                                     NO. $2-485
                       IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1983



CHARLES J. ACKEFWAN,

                              Claimant and Appellant,


PIERCE PACKING CO., Employer,
         and
ILJTERMOUNTAIN INSUPANCE CO. ,
                              Defendant and Respondent.




APPEAL FROM:           Workers' Compensation Court, The Honorable
                       Timothy Reardon, Judge presiding.

COUNSEL OF RECORD:
    For Appellant:

                       Kelleher Law Offices; Robert C. Kelleher argued,
                       Billings, Montana

    For Respondent :

                       Crowley Law Firm; Terry G. Spear argued, Billings,
                       Montana



                                      Submitted:   June 7, 1983
                                       Decided:    November 17, 1983



Filed:         ,   - l$a3
                   a




                                                        .-
                                     Clerk
Mr. Justice Daniel J.           Shea delivered the Opinion of the
Court.


       Claimant Charles J. Ackerman, appeals an order of the
Workers'       Compensation       Court        barring     his     claim      for
compensation because he had not notified his employer of the
injury within 60 days of the injury.                    We reverse and hold
that the notice to the employer was established on the day of
the injury, December 22, 1980, by claimant t-elling the nurse
of   his   accident,     and    we     further    hold     that    notice    was
established because the nurse had actual notice and can be
considered for purposes of notification of injuries, as the
managing agent.
       Aside from the notice issue, claimant would also have
this   Court    decide    his    case     on    the    merits     and    fix his
disability rating.        Claimant also asks this Court to order
cost reimbursement, attorney fees and the 20 percent penalty
as provided for bv statute.               We decline to rule on these
questions as they are properly questions for the Workers'
Compensation Court to first decide.
       Claimant   injured       his    back    while     working    at     Pierce
Packing Company when he was lifting a box containing pork
loins.     He went       to    the    company nurse and           reported his
problem--that his        back    hurt--and       she referred him           to   a
doctor.     She made no further inquiry as to when or how
claimant injured his back.            The doctor's report turned out to
be a misdiagnosis--he found that the claimant suffered from
prostatitis.        Because      the    nurse     did    not     believe    that
prostatitis was work related, she did not fill out and begin
the processing of a compensation form.
        However, claimant was later referred to an orthopedic
specialist on Februa.ry 25, 1981 (more than 60 days after the
injury) and a back injury was then diagnosed.           After learning
of this diagnosis, the nurse prepared the compensation forms
for the claimant and he signed them on March 4, 1.981..              The
employer, however, contested liability on the ground that it
had not been notified of the accident within 60 days as
required by section 39-71-603, MCA.
        This statute provides that in all cases other than a
death claim the employer must be notified of the time and
place of injury and the nature of injury--within 60 days of
the injury.     The statute also provides that notice to the
employer can be satisfied if the employer or the employer's
managing agent or superintendent in charge of the work has
actual knowledge of the injury.
        The trial court expressly found that claimant had told
the company nurse on duty at the employer's premises, that he
had injured his back that day while lifting a loin box at
work.     However, the court then found that this actual notice
was not notice to "a managing agent or the employer, or a
superintendent in charge of the work on which the claimant
was engaqed,.       . ." and    therefore that the notice coul-d not
constitute    actual    knowledge.       Therefore,    the   claim   for
compensation was denied.
    We conclude that the employer was given notice of the
injury and that the employer had actual knowledge of the
injurv.       The    claimant    came   to   the   company   nurse   and
complained of his injury, and she referred him to a doctor.
Although it may be true that claimant did not provide her
with the details of the injurv, the nurse was free to obtain
this information but did not do so.                This failure cannot
operate to bar the claimant's claim, for the information was
readily available to the nurse and to the employer upon the
mere asking of the questions.
        Several states have held that the notice to employer
required in a Workers' Compensation case is satisfied by
telling the company nurse.        In Aluminum Co. of America. v.
Baker     (Tenn. 19761, 542 S.W.2d      819, the court held. that
claimant's calling the company nurse was sufficient notice to
the employer.     In Hollingsworth v. Auto Specialties Mfg. Co.
(Mich. 1958), 89 N.W.2d 431, the court held that reporting an
injury to an industrial nurse on the date of its occurrence
gave the employer sufficient notice.           In Firestone Tire and
Rubber Co. v. Workmen's Compensation Appea.1 Bd. (Penn. 1979),
396 A.2d    902, the court held that notice to an employer is
complied with by     reporting an accident to an employer's
nurse.      In Thrall Car. Mfg.    Co. v. Industrial Commission
(Ill. 1976), 356 N.E.2d     516, the court held that sufficient
notice was given when the claimant told a company nurse that
he ha.d "trouble in his knees" and that he "wanted to see a
doctor. "
     We have no doubt that notice was given to the employer
under the first part of section 39-71-603, MCA, and if any
defects existed in the information imparted to the nurse,
those defects must be ascribed to the failure of the nurse,
the company's agent, to obtain the necessary j-nformation.
     We     further hold   that under    the    second part of   the
statute dealing with       actual notice   as another method     of
compliance with the notice requirement, the nurse can be held
to be the maria-ging agent insofar as notice of the injury is
concerned.     Nurses are present on the employer's premises to
help workmen when they are injured, and no doubt they are in
a    better     position   than    anyone   else   not only   to   render
immediate aid to the injured workman but also to obtain the
necessary information concerning the time and place of the
injury.       To hold that actual knowledge of a company nurse
would not be sufficient compliance with the statute would be
to exalt form over substance.           We must liberally construe the
Workers' Compensation Act (section 39-71-104, MCA), and there
is   probably     no    area    more   important to   apply   a    liberal
construction than          on   the question of whether       sufficient
notice was given of the accident.              A liberal construction
here leads us to conclude that the company nurse was in
effect the managing agent insofar as receipt of notice of
injuries is concerned.
      As   we    have   already    indicated, claimant's      disability
rating is not now properly before this Court, nor is his
claim for costs, attorney fees and the statutory penalty.
      The order of the Workers' Compensation Court is reversed
and this cause is remanded for further consideration of the
merits of the claim as well as the question of whether the
employer must pay costs, attorney fees and the statutory 20
percent penalty.




We Concur:


    ~d$,yd,u-9_~0
      Chief Justice
Justices
Mr. J u s t i c e L.C.      Gulbrandson d i s s e n t i n g .


          I respectfully dissent.

          S e c t i o n 39-71-603,         MCA,       reads a s follows:

                  " N o t i c e of i n j u r i e s o t h e r t h a n d e a t h t o
                  be submitted w i t h i n s i x t y days.                 No c l a i m
                  t o r e c o v e r b e n e f i t s under t h e Workers '
                  Compensation A c t ,                   for        injuries not
                  r e s u l t i n g i n d e a t h , may b e c o n s i d e r e d
                  c o r n p e n s a b l e u n l e s s , w i t h i n 60 d a y s a f t e r
                  t h e o c c u r r e n c e o f t h e a c c i d e n t which i s
                  c l a i m e d t o have caused t h e i n j u r y , n o t i c e
                  o f t h e t i m e and p l a c e w h e r e t h e a c c i d e n t
                  o c c u r r e d and t h e n a t u r e o f t h e i n j u r y i s
                  g i v e n t o t h e employer o r t h e e m p l o y e r ' s
                  i n s u r e r by t h e i n j u r e d employee o r
                  someone on t h e e m p l o y e e ' s b e h a l f . A c t u a l
                  knowledge o f t h e a c c i d e n t and i n j u r y on
                  the        part         of       the     employer         or    the
                  employer's                    managing              agent          or
                  s u p e r i n t e n d e n t i n c h a r g e o f t h e work upon
                  w h i c h t h e i n j u r e d e m p l o y e e was e n g a g e d a t
                  t h e t i m e o f t h e i n j u r y is e q u i v a l e n t t o
                  notice."

          I n t h e c a s e o f H a r t 1 v . B i g Sky o f Mont.,               Inc.      (1978),
1 7 6 Mont.      540,      579 P.2d         1239, t h i s Court construed S e c t i o n
39-71-603,         MCA,     and f o u n d t h a t ,      "In the instant case,                the

information          was     conveyed            to    the    agents      specified i n the
statute,       and t h e y t h e r e b y a c q u i r e d a c t u a l knowledge o f             the
a c c i d e n t and t h e i n j u r y .   " (emphasis supplied)
          I n t h e e a r l i e r c a s e o f Maki v .            Anaconda Copper Min.
Co.     (1930),       87 Mont.            314,    287    P.    170,     the     claimant      had
a t t e m p t e d t o p r e s e n t h i s c l a i m t o t h e company t h r o u g h i t s

c l a i m a g e n t and s a f e t y e n g i n e e r .     This Court s t a t e d :
                  " A g a i n , t h e r e c o r d f a i l s t o show t h a t a n y
                  i n f o r m a t i o n i m p a r t e d by t h e c l a i m a n t t o
                  t h e s a f e t y e n g i n e e r was communicated t o
                  the         'employer,              managing     agent         or
                  superintendent.'                         Of    course,           a
                  c o r p o r a t i o n can only have such a c t u a l
                  knowledge a s i s p o s s e s s e d by i t s a g e n t s ,
                  but                our s t a t u t e declares, i n t h i s
                  i n s t a n c e , t h e a c t u a l knowledge of what
                  a g e n t s s h a l l b e deemed t h e knowledge o f
                  t h e employer."
                 "We        agree      that       provisions        of      the
                 Compensation A c t should be g i v e n a
                 l i b e r a l construction i n order t o do
                 j u s t i c e , and, f o r t h i s reason, w e have
                 gone t o g r e a t e r l e n g t h s t h a n d i d h i s
                 learned cousel i n seeking t o discover i n
                 t h e r e c o r d some e v i d e n c e o n w h i c h w e
                 c o u l d s a y t h a t t h e c l a i m a n t showed e i t h e r
                 t i m e l y w-ritten n o t i c e , o r i t s e q u i v a l e n t
                 o f a c t u a l knowledge on t h e p a r t o f t h o s e
                 p e r s o n s enumerated i n t h e s t a t u t e ,         but
                 h a v e f o u n d no e v i d e n c e on w h i c h we c a n
                 r e l i e v e t h e c l a i m a n t from t h e d e c l a r e d
                 r e s u l t o f h i s own n e g l e c t .
                 "No r u l e o f c o n s t r u c t i o n c a n j u s t i f y t h e
                 d i s r e g a r d o f t h e p l a i n m a n d a t e of t h e
                 law. ' I n t h e c o n s t r u c t i o n o f a s t a t u t e
                 t h e o f f i c e of t h e judge is s i m p l y t o
                 a s c e r t a i n and d e c l a r e w h a t i s i n t e r m s o r
                 i n substance contained therein, not t o
                 i n s e r t what h a s been o m i t t e d , o r t o o m i t
                 what h a s been                inserted."          (emphasis
                 supplied)
         H e r e , c l a i m a n t Ackerman t e s t i f i e d r e g a r d i n g a p r e v i o u s

i n j u r y w h i l e employed a t P i e r c e , a s f o l l o w s :
                 "Q.       And i n O c t o b e r o f 1 9 7 7 , you w e r e o f f
                 work f o r a p p r o x i m a t e l y a w e e k w i t h a n e c k
                 i n j u r y ; is t h a t c o r r e c t ?
                 "A.      Yes.

                 "Q.      And you d i d n o t i n i t i a l l y r e p o r t
                 t h a t you'd i n j u r e d your neck t o anyone?

                 "A.      Not t h a t d a y i t h a p p e n e d .



                 "Q.  A s a r e s u l t of t h a t , t h e r e was some
                 problem    about        whether        it     was   an
                 industrial accident?
                 "A.      Right.

                 "Q.         A f t e r t h a t , I i m a g i n e you w e r e
                 p r e t t y f a i t h f u l about reporting i n j u r i e s ?
                 "A.      I t r i e d t o be, yeah."

         The c l a i m a n t f u r t h e r t e s t i f i e d :
         ( a ) That i n February,                1 9 7 9 , h e h u r t h i s b a c k when a
b a r r e l 1 s l i p p e d o f f a p a l l e t and t h a t h e r e p o r t e d it t o h i s
supervisor;
       (b) that in May, 1979, he strained a back muscle
lifting bags of sugar, reported it to his supervisor and
received benefits;
       (c) that in October, 1979, he had stomach pains at
work and immediately reported the incident;
       (d) that in July, 1980, he pulled                       a back muscle,
reported the incident the same day to his supervisor and
received treatments from Dr. Cabberra.
       Regarding        the    December        22,   1980, incident,            the
claimant testified that he told the company nurse that his
back hurt while lifting boxes; that she told him to see his
family physician, Dr. Cabberra; that his doctor treated him
for approximately two months for an infected prostate; that
he   was   then   referred          to   a   urologist   who        referred    the
claimant    to    Dr.   Daniels, who           recommended          exercises   and
physical therapy; that in June, 1981, the claimant requested
a leave of absence from Pierce because he had secured a
position as landman with a different company.
       In my      view,       the    claimant had        knowledge        of    the
required reporting procedures from past personal experience.
He neither reported the incident to a specified agent, nor
gave notice within sixty days to the employer.
       Based     upon the facts of this case, and                       the prior
decisions of this Court, I would aff irm the decision of the
Workers' Compensation Judge.
                                                               /r
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