NO. 91-279 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

CHARLES T. KILLEBREW, 

Claimant and Appellant, 8 Fa.-? 9 

V. :3 &x4 

AJ6 3 P 1992 

m 2d.:,>a?t I;%*.;,:, ' 

LARSON CATTLE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Paul E. Toennis argued, Toennis Law Firm, 

Billings, Montana 

For Respondent: 

Jerrold F. Nye argued, Nye & Meyer, Billings, 

Montana; Daniel B. McGregor, Legal Counsel, 

Department of Labor and Industry, Helena, Montana 

For Amicus Curiae: 

Charles G. Adams argued, State Compensation 

Mutual Insurance Fund, Helena, Montana: 

Michael P. Heringer, Brown Law Firm, 

Billings, Montana 

Submitted: December 10, 1991 

Filed: 

Decided: August 31, 1992 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On June 13, 1990, the Uninsured Employers Fund of the 

Department of Labor and Industry issued an order requiring that the 

Larson Cattle Company pay workers' compensation disability benefits 

to Charles Killebrew, the claimant. On June 26, 1990, the employer 

denied liability for disability benefits and requested mediation 

under 5 39-71-2401, MCA. On December 17, 1990, a hearing examiner 

for the Department of Labor and Industry concluded that claimant 

was not entitled to disability benefits because he had not given 

adequate notice under 5 39-71-603, MCA (1987). That decision was 

affirmed by the Workers' Compensation Court on May 9, 1991. 

Claimant appeals from the judgment of the Workers' Compensation 

Court. We reverse and remand for further proceedings. 

The issue on appeal is whether the information which claimant 

alleges he provided to his employer was sufficient to satisfy the 

notice requirements under 3 39-71-603, MCA (1987). 

FACTUAL BACKGROUND 

Claimant went to work for his employer as a ranch hand during 

July 1989 and worked in that capacity until mid-May 1990. 

Claimant testified that while working for his employer on 

December 17, 1989, he was operating a tractor when he was forced 

off the road by a pickup approaching him in the opposite direction. 

As a result of this accident, the tractor was tipped over on its 

side. Claimant testified that when the tractor hit the ground it 

jerked his hands loose from the steering wheel and he fell against 

the side of the cab, striking his shoulder. 

2 
Claimant testified that he saw his employer, Clifford Larson, 

on either the day following the tractor accident or two days later. 

He testified that he told Larson about the accident, stating, "I 

hurt my shoulder a little bit, but I said you know 'I'm okay it's 

no big deal I don't think."' 

Claimant testified that he then continued to perform his ranch 

duties, but that as time passed his shoulder became increasingly 

uncomfortable, his use of that shoulder became increasingly 

limited, and he finally went to a physician on February 14, 1990. 

The medical records of R. R. Whiting, M.D., a physician in 

Hardin, indicate that he first examined the claimant regarding the 

shoulder injury on February 14, 1990. Dr. Whiting's records 

indicate that on that occasion claimant stated that he had injured 

the shoulder when he was operating a tractor which overturned. Dr. 

Whiting diagnosed a rotator cuff tear which he concluded was 

causally related to the accident that claimant had described. The 

shoulder injury was later diagnosed by an orthopedic surgeon as an 

impingement syndrome for which surgery was performed on August 10, 

1990. 

On May 15, 1990, as a result of his shoulder injury, claimant 

filed a written claim for compensation pursuant to fj 39-71-601, 

MCA . 

Claimant's employer, Clifford Larson, testified that on the 

date of claimant's tractor accident he came out to the ranch, saw 

the tractor lying on its side, and knew that claimant had been 

involved in an accident. However, he denied that claimant had ever 

3 
advised him of any injury or physical discomfort resulting from 

that accident. 

On March 17, 1990, while attempting to tag a newborn calf for 

his employer, claimant was run into and then run over by a cow. He 

testified that he was generally beat up and bruised as a result of 

the experience. However, he did not seek immediate medical 

attention. 

Claimant testified that on the day following the incident with 

the cattle he told his employer he had been beaten up by a couple 

of cows and that he showed his employer the physical marks on his 

body which resulted from that experience. He did not describe any 

specific injury to his employer, and there is no evidence that he 

was aware of any specific injury at that time. 

After being run into and over by the cattle, claimant's knee 

began to swell. He packed it with ice for a period of time and 

tried to continue working. However, when the ice did not relieve 

the swelling, he went to see Dr. Whiting for treatment of his knee 

injury. Dr. Whiting's records indicate that he first examined the 

claimant regarding a knee and ankle injury on April 19, 1990. He 

referred him for further diagnostic exams and an evaluation by an 

orthopedic surgeon in Billings. That surgeon diagnosed a tear of 

the medial meniscus in the right knee and an impingement syndrome 

on the right ankle. Surgery was performed on the right knee on 

June 13, 1990, and on the right ankle on August 10, 1990. 

4 
As a result of his knee and ankle injuries, claimant filed a 

claim for compensation on May 15, 1990, pursuant to 5 39-71-601, 

MCA . 

Clifford Larson acknowledged that in March 1990 he was aware 

that his employee had been "in a wreck with the cows." However, he 

denied having been advised that claimant was injured as a result of 

that incident. 

Because Larson carried no workers' compensation insurance, 

claimant entered into an agreement with the Uninsured Employers 

Fund of the Department of Labor and Industry which authorized the 

Fund to recover benefits it paid to the employee directly from the 

employer. 

The Fund ordered Larson to pay to claimant those benefits to 

which he was entitled under the Workers' Compensation Act on 

June 13, 1990. Larson sought mediation of that order and denied 

liability to claimant for several reasons. He contended that 

claimant had never been his employee; that any injury claimant 

received was sustained while performing work beyond the scope of 

his duties; and that claimant never notified him of his injuries 

within 30 days as required by § 39-71-603, MCA (1987). 

On September 28, 1990, a hearing was held before the hearing 

examiner from the Department of Labor. The hearing examiner 

considered testimony from the claimant and his employer and several 

other witnesses. However, the only testimony regarding the notice 

given by claimant to his employer came from Killebrew and Larson. 

5 
As a result of the evidence produced at that hearing, the 

hearing examiner concluded that: 

1. There was an employer-employee relationship between 

Larson and Killebrew; 

2. Claimant injured his shoulder on December 17, 1989, and 

his knee and ankle on March 17, 1990; 

3. Both of claimant's injuries were related to his 

employment by Larson: but that 

4. Even though Larson was aware of both accidents within 30 

days from the time that they occurred, claimant did not disclose 

the nature of his injuries with sufficient specificity to comply 

with 5 39-71-603, MCA. 

In concluding that the claimant had not satisfied the notice 

requirement, the hearing examiner did not specifically resolve the 

direct conflict between the testimony of Killebrew and Larson. He 

simply drew the following conclusion based on previous language 

employed by this Court: 

In Lee v. Lee, d/b/a Wilderness Ranch and Lodqe, 234 

Mont. 197, 761 P.2d 835 (1988), the Supreme Court adopted 

the standard set forth in 3 Larson, Sec. 78.31(a) (2), pp. 

15-126 to 15-136 (1988), which states: 

It is not enough, however, that the 

employer, through his representatives, be 

aware that claimant "feels sick", or has a 

headache, or fell down, or walks with a limp, 

or has a pain in his thumb, or has suffered a 

heart attack. There must in addition be some 

knowledge of accompanying facts connecting the 

injury or illness with the employment, and 

indicating to a reasonably conscientious 

manager that the case might involve a 

potential compensation claim. 

6 
Though there is conflicting evidence, it is found as 

fact Mr. L [Larson] was aware of the accidents within the 

statutory time period set forth in § 39-71-603, MCA. The 

information imparted to him, however, would not meet the 

standards of notification cited in Lee, suma, and set 

forth in Section 603. While being aware of the 

accidents, constructive knowledge of the injuries which 

resulted from those accidents cannot be imputed to him. 

It was incumbent upon Mr. K [Killebrew] to advise his 

employer of the specific injuries in a timely manner, but he 

failed to do so. [Italics added.] 

It is not clear, therefore, whether the hearing examiner found 

that Killebrew had given Larson no description of any physical 

consequences from the accidents he described, or whether the 

hearing examiner simply concluded that, presuming Killebrew's 

testimony was true, his description of his injury was inadequate. 

The Workers' Compensation Court affirmed the decision of the 

hearing examiner for the following reason: 

We cannot conclude that the hearing examiner abused 

his discretion on the basis argued by the claimant, since 

the claimant never reported anv injury within the 30-day 

period. 

However, as pointed out previously, it is not clear that that 

is in fact what the hearing examiner found. 

The Workers' Compensation Court went on to conclude that since 

no notice of any injury had been given to the employer within the 

30-day period required by 5 39-71-603, MCA (1987), claimant's claim 

was barred pursuant to our decision in Rei1 v. Billiiigs Processors, Ztzc. 

(1987), 229 Mont. 305, 746 P.2d 617, in which we held that "latent 

injuries" did not exclude strict compliance with the notice 

requirements of 5 603. 

7 
On appeal, claimant contends that the hearing examiner and the 

Workers' Compensation Court misconstrued the nature of the notice 

that is required under § 39-71-603, MCA. Claimant contends that 

the hearing examiner was incorrect as a matter of law pursuant to 

our decision in Wight v. Hughes Livestock Co., Inc. (1981) , 194 Mont. 109, 

634 P.2d 1189, and Wi~oitv.SLiitRiverCaftleCo. (1983), 206 Mont. 63, 670 

P.2d 931. 

The employer, on the other hand, contends that claimant simply 

seeks to toll the notice requirements under 5 603 on the basis that 

his injury was latent and that our decision is controlled by our 

prior decision in Rei1 and Roessel v. Riveridell of Billings (1990) , 244 Mont. 

175, 797 P.2d 174. 

STANDARD OF REVIEW 

On appeal from the decision of the hearing examiner for the 

Department of Labor and Industry, claimant did not challenge the 

hearing examiner's findings of fact. He challenged the hearing 

examiner's application of the law as set forth in Lee to the facts 

in this case. 

We have previously held that when reviewing conclusions of law 

by an agency, the Workers' Compensation Court, or a trial court, we 

will review those conclusions to determine if they are correct. 

Steerv. DOR (1990), 245 Mont. 470, 803 ~.2d 601, 603. 

DISCUSSION OF LAW 

Section 39-71-601, MCA (1987), provides a statute of 

limitations for filing claims for disability benefits under the 

8 
Workers' Compensation Act. Written claims for benefits must be 

filed within 12 months, unless extended by the Department of Labor 

and Industry for a latent injury or unknown disability. However, 

we have previously held that under § 601, in cases of latent 

injury, the time for filing does not begin to run until the 

claimant does or should recognize the nature, seriousness, and 

compensable character of his injury. Bowermait v. State Compensation Fuizd 

(1983), 207 Mont. 314, 673 P.2d 476. 

Section 39-71-603, MCA (1987), is the "notice" provision of 

the Workers' Compensation Act. It provides as follows: 

No claim to recover benefits under the Workers' 

Compensation Act, for injuries not resulting in death, 

may be considered compensable unless, within 30 days of 

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. 

We have previously held that unlike 5 601, the notice 

requirement of 5 603 is not tolled where the employee is unaware of 

the severity or compensable nature of his injury. Reil v. Billiizgs 

Processors, IIZC. (1987), 229 Mont. 305, 746 P.2d 617; Roessel v. Riveitdell of 

Billings (1990), 244 Mont. 175, 797 P.2d 174. 

It is the Reil and Roessel decisions which the employer contends 

are controlling in this case. However, neither case presented a 

factual situation similar to the one in this case. 

9 
In ReiI, the employer was generally aware of complaints of 

discomfort by the claimant. However, the employer was not provided 

with any notice that those complaints of pain or discomfort were 

related to any accident that occurred during the course of 

claimant's employment, or to any work related activities until well 

after the time for providing notice under 5 603. 

In Roessel, the employer was not provided with notice of any 

work-related accident or of the claimant's complaints about 

physical discomfort until after the 30-day period of time provided 

for under 5 603. 

In other words, in neither Rei1 nor Roessel was the employer 

provided with notice of an accident or activity which could have 

led to injury so that it could protect itself by prompt 

investigation of the accident and providing whatever medical 

examination or treatment was necessary for the claimant. 

In this case, it is undisputed that the employer was aware of 

both accidents which are the basis for claimant's claims for 

compensation. Furthermore, if the claimant's testimony is 

believed, then the employer was also provided with all the 

information available to the claimant at that time regarding the 

physical impact of these accidents on the claimant. We are not 

presented, in this case, with a situation where the employer did 

not have notice which would enable him to promptly investigate the 

accident or secure the necessary examination and treatment of the 

claimant. The question in this case is whether, if the claimant's 

10 
testimony is correct, the description of his injuries was adequate 

to meet the requirements of 5 603. 

Our decision is controlled by our previous decision in Wight. 

In that case, claimant was injured while doing ranch work when he 

was pinned between the steering wheel on the tractor that he was 

driving and an uplifted front-end loader of another tractor. He 

originally reported only injuries to his ribs and chest. Two years 

later he filed an additional claim for benefits alleging that he 

sustained injuries to his back in the same accident. Benefits were 

denied on the basis that he had not notified his employer of the 

specific injury for which he sought benefits as required under 

5 39-71-603, MCA. In affirming the Workers' Compensation Court's 

judgment for the claimant, we held that: 

'#The purpose of the notice requirement . . . is to 

enable the employer to protect himself by prompt 

investigation of the claimed accident and prompt 

treatment of the injury involved with a view toward 

minimizing its effects by proper medical care." Bender v. 

RouizdupMiiiingCo. (1960), 138 Mont. 306, 313, 356 P.2d 469, 

473. The purpose underlying the requirement for early 

reporting of injuries was fulfilled in this case. The 

claim form submitted by Wight provided the insurer with 

all the information it needed to enable it to investigate 

the accident and determine the extent of Wight's 

injuries . 

Wight, 634 P.2d at 1189. 

We arrived at a similar conclusion in Wilsoit where the claimant 

originally only reported an injury to his leg, but later filed a 

claim for disability benefits due to a back injury arising out of 

the same accident. 

11 
Based on these decisions, we conclude that the requirements of 

5 39-71-603, MCA (1987), are satisfied when an employee who is 

involved in a work-related accident reports that accident to his 

employer within 30 days from the date of its occurrence and 

apprises his employer, to the best of his ability, whether he 

suffered any adverse physical consequences from that accident. An 

employee who has a reasonable belief at the time of an accident 

that he has suffered no injury which will require treatment or is 

otherwise compensable, is not barred from recovery under 5 603 

because he learns otherwise beyond the 30-day period. 

Following his December 17, 1989, tractor accident, claimant 

testified that he advised his employer he had hurt his shoulder a 

little bit butthat he thought it was going to be okay. Following 

his March 17, 1990, accident in which he was run into and trampled 

on by cattle, claimant testified that he showed his employer the 

physical evidence of trauma on his body and that his employer 

observed him limping thereafter when he had not limped before. 

This information following both incidents was sufficient to enable 

the employer to protect himself by prompt investigation of the 

accidents and to require prompt treatment or examination for any 

injuries that might have resulted from those accidents. 

Claimant was not in a position to provide more information 

than he described because it was not until after 30 days that his 

injury from each of the above accidents worsened to the point where 

he sought medical treatment and was informed of the specific causes 

for his physical complaints. To interpret the requirements of 

12 
1 

g 603 any more strictly than we have would defeat the public policy 

objective for the Workers' Compensation Act as set forth in 

I 5 39-71-105(1), MCA (1987). That section provides that: 

It is an objective of the Montana workers' 

compensation system to provide, without regard to fault, 

wage supplement and medical benefits to a worker 

suffering from a work-related injury or disease. 

That objective cannot be accomplished if we construe 5 603 so 

narrowly that it erects insurmountable barriers to collection of 

disability benefits, when they are unrelated to any legitimate 

public policy. 

However, in this case, the factual dispute created by the 

testimony of the claimant and his employer was not resolved by the 

hearing examiner. We cannot determine from his findings and 

conclusions whether he accepted the claimant's description of the 

notice given to his employer and simply concluded that it was 

legally inadequate, or whether he accepted the employer's testimony 

that no notice was given of any physical consequences from the 

accidents that occurred. The hearing examiner concluded that under 

our decision in Lee, that vague complaints or ill health were not 

sufficiently specific to satisfy the requirements of g 603. 

However, the Lee decision has no bearing on the issue presented in 

this case. In that case, claimant was employed by his father who 

operated an outfitting business. He was injured at about 2 a.m. 

when thrown out of the back of a friend's pickup while returning 

home from a bar. His father was aware of the accident and 

injuries, but unaware of the son's claim that he was working on his 

13 
father's behalf at the time of the injury. The issue in that case 

was whether 603 required notice that an accident and injury are 

work related. That case had nothing to do with how specific a 

claimant's description of his injuries has to be in order to 

satisfy 5 603. 

For these reasons, the judgment of the Workers' Compensation 

Court is reversed, and this case is remanded to the hearing 

examiner for the Department of Labor and Industry for the purpose 

of resolving the factual dispute created by the testimony of the 

claimant and his employer. After entering findings regarding the 

substance of claimant's notice to his employer, or the extent of 

the employer's actual knowledge regarding claimant's accident and 

injury, judgment shall be entered which is consistent with the rule 

set forth in this opinion. 

Reversed and remanded. 

We concur: 

Chief Justice 

$ 

14 
Justices 

15 
Justice Fred 3. Weber specially concurs as follows: 

I agree with the conclusion of the majority opinion that the 

hearing examiner failed to resolve the factual dispute regarding 

notice of the injury which resulted from the conflicting testimony 

of the claimant and employer. As a result, I agree that it is 

appropriate to remand in order to resolve that factual dispute. I 

therefore concur in the reversal and remand. 

The majority opinion analyzes the claimant's testimony and 

concludes that the information furnished by the claimant 

establishedthat both incidents involving injury were sufficient to 

enable the employer to protect himself by prompt investigation of 

the accident. I point out there are no findings of fact by the 

Workers' Compensation Court on this testimony. It is the absence 

of this factual determination by the lower court which has required 

the majority to reverse and remand. Under those circumstances, I 

conclude it is not appropriate to reach the factual conclusion upon 

which the majority opinion is founded. 

Because there has been no factual determination, I conclude 

that it is inappropriate to reach the central conclusion of the 

majority opinion which is stated as follows: 

Based on these decisions, we conclude that the 

requirements of 5 39-71-603, MCA (1987), are satisfied 

when an employee who is involved in a work-related 

accident reports that accident to his employer within 30 

days from the date of its occurrence and apprises his 

employer, to the best of his ability, whether he suffered 

any adverse physical consequences fromthat accident. An 

employee who has a reasonable belief at the time of an 

accident that he has suffered no injury which will 

16 
require treatment or is otherwise compensable, is not 

barred from recovery under 5 603 because he learns 

otherwise beyond the 30-day period. 

Because the foregoing conclusion is not based upon facts presented 

to us, it is advisory in nature. It appears to expand our holdings 

from previous cases. I do not concur in that conclusion. 

I also disagree with the conclusion that under there is 

nothing which has any bearing on this case. It was in Lee that 

this Court adopted the following standard from Larson: 

It is not enough, however, that the employer, 

through his representatives, be aware that claimant "feels sick", or has a headache, or fell down, or walks 

with a limp, or has a pain in his back, or shoulder, or 

is in the hospital, or has a blister, or swollen thumb, 

or has suffered a heart attack. There must in addition 

be some knowledge of accompanying facts connecting the 

injury or illness with the employment, and indicating to 

a reasonably conscientious manager that the case might 

involve a potential compensation claim. 

Because we do not yet have the factual determination from the trier 

of fact, I do not find it appropriate to state that the quotation 

Chief Justice 3. A. Turnage: 

17