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Kuzara v. State Fund11/14/1996
rt's findings are not supported by substantial credible evidence, they are clearly erroneous. Second, if a court has misapprehended the effect of the evidence, its findings are clearly erroneous. Third, if a review of the record leaves the reviewing court with the definite and firm conviction that a mistake has been committed, the lower court's findings are clearly erroneous. Spence v. Ortloff (1995), 271 Mont. 533, 535, 898 P.2d 1232, 1233 (citing Interstate Production Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).
DISCUSSION
Did the Workers' Compensation Court err when it granted the State Fund's motion for a directed verdict because it concluded that Kuzara had provided Spring Creek with insufficient notice of an injury as required by § 39-71-603, MCA (1993)?
Kuzara argues that she provided sufficient notice of her work-related injury to Spring Creek. Spring Creek and the State Fund counter that Kuzara failed to provide notice of the specific time, place and nature of her injury as required by § 39-71-603, MCA (1993). We agree with Kuzara.
Workers' compensation laws in effect at the time of a claimant's injury are controlling. Crittendon v. Terri's Restaurant & Lounge (1991), 247 Mont. 293, 295, 806 P.2d 534, 535. Because Kuzara claims she was injured on July 18, 1993, this case is governed by the notice provision of § 39-71-603, MCA (1993), which states:
Notice of injuries other than death to be submitted within thirty days. No claim to recover benefits under the Workers' Compensation Act, for injuries not resulting in death, may be considered compensable unless, within 30 days after the occurrence of the accident which is claimed to have caused the injury , notice of 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 upon which the injured employee was engaged at the time of the injury is equivalent to notice. [Emphasis supplied.]
The determinative issue in this case is notice. The evidence presented by Kuzara indicates that Spring Creek operated under an informal policy that discouraged its employees from reporting work-related injuries. Spring Creek's gain-sharing plan discouraged employees from reporting injuries because if one employee reported a work-related injury , all employees stood to lose a percentage of their gain-sharing profits.
Spring Creek argues that Kuzara's report of a work-related injury was vague in terms of specific time, place, and event. On August 8, 1993, Kuzara called her supervisor, Clark Izzard, and informed him that she was going to require back surgery. Kuzara told Izzard that her injury was work related.
While Kuzara's statements to Izzard on August 8 could have been more specific in terms of time, place, and event, Izzard could have learned more about what happened by contacting Bebee, as Kuzara suggested. When Kuzara called Izzard on August 8, 1993, Kuzara informed him that she was in significant pain from a post-operative headache and was unable to speak on the telephone any longer. She informed Izzard that if he wanted any additional information, he should contact Bebee, who knew the whole story. Izzard made no attempt to contact Bebee. Had he done so, as Kuzara suggested, Spring Creek could have learned the details of Kuzara's injury on August 8, 1993, which she had already explained to Izzard were work related.
We conclude that during her c
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