                             No.    90-086
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1990


JANET ROESSEL,
           Claimant and Appellant,
     -v-
RIVENDELL OF BILLINGS,
           Employer,
     and
STATE COMPENSATION INSURANCE FUND,
           Insurer and Respondent.



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


COUNSEL OF RECORD:
           For Appellant:
                 Jerrold L. Nye; Nye      &   Meyer; Billings, Montana
           For Respondent:
                 Richard E. Bach; State Compensation Mutual Insurance
                 Fund; Helena, Montana


                                    Submitted on Briefs:       May 30, 1990
                                                    Decided:   August 9, 1990
Filed:


                              1
                                   Clerk
Justice John C. Harrison delivered the Opinion of the Court.

     This is an appeal from the Workers' Compensation Court of the
State of Montana of a denial of an award of disability benefits by
the State Compensation Insurance Fund to the claimant, Janet
Roessel.     The matter was tried before a hearings examiner, whose
proposed findings of fact and conclusions of law were, for the most
part, adopted by the Workers1 Compensation Court.          Those findings
adjudged    that   the   claimant   was   not   entitled    to   workers1
compensation benefits on the basis that the employer was not
notified of the injury within thirty days of the date of the
claimed injury as required by 5 39-71-603, MCA.       From that denial
claimant appeals to this Court.     We affirm.
     Claimant/appellant presents five issues for review:
     1.     Did the employer have notice or knowledge of the
claimant's injury within 30 days as required by 5 39-71-603; MCA?
     2.    Is the claimant entitled to extend the 30-day notice
requirement of 5 39-71-603, MCA, due to the latent nature of her
injury?
     3. Is the claimant entitled to workers' compensation benefits
as a result of her injury?
     4.    Is the claimant entitled to an award of her reasonable
attorney's fees?
     5.    Is the claimant entitled to a twenty percent increase in
her workers1 compensation benefits under 5 39-71-2907, MCA?
        Claimant's employment with Rivendell of Billings began in
March, 1987.    She was employed by Rivendell as a cook and kitchen
helper. While working at Rivendell sometime in the latter part of
June, 1988, claimant allegedly slipped and fell in a puddle of
water which had accumulated near a salad bar in the dining area.
Claimant alleges that when she fell she hit her head and neck
against a concrete pillar.    Several co-workers witnessed her slip
and fall and the lead cook and part-time supervisor knew of her
fall.
     At the time claimant submitted her claim with the Workers1
Compensation Court, August 1, 1988, claimant gave the date of her
injury as being July 1, 1988.     It was not until sometime later,
after depositions were taken, that it was determined that July 1,
1988 was not the proper date of the claimed injury and that the
most likely date was June 24, 1988.    This date was determined by
reviewing Rivendell's time records which showed that June 24, 1988
was the only date in approximately a two-week period when the
various persons who testified were all working with claimant on the
same shift.
     At the time of trial, evidence was presented by the State Fund
which refuted the claim that claimant could have injured her head
and neck.     The three witnesses who saw the claimant fall each
testified that the claimant was facing the pillar at the time she
fell and that when she was helped up, or got up, her feet were
pointed toward the pillar and her head was in the opposite
direction.    After she arose and went about her duties she did not
tell any of her co-workers that she had injured her head and neck
in the fall.
      Claimant did not provide actual notice to Rivendell or her
supervisor that an accident had occurred until sometime in August,
1988.   Testimony was given which revealed that on June 30, 1988,
approximately one week after the claimant's alleged slip and fall
incident, a staff meeting was held.      Claimant was present at that
staff meeting and safety concerns and work-related accidents were
discussed at the meeting.    At that June 30, 1988 staff meeting
claimant did not mention the incident of June 24, 1988 to her
supervisor.
     After claimant started her employment with Rivendell in March
of   1987, she began having problems with her arms, and            she
experienced burning and numbness in her body.        Claimant sought
treatment   for this   condition   in    the   latter part   of   1987.
Claimant's co-employees and her supervisor testified that she
continued to complain about her arms up until the time of the slip
and fall incident in June, 1988.        The record indicates that in
early April, 1988, some two and one-half months prior to the
accident, the claimant informed her employer that she was unable
to attend a staff meeting because of a doctor's appointment to test
her arms.
     On July 7, 1988, claimant sought medical treatment from Dr.
Espinoza, but   failed to mentioned to him any problems with
headaches, bruising, or pain in her neck or back resulting from a
fall. She did mention to Dr. Espinoza that she had a developing
problem in coordination and pain with her right arm.    Claimant was
later seen by Dr. Buchanan at a local hospital emergency room, but
did not mention to him that she had slipped and fallen at work
striking her head or back.
     The claimant called Milford Burke, her supervisor, on July
12, 1988, to tell him that she could not come to work and she has
not worked since that date.      Later in July, 1988, claimant twice
saw Dr. R.A. Nelson. During the initial visit, the claimant denied
any trauma or injuries to her head, neck or back, and never
informed the doctor of the incident at work after she was informed
of the findings pertaining to her x-rays.     Claimant was referred
by Dr. Nelson to Dr. James Johnson, a neurologist in August of
1988, and that was the first time the medical records indicate that
she told the doctor of striking her head on a pillar while at work
at Rivendell.
     The first notice that the employer or insurer had of the
claimant's slip and fall incident was on or about August 10, 1988.
This came about while claimant was awaiting surgery in a hospital
and she told a fellow employee that she intended to file a claim.
This was reported to her supervisor Mr. Burke.     He testified that
this was the first time he had heard of claimant's slip and fall.
    The claimant Is request for benefits was denied by the Workers '
Compensation Court on the basis that no notice was given by the
claimant to her employer within thirty days of the claimed injury
as required by   §   39-71-603, MCA.
     It is the claimant's position that due to the latent nature
of her injury she was prevented from properly getting notice to
her employer.   It is interesting to note that even though she had
been instructed by Rivendell as to how and when to report any
injury, there was no direct action taken by the claimant which gave
notice of her injury claim to her employer.    It was only through
a conversation with a fellow employee just prior to her surgery,
which was later reported back to the employer, that Rivendell knew
of her pending claim.
     Here, the proposed judgment of the Workers' Compensation
hearing examiner, which was adopted by the Workers' Compensation
Court, only determined that the appellant failed to prove that her
employer had either notice or actual knowledge of the alleged
accident within thirty days as required by statute.
     No findings were made as to whether the claimant actually
struck her head and back against the pillar at work as she
contends, nor were there findings as to whether the claimant had
proven that her medical problems were causally related to the fall
at work.   There is no question, and it is admitted that she did
fall at work.    However, the Workers' Compensation Court never
established that her fall was the cause of her         injury and
subsequent surgery.
     Five issues are presented on appeal.   The controlling issue
is whether the employer had notice or knowledge of claimant's
injury within 30 days as required by 5 39-71-603, MCA.      As set
forth in this opinion and under the facts in the record before us,
the employer did not have notice within 30 days as required by
statute and case law.   We affirm the decision of the Workers1
Compensation Court.




       w


          Justices
Justice William E. Hunt, Sr., dissenting:

     I dissent. The majority's failure to apply the latent injury
doctrine in this case leads to absurd, unjust results.
     The facts relating to notice in this case are undisputed.
Claimant slipped and fell on June 24, 1988, during the course and
scope of employment with Rivendell. Although her fellow employees
witnessed the fall, and other employees knew of the fall, her
supervisor in charge at the time was unaware of the accident.           (It
is important to note that the lead cook and part-time supervisor
who knew of the accident was not the supervisor in charge at the
time of the incident.) The supervisor did not receive notice that
claimant   had    fallen   until   on   or    about    August   10,   1988,
approximately 47 days following the accident.
     Claimant's fall did not cause her any immediate pain. Indeed,
she did not notice any problems with her arm or leg until
approximately eight or nine days later.               Because she had had
difficulties with her extremities before the accident, she did not
attribute the new problems to her fall at work.
     Claimant promptly soughtmedical treatment for the progressive
pain in her arm and leg. However, her physical problems were non-
specific and difficult to diagnose. Upon the suggestion of one of
the nurses at work, claimant made an appointment with a local
neurologist.     Unfortunately, the earliest appointment she could
obtain entailed a two-week wait.             When she finally saw the
neurologist, he was unable to diagnose her ailment without using
medical diagnostic procedures.          It was not until the doctor
                                   8
received the results of the diagnostic tests on July 26, 1988, that
he was able to diagnose claimant's problems as stemming from a disc
protrusion and herniation in her back.
     The neurologist referred claimant to a neurosurgeon.    After
the neurosurgeon told her that her condition would most likely have
been caused by a car accident or fall, claimant connected her
injury with the slip and fall of June 24.
     In Bowerman v. Employment Sec. Commtn,207 Mont. 314, 673 P.2d
476 (1983), we held that the one-year statute of limitations for
filing written workers1 compensation claims found in 5 39-71-601,
MCA, should be tolled for latent injuries.   We stated,
     [Slection 39-71-601, MCA, should be interpreted, in cases
     of latent injury, so that the time period for notice of
     claim does not begin to run until the claimant, as a
     reasonable man, should recognize the nature, seriousness
     and probable, compensable character of his latent injury.

Bowerman, 207 Mont. at 319, 673 P.2d at 479.
     The same test should apply to the 30-day notice period
provided in 5 39-71-603, MCA, the statute the majority relies on
to bar claimant's claim in this case.
     The purposes behind   5   39-71-603, MCA, which requires an
employee promptly to give notice of an injury to her employer, are
twofold.   First, early notice enables the employer to provide
immediate medical diagnosis and treatment in order to minimize the
seriousness of the injury.      Second, early notice facilitates
investigation of the facts surrounding the injury.
     In the present case, the employer was not prejudiced by the
delay in notice.   Claimant received prompt medical attention for
                                 9
her injuries. Furthermore, claimant's supervisor admitted that the
delay did not hamper his investigation of the accident. Therefore,
the stringent adherence to the 30-day rule serves unjustly to deny
claimant benefits to which she may be entitled.    Such a result is
intolerable.     It requires a claimant to speculate as to the
seriousness of any trauma she may encounter on the workplace
regardless of how trivial the incident may seem at the time.
     Not all injuries manifest themselves within 30 days.   In many
cases, the manifestation of pain or other physical ailment may have
a number of causes that may take time to sort out. Therefore, the
Bowerman approach presents a much more rational answer to the
problems inherent in latent injuries.       It does not require a
claimant to do more than is reasonable under the circumstances.
It tolls the notice provisions until the claimant, under an
objective standard, recognizes the nature, seriousness and probable
compensable character of her injury.
     In the present case, claimant did not realize the nature,
seriousness and probable compensable character of her injury until
30 days after the accident occurred.     She suffered no immediate
pain from the fall.    When the injury began to manifest itself, it
was through pain and loss of strength and coordination in the right
hand and leg, non-specific types of complaints that took time to
diagnose. By the time the injury was diagnosed by her neurologist,
the 30-day period had expired.
     The majority     opinion should serve as a warning to all
employees.     Immediately inform your employer of all on-the-job
incidents, no matter how trivial or inconsequential.    Unless you
notify the employer of every bump, scrape, bruise or hangnail, you

may forfeit your right to compensation.
     I would reverse the Workers' Compensgtion Court on this issue.




 Justice John C. Sheehy:

     I concur in the dissent of Justice Hunt.




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