Update: 10-18-18 – This case has been appealed to the Supreme Court.
IN THE WORKERS’ COMPENSATION COURT OF THE STATE OF MONTANA
2018 MTWCC 10
WCC No. 2013-3191
INDEMNITY INS. CO. OF NORTH AMERICA
ORDER DENYING PETITIONER’S MOTION
FOR PARTIAL SUMMARY JUDGMENT AS TO NOTICE1
Summary: 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.
¶ 37 Richardson’s Motion for Partial Summary Judgment as to Notice is denied.
READ FULL DOCUMENT AT ORIGINAL SOURCE: http://wcc.dli.mt.gov/R/Richardson_2018MTWCC10.pdf