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Whitlock v. Fremont Industrial Indemnity Company2/26/2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: Claimant was involved in three incidents involving her lifting of 16 gallon beer kegs. In the first and second incidents, she felt a sting between her neck and right shoulder, however, the sting was transitory and she thereafter experienced a mild aching which did not indicate a need for medical care and did not interfere with her performing her job . However, a week after the second incident, she began to experience numbness in her arm and realized the need for and shortly thereafter sought medical care. She suffered a third incident which worsened her condition, which was ultimately diagnosed as a herniated cervical disk. She thereafter underwent surgery. The insurer denies liability based upon claimant's failure to report her injuries within 30 days as required by section 39-71-603, MCA (1999).
Held: Since the claimant had not reached maximum medical improvement with respect to the first injury , that claim is the one considered for purposes of determining liability. The first injury appeared insignificant at the time and the claimant did not experience symptoms which put her on notice that she might need medical care or be entitled to benefits. Therefore, the latent injury doctrine applied. Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992). Since she reported her initial injury within 30 days of when she began experiencing significant symptoms, her report was timely under section 39-71-603, MCA (1999).
Topics:
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: § 39-71-603, MCA (1999). The 30-day requirement for notice to the employer, § 39-71-603, MCA (1999), does not begin to run until the claimant realizes that she may need medical care or recognizes the possible compensability of her injury . Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992).
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: § 39-71-603, MCA (1999). Where a worker experiences a fleeting sting between her neck and shoulder and thereafter has some mild aching which does not affect her ability to work or indicate the need for medical care, the 30-day period for notifying her employer, § 39-71-603, MCA (1999), does not begin running until some other, more significant symptom emerges. See Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992). Where the worker thereafter experiences the onset of numbness in the arm and begins dropping things, those symptoms trigger the running of the 30-day period.
Limitations Period: Notice to Employer. The 30-day requirement for notice to the employer, § 39-71-603, MCA (1999), does not begin to run until the claimant realizes that she may need medical care or recognizes the possible compensability of her injury . Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992).
Limitations Period: Notice to Employer. Where a worker experiences a fleeting sting between her neck and shoulder and thereafter has some mild aching which does not affect her ability to work or indicate the need for medical care, the 30-day period for notifying her employer, § 39-71-603, MCA (1999), does not begin running until some other, more significant symptom emerges. See Killebrew v. Larson Cattle Co., 254 Mont. 513, 521, 839 P.2d 1260, 1265 (1992). Where the worker thereafter experiences the onset of numbness in the arm and begins dropping things, those symptoms trigger the running of the 30-day period.
The trial in this matter was held on November 6, 2001 in Missoula, Montana. Petitioner, Danielle Whitlock (claimant), was present
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