ACKERMAN v PIERCE PACKING CO
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NO. $2-485 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 CHARLES J. ACKEFWAN, Claimant and Appellant, PIERCE PACKING CO., Employer, and ILJTERMOUNTAIN INSUPANCE CO. , Defendant and Respondent. APPEAL FROM: Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Kelleher Law Offices; Robert C. Kelleher argued, Billings, Montana For Respondent : Crowley Law Firm; Terry G. Spear argued, Billings, Montana Submitted: Decided: Filed: , June 7, 1983 November 17, 1983 - l$a3 a . - Clerk Mr. Justice Daniel J. Court. Shea delivered the Opinion of the Claimant Charles J. Ackerman, appeals an order of the Workers' Compensation Court barring his claim for compensation because he had not notified his employer of the injury within 60 days of the injury. We reverse and hold that the notice to the employer was established on the day of the injury, December 22, 1980, by claimant t-elling the nurse of his accident, and we further hold that notice was established because the nurse had actual notice and can be considered for purposes of notification of injuries, as the managing agent. Aside from the notice issue, claimant would also have this Court decide disability rating. his case on the merits and fix his Claimant also asks this Court to order cost reimbursement, attorney fees and the 20 percent penalty as provided for bv statute. We decline to rule on these questions as they are properly questions for the Workers' Compensation Court to first decide. Claimant injured his back while working at Pierce Packing Company when he was lifting a box containing pork loins. He went problem--that his doctor. to the back company nurse and hurt--and reported his she referred him to a She made no further inquiry as to when or how claimant injured his back. The doctor's report turned out to be a misdiagnosis--he found that the claimant suffered from prostatitis. Because the nurse did not believe that prostatitis was work related, she did not fill out and begin the processing of a compensation form. However, claimant was later referred to an orthopedic specialist on Februa.ry 25, 1981 (more than 60 days after the injury) and a back injury was then diagnosed. After learning of this diagnosis, the nurse prepared the compensation forms for the claimant and he signed them on March 4, 1.981.. The employer, however, contested liability on the ground that it had not been notified of the accident within 60 days as required by section 39-71-603, MCA. This statute provides that in all cases other than a death claim the employer must be notified of the time and place of injury and the nature of injury--within 60 days of the injury. The statute also provides that notice to the employer can be satisfied if the employer or the employer's managing agent or superintendent in charge of the work has actual knowledge of the injury. The trial court expressly found that claimant had told the company nurse on duty at the employer's premises, that he had injured his back that day while lifting a loin box at work. However, the court then found that this actual notice was not notice to "a managing agent or the employer, or a superintendent in charge of the work on which the claimant was engaqed,. constitute . ." and actual therefore that the notice coul-d not knowledge. Therefore, the claim for compensation was denied. We conclude that the employer was given notice of the injury and that the employer had actual knowledge of the injurv. The claimant came to the company nurse and complained of his injury, and she referred him to a doctor. Although it may be true that claimant did not provide her with the details of the injurv, the nurse was free to obtain this information but did not do so. This failure cannot operate to bar the claimant's claim, for the information was readily available to the nurse and to the employer upon the mere asking of the questions. Several states have held that the notice to employer required in a Workers' Compensation case is satisfied by telling the company nurse. Baker In Aluminum Co. of America. v. (Tenn. 19761, 542 S.W.2d 819, the court held. that claimant's calling the company nurse was sufficient notice to the employer. In Hollingsworth v. Auto Specialties Mfg. Co. (Mich. 1958), 89 N.W.2d 431, the court held that reporting an injury to an industrial nurse on the date of its occurrence gave the employer sufficient notice. In Firestone Tire and Rubber Co. v. Workmen's Compensation Appea.1 Bd. (Penn. 1979), 396 A.2d 902, the court held that notice to an employer is complied with by nurse. reporting an accident to an employer's In Thrall Car. Mfg. (Ill. 1976), 356 N.E.2d Co. v. Industrial Commission 516, the court held that sufficient notice was given when the claimant told a company nurse that he ha.d "trouble in his knees" and that he "wanted to see a doctor. " We have no doubt that notice was given to the employer under the first part of section 39-71-603, MCA, and if any defects existed in the information imparted to the nurse, those defects must be ascribed to the failure of the nurse, the company's agent, to obtain the necessary j-nformation. We further hold statute dealing with that under the actual notice second part of as another method the of compliance with the notice requirement, the nurse can be held to be the maria-ging agent insofar as notice of the injury is concerned. Nurses are present on the employer's premises to help workmen when they are injured, and no doubt they are in a better position than anyone else not only to render immediate aid to the injured workman but also to obtain the necessary information concerning the time and place of the injury. To hold that actual knowledge of a company nurse would not be sufficient compliance with the statute would be to exalt form over substance. We must liberally construe the Workers' Compensation Act (section 39-71-104, MCA), and there is probably no area construction than on more important to apply the question of whether notice was given of the accident. a liberal sufficient A liberal construction here leads us to conclude that the company nurse was in effect the managing agent insofar as receipt of notice of injuries is concerned. As we have already indicated, claimant's disability rating is not now properly before this Court, nor is his claim for costs, attorney fees and the statutory penalty. The order of the Workers' Compensation Court is reversed and this cause is remanded for further consideration of the merits of the claim as well as the question of whether the employer must pay costs, attorney fees and the statutory 20 percent penalty. We Concur: ~d$,yd,u-9_~0 Chief Justice Justices Mr. J u s t i c e L.C. Gulbrandson d i s s e n t i n g . I respectfully dissent. S e c t i o n 39-71-603, reads a s follows: MCA, " N o t i c e of i n j u r i e s o t h e r t h a n d e a t h t o be submitted w i t h i n s i x t y days. No c l a i m t o r e c o v e r b e n e f i t s under t h e Workers ' Compensation A c t , for injuries not r e s u l t i n g i n d e a t h , may b e c o n s i d e r e d c o r n p e n s a b l e u n l e s s , w i t h i n 60 d a y s a f t e r t h e o c c u r r e n c e o f t h e a c c i d e n t which i s c l a i m e d t o have caused t h e i n j u r y , n o t i c e o f t h e t i m e and p l a c e w h e r e t h e a c c i d e n t o c c u r r e d and t h e n a t u r e o f t h e i n j u r y i s g i v e n t o t h e employer o r t h e e m p l o y e r ' s i n s u r e r by t h e i n j u r e d employee o r someone on t h e e m p l o y e e ' s b e h a l f . A c t u a l knowledge o f t h e a c c i d e n t and i n j u r y on the part of the employer or the employer's managing agent or s u p e r i n t e n d e n t i n c h a r g e o f t h e work upon w h i c h t h e i n j u r e d e m p l o y e e was e n g a g e d a t t h e t i m e o f t h e i n j u r y is e q u i v a l e n t t o notice." I n t h e c a s e o f H a r t 1 v . B i g Sky o f Mont., 1 7 6 Mont. 540, 39-71-603, MCA, information statute, was 579 P.2d (1978), 1239, t h i s Court construed S e c t i o n and f o u n d t h a t , conveyed to "In the instant case, the agents 87 Mont. the " (emphasis supplied) I n t h e e a r l i e r c a s e o f Maki v . (1930), the specified i n the and t h e y t h e r e b y a c q u i r e d a c t u a l knowledge o f a c c i d e n t and t h e i n j u r y . Co. Inc. 314, 287 P. Anaconda Copper Min. 170, the claimant had a t t e m p t e d t o p r e s e n t h i s c l a i m t o t h e company t h r o u g h i t s c l a i m a g e n t and s a f e t y e n g i n e e r . This Court s t a t e d : " A g a i n , t h e r e c o r d f a i l s t o show t h a t a n y i n f o r m a t i o n i m p a r t e d by t h e c l a i m a n t t o t h e s a f e t y e n g i n e e r was communicated t o the 'employer, managing agent or superintendent.' Of course, a c o r p o r a t i o n can only have such a c t u a l knowledge a s i s p o s s e s s e d by i t s a g e n t s , but our s t a t u t e declares, i n t h i s i n s t a n c e , t h e a c t u a l knowledge of what a g e n t s s h a l l b e deemed t h e knowledge o f t h e employer." "We agree that provisions of the Compensation A c t should be g i v e n a l i b e r a l construction i n order t o do j u s t i c e , and, f o r t h i s reason, w e have gone t o g r e a t e r l e n g t h s t h a n d i d h i s learned cousel i n seeking t o discover i n t h e r e c o r d some e v i d e n c e o n w h i c h w e c o u l d s a y t h a t t h e c l a i m a n t showed e i t h e r t i m e l y w-ritten n o t i c e , o r i t s e q u i v a l e n t o f a c t u a l knowledge on t h e p a r t o f t h o s e p e r s o n s enumerated i n t h e s t a t u t e , but h a v e f o u n d no e v i d e n c e on w h i c h we c a n r e l i e v e t h e c l a i m a n t from t h e d e c l a r e d r e s u l t o f h i s own n e g l e c t . "No r u l e o f c o n s t r u c t i o n c a n j u s t i f y t h e d i s r e g a r d o f t h e p l a i n m a n d a t e of t h e law. ' I n t h e c o n s t r u c t i o n o f a s t a t u t e t h e o f f i c e of t h e judge is s i m p l y t o a s c e r t a i n and d e c l a r e w h a t i s i n t e r m s o r i n substance contained therein, not t o i n s e r t what h a s been o m i t t e d , o r t o o m i t what h a s been inserted." (emphasis supplied) H e r e , c l a i m a n t Ackerman t e s t i f i e d r e g a r d i n g a p r e v i o u s i n j u r y w h i l e employed a t P i e r c e , a s f o l l o w s : "Q. And i n O c t o b e r o f 1 9 7 7 , you w e r e o f f work f o r a p p r o x i m a t e l y a w e e k w i t h a n e c k i n j u r y ; is t h a t c o r r e c t ? "A. Yes. "Q. And you d i d n o t i n i t i a l l y r e p o r t t h a t you'd i n j u r e d your neck t o anyone? "A. Not t h a t d a y i t h a p p e n e d . "Q. A s a r e s u l t of t h a t , t h e r e was some it was an problem about whether industrial accident? "A. Right. "Q. A f t e r t h a t , I i m a g i n e you w e r e p r e t t y f a i t h f u l about reporting i n j u r i e s ? "A. I t r i e d t o be, yeah." The c l a i m a n t f u r t h e r t e s t i f i e d : ( a ) That i n February, 1 9 7 9 , h e h u r t h i s b a c k when a b a r r e l 1 s l i p p e d o f f a p a l l e t and t h a t h e r e p o r t e d it t o h i s supervisor; (b) that in May, 1979, he strained a back muscle lifting bags of sugar, reported it to his supervisor and received benefits; (c) that in October, 1979, he had stomach pains at work and immediately reported the incident; (d) that in July, 1980, he pulled a back muscle, reported the incident the same day to his supervisor and received treatments from Dr. Cabberra. Regarding the December 22, 1980, incident, the claimant testified that he told the company nurse that his back hurt while lifting boxes; that she told him to see his family physician, Dr. Cabberra; that his doctor treated him for approximately two months for an infected prostate; that he was claimant then to referred Dr. to a urologist Daniels, who who recommended referred the exercises and physical therapy; that in June, 1981, the claimant requested a leave of absence from Pierce because he had secured a position as landman with a different company. In my view, the claimant had knowledge of the required reporting procedures from past personal experience. He neither reported the incident to a specified agent, nor gave notice within sixty days to the employer. Based upon the facts of this case, and the prior decisions of this Court, I would aff irm the decision of the Workers' Compensation Judge. /r ,/'
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