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Begger v. Montana Health Network WC Ins.

Court of Workers Compensation of Montana

May 14, 2019

DANIELLE BEGGER Petitioner
v.
MONTANA HEALTH NETWORK WC INS. TRUST Respondent/Insurer.

          Submitted: April 30, 2019

          ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT

          DAVID M. SANDLER JUDGE.

         Summary: 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.

         Held: 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.

         FACTS

         ¶ 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 Network.

         ¶ 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 ...


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