No. 92-478 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

LOUIS C. KINGSCOTT, 111, 

Claimant and Appellant, 

-vCARP'S DRAIN CLEANING, Employer, 

and 

STATE COMPENSATION MUTUAL INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, 

Of the State of Montana, 

The Honorable Timothy 3. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas A. Marra, Marra, Wenz, Johnson & Hopkins, 

Great Falls, Montana 

For Respondent: 

Laurence A. Hubbard, State Compensation Mutual 

Insurance Fund, Helena, Montana 

Submitted on Briefs: February 4, 1993 

Filed: 

Decided: March 23, 1993 
Justice R. C. McDonough delivered the Opinion of the Court. 

Appellant (Kingscott) appeals from a judgment of the Workers' 

Compensation Court. We affirm. 

The issue is whether the court erred in finding that Kingscott 

did not satisfy the notice requirement of 8 39-71-603, MCA, which 

states : 

No 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. 

Kingscott was employed by Carp's Drain Cleaning (Carp). His 

duties included apartment maintenance, drain cleaninq and septic 

tank pumping. His job was physically demanding, requiring lifting 

of equipment and machinery. 

Kingscott claims on his first day of work, December 1, 1990, 

he was injured in handling a 90-pound spool of cable (cleaning 

snake). It started to slip from his grip, and in attempting to 

prevent it from falling on his legs and feet, he pushed it away 

from his body and felt a snapping sensation in his back. Kingscott 

testified that J. Carpenter, one of the owners, was present and 

asked him if he was okay. He told J. Carpenter he was fine. 

Carpenter denies he was present. Kingscott did not tell anyone at 

Carp he was injured by this incident. He did see a medical doctor 
on December 13, 1990, and attended physical therapy sessions. 

Kingscott continued to work for Carp. 

Kingscott testified, while working alone on February 8, 1991, 

he again was handling one of the cable spools. It started to slip 

and while directing it away from his body, his back was injured. 

Kingscott testified he did not immediately inform his employer 

because he needed the job. He continued to work through March 4, 

1991. He again went to see the medical doctor, first on February 

13, 1991, and on later dates. The doctor did not recall Kingscott 

ever mentioning the injury. Further factual matters will be set 

forth in the following discussion. 

Whether the notice of injury requirement of § 39-71-603, MCA, 

has been complied with, is a question of fact. The findings and 

conclusions of the Workersi Compensation Court will be upheld by 

this Court using the following test: 

itour function in reviewing a decision of the Workers1 

Compensation Court is to determine whether there is 

substantial evidence to support the findings and 

conclusions of that court. We cannot substitute our 

judgment for that of the trial court as to the weight of 

evidence on questions of fact. Steffes v. 93 Leasina Co, 

Inc. (1978), 177 Mont. 83, 86, 580 P.2d 450, 452. 

However, decisions of the Workers' Compensation Court 

must be based upon substantial credible evidence. 

O'Brien v. Central Feeds (1990), 241 Mont. 267, 271, 786 

P.2d 1169, 1172. If the conclusions of law are not 

supported by the Court's findings of fact, those 

conclusions must be reversed. Hume v. St. Reais Paper 

Comoany (1980), 187 Mont. 53, 608 P.2d 1063." 

EBI/Orion Group v. State Compensation Mut. Ins. Fund (19911, 249 

Mont. 449, 452, 816 P.2d 1070, 1072: quoting Hash v. Montana 

Silversmith (1991), 248 Mont. 155, 158, 810 P.2d 1174, 1175. 
A number of witnesses testified for the various parties. The 

credibility of the witnesses was the major determining factor in 

this case. For example, Kingscott's wife testified that she 

contacted Carp on two occasions on March 5, 1991. She called first 

to tell Carp her husband was sick and second to advise Carp of the 

February 8, 1991 injury. The employer's witnesses testified they 

were not told on March 5 that Kingscott was injured. Mrs. 

Kingscott stated she also went to the employer's office on March 8, 

1991, and told them of the December, 1990 injury and the February 

8, 1991 injury. The employer's witnesses admit she told them of 

the December, 1990 injury but did not tell them of the February 8, 

1991 injury. The record is replete with conflicting testimony. 

The Workers1 Compensation Court heard the testimony, viewed 

the demeanor of the witnesses and judged their credibility. The 

record reveals direct substantial testimony in support of the 

court's findings. There is no strong or conclusive paper trail 

relative to the giving of notice. We conclude the testimony 

supporting the trial court's findings and conclusions was 

substantial and the judgment is therefore affirmed. 

F'ursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

March 23. 1993 

CERTIFICATE OF SERVICE 

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

named : 

Thomas A. Marra 

Marra, Wenz, Johnson & Hopkins 

P.O. Box 1525 

Great Falls. MT 59403-1525 

Laurence A. Hubbard, Legal Counsel 

State Compensation Mutual Ins. Fund 

P.O. Box 4759 

Helena, MT 59604-4759 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATEi-OF MONTAN