                                No. 8 7 - 1 7 1
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1987



RONALD J. MASTERS,
                 Claimant and Appellant,
         -vs-
DAVIS LOGGING,
              Employer,
       and
STATE COMPENSATION INSURANCE FUND,
                 Defendant and Respondent.



APPEAL FROM:     The Workers' Compensation Court, The Honorable
                 Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Bothe Law Firm; David W. Lauridsen, Columbia Falls,
                 Montana
         For Respondent:
                 Warden, Christiansen, Johnson & Berg; Gary R.
                 Christiansen, Kalispell, Montana


                                           -          -   -




                                       Submitted on Briefs: July 23, 1 9 8 7
                                         Decided:         October 1, 1987

Filed:   OCr 1- 1987
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                                                  A       -   d
                                  '.   Clerk
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     Appellant, Ronald Masters, appeals a decision of the
Workers' Compensation Court denying his claim for benefits
and reasonable costs and attorney's fees. Appellant alleges
the court erred in holding his claim barred for failure to
notify the employer of his injury within 60 days. We affirm.
     The issues presented on appeal are:
     1. Whether there is substantial credible evidence to
support the Workers' Compensation Court's decision that
appellant's claim for benefits is barred for failing to
notify his employer as required by 5 39-71-603, MCA?
     2. Whether the appellant is entitled to reasonable
costs and attorney's fees?
     We find that the first issue is determinative.
     Davis Logging was enrolled under compensation plan no. 3
of the Workers' Compensation Act and was insured by the State
Compensation Insurance Fund.     Davis Logging was a small.
logging company owned and operated by Billy Joe and Linda
Davis.
     Masters has been a friend of the Davis' family for 15
years. In May, 1985, Masters accepted employment as sawyer
for Davis Logging in an area approximately 40 miles into the
back country. He was injured while so employed.
     On May 23, 1985, Masters was falling timber on a steep
hillside.   At that time, he encountered a tree with a large
snag protruding from the main stalk of the tree.      Masters
ascended the hill to a point above the snag and began sawing
it. While sawing, the snag detached from the tree and swung
up the hill, striking Masters between the legs. The force of
the impact hurled him up the hill approximately 15 to 20
feet, where he landed on his back.
      Masters immediately felt numb from the waist down. He
rose to his feet and examined himself. Masters' feet were
tingling and his legs were numb. He also suffered back pain,
small cuts and scrapes.      Masters returned to work after
resting for ten minutes and discussing the accident with a
co-employee who happened upon the scene.
      The next morning, Masters was so stiff and sore he
" [didn't] know if he could make it. " He went to b10rk anyway
and continued working with pain until he ceased his
employment with Davis Logging on June 22, 1985.       At that
time, Masters returned to the Libby area where he continued
to work as a sawyer with Decker Logging until February, 1986.
      Although Masters' ability to work was impaired and the
pain in his back progressively worsened, he did not
immediately seek medical attention. In July, 1985, he began
seeing a local chiropractor on a regular basis for back pain
treatments. While the chiropractor took several x-rays, he
failed to diagnose the injury. The chiropractic treatments
continued without success until approximately January, 1986.
At that time, Masters' continued pain forced him to seek the
assistance of his family physician, Dr. Brus.        Dr. Brus
referred him to a back specialist.     Dr. Laidlaw, the back
specialist, diagnosed a ruptured disk on March 27, 1986.
Masters personally paid $3,500 for medical care to this
point.
      During the period that Masters continued to be employed
by Davis Logging, Billy Joe Davis, the owner, was at the
jobsite at least part of the time. Masters did not inform
Davis of the injury. In addition, Masters was aware of the
Davis'    location  after   he  terminated   his  employment.
Nevertheless, Davis was not notified of the injury until
April 16, 1986, 11 months after the injury.
     Masters explains his failure to notify his employer in
two ways.    At trial, he testified he "didn't know the
severity of [his] injury.''   In his deposition, he states:
     ...   I had paid for everything out of my pocket
     which I wasn't going to turn it in because Bill
     there, he is a real good personal friend of mine
     and I didn't figure that I wanted to raise his
     insurance or cause any problems with Workman's Comp
     so I was just going to pay for everything myself.
     There is no allegation or evidence that the employer did
anything that in anyway impeded Masters' ability to provide
notice.
     The Montana Workers' Compensation Act provides a set of
rules designed to effectuate a balance between the competing
interests of workers and employers. Section 39-71-603, MCA,
reflects the employer's interest in prompt notification of
claims. It provides:
     No claim to recover benefits under the Workers'
     Compensation Act, for injuries not resulting in
     death, may be considered compensable unless, within
     60 days after the occurrence of the accident which
     is claimed to have caused the injury, notice of the
     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.
     The provisions of the notice statute are "mandatory and
compliance with its requirements is indispensable to the
maintenance of a claim for compensation." Bender v. Roundup
Mining Company (1960), 138 Mont. 306, 309, 356 P.2d 469, 470.
Hunt v. Sherwin Williams Company (19811, - Mont .       , 624
P.2d 489. Masters, by his own admission, failed to notify
his employer within 60 days of his injury.       He contends,
however, that the notice requirement of § 39-71-603, MCA, was
satisfied because he notified his employer within 60 days of
discovering the extent of his injury. We disagree.
      In Bowerman v. Employment Security Division (Mont.
1983), 673 P.2d 476, 40 St.Rep. 2062, we recognized that
latent injuries presented a unique situation which often
resulted in substantial injustice to the injured worker. In
Bowerman, the claimant promptly notified his supervisor that
he had fallen into a stairwell after slipping on a pencil.
The injury to his back and head did not fully manifest itself
until after the statute of limitation had run, however. An
examination of the rationale behind the statute of
limitation, § 39-71-601, MCA, revealed that latent injuries
are not the type of evil sought to be prevented.
     Statutes of limitation generally proceed on the
     theory that a man forfeits his rights only when he
     inexcusably delays assertion of them     ...    But
     [with latent injuries] no amount of vigilance is of
     any help.   The limitations period runs against a
     claim that has not yet matured; and when it matures
     it is already barred.
673 P.2d at 478, 40 St.Rep. at 2065, citing 3 Larson,
Workmen's Compensation Law, $j 78.42(b) at 15-226. Consistent
with principles of equity and the Court's duty to liberally
construe the provisions of the Workers' Compensation Act, we
held that the statutory period "does not begin to run until
the claimant, as a reasonable [person], should recognize the
nature, seriousness and probable, compensable character of
his latent injury."    673 P.2d at 479, 40 St.Rep. at 2065.
     The Workers' Compensation Court, in Hamilton v.
Combustion Engineers, Inc., WCC No. 8307-2091, decided July
27, 198a, extended the Bowerman rationale to the notice
provision of 5 39-71-603, MCA.    Masters requests that this
Court do likewise. Assuming we were inclined to do so, the
facts of this case preclude the application of Bowerman,
supra.
     A review of the facts indicates that a reasonable person
should have been aware that a serious injury had been
sustained.   Masters testified that he suffered pain which
impaired his ability to work and that the pain progressively
increased.   The pain caused discomfort to the degree that
Masters felt it was necessary to engage the services of a
chiropractor on a regular basis. These facts do not indicate
a latent injury.
     Masters did not suffer minor or sporadic pain, however.
It appears that he consciously chose to forego his rights
under the Workers' Compensation Act and shoulder the burden
of the injury himself because of his friendship with his
employer. Such a decision does not indicate a latent injury.
     We therefore hold that the decision of the Workers'
Compensation Court is affirmed. We offer no opinion as to
the applicability of the Bowerman, supra, rationale to the
notice provision of g 39-71-603, MCA.

                                  Llplu_a.%,
                                          Justice        t'
                                   V
We Concur:




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