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Kuzara v. State Fund11/14/1996
Rehearing Denied January 2, 1997.
53 St.Rep. 1125
Submitted on Briefs October 24, 1996.
Elizabeth Kuzara appeals the judgment of the Workers' Compensation Court granting a directed verdict in favor of the State Compensation Insurance Fund (State Fund). We reverse and remand with instructions consistent with this opinion.
The sole issue on appeal is whether the Workers' Compensation Court erred when it granted the State Fund's motion for a directed verdict because Elizabeth Kuzara presented insufficient proof of notice of a work-related injury as required by § 39-71-603, MCA (1993).
FACTUAL BACKGROUND
All references to the facts of this case are obtained from the sworn testimony of Elizabeth Kuzara at the trial held before the Workers' Compensation Court. It is noted that the judge found Kuzara to be a credible witness, stating, "I can at this point and do assume that she is telling me the truth about her conversations. And indeed I don't have any reason to disbelieve her and sitting here listening to her and observing her, she impresses me as credible up to this point." It is further noted that the State Fund did not offer any testimony or evidence at trial rebutting or contradicting the testimony of Kuzara, although it had the opportunity and chose not to do so.
Kuzara was employed as a dragline groundsman by the Spring Creek Coal Company at an open pit coal mine near Decker, Montana. Spring Creek is insured by the State Fund. Kuzara claims that she sustained a work-related injury on July 18, 1993. While cleaning dried mud from a dragline machine shoe, Kuzara suffered intense pain in her lower back, through her hips, and down her right leg. At trial she described the pain as "enough that I had to cease what I was doing — it was like getting an electrical shock almost." No one other than Kuzara witnessed this incident.
Kuzara worked with Ed Bebee, a dragline operator. Kuzara testified that she did not specifically tell Bebee, a co-worker, about the July 18 incident on the day that it occurred. However, the next day Kuzara could not complete her shift due to back pain. Bebee allowed her to rest inside his dragline cab for the remainder of the shift. While in the cab, Kuzara and Bebee talked about their back injuries for several hours. During that discussion Kuzara informed Bebee, "I thought I'd hurt my back." She also testified, "I told him at that time that — as far as what led to this, that I thought I had done it when I was down cleaning on the shoe."
Spring Creek employees participated in a gain-sharing program. Spring Creek set aside a percentage of its profits to be distributed to employees every three months. The program was based on a number of factors, including the number of lost-time accidents reported by employees. Thus, when an employee reported an accident, lost time was subtracted from the employee's overall gain share, and all other employees' shares were also reduced. In the quarter immediately preceding her injury, Kuzara earned approximately $950 through Spring Creek's gain-sharing program.
Kuzara was not scheduled to work on July 20 and 21, 1993. Because she had experienced difficulty sleeping since July 18 and was still in pain, Kuzara called Dr. Robert Wood, a neurosurgeon in Billings, Montana, and scheduled an appointment for August 5, 1993. Kuzara worked for the next two weeks after the dragline incident but did not inform Spring Creek or any co-workers about her back problem.
On August 4, 1993, Kuzara told her supervisor, Clark Izzard, about her August 5 doctor's appointment but did not inform him of the rea
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