Kingscott v. Carp S Drain Cleaning ( 1993 )

No. 92-478
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
LOUIS C. KINGSCOTT, 111,
Claimant and Appellant,
-v-
CARP'S DRAIN CLEANING, Employer,
and
STATE COMPENSATION MUTUAL INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court,
Of the State of Montana,
The Honorable Timothy 3. Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas A. Marra, Marra, Wenz, Johnson & Hopkins,
Great Falls, Montana
For Respondent:
Laurence A. Hubbard, State Compensation Mutual
Insurance Fund, Helena, Montana
Submitted on Briefs: February 4, 1993
Decided: March 2 3 , 1 9 9 3
Filed:
Justice R. C McDonough delivered the Opinion of the Court.
.
Appellant (Kingscott) appeals from a judgment of the Workers'
Compensation Court. We affirm.
The issue is whether the court erred in finding that Kingscott
did not satisfy the notice requirement of 8 39-71-603, MCA, which
states:
No claim to recover benefits under the Workers'
Compensation Act, for injuries not resulting in death,
may be considered compensable unless, within 30 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.
Kingscott was employed by Carp's Drain Cleaning (Carp). His
duties included apartment maintenance, drain cleaninq and septic
tank pumping. His job was physically demanding, requiring lifting
of equipment and machinery.
Kingscott claims on his first day of work, December 1, 1990,
he was injured in handling a 90-pound spool of cable (cleaning
snake). It started to slip from his grip, and in attempting to
prevent it from falling on his legs and feet, he pushed it away
from his body and felt a snapping sensation in his back. Kingscott
testified that J. Carpenter, one of the owners, was present and
asked him if he was okay. He told J. Carpenter he was fine.
Carpenter denies he was present. Kingscott did not tell anyone at
Carp he was injured by this incident. He did see a medical doctor
on December 13, 1990, and attended physical therapy sessions.
Kingscott continued to work for Carp.
Kingscott testified, while working alone on February 8, 1991,
he again was handling one of the cable spools. It started to slip
and while directing it away from his body, his back was injured.
Kingscott testified he did not immediately inform his employer
because he needed the job. He continued to work through March 4,
1991. He again went to see the medical doctor, first on February
13, 1991, and on later dates. The doctor did not recall Kingscott
ever mentioning the injury. Further factual matters will be set
forth in the following discussion.
Whether the notice of injury requirement of § 39-71-603, MCA,
has been complied with, is a question of fact. The findings and
conclusions of the Workersi Compensation Court will be upheld by
this Court using the following test:
itourfunction in reviewing a decision of the Workers1
Compensation Court is to determine whether there is
substantial evidence to support the findings and
conclusions of that court. We cannot substitute our
judgment for that of the trial court as to the weight of
evidence on questions of fact. Steffes v. 93 Leasina Co,
I c (1978), 177 Mont. 83, 86, 580 P.2d 450, 452.
n.
However, decisions of the Workers' Compensation Court
must be based upon substantial credible evidence.
O'Brien v. Central Feeds (1990), 241 Mont. 267, 271, 786
P.2d 1169, 1172. If the conclusions of law are not
supported by the Court's findings of fact, those
conclusions must be reversed. Hume v. St. Reais Paper
Comoany (1980), 187 Mont. 53, 608 P.2d 1063."
EBI/Orion Group v. State Compensation Mut. Ins. Fund (19911, 249
Mont. 449, 452, 816 P.2d 1070, 1072: quoting Hash v Montana
.
Silversmith (1991), 248 Mont. 155, 158, 810 P.2d 1174, 1175.
A number of witnesses testified for the various parties. The
credibility of the witnesses was the major determining factor in
this case. For example, Kingscott's wife testified that she
contacted Carp on two occasions on March 5, 1991. She called first
to tell Carp her husband was sick and second to advise Carp of the
February 8, 1991 injury. The employer's witnesses testified they
were not told on March 5 that Kingscott was injured. Mrs.
Kingscott stated she also went to the employer's office on March 8,
1991, and told them of the December, 1990 injury and the February
8, 1991 injury. The employer's witnesses admit she told them of
the December, 1990 injury but did not tell them of the February 8,
1991 injury. The record is replete with conflicting testimony.
The Workers1 Compensation Court heard the testimony, viewed
the demeanor of the witnesses and judged their credibility. The
record reveals direct substantial testimony in support of the
court's findings. There is no strong or conclusive paper trail
relative to the giving of notice. We conclude the testimony
supporting the trial court's findings and conclusions was
substantial and the judgment is therefore affirmed.
F'ursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
March 23. 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named :
Thomas A. Marra
Marra, Wenz, Johnson & Hopkins
P.O. Box 1525
Great Falls. MT 59403-1525
Laurence A. Hubbard, Legal Counsel
State Compensation Mutual Ins. Fund
P.O. Box 4759
Helena, MT 59604-4759
ED SMITH
CLERK OF THE SUPREME COURT
STATEi-OF MONTAN