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Larson Cattle Co. v. Killebrew

Court of Workers Compensation of Montana

May 25, 1994

LARSON CATTLE COMPANY Appellant
v.
CHARLES T. KILLEBREW Claimant/Respondent and UNINSURED EMPLOYER'S FUND Co-Respondent.

          DECISION AND ORDER ON APPEAL

          MIKE MCCARTER JUDGE

         This proceeding involves an application of section 39-71-603, MCA, which requires a claimant suffering an industrial injury to notify his employer about the accident and his injuries. Petitioner, Larson Cattle Company (Larson), appeals from a November 17, 1993 Department of Labor and Industry (DLI) Order on Remand from Workers' Compensation Court. The Order determined that respondent (claimant) provided adequate notice to his employer concerning industrial accidents occurring on December 17, 1989 and March 17, 1990. Larson was claimant's employer on those dates but was uninsured.

         Larson advances two grounds in this proceeding for judicial review. First, it argues that the DLI hearing examiner incorrectly interpreted the Montana Supreme Court's decision in Killebrew v. Larson Cattle Company, 254 Mont. 513, 839 P.2d 1260 (1992), as mandating a finding for claimant and therefore failed to make an independent determination concerning what claimant told the employer about his injuries. Second, Larson argues that even if claimant's version of what he told to the employer is accurate, claimant still did not provide the employer with adequate notice of his injuries.

         Factual background

         Claimant, Charles Killebrew, worked for Larson Cattle Company as a ranch hand between July 1989 and mid-May 1990. On December 17, 1989, he was involved in a tractor accident. The tractor flipped on its side; claimant struck his shoulder against the side of the tractor cab. Three months later, on March 17, 1990, claimant was run over by two cows. Larson was aware of both accidents but disclaimed knowledge of any injuries the claimant suffered. Claimant testified that following the December injury he told Larson that he "had hurt his shoulder a little bit but that he thought it was going to be okay," and that following the March incident he had "showed his employer the physical evidence of trauma on his body." Killebrew, 254 Mont. at 521. Larson denied that claimant told him of any injury or physical discomfort arising from either injury.

         The injuries did not appear serious at the time of the accidents. However, later on claimant required treatment of his shoulder and was also diagnosed as suffering from a torn medial meniscus in the right knee and an impingement syndrome of the right ankle. On May 15, 1990, claimant filed a claim for compensation based on injuries to his shoulder, knee and ankle.

         Larson was uninsured at the time of the accidents. Therefore, the Uninsured Employers' Fund stepped in and ordered Larson to pay claimant the equivalent of workers' compensation benefits. Larson disagreed with the Order and requested a contested case hearing before a DLI hearing examiner. The hearing was held on September 28, 1990, after which the hearing examiner held that claimant was not entitled to benefits because he failed to comply with the notice requirement of section 39-71-603, MCA. This Court affirmed. Claimant then appealed and the Montana Supreme Court reversed, holding that if the claimant's testimony about what he reported to Larson was credible, then adequate notice was provided to the employer. Killebrew, 254 Mont. at 521-2. Because it could not determine whether the hearing examiner's decision was based on a determination that claimant's testimony was incredible, or on a determination that what claimant said he told his employer was insufficient in any event, the Court remanded the case to the DLI with instructions to resolve the factual dispute over what was said to the employer and to enter judgment accordingly.

         Following remand, on November 17, 1992, the DLI hearing examiner issued an Order on Remand. The hearing examiner made supplemental findings of fact which effectively adopted claimant's testimony as fact and determined that the notice requirement had been satisfied. However, in its discussion of the Supreme Court decision, the hearing examiner made the following observation:

The Supreme Court's interpretation of events is reflected in the supplemental findings of fact as set forth above. It follows that the credibility factor has swayed in favor of the claimant and, in deference to the Court's ruling, notice was timely and adequately given to the employer that injuries had resulted from the subject accidents. . . .

(Order on Remand at 6.) Reading this paragraph, and some others, my predecessor concluded that the hearing examiner believed that the Supreme Court decision required him to resolve credibility issues in claimant's favor and acted accordingly. On July 9, 1993, the matter was remanded by this Court to the hearing examiner with specific instructions to issue findings "based on the hearing examiner's independent judgment, not on what he perceives the Supreme Court wants found as fact." (Order on Appeal at 10.)

         The hearing examiner took another stab at it and on November 17, 1993, issued his Order on Remand from Workers' Compensation Court, reaffirming the previous determination that adequate notice was given.

         Discussion and Order

         The applicable standard of review is whether the hearing examiner's findings are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." State Compensation Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 97, 102, 827 P.2d 85 (1992) (quoting section 2-4-704(2)(a)(v), MCA). The Court will not reweigh the evidence; the findings and conclusions of the fact-finder will be upheld if they are supported by substantial credible evidence in the record. Nelson v. EBI Orion Group, 252 Mont. 286, 288, 829 P.2d 1 (1992). Conclusions of law are reviewable to determine if they are correct. Steer, Inc. v. Department of Revenue, 245 Mont. 470, 474, 803 P.2d 601 (1990).

          In its first ground of appeal, Larson argues that in issuing his latest Order the hearing examiner still failed to exercise his own independent judgment in resolving factual issues. While the latest Order is not a paradigm of clarity, a complete reading of the decision shows that the hearing ...


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