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Good v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

July 16, 1997

LARRY B. GOOD Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for ANDERSON STEEL SUPPLY Employer.

          Submitted: April 9, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: 52 year old claimant alleged back injury during work as lead welder in handrail shop. Respondent argued claimant did not report the alleged injury within thirty days as required by section 39-71-603, MCA (1995) and also challenged the occurrence of the injury.

         Held: Claim denied because claimant failed to report injury within 30 days. Employer had clear practice regarding reporting of injuries which claimant had previously followed. Employees to whom claimant should have reported injury credibly testified they did not receive notice. While claimant's wife testified she told employer's secretary claimant hurt his back at work, the secretary credibly denied receiving that information. Moreover, this is not a case in which a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority. Ostensible agency is established "when the principal intentionally or by want of ordinary care causes a third person to believe another to be an agent." Larsen v. Barry Smith Logging, Inc., 267 Mont. 444, 447, 884 P.2d 786, 788 (1994). Here, claimant acknowledged that the secretary was not one of the people to whom he could report an injury.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-603, MCA (1995). Lead welder's claim for back injury denied where WCC found he did not report the injury within 30 days. Employer had clear practice regarding reporting of injuries which claimant had previously followed. Employees to whom claimant should have reported injury credibly testified they did not receive notice. While claimant's wife testified she told employer's secretary claimant hurt his back at work, the secretary credibly denied receiving that information. Moreover, this is not a case in which a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority. Ostensible agency is established "when the principal intentionally or by want of ordinary care causes a third person to believe another to be an agent." Larsen v. Barry Smith Logging, Inc., 267 Mont. 444, 447, 884 P.2d 786, 788 (1994). Here, claimant acknowledged that the secretary was not one of the people to whom he could report an injury.
Claims: Notice to Employer or Insurer: Generally. Lead welder's claim for back injury denied where WCC found he did not report the injury within 30 days. Employer had clear practice regarding reporting of injuries which claimant had previously followed. Employees to whom claimant should have reported injury credibly testified they did not receive notice. While claimant's wife testified she told employer's secretary claimant hurt his back at work, the secretary credibly denied receiving that information. Moreover, this is not a case in which a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority. Ostensible agency is established "when the principal intentionally or by want of ordinary care causes a third person to believe another to be an agent." Larsen v. Barry Smith Logging, Inc., 267 Mont. 444, 447, 884 P.2d 786, 788 (1994). Here, claimant acknowledged that the secretary was not one of the people to whom he could report an injury.
Claims: Notice to Employer or Insurer: Supervisor. Lead welder's claim for back injury denied where WCC found he did not report the injury within 30 days. Employer had clear practice regarding reporting of injuries which claimant had previously followed. Employees to whom claimant should have reported injury credibly testified they did not receive notice. While claimant's wife testified she told employer's secretary claimant hurt his back at work, the secretary credibly denied receiving that information. Moreover, this is not a case in which a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority. Ostensible agency is established "when the principal intentionally or by want of ordinary care causes a third person to believe another to be an agent." Larsen v. Barry Smith Logging, Inc., 267 Mont. 444, 447, 884 P.2d 786, 788 (1994). Here, claimant acknowledged that the secretary was not one of the people to whom he could report an injury.
Limitations Periods: Notice to Employer. Lead welder's claim for back injury denied where WCC found he did not report the injury within 30 days. Employer had clear practice regarding reporting of injuries which claimant had previously followed. Employees to whom claimant should have reported injury credibly testified they did not receive notice. While claimant's wife testified she told employer's secretary claimant hurt his back at work, the secretary credibly denied receiving that information. Moreover, this is not a case in which a co-employee may be deemed an employer's supervisor or agent under a doctrine of ostensible authority. Ostensible agency is established "when the principal intentionally or by want of ordinary care causes a third person to believe another to be an agent." Larsen v. Barry Smith Logging, Inc., 267 Mont. 444, 447, 884 P.2d 786, 788 (1994). Here, claimant acknowledged that the secretary was not one of the people to whom he could report an injury.

         The trial in this matter was held in Great Falls, Montana, on April 1, 1997. Petitioner, Larry B. Good (claimant), was present and represented by Mr. Benjamin R. Graybill. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams.

         Exhibits: Exhibits 1 through 28 were admitted without objection.

         Witnesses and Depositions: Claimant, Donna Good, M.J. Fors, Jennifer McLaughlin, Harvey LaRocque, Jr., Linda Robbins, David Watt and Casey Dean Taylor were sworn and testified. In addition, the parties submitted the depositions of claimant (cited as L. Good Dep.), Donna Good (cited as D. Good Dep.), Dr. James David Hinde, David Watt, Harvey LaRocque, Jr. and Jennifer McLaughlin. No transcript of the trial has been prepared. Issues Presented: The following issues, as rephrased by the Court, are presented for determination:

1. Whether claimant notified his employer of a work-related injury within 30 days of its occurrence as required by section 39-71-603, MCA (1995).
2. Whether claimant suffered an injury on January 31, 1996, while in the course and scope of his employment with Anderson Steel Supply.
3. Whether claimant is entitled to attorney fees pursuant to section 39-71-612(1), MCA.

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

         FINDINGS OF FACT

         1. Claimant is 52 years of age and lives in Great Falls, Montana. He completed the eighth grade.

         2. Claimant has worked as an iron worker since 1970.

         3. Claimant began working as an iron worker for Anderson Steel Supply (Anderson Steel) in July of 1994. At the time of his alleged industrial injury, he was working in the lead position as a welder and finisher in the handrail shop. He ...


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