                             No.     93-542
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994


JEFFREY S. ROSE,
           Claimant and Appellant,
    v.
BURDICK'S LOCKSMITH,
           Employer,
     and                                             c:,J>;nif/z
                                                CLERK OF SUPRCI!IC COUht
STATE COMPENSATION MUTUAL INSURANCE FUND,          S T A T E OF MONTANA


           Insurer and Respondent.



APPEAL FROM:   Workers' Compensation Court
               The Honorable Mike McCarter, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Richard J. Pyfer, Small, Hatch,
               Doubek & Pyfer, Helena, Montana
           For Respondent:
                Ann E. Clark, State Compensation
                Insurance Fund, Helena, Montana


                                   Submitted on Briefs:     March 3, 1994
                                               Decided:      May 17, 1994
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Appellant Jeffrey Scott Rose appeals the judgment of the
Workers' Compensation Court entered October 1, 1993, which found
that he was not entitled to benefits for an injury allegedly
suffered while employed by Burdick's Locksmith.
     We affirm.
     The issues on appeal are:
     1.   Was there substantial credible evidence to support the
Worker's Compensation Court's findings that the claimant failed to
establish that he suffered a compensable injury on July 24, 1992,
while in the employ of Burdick's Locksmith?
     2.   Was there substantial credible evidence to support the
Worker's Compensation Court's finding that the claimant failed to
comply with the 30-day notice requirement of 5 39-71-603, MCA?
     Jeffrey S. Rose served in the armed forces and was discharged
in 1972 due to a disability related to a knee injury. He received
ongoing medical care for the knee injury and a pre-existing neck
and shoulder problem at the Veteran's Administration Hospital. His
prior employment included instructing gymnastics and diving.
During the 1970s he was employed as a locksmith in California,
Washington, and Oregon.    In 1990, he began his own locksmith
business in Helena.   He became acquainted with Dan Burdick, the
sole proprietor of Burdick's Locksmith, and the two discussed the
possibility of Burdick purchasing his locksmith business.
     On July 16, 1992, Rose was employed by Burdick's Locksmith to
fill-in for another employee recovering from a medical problem.
Employees included Dan Burdick, his wife ~laudia,a brother, and
two or three other employees.         Rose continued to perform his own
business   duties   around    ~urdick's Locksmith         business      hours.
Throughout Rose's employment with Burdick, the discussion continued
concerning the sale of his locksmith business.
      Rose alleged that while he was at work around noon on July 24,
1992, he helped co-employee Kelly Harris move an office file
cabinet and that during the move he injured his neck and felt
immediate pain i n his back and arm.        He maintained that he worked
until mid-afternoon, at which time his wife drove him to the
                                where he was treated for his neck
Veteran's Administration ~ospital
injury.
      On August 15, 1992, the employee whom Rase was filling in for,
returned to work and Rose was laid off.         On October 16, 1992, the
State Fund received the physician's initial report and billing from
the Veteran's Administration Hospital for Rose's visits of July 24
and September 22, 1992.        On October 20, 1992, the State Fund
received a compensation claim from Rose to recover disability and
medical benefits for the July 24 injury.         The State Fund received
the   employer's    first    report    on   October     29,   1992,   and   on
November 20,   1992,   the    State     Fund   placed    the    claim    under
1 39-71-608, MCA, and paid wage loss compensation benefits under a

reservation of rights pending further investigation.
      After unsuccessful mediation between the parties, on June 2,
1993, t r i a l was held before a hearing examiner.            On October 1,
1993, the court issued findings of fact and conclusions of law and
entered judgment concluding that Rose failed to prove that he
suffered a compensable injury, and also failed to meet the 30-day
notice requirements within      39-71-603, MCA.   The court denied
Rose's attorney fees and costs.   Rose appeals the findings of the
Workers' Compensation Court.
                               ISSUE 1
     Was there substantial credible evidence to support the
Worker's Compensation Court findings that the claimant failed to
establish that he suffered a compensable injury on July 24, 1992,
while in the employ of Burdick's Locksmith?
     Upon review, this Court will uphold the lower court's findings
where such findings are supported by substantial credible evidence.
Smith v. United Parcel Service (1992), 254 Mont. 71, 835 P.2d 715.
When conflicting evidence is presented and the credibility of
witnesses or weight of their testimony is a pivotal point of the
lower court's findings, this Court will not substitute its judgment
for that of the lower court. Smith-Carter v. AMOCO Oil Co. (1991),
248 Mont. 505, 813 P.2d 405.
     In the present case, both parties presented conflicting
evidence as to whether Rose was          injured, and the Workers'
Compensation Court based its findings upon the credibility of the
parties.
     Rose presented evidence that he injured his neck on July 24,
1992, when he helped Kelly Harris move an office file cabinet.
Harris denied that he helped him move the cabinet or that he was
injured   .
       Rose also stated that on the day of the injury he left work at
2:30   p.m. to see a doctor concerning that injury.     However, the
doctor's medical notes from his July 24 visit stated that he was
returning for a follow-up visit for a pre-existing medical problem
of neck pain which was exacerbated by an injury at work.          Rose
testified that it was coincidence that he showed up at the
Veteran's Administration Hospital on an emergency basis on July 24
at 3:00 p.m., the exact date and time of his appointment which was
previously scheduled in June 1992.
       The medical records reveal that prior to the alleged July 24
injury, Rose was treated for neck and shoulder problems.           On
February 28, 1992, Dr. Harris Hanson stated in part:
       This 38 year old man seen in consultation with a history
       of neck pain associated with a pain in the right axilla
       down the medial aspect of the upper arm and into the
       right forearm in the radial aspect.
       The following medical report by Dr. Alex Johnson, dated
March 3, 1992, reveals treatment four months prior to the alleged
injury:
       Beginning about a year ago he began to gradually
       experience bouts of pain, first in the neck and shoulder
       area progressing into the medial upper arm and then into
       the posterior forearm distally as far as the wrist, all
       on the right side.
       Since October 1992, Rose was examined and treated by Dr.
Weinert, a specialist in physical medicine and rehabilitation. Dr.
Weinert1s report also indicates that Rose complained of pain
associated with lifting "a heavy shelf1' at work and that the
condition was pre-existing.
     The court considered yet another inconsistency concerning
Rose's injury by referring to a medical form completed by him
during the July 24 doctor's visit where he answered in the negative
when asked whether his medical need was related to work and whether
his medical need was due to an accident.
     The court also noted its concerns with Burdick's credibility
because he was recently found to be underpaying premiums due to
improper employee classification.    Also, he testified that he
considered only catastrophic injuries to be compensable under the
workers1 compensation guidelines.
     The court, after weighing all of the evidence, found that
while both parties have made obvious self-serving statements, Rose
failed to meet his burden to prove by a preponderance of the
evidence that he was entitled to benefits under 5 39-71-407, MCA.
The court found several inconsistencies in Rose's testimony and
stated the following:
     His   [Rose's] credibility is diminished by his
     pre-existing medical condition, his fabrications about
     how he injured his knee in the military, his denial on
     the V.A. Hospital forms that his problem was work
     connected, and the fact that no disability or injury
     [was] ever noticed to the employer until after claimant
     was laid off and the possible sale of his business fell
     through.
     Upon our review of the entire record we hold that there is
substantial credible evidence to uphold the Workers' Compensation
Court's findings that Rose failed to prove that he suffered
compensable injury on July 24, 1992, while in the employ of
Burdick's Locksmith.
                               ISSUE 2

     Was there substantial credible evidence to support the
Worker's Compensation Court's finding that claimant failed to
comply with the 30-day notice requirement of      §   39-71-603, MCA?

     Section 39-71-603, MCA, requires a person claiming benefits
under the Worker's Compensation Act must give notice within 30 days
after the occurrence of the injury to the employer or the
employerls insurer; notice is also met by the actual knowledge of
the injury by the employer or a managing agent or superintendent in
charge of the employee's work.
     The parties submitted conflicting evidence concerning whether
Rose gave notice within 30 days after the injury. Rose argues that
the court erred in finding that he failed to give notice because
Harris was the superintendent in charge of the work place when
Burdick was gone, and had notice of the injury because he was
present when the injury occurred and he knew Rose left work for
treatment in the early afternoon.
     Harris denied that he knew about the injury or that Rose left
work for treatment.    Both Harris and Burdick, as well as other
employees, denied that Harris was the supervisor of the shop or
held himself out as such.      Burdick testified that Rose gave him
notice by telephone on October 3, 1992, after he was laid off and
Burdick was no longer interested in the sale of his business.
     The following information in the record supports that Rose did
not give notice within the 30-day time limit:            the State Fund
received   the   physician's   initial   report   of    the   injury    on
October 16, 1992, receivedRoselscompensation claim on October 20,
1992, and received the employer's first report on October 29, 1992.
     In our review of the entire record, we hold that the court's
findings that the employer did not have notice of Rose's injury
pursuant to   §   39-71-603, MCA, is supported by substantial credible
evidence.
     Affirmed.




We concur:
