No. 87-171

IN THE SUPREME COURT OF THE STATE OF MONTANA 1987

RONALD J. MASTERS, Claimant andAppellant,-vsDAVIS LOGGING, Employer, and
STATE COMPENSATION INSURANCEFUND, Defendant and Respondent.

APPEAL FROM: TheWorkers' CompensationCourt, TheHonorable Timothy Reardon, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Bothe Law Firm;DavidW. Lauridsen,ColumbiaFalls, Montana
For Respondent: Warden, Christiansen, Johnson & Berg; Gary R. Christiansen,Kalispell,Montana

- - - Submitted on Briefs: July 23, 1987 Decided: October 1, 1987
Filed: 

# OCr1

# -1987

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'.Clerk A-dMr. Justice John C. Sheehy delivered the Opinion of the Court.

Appellant, Ronald Masters, appeals a decision of the Workers' Compensation Court denying his claim for benefits and reasonable costs and attorney's fees. Appellant alleges the court erred in holding his claim barred for failure to notify the employer ofhis injurywithin 60days. We affirm. The issuespresented on appeal are: 1. Whether there is substantial credible evidence to support the Workers' Compensation Court's decision that appellant's claim for benefits is barred for failing to notify his employer as required by 5 39-71-603,MCA? 2. Whether the appellant is entitled to reasonable costs and attorney's fees? We find that the first issue is determinative. Davis Loggingwas enrolled under compensationplan no. 3 of theWorkers' CompensationAct and was insuredby the State Compensation Insurance Fund. Davis Logging was a small. logging company owned and operated by Billy Joe and Linda Davis. Masters has been a friend of the Davis' family for 15 years. In May, 1985,Masters accepted employment as sawyer for Davis Logging in an area approximately 40 miles into the back country. He was injuredwhile so employed. On May 23, 1985,Masters was falling timber on a steep hillside. At that time, he encountered a tree with a large snag protruding from the main stalk of the tree. Masters ascended the hill to a point above the snag and began sawing it. While sawing,the snag detached from the tree and swung up the hill, strikingMasters between the legs. The force ofthe impact hurled him up the hill approximately 15 to 20 feet, where he landed onhisback. Masters immediately felt numb from the waist down. He rose to his feet and examined himself. Masters' feet were tingling and his legswere numb. He also suffered back pain, small cuts and scrapes. Masters returned to work after resting for ten minutes and discussing the accident with a co-employeewho happened upon the scene. The next morning, Masters was so stiff and sore he 

### "[didn't] know if he could make it.

### " He went to b10rkanyway and continued working with pain until he ceased his employment with Davis Logging on June 22, 1985. At that time, Masters returned to the Libby area where he continued towork as a sawyer with Decker Logging until February, 1986. Although Masters' ability to work was impaired and the pain in his back progressively worsened, he did not immediately seek medical attention. In July, 1985,he began seeing a local chiropractor on a regular basis forback pain treatments. While the chiropractor took several x-rays, he failed to diagnose the injury. The chiropractic treatments continued without success until approximately January, 1986. At that time,Masters' continued pain forced him to seek the assistance of his family physician, Dr. Brus. Dr. Brus referred him to a back specialist. Dr. Laidlaw, the back specialist, diagnosed a ruptured disk on March 27, 1986. Masters personally paid $3,500 for medical care to this point. During the period that Masters continued to be employed by Davis Logging, Billy Joe Davis, the owner, was at the jobsite at least part of the time. Masters did not inform Davis of the injury. In addition, Masters was aware of the Davis' location after he terminated his employment.

### Nevertheless, Davis was not notified of the injury until April 16, 1986, 11months after the injury. Masters explains his failure to notify his employer in two ways. At trial, he testified he "didn't know the severity of [his] injury.'' In his deposition, he states:



# ... I 

### had paid for everything out of my pocket which I 

### wasn't going to turn it in because Bill there, he is a real good personal friend of mine and 

### I didn't figure that I 

### wanted to raise his insuranceor cause any problemswith Workman's Comp so I was just going to pay for everythingmyself. There is no allegation or evidence that the employerdid anything that in anyway impeded Masters' ability to provide notice. The Montana Workers' CompensationAct provides a set of rules designed to effectuate a balance between the competing interests of workers and employers. Section 39-71-603,MCA, reflects the employer's interest in prompt notification of claims. Itprovides: No claim to recover benefits under the Workers' Compensation Act, for injuries not resulting in death,may be considered compensableunless, within 60 days after the occurrence of the accidentwhich 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'sbehalf. 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 tonotice. The provisions of the notice statute are "mandatoryand compliance with its requirements is indispensable to the maintenance of a claim for compensation." Benderv. Roundup Mining Company (1960),138Mont. 306, 309, 356 P.2d 469, 470. Hunt v. Sherwin Williams Company (19811,

## -Mont

# . , 624

### P.2d 489. Masters, by his own admission, failed to notify his employer within 60 days of his injury. He contends, however, that the notice requirementof § 

### 39-71-603,MCA,was satisfied because he notified his employer within 60days of discovering the extentofhis injury. We disagree. In Bowerman v. Employment Security Division (Mont. 1983), 673 P.2d 476, 40 St.Rep. 2062, we recognized that latent injuries presented a unique situation which often resulted in substantial injustice to the injured worker. In Bowerman, the claimant promptly notified his supervisor that he had fallen into a stairwell after slipping on a pencil. The injury to hisback and head did not fullymanifest itself until after the statute of 

### limitation had run,however. An examination of the rationale behind the statute of limitation, § 

### 39-71-601, MCA, revealed that latent injuries
are not the type of evil soughttobe prevented. Statutes of limitation generally proceed on the theory that a man forfeits his rights only when he inexcusably delays assertion of them 

# .. . But [with latent injuries]no amount ofvigilance is of any help. The limitations period runs against a claim thathas notyetmatured; andwhen itmatures it is alreadybarred. 673 P.2d at 478, 40 St.Rep. at 2065, citing 3 

### Larson, Workmen's CompensationLaw, $j

### 78.42(b) at 15-226. Consistent with principles of equity and the Court's duty to liberally construe the provisions of the Workers' CompensationAct,we held that the statutory period "does not begin to run until the claimant, as a reasonable [person], should recognize the nature, seriousness and probable, compensable character of his latent injury." 673 P.2d at 479, 40 St.Rep. at 2065. The Workers' Compensation Court, in Hamilton 

### v. Combustion Engineers, Inc., WCC No. 8307-2091, decided July 27, 198a, extended the Bowerman rationale to the noticeprovision of 5 39-71-603, MCA. Masters requests that this Court do likewise. Assuming we were inclined to do so, the facts of this case preclude the application of Bowerman, supra. A reviewof the facts indicates that a reasonable person should have been aware that a serious injury had been sustained. Masters testified that he suffered pain which impaired his ability to work and that the pain progressively increased. The pain caused discomfort to the degree that Masters felt it was necessary to engage the services of a chiropractor on a regularbasis. These facts do not indicate

a latent injury. Masters did not sufferminor or sporadic pain, however. It appears that he consciously chose to forego his rights under the Workers' Compensation Act and shoulder the burden of the injury himself because of his friendship with his employer. Such a decision doesnot indicatea latent injury. We therefore hold that the decision of the Workers' Compensation Court is affirmed. We offer no opinion as to the applicability of the Bowerman, supra, rationale to the notice provision of g 39-71-603,MCA. 

# Llplu_a.%, Justice 

### t' V We Concur:


# &&~~z$LWyd Justices