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Kuzara v. State Fund11/14/1996
ct based on its conclusion that Kuzara provided her employer with insufficient notice of an injury under § 39-71-603, MCA (1993). Second, the Court correctly quotes the applicable statute.
The problem is that no further mention of the law — either the statute and its requirements or our cases thereunder — appears in the Court's resolution of the issue before us. The Court does not even bother to try to apply the language of the statute to Kuzara's testimony to determine the legal question of whether her conversations constituted notice as defined by the statute. The Court's failure to include even a shred of legal support for the result it reaches here is both transparent and irresponsible.
Applying the statutory terms only briefly here, it is clear from Kuzara's testimony — as quoted by the Court — that she did not notify Spring Creek Coal or the State Fund of "the time and place where the accident occurred and the nature of the injury . . ." within 30 days. See § 39-71-603, MCA (1993). It is also clear that neither the employer nor the employer's managing agent or superintendent in charge of the work upon which Kuzara was engaged at the time of the injury had " ctual knowledge of the accident and injury
" as alternatively required by § 39-71-603, MCA (1993).
Instead of applying these statutory requirements to the evidence before it, the Court simply ignores them. In an apparent effort to buttress its totally insupportable resolution of the issue, it goes on to state that Izzard "could have learned more" by contacting Bebee. It cites to no authority under which the employee's obligation to provide legally sufficient notice directly, or at least establish the employer's actual knowledge pursuant to the statute, can be "transferred" to the employer. Nor does it cite to any authority under which an employee's legally insufficient notice becomes sufficient as a matter of law where the employer may have had the means to acquire additional information about the accident and injury . The reason for this total absence of authority is clear: no such legal authority exists.
Furthermore, the Court's statement — at the end of its discussion of the issue before us — that Spring Creek Coal and the State Fund should have an "opportunity to rebut" Kuzara's "sufficient evidence of notice" on remand is apparently intended to suggest that the notice issue remains unresolved. The suggestion is an empty one. As discussed above, Kuzara's testimony about the extent of the notice she gave — taken as true by the Workers' Compensation Court, this Court and myself — is insufficient as a matter of law to constitute the notice required by § 39-71-603, MCA (1993). It does not need to be rebutted. The Court's suggestion is merely another outgrowth of its application of the wrong standard of review to the issue before us.
The Court states that, on September 20, 1993, Kuzara informed a Spring Creek supervisor of the details of the July 18 incident. The Court also correctly observes that this was the first such notification by Kuzara of the time, place and nature of her injury . It is clear that this notification was not made within the statutorily-mandated thirty-day period for notice. The Court simply refuses to apply the law to these facts. Applying § 39-71-603, MCA (1993), to the facts regarding notice set forth in Kuzara's testimony, I would affirm the Workers' Compensation Court.
Finally, I feel compelled to address the Court's "equitable estoppel" discussion. This issue is not before the Court. It was neither raised nor argued in the Workers' Compensation Court and is neither raised nor argued in this Court. Simply put, the Court has "cre
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