No. 93-542 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

JEFFREY S. ROSE, 

Claimant and Appellant, 

v. 

BURDICK'S LOCKSMITH, 

Employer, 

and c:,J >;nif/z 

CLERK OF SUPRCI!IC COUht 

STATE COMPENSATION MUTUAL INSURANCE FUND, STATE OF MONTANA 

Insurer and Respondent. 

APPEAL FROM: Workers' Compensation Court 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Pyfer, Small, Hatch, 

Doubek & Pyfer, Helena, Montana 

For Respondent: 

Ann E. Clark, State Compensation 

Insurance Fund, Helena, Montana 

Filed: 

Submitted on Briefs: March 3, 1994 

Decided: May 17, 1994 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Jeffrey Scott Rose appeals the judgment of the 

Workers' Compensation Court entered October 1, 1993, which found 

that he was not entitled to benefits for an injury allegedly 

suffered while employed by Burdick's Locksmith. 

We affirm. 

The issues on appeal are: 

1. Was there substantial credible evidence to support the 

Worker's Compensation Court's findings that the claimant failed to 

establish that he suffered a compensable injury on July 24, 1992, 

while in the employ of Burdick's Locksmith? 

2. Was there substantial credible evidence to support the 

Worker's Compensation Court's finding that the claimant failed to 

comply with the 30-day notice requirement of 5 39-71-603, MCA? 

Jeffrey S. Rose served in the armed forces and was discharged 

in 1972 due to a disability related to a knee injury. He received 

ongoing medical care for the knee injury and a pre-existing neck 

and shoulder problem at the Veteran's Administration Hospital. His 

prior employment included instructing gymnastics and diving. 

During the 1970s he was employed as a locksmith in California, 

Washington, and Oregon. In 1990, he began his own locksmith 

business in Helena. He became acquainted with Dan Burdick, the 

sole proprietor of Burdick's Locksmith, and the two discussed the 

possibility of Burdick purchasing his locksmith business. 

On July 16, 1992, Rose was employed by Burdick's Locksmith to 

fill-in for another employee recovering from a medical problem. 
Employees included Dan Burdick, his wife ~laudia, a brother, and 

two or three other employees. Rose continued to perform his own 

business duties around ~urdick's Locksmith business hours. 

Throughout Rose's employment with Burdick, the discussion continued 

concerning the sale of his locksmith business. 

Rose alleged that while he was at work around noon on July 24, 

1992, he helped co-employee Kelly Harris move an office file 

cabinet and that during the move he injured his neck and felt 

immediate pain in his back and arm. He maintained that he worked 

until mid-afternoon, at which time his wife drove him to the 

Veteran's Administration ~ospital where he was treated for his neck 

injury. 

On August 15, 1992, the employee whom Rase was filling in for, 

returned to work and Rose was laid off. On October 16, 1992, the 

State Fund received the physician's initial report and billing from 

the Veteran's Administration Hospital for Rose's visits of July 24 

and September 22, 1992. On October 20, 1992, the State Fund 

received a compensation claim from Rose to recover disability and 

medical benefits for the July 24 injury. The State Fund received 

the employer's first report on October 29, 1992, and on 

November 20, 1992, the State Fund placed the claim under 

1 39-71-608, MCA, and paid wage loss compensation benefits under a 

reservation of rights pending further investigation. 

After unsuccessful mediation between the parties, on June 2, 

1993, trial was held before a hearing examiner. On October 1, 

1993, the court issued findings of fact and conclusions of law and 
entered judgment concluding that Rose failed to prove that he 

suffered a compensable injury, and also failed to meet the 30-day 

notice requirements within 39-71-603, MCA. The court denied 

Rose's attorney fees and costs. Rose appeals the findings of the 

Workers' Compensation Court. 

ISSUE 1 

Was there substantial credible evidence to support the 

Worker's Compensation Court findings that the claimant failed to 

establish that he suffered a compensable injury on July 24, 1992, 

while in the employ of Burdick's Locksmith? 

Upon review, this Court will uphold the lower court's findings 

where such findings are supported by substantial credible evidence. 

Smith v. United Parcel Service (1992), 254 Mont. 71, 835 P.2d 715. 

When conflicting evidence is presented and the credibility of 

witnesses or weight of their testimony is a pivotal point of the 

lower court's findings, this Court will not substitute its judgment 

for that of the lower court. Smith-Carter v. AMOCO Oil Co. (1991), 

248 Mont. 505, 813 P.2d 405. 

In the present case, both parties presented conflicting 

evidence as to whether Rose was injured, and the Workers' 

Compensation Court based its findings upon the credibility of the 

parties. 

Rose presented evidence that he injured his neck on July 24, 

1992, when he helped Kelly Harris move an office file cabinet. 

Harris denied that he helped him move the cabinet or that he was 

injured . 
Rose also stated that on the day of the injury he left work at 

2:30 p.m. to see a doctor concerning that injury. However, the 

doctor's medical notes from his July 24 visit stated that he was 

returning for a follow-up visit for a pre-existing medical problem 

of neck pain which was exacerbated by an injury at work. Rose 

testified that it was coincidence that he showed up at the 

Veteran's Administration Hospital on an emergency basis on July 24 

at 3:00 p.m., the exact date and time of his appointment which was 

previously scheduled in June 1992. 

The medical records reveal that prior to the alleged July 24 

injury, Rose was treated for neck and shoulder problems. On 

February 28, 1992, Dr. Harris Hanson stated in part: 

This 38 year old man seen in consultation with a history 

of neck pain associated with a pain in the right axilla 

down the medial aspect of the upper arm and into the 

right forearm in the radial aspect. 

The following medical report by Dr. Alex Johnson, dated 

March 3, 1992, reveals treatment four months prior to the alleged 

injury: 

Beginning about a year ago he began to gradually 

experience bouts of pain, first in the neck and shoulder 

area progressing into the medial upper arm and then into 

the posterior forearm distally as far as the wrist, all 

on the right side. 

Since October 1992, Rose was examined and treated by Dr. 

Weinert, a specialist in physical medicine and rehabilitation. Dr. 

Weinert1s report also indicates that Rose complained of pain 

associated with lifting "a heavy shelf1' at work and that the 

condition was pre-existing. 
The court considered yet another inconsistency concerning 

Rose's injury by referring to a medical form completed by him 

during the July 24 doctor's visit where he answered in the negative 

when asked whether his medical need was related to work and whether 

his medical need was due to an accident. 

The court also noted its concerns with Burdick's credibility 

because he was recently found to be underpaying premiums due to 

improper employee classification. Also, he testified that he 

considered only catastrophic injuries to be compensable under the 

workers1 compensation guidelines. 

The court, after weighing all of the evidence, found that 

while both parties have made obvious self-serving statements, Rose 

failed to meet his burden to prove by a preponderance of the 

evidence that he was entitled to benefits under 5 39-71-407, MCA. 

The court found several inconsistencies in Rose's testimony and 

stated the following: 

His [Rose's] credibility is diminished by his 

pre-existing medical condition, his fabrications about 

how he injured his knee in the military, his denial on 

the V.A. Hospital forms that his problem was work 

connected, and the fact that no disability or injury 

[was] ever noticed to the employer until after claimant 

was laid off and the possible sale of his business fell 

through. 

Upon our review of the entire record we hold that there is 

substantial credible evidence to uphold the Workers' Compensation 

Court's findings that Rose failed to prove that he suffered 

compensable injury on July 24, 1992, while in the employ of 

Burdick's Locksmith. 
ISSUE 2 

Was there substantial credible evidence to support the 

Worker's Compensation Court's finding that claimant failed to 

comply with the 30-day notice requirement of § 39-71-603, MCA? 

Section 39-71-603, MCA, requires a person claiming benefits 

under the Worker's Compensation Act must give notice within 30 days 

after the occurrence of the injury to the employer or the 

employerls insurer; notice is also met by the actual knowledge of 

the injury by the employer or a managing agent or superintendent in 

charge of the employee's work. 

The parties submitted conflicting evidence concerning whether 

Rose gave notice within 30 days after the injury. Rose argues that 

the court erred in finding that he failed to give notice because 

Harris was the superintendent in charge of the work place when 

Burdick was gone, and had notice of the injury because he was 

present when the injury occurred and he knew Rose left work for 

treatment in the early afternoon. 

Harris denied that he knew about the injury or that Rose left 

work for treatment. Both Harris and Burdick, as well as other 

employees, denied that Harris was the supervisor of the shop or 

held himself out as such. Burdick testified that Rose gave him 

notice by telephone on October 3, 1992, after he was laid off and 

Burdick was no longer interested in the sale of his business. 

The following information in the record supports that Rose did 

not give notice within the 30-day time limit: the State Fund 

received the physician's initial report of the injury on 
October 16, 1992, receivedRosels compensation claim on October 20, 

1992, and received the employer's first report on October 29, 1992. 

In our review of the entire record, we hold that the court's 

findings that the employer did not have notice of Rose's injury 

pursuant to § 39-71-603, MCA, is supported by substantial credible 

evidence. 

Affirmed. 

We concur: