Injury and Accident:
Accident. While the record makes clear claimant has serious back
problems, neither claimant nor the witnesses testifying on her behalf
were credible regarding the occurrence of the alleged accident. In
addition to the Court's observation of witnesses, the Court relied
upon inconsistencies between claimant's description of the accident
and the description of another witness testifying for her, records
indicating claimant stopped working before the date she claimed the
accident occurred, and the absence of any mention of a work injury
in her medical records.
Limitations Period:
Notice to Employer. WCC credited Town Pump supervisors who testified
claimant, a merchandise stocker, did not report a work injury to them
and that they had no knowledge of the alleged injury until well past
the 30 day reporting period under section 39-71-603, MCA (1989). The
Court did not credit a co-employee who claimed she had been a supervisor
and was told of the accident. The credible evidence indicated the
co-employee may have had lead cashier duties, but had no supervisory
responsibility for claimant, who was a merchandise stocker. Notice
to a co-employee is insufficient; notice must be given to the employer
or the employer's managing agent or supervisor in charge of the employee's
work, or one of them must have knowledge of the accident.
¶1 The trial in this matter
was held on January 12, 1999, in Great Falls, Montana. Petitioner, Henrietta
LaPlante (claimant), was present and represented by Mr. Cameron Ferguson.
Respondent, Town Pump, Incorporated (Town Pump), was represented by Mr.
Robert E. Sheridan. A transcript of the trial has not been made.
¶2 Exhibits: Exhibits1
through 13 were admitted without objection.
¶3 Witnesses and Depositions:
Henrietta LaPlante, Kami Guardipee Gunhammer, Kimberly Wolftail, Opal
Madplume Boggs, and Bruce Allred were sworn and testified. The deposition
of Henrietta LaPlante was also submitted for the Court's consideration.
¶4 Issues Presented:
As set forth in the Pre-trial Order, the following issues are presented
for decision.
1. Whether Petitioner sustained
an on the job [sic] injury as she contends on or about September 5,
1990 (she is not sure of the exact date) and whether such injury is
compensable.
2. Whether Petitioner properly
reported her accident to the employer or whether the employer had knowledge
of the accident as required by §39-71-603 MCA.
The Pre-trial Order also sets
forth additional issues concerning medical benefits and temporary total
disability benefits. However, the Court and the parties agreed that those
issues are not presently ripe for decision.
¶5 Having considered the Pre-trial
Order, the testimony presented at trial, the demeanor and credibility
of the witnesses, the deposition and exhibits, and the parties' arguments,
the Court makes the following:
FINDINGS OF FACT
¶6 Claimant was employed by
Town Pump, in Browning, Montana, between July 1990 and early September
1990. She was employed part-time as a merchandise stocker.
¶7 Claimant worked 32 hours
a week, 5 days a week. (LaPlante Dep. at 5; Trial Test.) She testified
that she did not work either Saturdays or Sundays.
Alleged Accident and Claim
for Compensation
¶8 Claimant alleges that she
was injured at work on or about Wednesday, September 5, 1990. She testified
that she does not remember the exact date, however, on her Claim for Compensation
she specifically stated that the injury occurred on September 5th
at 4:00 p.m. (Ex. 1.) In any event, she was positive that she never returned
to work after the day of the accident.
¶9 Claimant did not prepare
a claim for compensation until nine months later. Her typewritten Claim
for Compensation was signed and submitted on June 4, 1991. (Ex. 1.) At
that time, she was represented by counsel.
¶10 The Claim for Compensation
describes the alleged accident as follows:
I was stocking merchandise,
I reached 2 feet above my head to grab some merchandise to stock in
the front cooler. Four cold packs (12 beers X 4) of beer fell on my
back knocking me across the isle [sic] into another stack of beer. I
felt the most excruciating pain I have ever felt. I managed to pick
myself up off the floor and I left work because of the pain. I informed
a co-worker, Mary Griffin, of what happend [sic] before I left work.
. . .
(Id.)
¶11 At trial and in her deposition
the claimant provided additional details concerning the accident. She
testified that when the cold packs of beer began falling she bent herself
forward to protect her face and that the cold packs struck her in the
back. (LaPlante Dep. at 12, 27; Trial Test.)
Claimant's Corroborating
Witnesses
¶12 Claimant's daughter, Kami
Guardipee Gunhammer (Gunhammer), who was 10 or 11 at the time, testified
that she witnessed the accident and helped the claimant to her feet and
out of the store to her car. Her description of the accident differed
in an important respect from her mother's. According to Gunhammer, when
the cold packs fell the claimant fell over backwards.
¶13 At the time of the alleged
accident the manager of the Town Pump was Bruce Allred (Allred). The assistant
manager was Opal Madplume Boggs (Boggs). Claimant conceded that she did
not report the alleged accident to either of them. However, she testified
that she reported her accident to Kimberly Wolftail (Wolftail) and David
Moore (Moore). She testified that both Wolftail and Moore were shift managers
for Town Pump.
¶14 Wolftail, who was a cashier
at Town Pump, testified that she was working on the day of the accident
and saw the claimant immediately following the accident. She said she
told claimant to go home or to the hospital. She further testified that
she was a "shift manager" at the store and claimant's supervisor on the
day of the injury. Wolftail claimed that she reported the incident to
the store manager the following day and that she filed a written incident
report.
¶15 Moore did not testify.
However, claimant testified that he came to her house the day after the
accident and asked her to come to work. According to claimant she told
him she could not work because she hurt her back.
Nature of Dispute
¶16 There is no question that
the claimant has a serious back condition. Indeed, she underwent a lumbar
laminotomy and discectomy at the L4-5 level on November 27, 1990 (Ex.
4 at 5), and a microdiscectomy at the L5-S1 level on May 6, 1996 (Ex.
8 at 5). However, her medical records for treatment prior to June 1991
indicate that she did not tell her physicians about any industrial accident.
(See ¶ 25.)
¶17 Town Pump disputes both
the alleged accident and claimant's assertion that she reported the accident
to her supervisor within 30 days as required by section 39-71-603, MCA
(1989).
Testimony of Allred and
Boggs
¶18 Allred, the manager of
the Town Pump in 1990, and Boggs, the assistant manager in 1990, denied
that claimant ever notified them of any accident. Allred first learned
of the alleged accident a few months ago. Boggs learned of it only after
claimant had filed a written claim.
¶19 During the daytime hours,
including weekends, either Allred or Boggs was present at the Town Pump.
Boggs was typically at the store from 7:00 a.m. until 5:00 or 6:00 p.m.
on the days she worked. Allred typically worked until 5:00 p.m., and on
some days later.
¶20 Both Allred and Boggs testified
that employees were required to report any work-related accidents to one
of them. They alone were responsible for filling out accident reports.
Their home phone numbers were posted at the Town Pump so employees could
get ahold of them at any time when they were not in the store.
¶21 They further testified
that neither Wolftail nor Moore were supervisors. Wolftail was a lead
cashier, meaning that she was in charge of money from the safe and might
give direction to other cashiers on duty during her shift. However, she
had no supervisory authority over claimant. Moore, at the time, was a
management trainee and was learning to do bookkeeping and ordering. He
had no supervisory authority over claimant.
Resolution
¶22 Allred and Boggs were more
credible witnesses than claimant and her witnesses. I find that claimant
did not give notice of her alleged accident within 30 days, indeed she
did not notify the employer until she filed her written claim in June
1991. Further, I am not persuaded that claimant was injured in an industrial
accident as she claims.
¶23 In reaching my decision
in this case, I have relied upon my observations and assessment of the
witnesses. The factors set forth in the following paragraphs also influenced
me in reaching my decision.
¶24 The claimant's time card
for the first week of September shows that she did not work September
5, 1990, the date on which she claims she was injured. (Ex. 13.) It shows
her last day of work as September 2, 1990, a Sunday. Claimant agreed that
she signed the time card.
¶25 Medical records for claimant's
treatment prior to June 1991 disclose that claimant did not mention any
accident of any sort as the cause of her back pain.
¶26 Claimant first sought medical
attention on September 12, 1990, when she was seen at the Indian Health
Service (IHS) in Browning for hip and ankle pain of two weeks duration.
The IHS notes do not disclose any industrial accident. Using a symbol
for "no", the notes specifically state "no injury." They read, in relevant
part:
x 2 weeks hip pain L [left].
L [left] ankle pain - [no]
injury
Working partime [sic] Town
Pump. Stocking shelves. Some lifting - Going to nursing school in Havre
9/27, and wants to have pain checked out - Duration 2 weeks - getting
increasingly worse.
(Ex. 6 at 32.)
¶27 Claimant returned to the
IHS on September 17, 1990. At that time she reported that her "pain began
after 1 month of lifting at new job." (Id. at 31.) Again there
is no mention of any accident or injury.
¶28 Claimant was next seen
at the IHS on September 24, 1990. The medical notes indicate that the
visit was for "follow up on 4 wks of pain in L [left] post thigh &
ankle." There is no reference to any injury or accident. (Id.
at 30.)
¶29 Claimant was next seen
by Dr. Nolan, in Havre on October 26, 1990. Dr. Nolan noted:
She complains today of what
she describes as pain from her osteoporosis. However, as she describes
her symptoms and her treatment it sounds as though she is being treated
for osteoarthritis. . . .
(Ex. 3 at 1.) Dr. Nolan took
an extensive history. There is no mention of any injury or accident in
his notes.
¶30 In November 1990, Dr. Lee
Finney assumed claimant's care. He noted that she reported that she "began
having left lower extremity pain the first part of August."
(Ex. 4 at 1, emphasis added.)
¶31 Claimant was asked at the
time of her deposition whether she told Dr. Nolan how she had hurt her
back. She responded:
A. I was afraid to.
Q. Why were you afraid to?
A. I didn't want to lose
my Medicaid, and I knew the hospital in Browning would never pay for
it.
(LaPlante Dep. at 42.) Claimant
went on to explain her fear of losing benefits if she were to report how
she was hurt to the doctor, ultimately stating that she "could have" told
him about the beer falling on her and not mentioned it happened at the
Town Pump. (Id. at 44.) At trial claimant was questioned as to
why she did not tell her physicians about an injury. She testified that
she "may" have told the doctors but due to the "doctor-client privilege"
the doctors did not put the information into their records. I found her
testimony conflicting and her explanations implausible.
¶32 I found Wolftail's testimony
neither credible nor plausible. Despite claiming that she had been promoted
to a supervisor, she conceded that she received no pay increase for additional
responsibilities. Moreover, claimant's work was unrelated to the cashier's
work. I find that she was not a supervisor and did not supervise the claimant.
I also did not find credible her other testimony concerning the reporting
of the alleged accident.
¶33 Similarly, I was unpersuaded
that Moore was a supervisor or that claimant ever reported any accident
to him.
¶34 As stated earlier, I find
that claimant failed to report her alleged industrial accident within
30 days and I am unpersuaded that any work-related injury ever occurred.
CONCLUSIONS OF LAW
¶35 The 1989 version of the
Workers' Compensation Act applies in this case since the alleged injury
occurred in September 1990. Buckman v. Montana Deaconess Hospital,
224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶36 The claimant has the burden
of proving that she is entitled to workers' compensation benefits by a
preponderance of the probative, credible evidence. Ricks v. Teslow
Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v.
Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
¶37 Section 39-71-603, MCA
(1989), sets forth notice which must be given by a claimant to her employer,
providing:
Notice of injuries
other than death to be submitted within thirty days. 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.
The statute is "mandatory and
compliance with its requirements is indispensable to the maintenance of
a claim for compensation." Masters v. Davis Logging,
228 Mont. 441, 443-44, 743 P.2d 104 (1987) (quoting from
Bender v. Roundup Mining Company, 138 Mont. 306, 309, 356 P.2d 469,
470 (1960)).
¶38 Notice to a co-employee
is insufficient. § 39-71-603, MCA (1989) and see Bogle v. Ownerrent
Rent to Own, 264 Mont. 515, 519, 872 P.2d 800, 802-03 (1994). Notice
must be given to the employer or the employer's managing agent or supervisor
in charge of the employee's work, or one of them must have knowledge of
the accident. In this case, neither Wolftail nor Moore were managing agents
for Town Pump nor did they supervise claimant. Any accident should have
been reported to Allred or Boggs, and claimant concedes she did not report
any industrial injury to either of them.
¶39 Moreover, I am unpersuaded
that claimant reported the alleged accident to Wolftail, Moore or anyone
else, or that the alleged accident even occurred.
JUDGMENT
¶40 1. The claimant failed
to give notice of an injury to her employer within 30 days of the date
of any incident and is not entitled to workers' compensation benefits.
¶41 2. The claimant was not
injured in an industrial accident as she claims and is not entitled to
benefits.
¶42 3. The petition is dismissed
with prejudice.
¶43 4. The claimant is not
entitled to costs or any other relief.
¶44 5. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.
¶45 6. Any party to this dispute
may have 20 days in which to request a rehearing from these Findings of
Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this
26th day of January, 1999.
(SEAL)
\s\ Mike
McCarter
JUDGE
c: Mr. Cameron Ferguson
Mr. Robert E. Sheridan
Date Submitted: January 12, 1999
