Richardson v. Indem. Ins. Co. of N. Am., DA 18-0594

• Decision Date: 16 July 2019
• Docket Number: DA 18-0594
• Citation: 396 Mont. 325,2019 MT 160,444 P.3d 1019
• Parties: Brian RICHARDSON, Petitioner and Appellant, v. INDEMNITY INS. CO. OF NORTH AMERICA, Respondent and Appellee.
• Court: Montana Supreme Court

396 Mont. 325

444 P.3d 1019

2019 MT 160

Brian RICHARDSON, Petitioner and Appellant,

v.INDEMNITY INS. CO. OF NORTH AMERICA, Respondent and Appellee.

DA 18-0594

Supreme Court of Montana.

Submitted on Briefs: April 24, 2019

Decided: July 16, 2019

For Appellant: Larry W. Jones, Wills Law Firm, P.C., Missoula, Montana

For Appellee: Joe C. Maynard, Adrianna Potts, Crowley Fleck PLLP, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Brian Richardson filed a Petition for Hearing with the Workers’ Compensation Court in July 2013, arguing that he was entitled to have Indemnity Insurance Company of North America ("Indemnity") accept his claim for workers’ compensation benefits. Indemnity had denied his claim on the grounds that he had failed to provide his employer timely notice and that his claim filed almost four years after the alleged accident was untimely. The Workers’ Compensation Court granted summary judgment to Indemnity, holding that Richardson had failed to give timely notice and that he had failed to timely file his claim. Richardson raises numerous issues on appeal, but we affirm on the following issue:

Whether the Workers’ Compensation Court held correctly on summary judgment that Richardson had not timely filed a written claim for benefits under § 39-71-601, MCA (2005).

Given our disposition of this issue, we decline to reach the other issues Richardson raises.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 On November 29, 2006, Richardson worked the graveyard shift at the Billings Clinic as a security guard for Securitas. At about 1:25 a.m., Richardson and other security guards responded to an altercation involving a psychiatric patient in the emergency department. Restraining violent patients was within the course and scope of Richardson’s employment as a security guard. Afterwards, Richardson and his fellow guards noted the altercation in their Daily Activity Report as follows:

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The first two lines in the activity column state: "STAT ED #12, Pt out of control when told by Pysch Dr. had to stay, tried fighting way out, had to restrain." Each of the remaining four lines begins with the initials of the security guards that were involved in restraining the patient. The entry regarding Richardson states: "BR = Hits = 5 (mouth upper) ribs, stomach Missed = 3." Richardson’s shift supervisor wrote the description of the incident and Richardson filled in the details of where he was hit. Richardson initialed the Daily Activity Report in the lower right-hand box along with his colleagues, indicating that he reviewed the report. Richardson attested that the day after the altercation he told Ron Berglund, the site manager, that the patient’s elbow had hit him in the nose. Richardson attested that Berglund told him that he did not need to fill out additional paperwork unless he was seeking medical treatment. Richardson did not file additional paperwork at that time. Richardson left Securitas for a position with another company in June 2008.

¶3 On June 17, 2008, Richardson saw Dr. Cynthia Kennedy for an evaluation of his chronic headaches

and nasal obstruction. Dr. Kennedy attributed Richardson’s symptoms to a nasal fracture from the 2006 incident. Richardson attested that this is the first time he had medical confirmation that a blow to his nose during work in November 2006 was the cause of his symptoms. Dr. Kennedy performed surgery on June 25, 2008. In August or September 2008, Richardson learned that his private insurance would not pay for the entire surgery, and he approached his former supervisors at Securitas about filing a workers’ compensation claim. Richardson attested that Mike Anderson, the Securitas branch manager, told him it was too late to file a claim at that time.

¶4 Richardson attested that he had to stop working in September 2010 due to symptoms related to the 2006 injury to his nose. He filed a First Report of Injury with Securitas in October 2010, seeking workers’ compensation benefits. His former employer’s insurance, Indemnity, denied the claim due to lack of notice and untimely filing.

¶5 Richardson filed a petition for hearing with the Workers’ Compensation Court in July 2013, arguing that he was entitled to acceptance of his claim. Richardson moved for summary judgment on the issues of timely notice under § 39-71-603(1), MCA (2005),¹ and timely claim filing under § 39-71-601, MCA (2005). Indemnity filed a cross-motion for summary judgment on the ground that, because Richardson had filed his First Report of Injury nearly four years after the alleged incident, Richardson had failed to file a claim for compensation within the thirty-six-month time period prescribed by § 39-71-601, MCA (2005). The Workers’ Compensation Court issued two orders in response to the motions. In its first order, the Workers’ Compensation Court denied Richardson’s motion regarding timely notice, explaining that there were disputed issues of material fact regarding whether Richardson was injured during the 2006 altercation and, regardless, that Richardson had failed to submit notice within thirty days of learning of his injury in 2008. In its second order, the Workers’ Compensation Court denied Richardson’s motion regarding timely claim filing and granted Indemnity’s cross-motion on the same. The District Court explained that the Daily Activity Report was insufficient to be considered a claim under § 39-71-601(1), MCA (2005), and that Richardson filed his First Report of Injury after the statute’s absolute deadline of thirty-six months from the date of the happening of the accident.

STANDARDS OF REVIEW

¶6 We review a grant of summary judgment de novo. Dvorak v. Mont. State Fund , 2013 MT 210, ¶ 15, 371 Mont. 175, 305 P.3d 873. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Dvorak , ¶ 15. We review legal conclusions for correctness. Dvorak , ¶ 15.

DISCUSSION

¶7 Whether the Workers’ Compensation Court held correctly on summary judgment that Richardson had not timely filed a written claim for benefits under § 39-71-601, MCA (2005).

¶8 Richardson first argues that the Daily Activity Report was sufficient to meet the claim filing requirements of § 39-71-601, MCA (2005). He maintains, however, that if the Daily Activity Report was not sufficient then the time period for filing his claim should be tolled under the principle of equitable estoppel or because he did not have knowledge of his disability until he had to stop working in 2010.

¶9 Richardson relies on two cases to support his argument that the Daily Activity Report met the requirements for filing a claim under § 39-71-601(1), MCA (2005): Scott v. Utility Line Contractors , 226 Mont. 154, 734 P.2d 206 (1987), and Weigand v. Anderson-Meyer Drilling Co. , 232 Mont. 390, 758 P.2d 260 (1988). Richardson maintains that the Daily Activity Report provided sufficient information for Securitas to investigate a claim and prepare a defense.

¶10 Section 39-71-601(1), MCA (2005), states:

(1) Except for a claim for benefits for occupational diseases pursuant to subsections (3) and (4), all claims in the case of personal injury or death must be forever barred unless signed by the claimant or the claimant’s representative and presented in writing to the employer, the insurer, or the department, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act on the claimant’s behalf.

¶11 In Scott , the injured worker went to the emergency room for an injury to his right arm and shoulder three days after an incident at work. He had the bill and medical report sent to the Workers’ Compensation Division, and the State Fund paid the bill. Several weeks later, Scott assisted his supervisor in completing the employer’s first report form, but he did not file the standardized workers’ compensation claim form from the Workers’ Compensation Division for the injury. The employer’s first report included his name, social security number, address, date of birth, and wages; information about how the accident occurred and how he was injured; the name of a witness; the name of the physician and the place the injury was treated; and information about the employer. The State Fund alleged that Scott had failed to file a claim within one year, because he had not filed the standardized workers’ compensation claim form. We held that Scott presented his claim within one year, because the report "contained ample information to clearly inform the employer and the division of the nature and basis of Mr. Scott’s possible claim," and the "medical report prepared three days after the injury also gave indications that a claim could likely result out of this injury." Scott , 226 Mont. at 157, 734 P.2d at 208.

¶12 In Weigand , the injured worker injured his knee

when he fell at work in 1982, requiring surgery. Weigand immediately returned to work after surgery on his knee. Weigand and his employer completed and filed the employer’s first report with the insurer. Weigand’s surgeon also filed a physician’s first report, and the surgeon and hospital submitted their bills to the insurer, which the insurer paid. Weigand did not file the standardized workers’ compensation claim form from the insurer. Weigand was unable to continue working in any of his former occupations by 1985 due to complications with his knee. The insurer denied Weigand’s claim for additional benefits, arguing that he had not filed the claim within one year. The Court held that filing the standardized workers’ compensation claim form was not the exclusive method for filing a claim. The Court explained that, similar to Scott , the employer’s first report and the medical report from his surgeon provided the insurer with "ample information to be informed of the nature and the basis of Weigand’s possible claim." Weigand , 232 Mont. at 394, 758 P.2d at 262. The Court...