Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Delaney v. Legion Insurance Co.

Court of Workers Compensation of Montana

November 27, 1995

LORETTA J. DELANEY Petitioner
v.
LEGION INSURANCE COMPANY Respondent/Insurer for LANTIS ENTERPRISES, d/b/a FRIENDSHIP VILLA Employer.

          November 13, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Nurses aide at nursing home, who acknowledged she was told that charge nurse was her supervisor, told LPN that she injured her wrist, that she believed LPN was her supervisor that day, and that LPN told her to complete accident form, which she did. Claimant conceded that LPN had never before supervised her.

         Held: Where claimant was not credible in her assertion that LPN was acting as "charge nurse" for that day or that she completed accident form, no accident form was found, and list of assigned charge nurses was posted in break room, claimant failed to provide adequate notice of her injury. While there may be cases where a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority, this is not one of them. Ostensible authority must arise, if at all, from statements or actions of the principal that lead the third party to believe that agency exists.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-603, MCA (1993). Where nurses aide was not credible in her assertion that LPN was acting as "charge nurse" or that she completed accident form, and where list of assigned charge nurses was posted in break room, claimant did not prove requisite statutory notice of injury through testimony that she told LPN she injured her wrist.
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-603, MCA (1993). While there may be cases where a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority for purposes of receiving statutory notice of injury, ostensible authority must arise, if at all, from statements or actions of the principal that lead the third party to believe that agency exists. Where nursing home did not lead nurses aide to believe that LPN was acting as her supervisor, where claimant was told that charge nurse was her supervisor, and where list of charge nurse assignments was posted in break room, alleged notice to LPN was insufficient.
Limitations Periods: Notice to Employer. Where nurses aide was not credible in her assertion that LPN was acting as "charge nurse" or that she completed accident form, and where list of assigned charge nurses was posted in break room, claimant did not prove requisite statutory notice of injury through testimony that she told LPN she injured her wrist.
Limitations Periods: Notice to Employer. While there may be cases where a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority for purposes of receiving statutory notice of injury, ostensible authority must arise, if at all, from statements or actions of the principal that lead the third party to believe that agency exists. Where nursing home did not lead nurses aide to believe that LPN was acting as her supervisor, where claimant was told that charge nurse was her supervisor, and where list of charge nurse assignments was posted in break room, alleged notice to LPN was insufficient.

         The trial in the above-entitled matter came on Monday, November 13, 1995, in Billings, Montana. The Honorable Mike McCarter presided. Petitioner, Loretta J. Delaney, was present and represented by Mr. Terry J. Hanson. Respondent was represented by Mr. Steven S. Carey. Exhibits 1 through 10 were admitted by stipulation. Exhibits 7 and 9 were demonstrative exhibits only and were returned to Mr. Carey at the conclusion of the trial. The parties agreed that the depositions of Loretta J. Delaney, Gary Holt, Donna Kirkaldie and Mary Price can be considered part of the record. Loretta J. Delaney, Mary Price, Donna Kirkaldie, Janice Sparbi, Connie Hubbell, Bob Zadow and Teresa Wagner were sworn and testified.

         Having considered the Pre-trial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant is 38 years old and is a high school graduate. She is a certified nurses aide.

         2. In April 1994 claimant was employed by Friendship Villa (Friendship) as a nurses ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.