NO. 96-016 INTHESUPREMECOURTOFTHESTATE OFMONTANA 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.

COUNSELOFRECORD:

For Appellant: Elizabeth M. Kuzara, Sheridan, Wyoming (Pro Se) For Respondent: Charles G.Adams, State Compensation Insurance Fund, Helena, Montana

Filed: Submitted onBriefs: October 24, 1996 Decided: November 14, 1996

ClerkChief 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). Wereverse and remand with instructions consistent with this opinion. The sole issue onappeal is whether the Workers' Compensation Court erred when it granted the State Fund's motion for adirected verdict because Elizabeth Kuzara presented insufficient proof of notice of awork-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 beacredible witness, stating, "I can at this point and doassume that sheis telling methe 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 doso. Kuzara was employed as adragline groundsman by the Spring Creek Coal Company at anopen pit coal mine near Decker, Montana. Spring Creek is insured bythe State Fund. Kuzara claims that she sustained awork-related injury onJuly 18, 1993. While cleaning dried mud from adragline machine shoe, Kuzara suffered intense

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

At trial shedescribed the pain as "enough that Ihad to cease what Iwas doing--it was like getting anelectrical 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, aco-worker, about the July 18incident onthe 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 Ithought Ihad done it when Iwasdown cleaning onthe shoe."Spring Creek employees participated in again-sharing program. Spring Creek set aside apercentage of its profits to bedistributed 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 wassubtracted 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 18and

was still in pain, Kuzara called Dr. Robert Wood, aneurosurgeon in 3Billings, Montana, andscheduled anappointment 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.OnAugust 4, 1993, Kuzara told her supervisor, Clark Izzard, about her August 5doctor's appointment but did not inform him of the reason for it. During the summer of 1993, rumors had circulatedamong Spring Creek employees that alayoff might occur. Kuzara feared that if she reported her injury to Spring Creek shewould be targeted as aninjured employee andwould 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 aherniated disc. Herecommended surgery to treat the herniated disc. Kuzara then realized she would have to report her injury to Spring Creek. OnAugust 8, 1993, Kuzara returned home to Decker, Montana. According to Kuzara, she called Izzard at home and told him that she would not beable to come into work the next day. Whenasked why, Kuzara explained that she had abad 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 wasasking howit happened. Itold 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 4not 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 sameevening, Kuzara also called GeneKilpatrick, 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." OnAugust 9, 1993, Kuzara called DonGibboney, HumanResources Manager at Spring Creek. She called him "because I knew I needed to inform him that there wasprobably somekind of paperwork that needed to bedone regarding this, and that they were the folks to call and they'd take care of it." She informed Gibboney that her back problem waswork related, hadbeen determined to beasurgical condition, and was "from acombination of things over aperiod of time." Gibboney advised Kuzara to take sick leave andfile aclaim with Aetna Life andCasualty Company (Aetna), Spring Creek's group health insurance carrier. WhenGibboney questioned Kuzara about howmuch sick leave she had accrued, Kuzara responded that she did not know. Gibboney transferred Kuzara to Connie Haugen, whoworked in Spring Creek's Human Resources Department. Kuzara informed Haugen that her back injury waswork related. Then, according to Kuzara, Haugen stated that "she would--they would take care of everything. They would handle it all."

5OnAugust 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. Woodperformed back surgery onKuzara onAugust 11, 1993, andreleased her onAugust 17, 1993. Bymid-September, Kuzara had not received anypaperwork regarding the injury sheclaims that she reported to Izzard, Kilpatrick, Gibboney, and Haugen onAugust 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 andwasbrought onalso from just years ofwear and tear from the mine." OnOctober 15, 1993, Kuzara received aphone 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 onOctober 16, 1993, andthat she hadnoremaining sick leave with Spring Creek. Kuzara contacted the State Fund and was informed that Spring Creek had not filed aworkers' compensation claim for her July 18injury. Kuzara filed aclaim with the State Fund which it denied.

6Kuzara filed apetition with the Workers' Compensation Court

seeking anaward of benefits under the Montana Workers' Compensa tion Act. OnNovember 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: THECOURT: Is [the September 20, 1993, discussion with Velasquez] the first time that you told him [about the July 18incident] or told anybody that? KUZARA: That Iwasthat specific? THECOURT: Yeah. KUZARA: That Iwasthat specific about it, I informed-- when I spoke with Clark -- MR. SHEEHY: August 8th? KUZARA: Yes, August 8th, with Clark and Gene, and then DonGibboney onAugust 9th, Iwasn't that specific. THECOURT: As Irecall your testimony, you said you told him that the latest thing had happened while you were lifting several weeks ago. KUZARA: Right THECOURT: And that is asspecific you got then?

KUZARA: Right THECOURT: Okay. So at the time you talked to these fellows onAugust 8th, 9th, and lOth, you weren't keying specifically in onthe work that you were doing with the shoe and lifting the grates? KUZARA: No. I didn't.

7THE 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

noadditional testimony that would prove Kuzara hadprovided amore specific report of an injury having occurred on July 18, 1993. The court granted the State Fund's motion for a directed verdict. In ajudgment issued on November 27, 1995, the court deemed Kuzara's testimony to becredible. The court explained in its findings of fact that Kuzara's notice wasinsufficient because it was too vague. Kuzara admitted at trial that at the time of her conversations onAugust 8, 9and 10, shehadidentified nospecific incident or series of incidents from which her work-related problems arose and did not dosountil after the thirty-day period had expired. Kuzara, proceeding pro se, appeals the judgment granting the State Fund's motion for adirected verdict. STANDARDOFREVIEW 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 areview of the record leaves the reviewing

8court with the definite andfirm conviction that amistake 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 adirected verdict because it concluded that Kuzara hadprovided Spring Creek with insufficient notice of

an injury as required by 539-71-603, MCA(1993)? Kuzara argues that sheprovided 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). Weagree 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 onJuly 18, 1993, this case is governed by the notice provision of 539-71-603, MCA (19931, which states: Notice of injuries other than death to be submitted within thirty days. NOclaim to recover benefits under the Workers' Compensation Act, for injuries not resulting in death, maybeconsidered 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 tothe employer orthe 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 orthe employer's manasins aqent

9or superintendent in charge of the work upon which the

injured employee wasensaqed 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 oneemployee reported

awork-related injury, all employees stood to lose apercentage of their gain-sharing profits. Spring Creek argues that Kuzara's report of awork-related injury wasvague 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 waswork related. While Kuzara's statements to Izzard on August 8could have been more specific in terms of time, place, andevent, Izzard could have learned more about what happened by contacting Bebee, as Kuzara suggested. WhenKuzara called Izzard on August 8, 1993, Kuzara informed him that she was in significant pain from apostoperative 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 madenoattempt to contact Bebee. Hadhedone so, asKuzara suggested, Spring Creek could have learned the details of Kuzara's injury onAugust 8, 1993, which shehadalready explained to Izzard

were work related.

10Weconclude that during her case-in-chief Kuzara supplied

sufficient evidence of notice of her work-related injury to her employer when she informed Izzard onAugust 8, 1993, that heshould 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, weremand this issue to the Workers' Compensation Court. Notwithstanding that the Workers' Compensation Court found Kuzara to have testified truthfully and to beacredible witness, the court granted respondents adirected verdict. Weconclude 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. Asasecondary issue to the notice provisions of 539-71-603, 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 aclaim. Davis v. Jones (1983), 203Mont. 464, 466, 661 P.Zd 859, 860. Six elements make upthe doctrine of equitable estoppel: 1.There must beconduct amounting to arepresentation or aconcealment of material facts; 2. These facts must beknown 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 beunknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him;

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

least with the expectation, that it will beacted upon by the other party, or under such circumstances that it is both natural andprobable that it will besoacted upon; 5. The conduct must be relied upon by the other party, and, thus relying, hemust beled to act upon it; 6. Hemust in fact act upon it in such amanner 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. Wenowapply 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 andwhen she also encouraged Kuzara to file anonworkrelated claim with Aetna. Haugen had to know that for aclaim to be compensable byAetna it could not bework 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 onKuzara. After being told byHaugen 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 aclaim with the State Fund. Spring Creek wasaware of this

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

filing aclaim with Aetna. Third, Kuzara did not know the truth concerning Spring Creek's representation andconcealment at the time her claim wasfiled 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 aclaim 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 aclaim with the State Fund until the thirty-day statutory notice period had expired. Byrelying onSpring Creek's representation, Kuzara was placed in afar worse position that shewould have been in had she filed atimely claim with the State Fund. Based onthe 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 13she did not have to file aclaim with the State Fund. Equitable

estoppel would therefore beproper to prevent Spring Creek andthe 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." Wehold that unless rebutted bySpring Creek andthe 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. Weemphasize 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 amodel bywhich employees should notify their employers about work-related injuries. Remanded to the Workers' Compensation Court for acontinuation 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

### Weconcur:

Justices

15

### Justice Karla M.Gray, dissenting.

Irespectfully dissent from almost 

### theentirety of theCourt's opinion. Indeed, it ismyview that the opinion is soriddled with

error asto bedifficult to address. Myconcerns begin with the "Factual Background" set forth bythe Court andare heightened by the Court's discussion of both the issue which is actually before

us andthe issue which is not, but which the Court inexplicably feels compelled to raise andaddress. TheCourt begins byreciting purported "facts" at somelength, observing both there andlater in its opinion that the Workers' Compensation Court determined that Kuzara was credible. It is important tonote that the trial court's credibility determination

waslimited 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 inall particulars; indeed, it could hardly havedonesosince the State Fundhadnot 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 somehowchosenot to rebut orcontradict the portions of Kuzara's

16

### testimony which did not relate specifically to the notice question

atissue inits motion for directed verdict is disingenuous at very 

### least. Kuzara's testimony onmatters apart from the conversations shehadwith Spring Creek personnel within 30days of the date of heralleged injury doesnotestablish llfactsB' for anypurpose other than determining whether the notice required by§39-71-603, MCA (1993), wasgiven andis 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 chosentoreview theWorkers' Compensation Court's decision inthis matter. The issue before us is whether that court erred in directing averdict on the notice question. Our standard in reviewing acourt's decision to direct averdict 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 meetstatutory requirements arequestions oflawsubject todenova review bythis Court todetermine whether they are correct. Thus, while I recognize that matters relating to standards of review often seemesoteric orunimportant tosome,Iregister mystrenuous objection to what the Court is doing here inapplying anincorrect standard of review. Thereason the standard of review matters here is this: under

17

### the standard for reviewing findings of fact, this Court neednot

rely onanylegal authority in support of its ultimate conclusion regarding whether the trial court's findings of fact are sufficiently supported bythe record. That is, under the "clearly erroneous" standard, weneedonly review the record andapply the three-part clearly erroneous test. TheCourt apparently chooses this standard herebecause--as will becomemoreapparent later-- no legal authority exists for theconclusion it reaches. Theonly way in which the Court canreach 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 toits 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. Onecanonly suppose that this is because the Court is

aware that the decision it purports to review asa "finding of fact" is not a factual finding at all and, therefore, is not susceptible toarecord review todetermine whether it is supported bysubstantial credible evidence. Idoagree with twoportions of the Court's opinion. First, immediately below its "Discussion" heading, the Court correctly

18

### states the issue before us aswhether the Workers' Compensation

Court erred in granting the State Fund's motion for adirected verdict basedonits conclusion that Kuzara provided her employer with insufficient notice of an injury under § 39-71-603, MCA (1993). Second, theCourt correctly quotes theapplicable statute. Theproblem is that nofurther mention of the u--either the statute andits requirements or our cases thereunder--appears in the Court's resolution of the issue before us. TheCourt doesnot

evenbother totry toapply thelanguage ofthe statute to Kuzara's testimony to determine the legal question of whether her conversations constituted notice asdefined bythe statute. The Court's failure to include evenashred of legal support for the result it reaches here is both transparent andirresponsible. Applying the statutory terms only briefly here, it is clear from Kuzara's testimony--as quoted bythe Court--that shedid not notify Spring Creek Coalor the State Fundof "the time andplace where the accident occurred andthe nature of the injury

. . 'I within 30days. See539-71-603, MCA(1993). It is also clear that neither the employer nor the employer's managing agent or superintendent in charge of theworkuponwhich Kuzara wasengaged 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 anapparent

19

### effort to buttress its totally insupportable resolution of the

issue, it goesonto state that Izzard "could havelearned 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 tothe statute, canbe"transferredl' tothe employer. Nor does it cite to anyauthority under which anemployee's legally insufficient notice becomessufficient asamatter of lawwherethe employer mayhavehadthe meansto acquire additional information about the accident andinjury. Thereason for this total absence of authority is clear: nosuchlegal authority exists. Furthermore, the Court's statement--at the end of its discussion of the issue before us--that Spring Creek Coal andthe State Fund should have an "opportunity to rebut" Kuzara's "sufficient evidence ofnotice" onremandisapparently intended to suggest that the notice issue remains unresolved. Thesuggestion is anemptyone. Asdiscussed above, Kuzara's testimony about the extent of the notice she gave--taken as true by the Workers' Compensation Court, this Court andmyself--is insufficient asa matter oflawtoconstitute thenotice required by§39-71-603, MCA (1993). It doesnot needto berebutted. TheCourt's suggestion is merely another outgrowth of its application of the wrong standard of review to the issue before us. TheCourt states that, onSeptember 20, 1993, Kuzara informed

aSpring Creek supervisor of the details of the July 18incident.

20

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

notification byKuzaraof thetime, place andnature ofher 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 lawto these facts. Applying §39-71- 603, MCA (1993), to the facts regarding notice set forth in Kuzara's testimony, Iwouldaffirm theWorkers' 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 norargued intheWorkers' Compensation Court andis neither raised nor argued inthis Court. Simply put, the Court has "created" this issue out of whole cloth and then resolved it, apparently recognizing that its discussion andresolution of the issue actually before us is transparently incapable of standing alone. Moreover, the Court performs this feat of prestidigitation basedonthe so-called "facts" inKuzara's testimony. There areno facts of record regarding this issue never raised or tried in the Workers' Compensation Court, however. Likewise, there is no decision bythat court for usto review. This Court raises the issue, makesfindings of fact regarding lack of knowledge byKuzarawhich evenKuzara's owntestimony does not support, makes further findings regarding Spring Creek's knowledge from a nonexistent record, and then resolves the question. Tosaythat 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 saythat this part of the opinion is dicta is anunderstatement. This is asextreme anexample 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 anart-form.

Er( Idissent.

Justices James 

### C. Nelson and C foregoing dissent.

Justices

22