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McGuin v. State Compensation Insurance Fund12/16/1999
ch causes an unusual result, i.e. the injury. There must be a cause and effect relationship between the work activity and the injury. In the present case the claimant has persuaded the Court that his perilymph fistula was caused by his river float during the 1986 Dive Rescue II. Whether considered an injury in the traditional sense or the result of an "unusual strain," it is compensable.
While the statutes in effect in 1986 required claimant to give his employer notice of his injury within 60 days thereof, § 39-71-603, MCA (1985), and to file a written claim for compensation within 1 year, § 39-71-601, MCA (1985), he was unable to comply with either requirement because he was unaware of his condition or that it arose during the 1986 Dive Rescue II. His treating physicians did not even suspect the presence of a perilymph fistula until April 1997, and did not diagnose the condition until June 26, 1997. Claimant gave notice to his employer within 60 days of that diagnosis and filed his claim within one year following the diagnosis. The question the Court must consider is whether those facts tolled the statutory notice and filing requirements.
In Bodily v. John Jump Trucking, Inc., 250 Mont. 274, 819 P.2d 1262 (1991), the claimant, a truck driver, suffered from progressive pain and loss of strength in his arms while working. His condition caused him to stop working in 1986. Approximately a year later, his treating physicians determined that he suffered from cervical stenosis which was accelerated by cumulative microtrauma due to this truck driving. Claimant then gave notice to his employer that his condition was work related, filed a claim, and sought benefits. The insurer argued that his notice was too late under section 39-71-603, MCA (1985). The Supreme Court rejected the defense. It noted that claimant was unaware that his physical condition was related to his employment until 1987, therefore he could not have given his employer notice that he had suffered a work-related injury . It held that claimant's reports to his employer of his symptoms and that his work made them worse was sufficient notice.
The Court held:
We conclude that claimant satisfied the notice requirement. Since claimant's disability was the result of cumulative traumas which occurred over a period of time, the date of injury , for purposes of complying with the notice requirement, is the date on which claimant was first unable to continue with his employment due to his physical condition. That date was July 8, 1986. Applying a liberal construction to Sec. 39-71-603, MCA (1985), we conclude that by providing his employer with all the information available to him on that date regarding the nature of his injuries, the fact that his condition was aggravated by his employment, and the nature of job duties which appeared to aggravate his condition, claimant complied with the Workers' Compensation Act's notice requirements. [Emphasis added.] 250 Mont. at 283, 819 P.2d at 1267-68.
A year later, the Supreme Court again addressed the notice issue. In Killebrew v. Larson Cattle Co., 254 Mont. 513, 839 P.2d 1260 (1992), the Court considered whether claimant's disclosure of an accident without indicating he had been injured was sufficient notice under the section.
The Court held that it was since claimant was unaware that he in fact had been injured in the accident:
Claimant was not in a position to provide more information than he described because it was not until after 30 days that his injury from each of the above accidents worsened to the point where he sought medical treatment and was informed of the specific causes for his physical complaints. To interpret th
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