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Richardson v. Indemnity Ins. Co. of North America

Court of Workers Compensation of Montana

June 19, 2018

BRIAN RICHARDSON Petitioner
v.
INDEMNITY INS. CO. OF NORTH AMERICA Respondent/Insurer. Time Activity Initial

          Submitted: May 9, 2018

          ORDER DENYING PETITIONER'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO NOTICE [1]

          DAVID M. SANDLER JUDGE

         Summary: Petitioner claims he suffered an injury to his nose after helping his supervisor detain a patient at work in 2006. He moves for partial summary judgment on the issue of notice, arguing that between a written Daily Activity Report detailing where and how many times the patient hit him, and oral conversations shortly after the incident with his superiors giving similar information, Petitioner provided proper notice to his employer pursuant to § 39-71-603(1), MCA. Petitioner also argues that he could only be required to give notice of what he knew at the time, and that because he had a latent injury, he could not have notified his employer of his injury until his doctor informed him nineteen months later that he suffered an injury in the incident. Respondent opposes the motion, contending that there are genuine issues of material fact as to whether Petitioner actually hurt his nose in the 2006 workplace incident, and therefore, whether he gave the appropriate notice. Respondent also argues that even though the notice requirement can be tolled for latent injuries, Petitioner failed to provide the required notice within 30 days of when he says he learned of his injury.

          Held: Petitioner's Motion for Partial Summary Judgment as to notice is denied. There are genuine issues of material fact as to whether Petitioner was hurt at work where he claims he felt and heard his nose crack and tasted blood during the altercation, but neither his Daily Activity Report nor his medical records over the next seventeen months mention that he was hit in or otherwise injured his nose at work. If he was not hurt at work, there was no injury to report to his superiors. Further, Petitioner did not produce sufficient evidence that he is entitled to judgment as a matter of law as to Respondent's notice defense. The Daily Activity Report in and of itself did not say anything about an injury and Petitioner did not submit any evidence that he notified his employer about hearing a crack or having a bloody nose following the incident. And, even if the notice requirement were tolled for a latent injury, from the evidence Petitioner presented, the first time he told his employer of a work-related injury was more than 30 days after he learned of it.

         ¶ 1 Petitioner Brian Richardson moves for partial summary judgment, arguing that he gave proper notice under § 39-71-603(1), MCA.

         ¶ 2 Respondent Indemnity Ins. Co. of North America (Indemnity) opposes Richardson's motion, contending there are genuine issues of material fact as to whether the underlying injury occurred at work, and whether the information Richardson gave his employer was sufficient to fulfill statutory notice requirements. Moreover, Indemnity contends that even though the notice requirement can be tolled for latent injuries, Richardson failed to provide the required notice within 30 days of when he says he learned of his work-related injury.

         FACTS

         ¶ 3 In November of 2006, Richardson was working as a security officer for Securitas at the Billings Clinic.

         ¶ 4 On November 29, 2006, Richardson and his supervisor, Kurtis Cihak, helped detain a violent patient in the Emergency Room.

         ¶ 5 A Daily Activity Report was prepared the same day, stating, in pertinent part:

Time
Activity
Initial

0125

STAT ED #12, Pt out of control when told by Psych Dr

had to stay, tried fighting way out, had to restrain

BR: Hits = 5 (mouth upper) ribs, stomach [][2] Missed = 3

CR: Hits = 0, misses = 3 [][3]

KC: Hits = 4 (head, ear, shirt, chest) Misses ≈ 4

NI: Hits = 2 (check undereye, shoulder) Misses = 3 ±

KC, BR, CR, NI

          Cihak wrote out the description of the incident on each line in the Activity column, except that Richardson filled out the details of where he was hit on the third line, including "(mouth upper) ribs, stomach." Cihak was the first to sign his initials in the Initial column. "The initials written outside and to the right of the grid on the Report were entered by Ron Berglund, " as reminders for the other officers to review the entry and initial, as well. Richardson signed his initials in the Initial column to the right of Cihak's.

         ¶ 6 Richardson's Affidavit states, "I told Kurtis immediately after the assault about the patient assault on me, how many times the patient hit me and where the patient hit me."

         ¶ 7 Richardson's Affidavit also states that he spoke with Ron Berglund, the Securitas on-site manager about the incident the following day: "I told him the patient had hit me in the nose with an upward strike of his elbow."

         ¶ 8 On July 1, 2007, Richardson saw Beth Hamilton, PA-C, of Billings Clinic Same Day Care, for ringing in his right ear. He reported that "his right ear has felt plugged for about the past one to one and a half months" and that "[e]very once in a while he will get kind of a low-pitched ringing." The note for the visit mentions nothing about Richardson suffering a blow to the nose. Hamilton felt that eustachian tube dysfunction was causing the decreased hearing in the right ear and recommended nasal spray and an oral decongestant.

         ¶ 9 On April 19, 2008, Richardson saw Steve Williamson, MD, of Billings Clinic Family Medicine, for a headache. He complained that his migraines had been "increasing in frequency since he moved from Oregon where he lived at sea level." The note for the visit mentions nothing about Richardson suffering a blow to the nose. Dr. Williamson prescribed several medications.

         ¶ 10 On April 30, 2008, Richardson saw Scott D. Price, MD, of Billings Clinic Otolaryngology, for "[n]ose bleeds and nasal obstruction." Richardson reported " 'dark blood, deep in my nose, ' " "persistent nasal congestion, facial pain, pressure, headaches and thick postnasal drainage." He described what was coming out of his nose as "a blood-tinged mucus." Upon physical examination of Richardson's nose, Dr. Price noted a "very prominent right inferior turbinate" and a "right posterior bony septal spur." However, the note for the visit mentions nothing about Richardson suffering a blow to the nose. Dr. Price thought "this may actually be related to dryness here since we are in such an arid environment, " recommended he use nasal spray, and ordered a coronal CT scan of the paranasal sinuses.

         ¶ 11 The CT scan, performed on May 15, 2008, showed normal paranasal sinuses, but "mild deviation of the superior portion of the nasal septum to the left."

         ¶ 12 The same day, Richardson had a follow-up evaluation with Dr. Price. Upon physical examination of Richardson's nose, Dr. Price noted a "right septal deviation with a bony spur that impinges upon the right middle turbinate, " "some prominence of the left middle turbinate, consistent with a concha bullosa, " and a "prominent right inferior turbinate hypertrophy." According to Dr. Price, the CT scan of the paranasal sinuses showed a "very prominent left concha bullosa, " a "septal deviation with impingement of the septum upon the right middle turbinate, " and an "area where the left middle turbinate is pressing upon the septum." Dr. Price's impression included: "Headaches . . . [which] may actually represent Sluder's type neuralgia pain secondary to the septal compression upon the turbinates, as well as the possibility of some obstruction of the left concha bullosa, " "Inferior turbinate hypertrophy, " "Septal deviation, " "Nasal obstruction, " and "Recurrence of mild epistaxis." The note for the visit documents that Richardson complained that his nasal obstruction had been present approximately two years and had not improved with medications, but mentions nothing about him suffering a blow to the nose. Dr. Price discussed several treatment options with Richardson, including "endoscopic sinus surgery with excision of concha bullosa, being performed in conjunction with septoplasty and inferior turbinate submucous resection."

         ¶ 13 The first treatment note to mention Richardson suffering a blow to the nose, was a June 17, 2008, visit with Cynthia A. Kennedy, MD, of Yellowstone Medical Center Ear, Nose & Throat Associates. On that date, Dr. Kennedy wrote in pertinent part:

Brian is a 32 year old male who is here for evaluation of chronic headaches, nasal obstruction since being hit in the nose about a year and a half ago. . . . He was working security at the Billings Clinic in the emergency room when he had to detain someone. He got hit at the bottom of the nose with an elbow ve[r]y hard. He felt and heard it crack. He did not have much bleeding immediately. In fact, he did not even have anything come out anteriorly, but could taste blood posteriorly.

         Dr. Kennedy's assessment of Richardson included the following:

Nasal septal deviation with two distinct contact points. These occurred acutely after trauma and could very well be causing his new onset of facial headaches. . . . I have recommended a septoplasty, as well as very limited anterior ethmoidectomies endoscopically with removal of concha bullosa.

         ¶ 14 Richardson's Affidavit states, in regard to his visit with Dr. Kennedy, "This is the first time I had a medical confirmation that I injured my nose at work."

         ¶ 15 Richardson left his job at Securitas within a week of his appointment with Dr. Kennedy.

         ¶ 16 Dr. Kennedy performed the recommended surgery on June 25, 2008.

         ¶ 17 In August 2008, following the surgery and his ...


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