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Maddalena v. Indemnisty Insurance Company of North America2/27/2003
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The circumstances of the discussion claimant had with his supervisor on September 24th did not put the supervisor on notice of the accident. Unlike the situation in Kuzara v. State Compensation Ins. Fund, 279 Mont. 223, 230-31, 928 P.2d 136, 141 (1997), there is no credible evidence that Big R had a policy of discouraging claims, or that claimant informed his supervisor that he suffered an injury , or that the claimant gave his supervisor the name of a co-employee who could give them more information about the injury. Big R had not yet opened when claimant notified his supervisor he was going to a chiropractor. The supervisor testified credibly that claimant had not begun his work and there was no evidence to show that he was aware claimant had been away from the store picking up hay bales on that day. Since claimant failed to give his employer notice of the alleged accident within 30 days, his claim is barred.
Claimant also failed to file a written claim within one year, as required by section 39-71-601(1), MCA (1999), which provides:
39-71-601. Statute of limitation on presentment of claim --waiver.
(1) In case of personal injury or death, all claims must be forever barred unless signed by the claimant or the claimant's representative and presented in writing to the employer, the insurer, or the department, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act on the claimant's behalf.
Subsection (2) of 39-71-601, MCA, allows for a waiver of the one-year filing requirement under some circumstances, providing:
(2) The insurer may waive the time requirement up to an additional 24 months upon a reasonable showing by the claimant of:
(a) lack of knowledge of disability;
(b) latent injury ; or
(c) equitable estoppel.
Clamant has not asked for a waiver. Even if he had, none of the grounds is remotely applicable to the facts of this case. He certainly knew of his disability - he required medical treatment and underwent major back surgery on December 14, 1999. (Ex. 2 at 5.) The injury was not latent: again, he sought medical treatment and even underwent major back surgery. Finally, he has failed to show that the employer or insurer prevented him from filing a written claim. Therefore, his claim is barred on account of his failure to file his claim within one year.
JUDGMENT
The claim in the present case is barred by claimant's failure to notify his employer of his alleged industrial accident within 30 days, as required by section 39-71-603(1), MCA (1999), and his failure to file a written claim for compensation within one year, as required by section 39-71-601(1), MCA (1999). His petition is dismissed with prejudice.
Claimant is not entitled to costs.
This JUDGMENT is certified as final for purposes of appeal.
Any party to this dispute may have twenty days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 27th day of February, 2003.
Submitted: August 12, 2002
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