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Richardson v. Indemnity Ins. Co. of North America

Court of Workers Compensation of Montana

September 21, 2018

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

          Submitted: May 9, 2018

          ORDER DENYING PETITIONER'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO CLAIM FILING AND GRANTING RESPONDENT'S CROSS-MOTION FOR SUMMARY JUDGMENT

          DAVID M. SANDLER JUDGE.

         Summary:

         Petitioner, a security guard at a hospital, asserts that he suffered an injury to his nose after helping his supervisor detain a patient in 2006. Respondent has denied liability, asserting, inter alia, that Petitioner did not timely submit a claim under § 39-71-601, MCA, which requires a claimant to submit a written claim within 12 months of the date of his accident, although in cases involving lack of knowledge of disability, latent injury, or equitable estoppel, the time limitation can be extended up to 36 months from the date of the accident. Petitioner moves for partial summary judgment, arguing that his employer's Daily Activity Report from the day of the incident constitutes his written claim. In the alternative, Petitioner argues that the First Report of Injury or Occupational Disease he filed nearly four years after the incident constitutes a timely claim because he lacked knowledge of his disability and because Respondent is equitably estopped from maintaining a statute of limitations defense. Respondent cross-moves for summary judgment, contending that the employer's Daily Activity Report does not constitute a claim because Petitioner's entry did not indicate that he sustained an injury. Respondent also argues that even if Petitioner were entitled to the waiver for cases involving lack of knowledge of disability or equitable estoppel, Petitioner filed his First Report of Injury or Occupational Disease beyond the 36-month absolute deadline, which Respondent asserts is a statute of repose.

         Held: Petitioner's Motion for Partial Summary Judgment as to Claim Filing is denied. Respondent's Cross-Motion for Summary Judgment is granted. Petitioner's entry in his employer's Daily Activity Report did not indicate that he was injured; thus, it did not contain sufficient information to inform his employer or Respondent of the nature and basis of a potential workers' compensation claim and does not constitute a claim under § 39-71-601, MCA. And, even if Petitioner were entitled to the statutory waiver of the 12-month limitations period, he submitted his First Report of Injury or Occupational Disease beyond the 36-month absolute deadline for submitting a claim. Petitioner's claim is time-barred.

         ¶ 1 Petitioner Brian Richardson moves for partial summary judgment on the issue of his compliance with the claim-filing requirements of § 39-71-601, MCA. He argues that his employer's Daily Activity Report constitutes a claim or, in the alternative, that his First Report of Injury or Occupational Disease was timely.

         ¶ 2 Respondent Indemnity Ins. Co. of North America (Indemnity) cross-moves for summary judgment, arguing that Richardson failed to timely file a claim because his employer's Daily Activity Report was substantively insufficient to constitute a claim and because the First Report of Injury or Occupational Disease was filed too late.

         FACTS

         ¶ 3 Making all inferences in Richardson's favor, the following are the facts for purposes of this ruling.[1]

         ¶ 4 In November 2006, Richardson was working as a security officer for Securitas at the Billings Clinic, on the night shift.

         ¶ 5 On November 29, 2006, Richardson, his two coworkers, and his supervisor, Kurtis Cihak, detained a violent patient in the Emergency Room. During the altercation, the patient hit Richardson five times. Immediately after the altercation Richardson told Cihak "about the patient assault on me, how many times the patient hit me and where the patient hit me."

         ¶ 6 Per Securitas's regular business practice, its officers prepared a Daily Activity Report the same day, which summarized what they did during their shifts. At the top of the Daily Activity Report, the officers wrote their names and which radio, pager, and key set they had. Below that, the Daily Activity Report has three columns. In the first, the officers wrote the time of an event in military time. In the second, which was labeled "Activity," the officers wrote a short description of their activities; e.g., "Assisted getting patient into ED from ambulance bay." In the third, the officers wrote their initials.

          ¶ 7 The following picture is of the entries in the Daily Activity Report regarding the incident in which Richardson and his coworkers detained the patient in the Emergency room on November 29, 2006:

         (Image Omitted)

         The first two lines in the Activity column state, "STAT ED #12, Pt out of control when told by Psych Dr. had to stay, tried fighting way out, had to restrain." The third line is the entry regarding Richardson. 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, which states, "(mouth upper) ribs, stomach."[2] Richardson signed his initials in the Initial column to the right of Cihak's.

         ¶ 8 The day after the altercation, Richardson told Ron Berglund, who was Securitas's on-site manager, that "the patient had hit me in the nose with an upward strike of his elbow while [I was] attempting to restrain the patient." In response, Berglund told Richardson, inter alia, that he "did not have to fill out any more paperwork unless [he] was seeking treatment." Richardson did not complete any additional paperwork at that time.

         ¶ 9 Between July 2007 and May 2008, Richardson saw several medical providers with complaints of right-ear ringing and plugging, headache, nose bleeds, nasal obstruction, and facial pain and pressure. However, none of the medical providers recorded that Richardson said he was hit in the nose. After a CT scan in the spring of 2008, Scott D. Price, MD, of Billings Clinic Otolaryngology, diagnosed him with 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."

         ¶ 10 The first medical record to mention Richardson suffering a blow to the nose, was from 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.

         ¶ 11 Richardson's appointment with Dr. Kennedy was the first time he had a medical confirmation that he injured his nose at work.

         ¶ 12 Richardson left his job at Securitas within a week after his appointment with Dr. Kennedy.

         ¶ 13 Thereafter, on June 25, 2008, Dr. Kennedy performed the recommended surgery. Upon his discharge, Richardson was instructed not to engage in strenuous physical activity for seven days.

         ¶ 14 When asked whether he had any reason to think that he should fill out paperwork, such as an incident report or workers' compensation claim form, when he was treated in June 2008, Richardson responded:

At that point in time it was a very difficult place and environment to work in. I had thought that I had just had a broken nose and I had insurance and I thought if I was just to get my nose fixed, I would never have to deal with these guys again and I'm moving to a new job. ʹCause what happened is I scheduled my surgery to happen a day or two after my last day with Securitas and then as I was cleared by the doctor I started at Lockwood Water. I was already employed by Lockwood Water before my actual start date.

         ¶ 15 In August 2008, following his recuperation, Richardson began his new job.

         ¶ 16 Richardson submitted the bills from his surgery to his health insurer, but it denied liability.

         ¶ 17 Consequently, in August or September 2008, Richardson went to see Berglund because he wanted to fill out a workers' compensation claim for his nose injury. Berglund told Richardson he would have to see the branch manager. Richardson then went to Securitas's branch manager, Mike Anderson, and told Anderson he needed to fill out a workers' compensation claim for his nose injury, which Richardson stated occurred during the incident on November 29, 2006. However, Anderson told Richardson it was too late for him to file a claim.

         ¶ 18 According to Dr. Kennedy's records, Richardson got along reasonably well following surgery but began having increased headaches and facial pressure in the spring of 2009. In 2010, she documented that Richardson was also struggling with facial pain, vertigo, and imbalance, and struggling with work as a result; she thought he may have sphenopalatine neuralgia or Sluder's syndrome.

         ¶ 19 Richardson stopped working due to his nose injury in September 2010.

         ¶ 20 Later that fall, Richardson's attorney wrote to Dr. Kennedy posing a number of questions concerning Richardson's condition. The questions included whether Richardson's condition was the result of being struck at the bottom of his nose while trying to detain someone at work, and whether he had to stop working as the result of the symptoms of his condition. Dr. Kennedy responded "Yes" to both questions.

         ¶ 21 On October 14, 2010, Richardson submitted a First Report of Injury or Occupational Disease regarding the incident at work, stating that the incident occurred in approximately October 2007 and describing it as follows: "While attempting to restrain a violent patient, I was struck in the nose by the patient's elbow." He described the nature of the injury as "Upward impact to nose," and the part of the body affected as "Nose/face/nerve damage."

         ¶ 22 Indemnity denied liability for Richardson's claim, asserting, inter alia, that Richardson did not timely submit his written claim under § 39-71-601, MCA.[3]

         LAW AND ANALYSIS

         ¶ 23 This case is governed by the 2005 version of the Montana Workers' Compensation Act (WCA) since that was the law in effect at the time of Richardson's alleged industrial accident.[4]

         ¶ 24 This Court renders summary judgment when the moving party demonstrates an absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[5] After the moving party meets its initial burden to show the absence of a genuine issue of fact and entitlement to judgment, the burden shifts to the party opposing summary judgment either to show a triable issue of fact or to show why the undisputed facts do not entitle the moving party to judgment.[6]

         ¶ 25 To commence and maintain a workers' compensation claim, an injured employee must comply with two separate time limitations. First, under § 39-71-603(1), MCA, the employee must, within 30 days of an accident, give notice to his employer or the employer's insurer of the "time and place where the accident occurred and the nature of the injury." If the employee has a latent injury, the 30-day notice requirement is tolled until he discovers that he suffered an injury.[7] "The purpose of the notice requirement is to enable the employer to protect itself by prompt investigation of the claimed accident and prompt treatment of the injury to minimize its effect."[8]

         ¶ 26 Second, under § 39-71-601(1), MCA, the employee must submit a written claim within 12 months of the accident. However, under subsection (2), this time limitation can be extended up to an additional 24 months in cases of lack of knowledge of disability, latent injury, or equitable estoppel. This statute states, in pertinent part:

Statute of limitation on presentment of claim - waiver. (1) . . . [A]ll claims in the case of personal injury or death must be forever barred unless signed by the claimant or the claimant's representative and presented in writing to the employer, the insurer, or the department, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act on the claimant's behalf.
(2) The insurer may waive the time requirement up to an additional 24 months upon a reasonable showing by the claimant of:
(a) lack of knowledge of disability;
(b) latent injury; or
(c) equitable estoppel.

         The purpose of this statute is "to give the employer written notice of the worker's claims within twelve months of the injury or accident in order to allow the employer to investigate the claim and, if necessary, prepare a defense."[9]

         ¶ 27 Indemnity asserts that Richardson did not file a timely claim under § 39-71-601, MCA, because Richardson's entry on Securitas's Daily Activity Report does not constitute a claim and because Richardson did not submit his First Report of Injury or Occupational Disease until October 14, 2010, nearly a year after the 36-month deadline for Richardson to file a claim, which Indemnity asserts is a statute of repose.

         ¶ 28 Richardson maintains that he timely submitted his claim because his entry on his employer's Daily Activity Report, which he made on the day of the incident, is sufficient to constitute a written claim under § 39-71-601(1), MCA. In the alternative, Richardson argues that the First Report of Injury or Occupational Disease he submitted on October 14, 2010, constitutes a timely claim under § 39-71-601(2), MCA.

         A. Sufficiency of Securitas's Daily Activity Report

         ¶ 29 Section 39-71-601, MCA, is silent as to the content required of a "claim" for injury. In Partin v. State Compensation Ins. Fund, this Court summarized cases from the Montana Supreme Court and explained the general rule is that the claim need not be submitted on the Department of Labor & Industry's First Report of Injury or Occupational Disease form and "need only contain information which is sufficient to inform the employer or insurer of the nature and basis of the possible claim, and to enable it to investigate the claim and, if necessary, prepare a defense."[10]

         ¶ 30 The statement of the general rule, of course, begs the question: what information is sufficient? Indemnity maintains that Securitas's Daily Activity Report did not contain sufficient information because Richardson did not indicate that he suffered an injury. Richardson contends that his employer's Daily Activity Report contained sufficient information because he did not know his nose was injured and that he gave all the information he knew.

         ¶ 31 Although a case interpreting the requirement that a worker give notice of his accident and injury to his employer within 30 days under § 39-71-603, MCA, the Montana Supreme Court's decision in Siebken is instructive as to what information is sufficient to put an employer or insurer on notice of a potential workers' compensation claim. The facts of Siebken are similar to those in this case. Siebken, a law enforcement officer for the Federal Reserve Bank, had an altercation with a resisting trespasser in which Siebken spun the trespasser around, pinned him against the wall, and handcuffed him.[11] Siebken told his supervisor of the incident and he and his coworkers filled out written incident reports in which they conveyed that they had "used physical force to subdue and restrain a resisting trespasser."[12] But, Siebken did not perceive he had suffered an injury and did not mention that he was injured.[13] However, he began suffering symptoms in the following weeks and, six months later, learned that he had cervical spinal stenosis, requiring surgery.[14] After his surgery, Siebken's surgeon informed him that the altercation with the trespasser probably caused his neck condition and need for surgery.[15] Approximately 38 days later, Siebken filed a workers' compensation claim.[16]

         ¶ 32 The court held that Siebken's claim was time-barred because he did not give his employer notice of his injury within 30 days of when he first learned that he suffered an industrial injury, as required by § 39-71-603(1), MCA.[17] In reaching its holding in Siebken, the court rejected Siebken's argument that his verbal and written incident reports were sufficient notice because Siebken did not indicate that he was injured:

However, because the incident reports do not describe an unusual strain or trauma, it was incumbent on Siebken to notify his employer when he learned that he suffered an unusual strain because, under these facts, the employer could not have reasonably understood an injury had occurred. Even Siebken, with the assistance of his initial physicians, was not able to identify the bank incident as the cause of his neck injury until Dr. Sorini came to this conclusion in May 2006. Therefore, it was unreasonable to expect that Siebken's supervisor, without more information, could have deduced that Siebken was injured in the incident. There ...

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