Submitted: May 9, 2018
ORDER DENYING PETITIONER'S MOTION FOR PARTIAL
SUMMARY JUDGMENT AS TO NOTICE 
M. SANDLER JUDGE
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 §
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.
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:
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
 Missed =
CR: Hits = 0, misses = 3 
KC: Hits = 4 (head, ear, shirt, chest) Misses ≈
NI: Hits = 2 (check undereye, shoulder) Misses = 3
KC, BR, CR, NI
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
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
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
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
Kennedy's assessment of Richardson included the
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
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,
17 In August 2008, following the surgery and his