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Maddalena v. Indemnisty Insurance Company of North America2/27/2003
on, then his more positive recollection of reporting the incident when asked about it again on redirect examination. I further note that claimant testified that he had hurt his back in a prior incident at Big R when moving a spool of wire and did not report that incident to Big R. I find as a matter of fact that the claimant did not report the alleged September 24th accident to Long on the morning of September 24, 1999. I further find that Big R had not opened when claimant reported his intention to go to a chiropractor. I am unpersuaded that the facts surrounding claimant's statement of his intention to go to a chiropractor put Long on notice that claimant had been injured at work that day or on any other day.
Claimant quit working at Big R approximately a week after the injury and went to work for Diamond Construction on October 5, 1999. He did not report his alleged accident during that time.
The first indication Big R had that claimant was asserting he suffered a job -related injury was in mid-December 1999, when Kim Strozewski, the human resources administrator for Big R, was contacted by Dr. Speth's office and asked about workers' compensation coverage. Dr. Speth at that time was treating claimant and had scheduled him for surgery.
Claimant did not file a written claim for compensation until June 8, 2001, more than a year and a half after his alleged injury . According to claimant, "Penny" at Dr. Speth's office told him he needed to submit a first report but said she would take care of the report. Assuming his testimony to be true, the fact remains that he was responsible for filing the written claim and failed to do so within the twelve months allowed by section 39-71-603, MCA.
In light of my resolution of the notice and claim filing issues, I do not reach the question of whether claimant in fact suffered an industrial injury on September 24, 1999.
CONCLUSIONS OF LAW
This case is governed by the 1999 version of the Montana Workers' Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Claimant bears the burden of proving by a preponderance of the evidence that he is entitled to the benefits he seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
Claimant was required to report his alleged injury to his employer within 30 days of September 24, 1999. Section 39-71-603(1), MCA, provides:
39-71-603. Notice of injuries other than death to be submitted within thirty days. (1) A claim to recover benefits under the Workers' Compensation Act for injuries not resulting in death may not be considered compensable unless, within 30 days after the occurrence of the accident that is claimed to have caused the injury , notice of the time and place where the accident occurred and the nature of the injury is given to the employer or the employer's insurer by the injured employee or someone on the employee's behalf. Actual knowledge of the accident and injury on the part of the employer or the employer's managing agent or superintendent in charge of the work in which the injured employee was engaged at the time of the injury is equivalent to notice.
On the day of the alleged accident, the claimant told his supervisor only that his back was hurting and that he needed to go to a chiropractor. He did not tell his supervisor that his back hurt because of any incident at work. He did not inform his supervisor of the time and place of the alleged accident.
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