Submitted: April 30, 2019
ORDER DENYING CROSS-MOTIONS FOR SUMMARY
M. SANDLER JUDGE.
Respondent moved for summary judgment and Petitioner filed a
cross-motion for summary judgment on the issue of whether
Petitioner notified her employer of her accident and
resulting injury within the 30-day period required by §
39-71-603, MCA. Respondent argues that Petitioner's claim
is time-barred because she missed the notice deadline by 10
days and did not have a "latent injury" sufficient
to toll the statute because she knew, within 30 days of her
accident, that she had suffered an injury and would require
medical treatment. Petitioner argues that although she had
pain, she had previously experienced like symptoms and they
always went away with time. She contends that the notice
period began running the day she first scheduled a medical
appointment, and that the notice she gave her employer 24
days later was timely.
Both parties' motions for summary judgment are denied.
Under the latent injury doctrine, "An employee who has a
reasonable belief at the time of an accident that he has
suffered no injury which will require treatment or is
otherwise compensable, is not barred from recovery under
§ 603 because he learns otherwise beyond the 30-day
period." Whether the 30-day notice requirement may be
equitably tolled here depends on whether it was reasonable
for Petitioner to believe she did not suffer an injury which
would require treatment until 30 days prior to giving her
employer notice. Because reasonableness is a question of
fact, summary judgment on this issue is not appropriate.
1 Respondent Montana Health Network WC Ins. Trust (Montana
Health Network) moves for summary judgment and Petitioner
Danielle Begger cross-moves for summary judgment on the issue
of whether Begger notified her employer Billings Clinic of
her accident and resulting injury within the 30-day period
required by § 39-71-603, MCA.
2 Begger is a radiological technician for Billings Clinic and
has held that position for nearly 17 years.
3 On Thursday, December 14, 2017, while in the course and
scope of her employment, Begger felt low-back pain after
assisting a large, obese patient with multiple sclerosis and
poor balance sit up and lie down on an examination table
approximately 10 times over the course of two hours.
4 After Begger was finished assisting the patient with the
procedure, she noticed her back was sore, but stretched it
out and finished her shift. She did not take any medications
and thought the soreness was routine.
5 At this time, Billings Clinic was insured by Montana Health
6 Begger woke up the morning of December 15, 2017, and
noticed a sharp pain going down one of her legs. It was not
dissimilar to pain she had experienced before while on the
job. She worked a full shift at Billings Clinic that day and
applied an ice pack that evening.
7 Begger did not work over the weekend of December 16 and 17.
She worked full shifts on December 18 and 19; was on call
December 22 through 25, wherein she worked approximately 17
hours; worked another full shift on December 26; and a
half-shift on December 27 without incident.
8 On December 28, Begger went to Las Vegas for vacation, and
her pain progressed. On December 30, she scheduled an
appointment to see Cameron Grove, MD, her personal care
provider. Dr. Grove's earliest available appointment was
on January 15, 2018.
9 In the interim, Begger continued working without
restriction or incident, and appeared for all six of her
scheduled shifts at Billings Clinic between her ...