dragline incident 

but did not inform Spring Creek or any co-workers about her back 

problem. 

On August 4, 1993, Kuzara told her supervisor, Clark Izzard, 

about her August 5 doctor's appointment but did not inform him of 

the reason for it. During the summer of 1993, rumors had circulated among Spring Creek employees that a layoff might occur. Kuzara 

feared that if she reported her injury to Spring Creek she would be 

targeted as an injured employee and would be laid off. 

Kuzara drove to Billings, Montana, on August 5 for her 

appointment with Dr. Wood. Following a myelogram, Dr. Wood 

diagnosed Kuzara with a herniated disc. He recommended surgery to 

treat the herniated disc. Kuzara then realized she would have to 

report her injury to Spring Creek. 

On August 8, 1993, Kuzara returned home to Decker, Montana. 

According to Kuzara, she called Izzard at home and told him that 

she would not be able to come into work the next day. When asked 

why, Kuzara explained that she had a bad disc and would require 

back surgery. Kuzara stated at trial that she volunteered the 

following information to Izzard: "[The injury] was work related, 

but [Izzard] was--he was asking how it happened. I told him it was 

from a combination of things over a period of time, but most 

recently from lifting several weeks earlier, meaning about three 

weeks earlier, two to three weeks earlier." Kuzara did not say her 

injury happened at work but told Izzard that her injury was work 

related. She informed Izzard that she was getting sick and could 

4 
not talk anymore and that, if Izzard needed more information 

concerning her injury, he should contact Bebee, "because [Bebee] 

knew more than anyone else about [the situation] .'I 

That same evening, Kuzara also called Gene Kilpatrick, Spring 

Creek's department superintendent, and told him much of the same 

information she had told Izzard. At trial, Kuzara testified that 

she told Kilpatrick, 'I [The injury] was from operating equipment, 

from slips and falls. Told him it was mostly from lifting the 

power cable within the last couple of weeks, several weeks." 

On August 9, 1993, Kuzara called Don Gibboney, Human Resources 

Manager at Spring Creek. She called him "because I knew I needed 

to inform him that there was probably some kind of paperwork that 

needed to be done regarding this, and that they were the folks to 

call and they'd take care of it." She informed Gibboney that her 

back problem was work related, had been determined to be a surgical 

condition, and was "from a combination of things over a period of 

time." Gibboney advised Kuzara to take sick leave and file a claim 

with Aetna Life and Casualty Company (Aetna), Spring Creek's group 

health insurance carrier. 

When Gibboney questioned Kuzara about how much sick leave she 

had accrued, Kuzara responded that she did not know. Gibboney 

transferred Kuzara to Connie Haugen, who worked in Spring Creek's 

Human Resources Department. Kuzara informed Haugen that her back 

injury was work related. Then, according to Kuzara, Haugen stated 

that "she would--they would take care of everything. They would 

handle it all." 

5 
On August 10, 1993, Kuzara spoke with Kilpatrick again. She 

claims she told him three times that her condition was work 

related. Spring Creek placed Kuzara on sick leave and encouraged 

her to file a claim with Aetna. Spring Creek's Aetna policy did 

not cover work-related injuries. 

Dr. Wood performed back surgery on Kuzara on August 11, 1993, 

and released her on August 17, 1993. By mid-September, Kuzara had 

not received any paperwork regarding the injury she claims that she 

reported to Izzard, Kilpatrick, Gibboney, and Haugen on August 8- 

10, 1993. Concerned that she had not heard from Spring Creek, 

Kuzara drove to work on September 20, 1993, and informed Steve 

Velasquez, Spring Creek Safety Director, the details of the July 18 

dragline incident. This conversation was the first time Kuzara 

gave specific notice to a Spring Creek supervisor of the exact 

time, place and nature of her injury. At trial Kuzara testified 

that she believed she told Velasquez that her condition "was from 

that incident and was brought on also from just years of wear 

and tear from the mine." 

On October 15, 1993, Kuzara received a phone call asking her 

to come to Sheridan, Wyoming, to meet with Kilpatrick, Haugen, and 

Gibboney. In Sheridan, Kuzara learned that her employment would be 

terminated on October 16, 1993, and that she had no remaining sick 

leave with Spring Creek. Kuzara contacted the State Fund and was 

informed that Spring Creek had not filed a workers' compensation 

claim for her July 18 injury. Kuzara filed a claim with the State 

Fund which it denied. 

6 
Kuzara filed a petition with the Workers' Compensation Court 

seeking an award of benefits under the Montana Workers' Compensa 

tion Act. On November 14, 1995, the matter was heard before the 

Workers' Compensation Court. Following Kuzara's testimony, the 

State Fund moved for a directed verdict, arguing that based on 

Kuzara's testimony there was insufficient evidence to establish 

that she had provided her employer with sufficient notice of an 

injury as required by § 39-71-603, MCA (1993). The following 

exchange then occurred between Kuzara and the court: 

THE COURT: Is [the September 20, 1993, discussion with 

Velasquez] the first time that you told him [about the 

July 18 incident] or told anybody that? 

KUZARA: That I was that specific? 

THE COURT: Yeah. 

KUZARA: That I was that specific about it, I informed-- 

when I spoke with Clark -- 

MR. SHEEHY: August 8th? 

KUZARA: Yes, August 8th, with Clark and Gene, and then 

Don Gibboney on August 9th, I wasn't that specific. 

THE COURT: As I recall your testimony, you said you told 

him that the latest thing had happened while you were 

lifting several weeks ago. 

KUZARA: Right 

THE COURT: And that is as specific you got then? 

KUZARA: Right 

THE COURT: Okay. So at the time you talked to these 

fellows on August 8th, 9th, and lOth, you weren't keying 

specifically in on the work that you were doing with the 

shoe and lifting the grates? 

KUZARA: No. I didn't. 

7 
THE COURT: Were you keying in on that day to the--at 

least the date that this all started, or were you even 

vague about that at the time? 

KUZARA: I was vague about that. I told them several 

weeks. 

Following this discussion, Kuzara's counsel agreed that there was 

no additional testimony that would prove Kuzara had provided a more 

specific report of an injury having occurred on July 18, 1993. 

The court granted the State Fund's motion for a directed 

verdict. In a judgment issued on November 27, 1995, the court 

deemed Kuzara's testimony to be credible. The court explained in 

its findings of fact that Kuzara's notice was insufficient because 

it was too vague. Kuzara admitted at trial that at the time of her 

conversations on August 8, 9 and 10, she had identified no specific 

incident or series of incidents from which her work-related 

problems arose and did not do so until after the thirty-day period 

had expired. 

Kuzara, proceeding pro se, appeals the judgment granting the 

State Fund's motion for a directed verdict. 

STANDARD OF REVIEW 

The Workers' Compensation Court's determination that Kuzara 

had presented insufficient evidence to establish notice is a 

finding of fact. A reviewing court uses a three-step test to 

determine whether the findings are clearly erroneous. First, if a 

court's findings are not supported by substantial credible 

evidence, they are clearly erroneous. Second, if a court has 

misapprehended the effect of the evidence, its findings are clearly 

erroneous. Third, if a review of the record leaves the reviewing 

8 
court with the definite and firm conviction that a mistake has been 

committed, the lower court's findings are clearly erroneous. 

Spence v. Ortloff (1995), 271 Mont. 533, 535, 898 P.2d 1232, 1233 

(citing Interstate Production Credit Ass'n v. DeSaye (19911, 250 

Mont. 320, 323, 820 P.2d 1285, 1287). 

DISCUSSION 

Did the Workers' Compensation Court err when it granted the 

State Fund's motion for a directed verdict because it concluded 

that Kuzara had provided Spring Creek with insufficient notice of 

an injury as required by 5 39-71-603, MCA (1993)? 

Kuzara argues that she provided sufficient notice of her workrelated injury to Spring Creek. Spring Creek and the State Fund 

counter that Kuzara failed to provide notice of the specific time, 

place and nature of her injury as required by 5 39-71-603, MCA 

(1993). We agree with Kuzara. 

Workers' compensation laws in effect at the time of a 

claimant's injury are controlling. Crittendon v. Terri's Restaurant & Lounge (1991), 247 Mont. 293, 295, 806 P.2d 534, 535. 

Because Kuzara claims she was injured on July 18, 1993, this case 

is governed by the notice provision of 5 39-71-603, MCA (19931, 

which states: 

Notice of injuries other than death to be submitted 

within thirty days. NO claim to recover benefits under 

the Workers' Compensation Act, for injuries not resulting 

in death, may be considered compensable unless, within 30 

days after the occurrence of the accident which is 

claimed to have caused the injury, notice of 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 knowledse of the accident and iniurv on 

the part of the employer or the employer's manasins aqent 

9 
or superintendent in charge of the work upon which the 

injured employee was ensaqed at the time of the injurv is 

equivalent to notice. [Emphasis supplied.] 

The determinative issue in this case is notice. The evidence 

presented by Kuzara indicates that Spring Creek operated under an 

informal policy that discouraged its employees from reporting workrelated injuries. Spring Creek's gain-sharing plan discouraged 

employees from reporting injuries because if one employee reported 

a work-related injury, all employees stood to lose a percentage of 

their gain-sharing profits. 

Spring Creek argues that Kuzara's report of a work-related 

injury was vague in terms of specific time, place, and event. On 

August 8, 1993, Kuzara called her supervisor, Clark Izzard, and 

informed him that she was going to require back surgery. Kuzara 

told Izzard that her injury was work related. 

While Kuzara's statements to Izzard on August 8 could have 

been more specific in terms of time, place, and event, Izzard could 

have learned more about what happened by contacting Bebee, as 

Kuzara suggested. When Kuzara called Izzard on August 8, 1993, 

Kuzara informed him that she was in significant pain from a postoperative headache and was unable to speak on the telephone any 

longer. She informed Izzard that if he wanted any additional 

information, he should contact Bebee, who knew the whole story. 

Izzard made no attempt to contact Bebee. Had he done so, as Kuzara 

suggested, Spring Creek could have learned the details of Kuzara's 

injury on August 8, 1993, which she had already explained to Izzard 

were work related. 

10 
We conclude that during her case-in-chief Kuzara supplied 

sufficient evidence of notice of her work-related injury to her 

employer when she informed Izzard on August 8, 1993, that he should 

contact Bebee for more information. However, respondents should 

have the opportunity to present evidence to rebut Kuzara's claim 

that she gave Spring Creek sufficient notice of her injury. 

Therefore, we remand this issue to the Workers' Compensation Court. 

Notwithstanding that the Workers' Compensation Court found 

Kuzara to have testified truthfully and to be a credible witness, 

the court granted respondents a directed verdict. We conclude that 

the Workers' Compensation Court erred in misapprehending the 

evidence that supports Kuzara's claim of having given sufficient 

notice of her work-related injury. 

As a secondary issue to the notice provisions of 5 39-71-603, 

MCA (19931, we also consider principles of estoppel. Equitable 

estoppel applies when an employer or insurer has taken some 

positive action which either prevents a claimant from filing a 

timely claim or leads the claimant reasonably to believe she need 

not file such a claim. Davis v. Jones (1983), 203 Mont. 464, 466, 

661 P.Zd 859, 860. Six elements make up the doctrine of equitable 

estoppel: 

1. There must be conduct amounting to a representation or 

a concealment of material facts; 

2. These facts must be known to the party estopped at the 

time of the conduct, or at least the circumstances must 

be such that knowledge of them is necessarily imputed to 

him; 

3. The truth concerning these facts must be unknown to 

the other party claiming the benefit of the estoppel, at 

the time when it was acted upon by him; 

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4. The conduct must be done with the intention, or at 

least with the expectation, that it will be acted upon by 

the other party, or under such circumstances that it is 

both natural and probable that it will be so acted upon; 

5. The conduct must be relied upon by the other party, 

and, thus relying, he must be led to act upon it; 

6. He must in fact act upon it in such a manner as to 

change his position for the worse, in other words, he 

must so act that he would suffer a loss if he were 

compelled to surrender or forego or alter what he has 

done by reason of the first party being permitted to 

repudiate his conduct and to assert rights inconsistent 

with it. 

Davis, 661 P.2d at 860-61. 

We now apply the facts provided in Kuzara's testimony, which 

the Workers' Compensation Court found to be credible, to the six 

elements of estoppel. First, Spring Creek represented to Kuzara 

and concealed from her material facts. It did so on August 10, 

1993, when Haugen stated that Spring Creek would take care of 

everything and when she also encouraged Kuzara to file a nonworkrelated claim with Aetna. Haugen had to know that for a claim to 

be compensable by Aetna it could not be work related. Haugen did 

not inform Kuzara of this Aetna policy provision 

Second, Spring Creek was aware or should have been aware of 

the effect its representation and concealment of material facts 

would have on Kuzara. After being told by Haugen that Spring Creek 

would take care of everything, Spring Creek could reasonably assume 

that Kuzara would not file a claim with the State Fund. Additionally, after thirty days, Kuzara would be statutorily barred from 

filing a claim with the State Fund. Spring Creek was aware of this 

12 
fact and also knew that Kuzara was unaware of the consequences of 

filing a claim with Aetna. 

Third, Kuzara did not know the truth concerning Spring Creek's 

representation and concealment at the time her claim was filed with 

Aetna. Kuzara did not know what the Aetna policy said or that she 

had to report her work-related injury to Spring Creek or the State 

Fund within thirty days in order to receive workers' compensation 

benefits. 

Fourth, Spring Creek encouraged Kuzara to file a nonworkrelated claim with Aetna, expecting that she would file a claim 

with Aetna and not report her work-related injury to the State 

Fund. Spring Creek also knew or should have known that after 

Haugen represented that Spring Creek would take care of everything, 

Kuzara would not report her injury to the State Fund. 

Fifth, Kuzara relied on Haugen's representation that Spring 

Creek "would take care of everything. They would handle it all." 

Sixth, by acting on Spring Creek's representation, Kuzara 

acted in a manner which changed her position for the worse. 

Believing that Spring Creek would take care of everything and that 

Aetna would cover her injury, Kuzara did not file a claim with the 

State Fund until the thirty-day statutory notice period had 

expired. By relying on Spring Creek's representation, Kuzara was 

placed in a far worse position that she would have been in had she 

filed a timely claim with the State Fund. 

Based on the record before this Court and unless rebutted by 

substantial credible evidence, Spring Creek's representation and 

concealment of material facts led Kuzara reasonably to believe that 

13 
she did not have to file a claim with the State Fund. Equitable 

estoppel would therefore be proper to prevent Spring Creek and the 

State Fund from claiming that Kuzara supplied improper notice under 

§ 39-71-603, MCA (1993). Spring Creek encouraged Kuzara to file a 

nonwork-related injury claim with Aetna and also told Kuzara that 

it would "take care of everything." We hold that unless rebutted 

by Spring Creek and the State Fund, they are estopped from claiming 

that Kuzara provided insufficient notice of her work-related injury 

under § 39-71-603, MCA (1993). As with the issue of notice, 

respondents should have the opportunity to present evidence during 

their case-in-chief to rebut the issue of estoppel. 

We emphasize that this holding is limited to the narrow facts 

of this case. The notice Kuzara supplied to her employer was not 

by any means perfect and is not a model by which employees should 

notify their employers about work-related injuries. 

Remanded to the Workers' Compensation Court for a continuation 

of the trial and with respondents to be given the opportunity to 

present evidence rebutting Kuzara's claim that she supplied 

adequate notice of her injury to Spring Creek and to rebut the 

issue of estoppel. 

14 
We concur: 

Justices 

15 
Justice Karla M. Gray, dissenting. 

I respectfully dissent from almost the entirety of the Court's 

opinion. Indeed, it is my view that the opinion is so riddled with 

error as to be difficult to address. My concerns begin with the 

"Factual Background" set forth by the Court and are heightened by 

the Court's discussion of both the issue which is actually before 

us and the issue which is not, but which the Court inexplicably 

feels compelled to raise and address. 

The Court begins by reciting purported "facts" at some length, 

observing both there and later in its opinion that the Workers' 

Compensation Court determined that Kuzara was credible. It is 

important to note that the trial court's credibility determination 

was limited to her testimony regarding matters at issue in its 

consideration of the State Fund's motion for directed verdict; 

namely, the conversations with various people at Spring Creek Coal 

on which she relied in attempting to establish that she had 

provided sufficient notice. Contrary to the Court's implicit 

suggestion, the Workers' Compensation Court did not "findl' all of 

her testimony credible in all particulars; indeed, it could hardly 

have done so since the State Fund had not presented its version of 

the "facts." Moreover, the Court's suggestion that, in 

successfully obtaining a directed verdict on the notice issue 

without the necessity of putting on its case, the State Fund 

somehow chose not to rebut or contradict the portions of Kuzara's 

16 
testimony which did not relate specifically to the notice question 

at issue in its motion for directed verdict is disingenuous at very 

least. Kuzara's testimony on matters apart from the conversations 

she had with Spring Creek personnel within 30 days of the date of 

her alleged injury does not establish llfactsB' for any purpose other 

than determining whether the notice required by § 39-71-603, MCA 

(1993), was given and is not relevant to the issue before us as 

stated at the outset of the Court's decision. 

I also disagree with the standard under which the Court has 

chosen to review the Workers' Compensation Court's decision in this 

matter. The issue before us is whether that court erred in 

directing a verdict on the notice question. Our standard in 

reviewing a court's decision to direct a verdict certainly is not 

whether the court's decision is "clearly erroneous.t' Nor do I 

agree that the Workers' Compensation Court's determination that 

Kuzara presented insufficient evidence to establish notice is a 

"finding of fact" subject to the clearly erroneous standard of 

review. Questions relating to the sufficiency of the evidence to 

meet statutory requirements are questions of law subject to de nova 

review by this Court to determine whether they are correct. Thus, 

while I recognize that matters relating to standards of review 

often seem esoteric or unimportant to some, I register my strenuous 

objection to what the Court is doing here in applying an incorrect 

standard of review. 

The reason the standard of review matters here is this: under 

17 
the standard for reviewing findings of fact, this Court need not 

rely on any legal authority in support of its ultimate conclusion 

regarding whether the trial court's findings of fact are 

sufficiently supported by the record. That is, under the "clearly 

erroneous" standard, we need only review the record and apply the 

three-part clearly erroneous test. The Court apparently chooses 

this standard here because--as will become more apparent later-- no 

legal authority exists for the conclusion it reaches. The only way 

in which the Court can reach the result it seeks is to skewer the 

standard of review. I cannot agree. 

In addition to applying the wrong standard of review, the 

Court also misapplies the "clearly erroneous" standard it has 

chosen. It never determines, pursuant to the first prong of that 

test, whether the trial court's alleged "finding" is supported by 

substantial credible evidence; instead, it proceeds directly to its 

determination--under the second part of the "clearly erroneous" 

standard of review--that the Workers' Compensation Court 

"misapprehended the effect of the evidence" before it relating to 

notice. One can only suppose that this is because the Court is 

aware that the decision it purports to review as a "finding of 

fact" is not a factual finding at all and, therefore, is not 

susceptible to a record review to determine whether it is supported 

by substantial credible evidence. 

I do agree with two portions of the Court's opinion. First, 

immediately below its "Discussion" heading, the Court correctly 

18 
states the issue before us as whether the Workers' Compensation 

Court erred in granting the State Fund's motion for a directed 

verdict based on its conclusion that Kuzara provided her employer 

with insufficient notice of an injury under § 39-71-603, MCA 

(1993). Second, the Court correctly quotes the applicable statute. 

The problem is that no further mention of the u--either the 

statute and its requirements or our cases thereunder--appears in 

the Court's resolution of the issue before us. The Court does not 

even bother to try to apply the language of the statute to Kuzara's 

testimony to determine the legal question of whether her 

conversations constituted notice as defined by the statute. The 

Court's failure to include even a shred of legal support for the 

result it reaches here is both transparent and irresponsible. 

Applying the statutory terms only briefly here, it is clear 

from Kuzara's testimony--as quoted by the Court--that she did not 

notify Spring Creek Coal or the State Fund of "the time and place 

where the accident occurred and the nature of the injury . . 'I 

within 30 days. See 5 39-71-603, MCA (1993). It is also clear 

that neither the employer nor the employer's managing agent or 

superintendent in charge of the work upon which Kuzara was engaged 

at the time of the injury had 'I [al ctual knowledge of the accident 

and injury[,]" as alternatively required by § 39-71-603, MCA 

(1993). 

Instead of applying these statutory requirements to the 

evidence before it, the Court simply ignores them. In an apparent 

19 
effort to buttress its totally insupportable resolution of the 

issue, it goes on to state that Izzard "could have learned more" by 

contacting Bebee. It cites to no authority under which the 

employee's obligation to provide legally sufficient notice 

directly, or at least establish the employer's actual knowledge 

pursuant to the statute, can be "transferredl' to the employer. Nor 

does it cite to any authority under which an employee's legally 

insufficient notice becomes sufficient as a matter of law where the 

employer may have had the means to acquire additional information 

about the accident and injury. The reason for this total absence 

of authority is clear: no such legal authority exists. 

Furthermore, the Court's statement--at the end of its 

discussion of the issue before us--that Spring Creek Coal and the 

State Fund should have an "opportunity to rebut" Kuzara's 

"sufficient evidence of notice" on remand is apparently intended to 

suggest that the notice issue remains unresolved. The suggestion 

is an empty one. As discussed above, Kuzara's testimony about the 

extent of the notice she gave--taken as true by the Workers' 

Compensation Court, this Court and myself--is insufficient as a 

matter of law to constitute the notice required by § 39-71-603, MCA 

(1993). It does not need to be rebutted. The Court's suggestion 

is merely another outgrowth of its application of the wrong 

standard of review to the issue before us. 

The Court states that, on September 20, 1993, Kuzara informed 

a Spring Creek supervisor of the details of the July 18 incident. 

20 
The Court also correctly observes that this was the first such 

notification by Kuzara of the time, place and nature of her injury. 

It is clear that this notification was not made within the 

statutorily-mandated thirty-day period for notice. The Court 

simply refuses to apply the law to these facts. Applying § 39-71- 

603, MCA (1993), to the facts regarding notice set forth in 

Kuzara's testimony, I would affirm the Workers' Compensation Court. 

Finally, I feel compelled to address the Court's "equitable 

estoppel" discussion. This issue is not before the Court. It was 

neither raised nor argued in the Workers' Compensation Court and is 

neither raised nor argued in this Court. Simply put, the Court has 

"created" this issue out of whole cloth and then resolved it, 

apparently recognizing that its discussion and resolution of the 

issue actually before us is transparently incapable of standing 

alone. Moreover, the Court performs this feat of prestidigitation 

based on the so-called "facts" in Kuzara's testimony. There are no 

facts of record regarding this issue never raised or tried in the 

Workers' Compensation Court, however. Likewise, there is no 

decision by that court for us to review. 

This Court raises the issue, makes findings of fact regarding 

lack of knowledge by Kuzara which even Kuzara's own testimony does 

not support, makes further findings regarding Spring Creek's 

knowledge from a nonexistent record, and then resolves the 

question. To say that this entire portion of the Court's opinion 

is dicta is true; the Court resolved the only issue before it-- 

21 
albeit erroneously--before reaching out and creating this issue 

from thin air. But to say that this part of the opinion is dicta 

is an understatement. This is as extreme an example of lack of 

respect and regard for this Court's proper role as I have ever 

seen. 

The Court's opinion in this case raises "result oriented" 

opinion writing to an art-form. 

Er( 

I dissent. 

Justices James C. Nelson and C 

foregoing dissent. 

Justices 

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