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Richardson v. Indemnity Ins. Co. of North America

Supreme Court of Montana

July 16, 2019

BRIAN RICHARDSON, Petitioner and Appellant,
v.
INDEMNITY INS. CO. OF NORTH AMERICA, Respondent and Appellee.

          Submitted on Briefs: April 24, 2019

          APPEAL FROM: Montana Workers' Compensation Court, WCC No. 2013-3191 Honorable David M. Sandler, Presiding Judge

          For Appellant: Larry W, Jones, Wills Law Firm, P.C., Missoula, Montana

          For Appellee: Joe C. Maynard, Adrianna Potts, Crowley Fleck PLLP, Billings, Montana

          OPINION

          BETH BAKER JUSTICE

         ¶l Brian Richardson filed a Petition for Hearing with the Workers' Compensation Court in July 2013, arguing that he was entitled to have Indemnity Insurance Company of North America ("Indemnity") accept his claim for workers' compensation benefits. Indemnity had denied his claim on the grounds that he had failed to provide his employer timely notice and that his claim filed almost four years after the alleged accident was untimely. The Workers' Compensation Court granted summary judgment to Indemnity, holding that Richardson had failed to give timely notice and that he had failed to timely file his claim. Richardson raises numerous issues on appeal, but we affirm on the following issue:

Whether the Workers' Compensation Court held correctly on summary judgment that Richardson had not timely filed a written claim for benefits under § 39-71-601, MCA (2005).

         Given our disposition of this issue, we decline to reach the other issues Richardson raises.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 On November 29, 2006, Richardson worked the graveyard shift at the Billings Clinic as a security guard for Securitas. At about 1:25 a.m., Richardson and other security guards responded to an altercation involving a psychiatric patient in the emergency department. Restraining violent patients was within the course and scope of Richardson's employment as a security guard. Afterwards, Richardson and his fellow guards noted the altercation in their Daily Activity Report as follows:

         (Image Omitted)

         The first two lines in the activity column state: "STAT ED #12, Pt out of control when told by Pysch Dr. had to stay, tried fighting way out, had to restrain." Each of the remaining four lines begins with the initials of the security guards that were involved in restraining the patient. The entry regarding Richardson states: "BR = Hits = 5 (mouth upper) ribs, stomach Missed = 3." Richardson's shift supervisor wrote the description of the incident and Richardson filled in the details of where he was hit. Richardson initialed the Daily Activity Report in the lower right-hand box along with his colleagues, indicating that he reviewed the report. Richardson attested that the day after the altercation he told RonBerglund, the site manager, that the patient's elbow had hit him in the nose. Richardson attested that Berglund told him that he did not need to fill out additional paperwork unless he was seeking medical treatment. Richardson did not file additional paperwork at that time. Richardson left Securitas for a position with another company in June 2008.

         ¶3 On June 17, 2008, Richardson saw Dr. Cynthia Kennedy for an evaluation of his chronic headaches and nasal obstruction. Dr. Kennedy attributed Richardson's symptoms to a nasal fracture from the 2006 incident. Richardson attested that this is the first time he had medical confirmation that a blow to his nose during work in November 2006 was the cause of his symptoms. Dr. Kennedy performed surgery on June 25, 2008. In August or September 2008, Richardson learned that his private insurance would not pay for the entire surgery, and he approached his former supervisors at Securitas about filing a workers' compensation claim. Richardson attested that Mike Anderson, the Securitas branch manager, told him it was too late to file a claim at that time.

         ¶4 Richardson attested that he had to stop working in September 2010 due to symptoms related to the 2006 injury to his nose. He filed a First Report of Injury with Securitas in October 2010, seeking workers' compensation benefits. His former employer's ...


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