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.

Alsbury v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

February 9, 2001

MALVERN ALSBURY Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for RON TERRY CONSTRUCTION, INCORPORATED Employer.

          Submitted: January 10, 2001

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: Claimant, a carpenter, was injured while working on a house. He worked for a small company but failed to report the injury within 30 days to the owner of the company. He did report the injury to a co-employee, who he claims was his supervisor. However, the co-employee was off work that day and the entire next week. Although the co-employee provided advice as to construction details when asked, the owner of the company was working nearby, lined out claimant's work on a daily basis, collected time cards, hired and fired employees, and approved leave time.

         Held: The claim is untimely. The co-employee was not claimant's supervisor at the time of the injury and the report to him was insufficient. Claimant failed to provide persuasive evidence that he was precluded or deterred from notifying his employer in a timely manner.

         Topics:

Claims: Notice to Employer: Supervisor. A more experienced carpenter, who provides advice and instruction to another carpenter in response to questions arising during work assigned and overseen on a daily basis by the construction company's owner, and who was off work on the day of the claimant's injury and the week thereafter, was not claimant's supervisor. Claimant's report of his injury to him did not constitute notice to the employer under section 39-71-603, MCA.
Claims: Notice to Employer: Generally. Failure to give notice of industrial accident to employer or employer's supervisor, as required by section 39-71-603, MCA, bars workers' compensation claim.
Claims: Notice to Employer: Estoppel. An insurer is not estopped from asserting that a claimant failed to timely notify his employer of his injury where the evidence fails to establish that employer discouraged workers' compensation claims or made representations which prevented claimant from providing timely notice of his injury.
Limitations Periods: Notice to Employer. A more experienced carpenter, who provides advice and instruction to another carpenter in response to questions arising during work assigned and overseen on a daily basis by the construction company's owner, and who was off work on the day of the claimant's injury and the week thereafter, was not claimant's supervisor. Claimant's report of his injury to him did not constitute notice to the employer under section 39-71-603, MCA.
Limitations Periods: Notice to Employer. Latent injury doctrine is inapplicable where at the time of the industrial accident the claimant is aware he had injured himself and reported the injury to a co-employee.
Claims: Notice to Employer: Latent Injury. Latent injury doctrine is inapplicable where at the time of the industrial accident the claimant is aware he had injured himself and reported the injury to a co-employee.
Montana Code: 39-71-603 (1999). A more experienced carpenter who provides advice and instruction to another carpenter in response to questions arising during work assigned and overseen on a daily basis by the construction company's owner, and who was off work on the day of the claimant's injury and the week thereafter, was not claimant's supervisor. Claimant's report of his injury to him did not constitute notice to the employer under section 39-71-603, MCA.
Montana Code: 39-71-603 (1999). Latent injury doctrine is inapplicable where at the time of the industrial accident the claimant is aware he had injured himself and reported the injury to a co-employee.

         1 The trial in this matter was held on November 9, 2000, in Kalispell, Montana. Petitioner, Malvern Alsbury (claimant), was present and represented by Mr. David W. Lauridsen. Respondent, State Compensation Insurance Fund, was present and represented by Mr. David A. Hawkins.

         2 Exhibits: Exhibits 1 through 6 were admitted without objection.

         3 Witnesses and Depositions: The parties submitted the depositions of claimant and Ron Gilbert for the Court's consideration. Claimant, Ron Terry, and Ron Gilbert testified.

         4 Issues Presented: As set forth in the pretrial order, the issues are:

1. Whether Petitioner is entitled to acceptance of liability for his claim by the Respondent and payment of temporary total and medical benefits.
2.Whether Petitioner is entitled to an increase in award for unreasonable delay or refusal to accept liability and pay proper workers' compensation benefits pursuant to 39-71-2907, MCA.
3.Whether Petitioner is entitled to costs and attorneys' fees, pursuant to 39-71-611, MCA. (Pretrial Order at 2-3.)

         5 Having considered the pretrial 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

         6 Claimant is a carpenter. Since 1997, he has frequently worked for Ron Terry Construction, Incorporated (Terry Construction), a Kalispell company owned and operated by Ron Terry (Terry). The company builds homes and does concrete work. Terry supervises the overall operations of the company. His wife serves as bookkeeper and handles payroll.

         7 Terry Construction is a small operation. In January 2000, it had three construction workers in addition to Terry. The workers were claimant, Ron Gilbert (Gilbert) and "Joel", whose last name is unknown to the Court.

         8 On the morning of January 11, 2000, claimant was "backing out a house." "Backing out" refers to final framing to make sure that studs are in place so the house can be sheet rocked. Claimant was lifting an 80 pound sheet of plywood when he "felt a strain in [his] left shoulder." (Ex. 1; Trial Test.)

         9 The fact of claimant's accident and injury are not seriously disputed, and I find that the ...


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.