FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on January 18, 1994, in
Missoula, Montana. Petitioner, Donna Turjan (claimant), was
present and represented by Mr. Thomas C. Bulman. Respondent,
Royal Insurance (Royal), was represented by Mr. P. Mars
Scott. Claimant testified on her own behalf. Connie Strong,
Nancy Conley and Pat Wallace also testified. Brad Jarvis'
post-trial deposition and claimant's deposition were
submitted for the Court's consideration. Exhibits 1
through 8 and 10 were admitted into evidence by stipulation
of the parties. Exhibit 9 was admitted over Royal's
relevancy objection on the condition that it would only be
considered if claimant established estoppel up and through
the period preceding the date on Exhibit 9, July 31, 1992.
Exhibit 11, which consists of portions of a claim file
maintained on behalf of Industrial Indemnity Insurance Co.
(Industrial Indemnity) with respect to a September 16, 1986
injury, was admitted into evidence by stipulation after the
trial. (Tr. at 129-130)
Court held an in camera inspection of another claim
file maintained on behalf of Industrial Indemnity. The file
included work product and attorney-client privilege
documents. The Court determined that the first mention of an
April 1987 injury was on July 22, 1992. A sealed copy of the
file has been retained by the Court so that it is available
in the event of an appeal.
Presented: The issues before this Court are whether
claimant complied with the sixty (60) day notice provision of
section 39-71-603, MCA and, if so, whether she filed a
written claim complying with section 39-71-601, MCA.
considered the Final Pretrial Order, the testimony presented
at trial, the demeanor and credibility of the witnesses
appearing at trial, the exhibits and depositions, the Court
makes the following:
Claimant was employed as a nurses' aide at Valley View
Estates Nursing Home (Valley View) from February of 1986 to
April of 1987.
September 16, 1986, claimant injured her lower back and right
shoulder while lifting a patient into a bath chair. (Tr. at
147.) The injuries occurred in the course and scope of her
employment with Valley View.
notified her supervising nurse, Bonnie Hicks, of the injury.
On September 22, 1986, she filled out an Accident
Investigation Report. (Tr. at 149-150, 161-162.) On January
26, 1987, she filed a written claim for compensation. (Ex.
on September 1, 1986, claimant had filled out an Accident
Investigation Report after a patient hit her. (Ex. No. 2 at
23.) At trial the claimant testified that she knew that she
was required to fill out a claim form if she were injured.
(Tr. at 161.)
on the facts recited in the previous two paragraphs, the
Court finds that claimant was familiar with the nursing
home's procedures for reporting a worker's
compensation injury and filing a claim. Claimant knew that
she was required to report any industrial accident to her
supervisor, fill out a written accident report and file a
the time of claimant's September 16, 1986 injuries,
Valley View was insured by Industrial Indemnity Insurance
Company, which accepted liability for the
her September 16, 1986 injuries, claimant was treated by Dr.
John M. Fuhrman, an orthopedic surgeon. On September 24,
1986, Dr. Fuhrman restricted claimant to "light duty,
i.e. no pt. lifting." (Ex. 2 at 8.)
continued to work but was assigned light-duty work. She
provided clean towels and linen to rooms at the nursing home.
(Ex. 1 at 19.)
she continued to work, claimant continued to experience
low-back pain. Based on Dr. Fuhrman's April 23, 1987
office note (Ex. 6), and claimant's testimony in a
deposition taken on July 7, 1992, the pain apparently
radiated into her legs. Dr. Fuhrman's note refers to
"some radicular signs and symptoms down the posterior
lateral distribuion [sic] of the right leg into the
ankle." When questioned as to whether the symptoms
reported on April 23, 1987, were new ones arising in April
1987, the claimant responded:
Q. There aren't any radicular findings in Dr.
Fuhrman's records until after April of 1987. Do you agree
with that assessment?
A. Well, the first time I was injured I had a burning
Q. Okay. Now, on April 23rd, 1987 there is a note from Dr.
Fuhrman that you had some new symptoms and new pain radiating
down in your leg. Would you have told him about new symptoms
after the event in April 1987 when you were lifting the other
A. I told him all the symptoms I had, even before.
Q. Okay. You wouldn't dispute his records that you had
some new symptoms in April of 1987 though, would you?
A. I had all the pain from before and I told him. Q.
Uh-huh. Now, you wouldn't dispute his records though,
A. With the pains I would.
Q. Okay. Now, the event in April 1987, that involved a change
in your condition, didn't it? It worsened your condition?
A. Yes. (Ex. 1 at 25-26, emphasis added.)
April of 1987, the claimant was once again assigned heavier
work. (Tr. at 149; Ex. 1 at 19.)
According to time records maintained by the nursing home,
claimant's last day of work was April 21, 1987. On her
last day of work, claimant was helping a nurses' aide
lift a patient when she felt a "real sharp pain down the
lower back and all the way down my leg." (Tr. at 153.)
Since the only issues presented for the Court's
determination in this case concern notice (§§
39-71-601 and 39-71-603, MCA), the Court assumes for the
limited purposes of its present decision, but does not
decide, that an industrial accident occurred.
already noted in Finding of Fact No. 9, claimant was examined
by Dr. Fuhrman on April 23, 1987. Dr. Fuhrman's office
note for that date reads in full:
Donna is worse and she has a new constelation [sic] of
symptoms in the sinse [sic] that she now has some radicular
signs and symptoms down the posterior lateral distribuion
[sic] of the right leg into the ankle, which occured [sic]
while she was working the other night. She has some
atinuation [sic] of the achilles reflex and diminished pin
prick, lateral boarder [sic], right foot. Motor strength is
IMPRESSION: Radicular signs and symptoms. She has taken off
work. She will continue with the Flexural, Motrin, PT and
rest at home. Reassessment one wk.
No. 6) While the note indicates that new symptoms occurred at
work, it does not mention any specific incident or incidents
as causing the new symptoms. Claimant's July 1992
testimony also indicates that the symptoms were not new ones,
rather she experienced a worsening of her existing symptoms.
(See Finding of Fact No. 9.)
testified that on the day of her April 1987 injury, she
notified Connie Strong (Strong) of her injury and filled out
an accident report for Strong to give to Bonnie Hicks
(Hicks). (Tr. at 171-172.) Hicks was not on duty at the time.
(Tr. at 174.) The Court does not find claimant's
testimony on this point either credible or persuasive.
Strong, who no longer works for Valley View, could not recall
claimant ever telling her that she had been injured in April
1987. Strong stated that had claimant done so she would have
reported it to Hicks, the director of nursing. (Tr. at
44-46.) Strong was a credible witness.
went back to Valley View following her last day of work and
delivered to Hicks two "no work" notes written by
Dr. Fuhrman, one dated April 23, 1987 and the other June 2,
1987. (Ex. 2 at 8, Tr. at 172 and 175.) However, claimant did
not report her April injury to Hicks at those times.
her testimony at trial, claimant initially characterized
Strong as her "supervisor." (Tr. at 154.) Later on,
however, she testified that Hicks was her supervisor. (Tr. at
161-62, 174.) Hicks performed the only two performance
evaluations of claimant, one in July 1986 and the other on
February 12, 1987. (Ex. 2 at 20-21.) Strong testified that
she was not a supervisor in April 1987. (Tr. at 43-44.) Her
testimony was credible. Claimant also took Dr. Fuhrman's
notes to Hicks. After considering all of this evidence, I am
persuaded that Strong was not in fact a supervisor in April
1987. Claimant knew that Hicks was her supervisor and that
her injury should have been reported to Hicks.
Nancy Conley (Conley), a fourteen year employee at Valley
View, was personnel director in April of 1987. She was
responsible for preparing workers' compensation reports.
(Tr. at 49-50.) She first learned of claimant's alleged
April 1987 injury in 1993. (Tr. at 52.)
failed to persuade the Court that prior to 1993, Valley View
was informed or knew of her April 1987 injury. Valley View
learned in late April 1987 that claimant was unable to work,
but claimant failed to persuade the Court that Valley View,
or its supervisory personnel, were aware that her inability
to work was due to a second, April 1987 industrial injury.
Indemnity employed Crawford and Company (Crawford) to adjust
claimant's September 16, 1986 claim. An April 30, 1987