No. 87-171 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

RONALD J. MASTERS, 

Claimant and Appellant, 

-vsDAVIS LOGGING, 

Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bothe Law Firm; David W. Lauridsen, Columbia Falls, 

Montana 

For Respondent: 

Warden, Christiansen, Johnson & Berg; Gary R. 

Christiansen, Kalispell, Montana 

- - - 

Submitted on Briefs: July 23, 1987 

Decided: October 1, 1987 

Filed: OCr 1 - 1987 

.- *\ -- 

'. Clerk 

A-d 
Mr. 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 of his injury within 60 days. We affirm. 

The issues presented 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 Logging was enrolled under compensation plan no. 3 

of the Workers' Compensation Act and was insured by 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 injured while 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, striking Masters between the legs. The force of 
the impact hurled him up the hill approximately 15 to 20 

feet, where he landed on his back. 

Masters immediately felt numb from the waist down. He 

rose to his feet and examined himself. Masters' feet were 

tingling and his legs were 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-employee who 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 b10rk anyway 

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 

to work 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 for back 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, 11 months 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 

insurance or cause any problems with Workman's Comp 

so I was just going to pay for everything myself. 

There is no allegation or evidence that the employer did 

anything that in anyway impeded Masters' ability to provide 

notice. 

The Montana Workers' Compensation Act 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. It provides: 

No claim to recover benefits under the Workers' 

Compensation Act, for injuries not resulting in 

death, may be considered compensable unless, within 

60 days after the occurrence of the accident which 

is claimed to have caused the injury, notice of the 

time and place where the accident occurred and the 

nature of the injury is given to the employer or 

the employer's insurer by the injured employee or 

someone on the employee's behalf. Actual knowledge 

of the accident and injury on the part of the 

employer or the employer ' s managing agent or 

superintendent in charge of the work upon which the 

injured employee was engaged at the time of the 

injury is equivalent to notice. 

The provisions of the notice statute are "mandatory and 

compliance with its requirements is indispensable to the 

maintenance of a claim for compensation." Bender v. Roundup 

Mining Company (1960), 138 Mont. 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 requirement of § 39-71-603, MCA, was 

satisfied because he notified his employer within 60 days of 

discovering the extent of his 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 his back and head did not fully manifest 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 sought to be 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 of vigilance is of 

any help. The limitations period runs against a 

claim that has not yet matured; and when it matures 

it is already barred. 

673 P.2d at 478, 40 St.Rep. at 2065, citing 3 Larson, 

Workmen's Compensation Law, $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' Compensation Act, 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 notice 
provision 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 review of 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 regular basis. These facts do not indicate 

a latent injury. 

Masters did not suffer minor 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 does not indicate a 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