Bogle v. Ownerrent Rent to Own

NO. 93-605
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
ALVA DARRELL BOGLE,
Petitioner and Appellant,
v.
OWNERRENT RENT TO OWN,
APR 2 5 1994
Employer,
and
STATE COMPENSATION MUTUAL
INSURANCE FUND,
Respondent and Respondent.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John C. Doubek, Small, Hatch, Doubek & Pyfer,
Helena, Montana
For Respondent:
Daniel J. Whyte, State Compensation Mutual
Insurance Fund, Helena, Montana
Submitted on Briefs: March 31, 1994
Decided: April 25, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Alva Darrell Bogle, claimant, appeals from a decision of the
Workers' Compensation Court of the State of Montana. The court
denied claimant's request for an award of benefits by the State
Compensation Insurance Fund because it determined that the claimant
failed to notify his employer, Ownerrent Rent to Own, of an alleged
work-related accident as required by § 39-71-603, MCA. We affirm.
The claimant presents the following issue for review: Whether
the Workers' Compensation Court erred in determining that claimant
failed to notify his employer of an alleged work-related accident
as required by 5 39-71-603, MCA.
Claimant and T. C. Collins were both hired by Ownerrent as
drivers/deliverers during December 1992. On January 6, 1993,
claimant and Collins were in the process of repossessing one of
Ownerrent's washing machines. As they loaded the machine into the
delivery van, claimant alleges that he fell and that the machine
landed on top of him. Collins stated o that claimant "slipped and
the washer, the dolly came back down on top of him." The next day
claimant called his manager at Ownerrent, David Robinson, and
informed Robinson that claimant would be taking sick leave because
"[he] was hurting where [he] could not get off the couch .... I@
Both parties agree that claimant did not notify Robinson of a work-
related accident at that time.
After two days' sick leave claimant resumed his work at
Ownerrent. On January 15, 1993, he was terminated from employment
for reasons not relevant to this appeal.
According to medical records, claimant visited Dr. Allen
Weinert regarding back pain on January 27, 1993. On February 8 and
12, 1993, claimant visited Dr. Brooke Hunter. On February 8 Dr.
Hunter ordered an MRI examination. On February 12, Dr. Hunter gave
the claimant the results of the MRI which showed claimant had a
herniated disc on the right side of his spine. Claimant testified
that he subsequently had reconstructive disc surgery in March 1993.
On February 25, 1993, claimant filed a claim for benefits
alleging that his back injury was a result of the work-related
accident mentioned above. The State Compensation Insurance Fund
(State Fund) denied the claim because claimant failed to comply
with the notification requirements set forth in § 39-71-603, MCA.
The Workers' Compensation Court determined that the claim for
benefits was barred because of claimant's failure to notify his
employer of a work-related accident within thirty days of the
January 6, 1993 accident. From the transcripts of proceedings
before the Workers' Compensation Court, the record discloses the
following:
JUDGE MCCARTER: Mr. Bogle, I do have a couple of
questions. As I understand your testimony, and I want to
make sure that I am understanding you correctly, when you
called Mr. Robinson the day after the injury, you didn't
tell him about the accident. You just told him that you
were hurting and couldn't come in to work?
THE WITNESS: Right.
JUDGE MCCARTER: If I understand you further, the first
time you specifically told him about the accident was
after you had the MRI?
THE WITNESS: Right.
JUDGE MCCARTER: So your conversations with him prior to
that had been about your hurting?
THE WITNESS: Right.
At trial, claimant further testified that he believed Collins
to be a supervisor for Ownerrent, and that Collins' actual
knowledge of the accident satisfied the notice requirements of
5 39-71-603, MCA. The court, however, determined that claimant's
testimony that he believed Collins to be his supervisor was not
credible or reasonable. After analyzing the inapplicability of
ostensible authority in this case, the court entered judgment for
the State Fund. Claimant appeals.
Did the Workers' Compensation Court err in determining that
claimant failed to notify his employer of an alleged work-related
accident as required by 5 39-71-603, MCA?
In reviewing the Workers' Compensation Court's findings of
fact, we will not substitute our judgment for the trier of fact
unless the findings are clearly erroneous, and the court's
conclusions of law are reviewed to determine if the conclusions are
correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont.
470, 803 P.2d 601.
Claimant argues that the object and purpose of 5 39-71-603,
MCA, have been met. In support of his argument, he asserts that
substantial, credible evidence supports his belief that Collins was
his supervisor; that because of the nature of his injury he was
prohibited from notifying his employer of the work-related injury
within thirty days of the accident; and that the court erred in
finding that Robinson was not aware of claimant's work-related
accident within thirty days of the accident. We disagree.
To obtain workers1 compensation benefits from the State Fund,
an employee who is injured on the job or involved in a work-related
accident must, within thirty days, notify the employer of the time
and place where the accident occurred and the nature of the injury.
Section 39-71-603, MCA. Actual knowledge of the accident and
injury by the employer, manager or superintendent of the employer
is also notice under $3 39-71-603, MCA.
Claimant argues that the decision of the Workers1 Compensation
Court should be reversed based upon our decision in Killebrew v.
Larson Cattle Company (1992), 254 Mont. 513, 839 P.2d 1260. We
disagree.
In Killebrew the claimant suffered an industrial accident on
December 17, 1989, and within two days personally told his employer
that he had hurt his shoulder in the accident. On March 17, 1990,
claimant suffered another industrial accident and on the next day
claimant told his employer of the accident and showed him physical
injuries to his body.
5
Clearly in Killebrew the employer had actual knowledge of the
accident and injuries, thereby satisfying the requirement of notice
under 5 39-71-603, MCA.
The facts in Killebrew are not comparable to those in this
case. No knowledge of the claimed industrial accident was made
available by claimant to the employer, the employer's managing
agent or superintendent within thirty days of the claimed injury as
required by the statute.
In this case claimant failed to timely notify the employer or
its manager, David Robinson, of the accident which is alleged to
have caused the back injury. See Lee v. Lee (1988), 234 Mont. 197,
Further, claimant's contention that he believed Collins
occupied a supervisory position at Ownerrent is equally insuffi-
cient to give his employer actual notice in this case. Claimant
and Collins were hired the same day and held identical positions at
Ownerrent. When asked about whether he held himself out as the
claimant's supervisor, Collins stated:
[Wlhat I said was that when I had my interview there the
manager that gave me my interview had said that he was
looking for somebody to be--that he could appoint to
warehouse manager. ...
It's possible that I could have said it in a way that he
thought I was the warehouse manager, yes, but when we
were talking about it I said in my interview that David
[Robinson] said he was looking for somebody -- He had
told me he was looking for somebody to appoint to
warehouse manager, somebody he didn't have to watch all
the time.
Claimant contended that his belief in Collins' supervisory
authority was reasonable because Collins "always jump[edl in the
driver's seat and [did] the paper work and what have you."
In rejecting the claimant's argument that Collins was an
ostensible supervisory agent, the court found:
Whether ostensible authority existed must be determined
from all facts and circumstances surrounding the matter.
"The test is found in a determination of the exact extent
to which the principal held the agent out or permitted
him to hold himself out as authorized, and what a prudent
person, acting in good faith, under the circumstances
would reasonably believe the authority to be.["]
Butler Mfg. Co. v. J & L Imp. Co., 167 Mont. 519, 527,
540 P.2d 962 (1975). The belief that another is an agent
must be reasonable. Kraus v. Treasure Belt Mining Co.,
146 Mont. 432, 435-6, 408 P.2d 151 (1965). The circum-
stances in this case are inconsistent with the creation
of an ostensible agency. Robinson, not Collins, assigned
deliveries, determined work schedules, and signed off on
time sheets. Collins performed no supervisory functions.
Collins' ''jumping1'into the driver's seat when he made
deliveries does not amount to supervision or provide a
basis for petitioner to reasonably believe that Collins
was his supervisor.
After reviewing the record, we conclude the court's decision that,
under the facts in the record, the employer did not have notice
within thirty days of the alleged work-related injury is not
clearly erroneous. We affirm the decision of the Workers'
We concur: