NO. 94-014

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

JAMES D. LARSON,

Petitioner and Appellant,

v.

BARRY SMITH LOGGING, INC.,

Employer,

NIV 7 4 1994

and

STATE COMPENSATION INSURANCE FUND,

Defendant and Respondent.

STATE OF MONTANA

APPEAL FROM: Workers I Compensation Court, The

Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Timothy J. Lape, Attorney at Law,

Missoula, Montana

For Respondent:

Susan C. Witte, Legal Counsel,

State Compensation Insurance Fund,

Helena, Montana

Filed:

Submitted on Briefs: August 11, 1994

Decided: November 14, 1994
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Petitioner James D. Larson appeals the judgment of the

Workers' Compensation Court entered December 17, 1993, which

concluded that because Larson failed to provide his employer with

notice of his alleged injury within the 30 days prescribed by

5 39-71-603, MCA, he was not entitled to benefits.

Affirmed.

We state the issue as follows:

Is there substantial evidence to support the Workers'

Compensation Court's decision that Larson was not entitled to

benefits?

Larson is 42 years old and has worked in the timber industry

for 20 years. For 14 of those 20 years, Larson has worked as a

sawyer. Barry Smith Logging employed Larson as a sawyer from

January 1992 to June 5, 1992. Larson alleges he injured his back

on April 9, 1992, while working for Barry Smith Logging at a timber

site near Schwartz Creek. At the time of the alleged injury, Barry

Smith Logging was insured by the State Fund.

On the same day as the alleged injury, Larson told John

Rockenbaugh, a co-sawyer working at the Schwartz Creek site, that

he had "taken a bad spill" and was "feeling kind of poorly."

Larson began a series of four chiropractic treatments

beginning April 17, 1992, and ending May 1, 1992. Larson paid for

the treatments and did not submit a first report of treatment to

the State Fund until early June 1992.

2
On May 18, 1992, 39 days after the April 9, 1992, accident,

Larson notified his employer, Barry Smith, of the alleged injury.

Larson filed a written claim for workers' compensation on

June 3, 1992. On June 24, 1992, the State Fund denied Larson's

claim because Larson failed to notify his employer of his injury

within 30 days.

On June 8, 1993, Larson filed a petition with the Workers'

Compensation Court. A trial was held on September 22, 1993, and

judgment was entered on December 17, 1993. The court concluded

that Larson was not entitled to benefits because he failed to

provide his employer with notice of the alleged injury within

30 days pursuant to 5 39-71-603, MCA. Larson appeals the decision

of the Workers' Compensation Court.

IS there substantial evidence to support the Workers'

Compensation Court's decision that Larson was not entitled to

benefits?

On review, this Court will not substitute its judgment for

that of the Workers' Compensation Court and will uphold its

findings if there is substantial evidence to support them.

Reeverts v. Sears (Mont. 1994), 51 St. Rep. 894, 895; Buckentin v.

State Fund, (Mont. 1994), 818 P.2d 262, 263, 51 St. Rep. 656, 657;

Plainbull v. Transamerica Insurance (Mont. 1994), 870 P.2d 76, 80,

51 St. Rep. 181, 184; Houts v. Kare-Mor, Inc. (1993), 257 Mont. 65,

68, 847 P.2d 701,703. "We will uphold the court's conclusions of

law if its interpretation of the law is correct." Reeverts, 51

St. Rep. at 895; Stordalen v. Ricci's Food Farm (1993), 261 Mont.

3
256, 257, 862 P.2d 393, 394; Martelliv. Anaconda-Deer Lodge County

(19931, 258 Mont. 166, 167, 852 P.2d 579, 580.

Larson notified his employer, Smith, of the injury 39 days

after sustaining it on April 9, 1992. On the day of the accident,

Larson told co-worker John Rockenbaugh that he had "taken a bad

spill." Larson maintains that he informed Rockenbaugh of the

injury, rather than his employer, because believed that Rockenbaugh

was a managing agent or superintendent in charge of the work site.

Larson asserts that by informing Rockenbaugh of the injury, he

satisfied the 30 day notice requirement of § 39-71-603, MCA, which

provides:

N o claim to recover benefits under the Workers'

Compensation Act, for injuries not resulting in death,

may be considered compensable unless, within 30 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 record shows that Smith is the sole owner and the only

managing agent or superintendent at Barry Smith Logging. The

company office is located in Smith's home. John Rockenbaugh was

employed by Smith as a sawyer. Both Rockenbaugh and Larson were

paid by the piece, and as sawyers, they performed the same tasks.

There is nothing in the record to show that Rockenbaugh was

employed as a supervisor or that he supervised Larson's work on

April 9, 1992.

4
Larson argues that if Rockenbaugh was not a managing agent or

superintendent in fact, he was at least an ostensible supervisor.

"An agency is ostensible when the principle intentionally or by

want of ordinary care causes a third person to believe another to

be his agent." Section 28-10-103, MCA. The belief that another is

an agent must be reasonable. Bogle V. State Compensation Mutual

Insurance Fund (1994), 264 Mont. 515, 519, 872 P.2d 800, 802;

Butler Mfg. Co. v. J & L Implement Company (1975), 167 Mont. 519,

527, 540 P.2d 962, 965.

Larson asserts that he reasonably believed Rockenbaugh was a

managing agent or superintendent because Rockenbaugh was the only

person at the work site who gave him instructions. While the

record shows that Rockenbaugh was the only person at the work site

to give Larson instructions, the record also shows that it could

have been Larson giving instructions to Rockenbaugh on April 9,

1992. Smith testified that sawyers usually worked in pairs. Smith

would give the location of the next work site, along with cutting

specifications, to whichever sawyer was handy at the time. Once at

the site, the informed sawyer would then relay the cutting

specifications to the other sawyer. Smith instructed Larson to

meet Rockenbaugh at the Schwartz Creek site on April 9, 1992. Once

there, Rockenbaugh relayed the cutting specifications to Larson.

Thereafter, both sawyers worked independently: were paid based on

their individual work output: and neither supervised the work of

the other.

5
Larson contends that Smith failed to give him any directions

about reporting accidents. Larson contends further that he

reported the injury to Rockenbaugh because Smith was hard to

contact. The record does not support these contentions. Six weeks

prior to the accident in the present case, Larson cut his lip while

on the job and reported that injury directly to Smith at the

company office by telephone within the prescribed 30 days. Larson

then filed an unsuccessful workers' compensation claim as a result

of the cut lip.

There is nothing in the record to suggest that Smith

intentionally or by want of ordinary care held Rockenbaugh out to

be an ostensible agent. Rockenbaugh did not supervise Larson's

work, nor did he hold himself out to be a supervisor. At no time

did either Smith or Rockenbaugh tell Larson that Rockenbaugh was a

supervisor. We note from the record that when asked by a claims

examiner for the State Fund whether he worked with a supervisor he

could have notified about his injury, Larson replied "No."

Larson next argues that the 30 day notice requirement of

c, 39-71-603, MCA, was substantially complied with, and that the

purpose of the statute was satisfied. We have 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 to minimize its effect. Bender v.

Roundup Mining Co. (1960), 138 Mont. 306, 312-13, 356 P.2d 469,

472. Smith was not able to start investigating the accident until

May 18, 1992, nine days after the allowable statutory period had

6
expired. Larson's four chiropractic treatments ended 18 days

before Smith was notified of the accident. Larson's injury was not

diagnosed until mid-June 1992, after he underwent an MRI 27 days

after Smith should have been notified of the injury. The purpose

of the notice requirement, protection of the employer's interests,

was at least compromised, if not frustrated, by Larson's failure to

report his injury to Smith within 30 days.

As to substantial compliance, the statute clearly states that

no claim shall be considered compensable unless the employer or

employer's insurer is notified within 30 days. Notice under the

statute is mandatory, and compliance is indispensable to

maintaining a claim for compensation. Buckentin, 878 P.2d at 265:

Reil v. Billings Processors, Inc. (1987), 229 Mont. 305, 308, 746

P.2d 617, 619; Masters v. Davis Logging (1987), 228 Mont. 441, 443,

743 P.2d 104, 106.

Larson argues that although he knew that he injured himself on

April 9, 1992, he did not realize the severity of the injury until

30 days had passed, thereby tolling the 30 day notice requirement.

To support his position, Larson relies on Killebrew v. Larson

Cattle Co. (1992), 254 Mont. 513, 839 P.2d 1260. In Killebrew, we

concluded that an employee who reasonably believes at the time of

an accident that he suffered no injury requiring medical treatment,

is not barred by the 30 day notice requirement of 5 39-71-603, MCA,

when he discovers otherwise after the 30 day period has elapsed.

The record shows that following the accident Larson took several

days off from work because of the injury, and that he received a

7
series of chiropractic treatments thereafter. These facts do not

indicate a latent injury. We have held that "'simple ignorance of

compensability, absent any evidence of estoppel by the employer or

medical disinformation [is insufficient] to toll the notice

requirement.'" Buckentin, 878 P.2d at 265 (quoting Reil -I 746 P.2d

at 623) (alteration in original). There is no evidence in the

record to show that Larson's employer prevented him from reporting

the injury or that he was misinformed about the extent of the

injury by medical personnel.

Larson did not comply with the mandatory 30 day notice

requirement of § 39-71-603, MCA. Based on his past experience,

Larson understood how and when to notify his employer of injury,

and he understood the procedure for filing a workers' compensation

claim. Larson was aware that he suffered an injury and he sought

medical treatment shortly after the accident. The Workers'

Compensation Court concluded, and we agree, that Larson did not

notify his employer within the 30 days as required under

5 39-71-603, MCA.

We hold that there is substantial evidence to support the

Workers' Compensation Court's decision that Larson was not entitled

to benefits.

Affirmed.

8
we concur:
November 14, 1994

CERTIFICATE OF SERVI(x

I hereby certify that the following certified order was sent by United States mail, prepaid,

to the following named:

Timothy J. Lape

Attorney at Law

P. 0. Box 8164

Missoula, MT 59807-8164

Susan C. Witte

STATE FUND

P. 0. Box 4759

Helena, MT 59604-4759

ED SMITH

CLERK OF THE SUPREME COURT