HUNT v SHERWIN WILLIAMS CO
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No. 80-403 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 LARRY PAUL HUNT, Claimant and Appellant, -vs- ÿ RAM^ THE -WEE&&N WILLIAMS COMPANY, Employer, and AETNA CASUALTY & SURETY CO., Defendant and Respondent. Appeal from: Workers' Compensation Court, The Honorable Jack Green, Judge presiding. Counsel of Record: For Appellant: Keefer, Roybal & Hanson, Billings, Montana For Respondent : Anderson, Symmes, Brown, Gerbase, Cebull Jones, Billings, Montana Submitted on Briefs: & January 8, 1981 Decided: March 4, 1981 Filed: Rb.R 4 - 1981 M r . J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n of t h e Court . L a r r y P a u l Hunt ( H u n t ) a p p e a l s from t h e d e c i s i o n o f t h e Workers' Compensation C o u r t d e n y i n g h i s c l a i m f o r b e n e f i t s f o r back i n j u r i e s c l a i m e d t o have b e e n s u f f e r e d w h i l e Hunt was employed by t h e Sherwin-Williams Company (SherwinWilliams). W e a f f i r m t h e decision. Hunt was employed a s t h e manager o f t h e Sherwin-Williams p a i n t s t o r e i n M i s s o u l a , Montana, from O c t o b e r 1976 t o September 1 2 , 1979. Hunt was manager of Sherwin-Williams a t t h e t i m e of t h e claimed i n j u r i e s . H i s immediate s u p e r v i s o r was t h e d i s t r i c t manager s t a t i o n e d a t S a l t Lake C i t y , Utah. Hunt t e s t i f i e d t o t h e f o l l o w i n g i n j u r i e s t o h i s b a c k : (1) Hunt t e s t i f i e d t h a t he i n j u r e d h i s back w h i l e l i f t i n g a r o l l o f c a r p e t i n g a t work i n September 1977. l o s t no t i m e from work f o l l o w i n g t h i s i n j u r y . He A s hereafter d e s c r i b e d , Hunt g a v e no n o t i c e u n t i l September 1979. ( 2 ) Hunt t e s t i f i e d t h a t h e a g a i n i n j u r e d h i s back a t work w h i l e l i f t i n g a f i v e - g a l l o n c a n o f p a i n t on November 27, 1978. H e l o s t no t i m e from work. A s hereafter described, Hunt g a v e no n o t i c e u n t i l September 1979. Hunt t e s t i f i e d t o l i m i t e d medical treatment a f t e r t h i s i n j u r y . Payment f o r s u c h t r e a t m e n t was t h r o u g h h i s h e a l t h i n s u r a n c e and o u t of h i s own p o c k e t . ( 3 ) Hunt t e s t i f i e d t h a t on A u g u s t 1 0 , 1979, w h i l e v a c a - t i o n i n g i n C a l i f o r n i a , h e h u r t h i s back w h i l e g o l f i n g . Hunt saw a c h i r o p r a c t o r f o r t r e a t m e n t of t h i s i n j u r y . ( 4 ) Hunt t e s t i f i e d t h a t on A u g u s t 1 9 , 1979, h e i n j u r e d h i s back w h i l e g o l f i n g i n M i s s o u l a . H e was a d m i t t e d t o S t . P a t r i c k ' s H o s p i t a l on A u g u s t 21, 1 9 7 9 , and was t r e a t e d f o r a p e r i o d of e i g h t d a y s f o r h i s back. Hunt d o e s n o t c o n t e n d these golfing injuries are related to employment by SherwinWilliams. Hunt returned to work for a short time, and resigned from Sherwin-~illiamson September 12, 1979. Hunt filed for workers' compensation on September 17, 1979. Sherwin- Williams first received written notice of the alleged onthe-job injuries and first obtained actual knowledge thereof in September 1979. Aetna Casualty & No other written notice was received by Surety Company (Aetna), the compensation carrier for Sherwin-Williams. A workers' compensation hearing was held on February 7, 1980, before Sam Haddon, hearings officer. 'Mr. Haddon reported that "the record contains no substantial creditable evidence that the back pain first reported on September 12, 1979 was the result of an injury as that term is defined in the Workers' Compensation Act." Mr. Haddon also stated that the record was wholly lacking creditable medical evidence of a causal connection between the back pain referred to in the claim for compensation and either of the injuries referred to in the claim form. Judge Jack Green, acting Workers' Compensation Judge, ruled against Hunt. Judge Green made extensive findings, including findings that until September 12, 1979, Hunt did not give notice either orally or in writing to his immediate supervisor or to Sherwin-Williams. He further found that Sherwin-Williams and Hunt's district manager did not have actual knowledge of either of the claimed injuries until September 1979. Judge Green's conclusions of law included the conclusion that the actual knowledge exception in section 39-71-603, MCA, was not satisfied by Hunt giving notice to himself. In addition Judge Green made the following con- clusion of law: "The Claimant failed to prove, by a preponderance of probative credible evidence that the back pain for which the claim for compensation was submitted was the result of a compensable injury in the course and scope of his employment with the Employer." Despite the finding that he suffered no compensable injury, appellant Hunt raises only one issue on the appeal: when the employer's managing agent is injured, does the mere occurrence of the accident and injury constitute actual knowledge on the part of the employer or his managing agent so as to satisfy the actual knowledge requirement of section 39L71-603, MCA? That section read as follows at the time of appellant's claimed injuries in 1977 and 1978: "Notice of claims for injuries other than death to be submitted within sixty days--exception--actual notice. No claims to recover compensation under this [act] for injuries not resulting in death shall be maintained unless, within sixty days af ter the occurrence of the accident which is claimed to have caused the injury, notice in writing stating the name and address of the person injured, the time and place where the accident occurred, and the nature of the injury and signed by the person injured or someone in his behalf shall be served upon the employer or the insurer, except as otherwise provided in 39-71-602. However, actual knowledge of such accident and injury on the part of such employer or his managing agent or superintendent in charge of the work upon which the injured employee was engaged at the time of the injury shall be equivalent to such service." Hunt admitted in his testimony that he had not notified Sherwin-Williams or Aetna in writing (or orally for that matter) of the injuries which he claimed occurred in September 1977 and November 1978, until September 1979, far beyond the 60-day period required in the statute. Neither Sherwin- Williams nor Aetna had actual knowledge of the claimed injuries prior to September 1979, when Hunt resigned and filed his compensation claim. Hunt argues that if one of Hunt's subordinates at Sherwin-Williams had injured himself at work, and if Hunt as manager had obtained actual know]-edge of t h e i n j u r y , t h e s t a t u t e would have been s a t i s f i e d . A c c o r d i n g l y , Hunt a r g u e s t h a t h i s a c t u a l knowledge o f h i s own p e r s o n a l i n j u r y m e t t h e knowledge r e q u i r e m e n t s o f t h e statute. T h i s argument i g n o r e s t h e purpose of t h e n o t i c e o r knowledge r e q u i r e m e n t . "The p u r p o s e o f t h e n o t i c e r e q u i r e m e n t o r a c t u a l knowledge i n l i e u t h e r e o f i s t o e n a b l e t h e employer t o p r o t e c t h i m s e l f by prompt i n v e s t i g a t i o n o f t h e c l a i m e d a c c i d e n t and prompt t r e a t m e n t o f t h e i n j u r y i n v o l v e d w i t h a v i e w toward m i n i m i z i n g i t s e f f e c t s by p r o p e r m e d i c a l c a r e . " Mining Co. ( 1 9 6 0 ) , 138 Mont. Bender v . Roundup 306, 313, 356 P.2d 469, 473. The Bender c a s e f u r t h e r p o i n t s o u t t h a t t h e n o t i c e o r knowledge p r o v i s i o n o f t h e s t a t u t e i s "mandatory a n d c o m p l i a n c e w i t h i t s requirements i s i n d i s p e n s a b l e t o t h e maintenance of a claim f o r compensation." Bender, 356 P.2d 470, and c a s e s t h e r e c i t e d . I n t h e p r e s e n t c a s e , Hunt c l e a r l y was a n employee o f Sherwin-Williams. He failed t o give written notice t o e i t h e r Sherwin-Williams o r A e t n a . Sherwin-Williams had no a c t u a l knowledge o f a c l a i m e d i n j u r y u n t i l a t l e a s t e l e v e n months a f t e r t h e s e c o n d c l a i m e d i n j u r y . The r e s u l t was t h a t n e i t h e r Sherwin-Williams n o r Aetna c o u l d p r o t e c t t h e m s e l v e s by prompt i n v e s t i g a t i o n o f t h e c l a i m e d a c c i d e n t and prompt t r e a t m e n t of t h e i n j u r y . W e h o l d t h a t knowledge by Hunt o f h i s c l a i m e d i n j u r y , e v e n though h e was manager o f t h e M i s s o u l a s t o r e , d o e s n o t c o n s t i t u t e a c t u a l knowledge by a managing a g e n t o r s u p e r i n t e n d e n t u n d e r s e c t i o n 39-71-603, MCA. A p p e l l a n t Hunt h a s n o t t a k e n i s s u e w i t h t h e f i n d i n g by t h e c o m p e n s a t i o n c o u r t o f t h e a b s e n c e o f compensable i n j u r y . Hunt f a i l e d t o s u b m i t a m e d i c a l r e p o r t o r m e d i c a l o r o t h e r evidence t o prove e i t h e r i n j u r y o r a c a u s a l connection t o employment. " F i n d i n g s of f a c t s h a l l n o t b e s e t a s i d e u n l e s s c l e a r l y e r r o n e o u s , and d u e r e g a r d s h a l l b e g i v e n t o t h e o p p o r t u n i t y o f t h e t r i a l c o u r t t o judge t h e c r e d i b i l i t y o f the witnesses." R u l e 5 2 ( a ) , M.R.Civ.P. W e conclude t h a t t h e lower c o u r t ' s f i n d i n g o f a n a b s e n c e o f a compensable i n j u r y was n o t c l e a r l y e r r o n e o u s . Because Hunt f a i l e d t o p r o v e a compensable i n j u r y and f a i l e d t o m e e t t h e n o t i c e o r a c t u a l knowledge r e q u i r e m e n t s o f t h e Workers' Compensation A c t , compensation c o u r t i s a f f i r m e d . W e concur: t h e d e c i s i o n of t h e
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