Richardson v. Indem. Ins. Co. of N. Am.
| Decision Date | 21 September 2018 |
| Docket Number | WCC No. 2013-3191 |
| Citation | 2018 MTWCC 16 |
| Parties | BRIAN RICHARDSON Petitioner v. INDEMNITY INS. CO. OF NORTH AMERICA Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Petitioner, a security guard at a hospital, asserts that he suffered an injury to his nose after helping his supervisor detain a patient in 2006. Respondent has denied liability, asserting, inter alia, that Petitioner did not timely submit a claim under § 39-71-601, MCA, which requires a claimant to submit a written claim within 12 months of the date of his accident, although in cases involving lack of knowledge of disability, latent injury, or equitable estoppel, the time limitation can be extended up to 36 months from the date of the accident. Petitioner moves for partial summary judgment, arguing that his employer's Daily Activity Report from the day of the incident constitutes his written claim. In the alternative, Petitioner argues that the First Report of Injury or Occupational Disease he filed nearly four years after the incident constitutes a timely claim because he lacked knowledge of his disability and because Respondent is equitably estopped from maintaining a statute of limitations defense. Respondent cross-moves for summary judgment, contending that the employer's Daily Activity Report does not constitute a claim because Petitioner's entry did not indicate that he sustained an injury. Respondent also argues that even if Petitioner were entitled to the waiver for cases involving lack of knowledge of disability or equitable estoppel, Petitioner filed his First Report of Injury or Occupational Disease beyond the 36-month absolute deadline, which Respondent asserts is a statute of repose.
Held: Petitioner's Motion for Partial Summary Judgment as to Claim Filing is denied. Respondent's Cross-Motion for Summary Judgment is granted. Petitioner's entry in his employer's Daily Activity Report did not indicate that he was injured; thus, it did not contain sufficient information to inform his employer or Respondent of the nature and basis of a potential workers' compensation claim and does not constitute a claim under § 39-71-601, MCA. And, even if Petitioner were entitled to the statutory waiver of the 12-month limitations period, he submitted his First Report of Injury or Occupational Disease beyond the 36-month absolute deadline for submitting a claim. Petitioner's claim is time-barred.
¶ 1 Petitioner Brian Richardson moves for partial summary judgment on the issue of his compliance with the claim-filing requirements of § 39-71-601, MCA. He argues that his employer's Daily Activity Report constitutes a claim or, in the alternative, that his First Report of Injury or Occupational Disease was timely.
¶ 2 Respondent Indemnity Ins. Co. of North America (Indemnity) cross-moves for summary judgment, arguing that Richardson failed to timely file a claim because his employer's Daily Activity Report was substantively insufficient to constitute a claim and because the First Report of Injury or Occupational Disease was filed too late.
¶ 3 Making all inferences in Richardson's favor, the following are the facts for purposes of this ruling.1
¶ 4 In November 2006, Richardson was working as a security officer for Securitas at the Billings Clinic, on the night shift.
¶ 5 On November 29, 2006, Richardson, his two coworkers, and his supervisor, Kurtis Cihak, detained a violent patient in the Emergency Room. During the altercation, the patient hit Richardson five times. Immediately after the altercation Richardson told Cihak "about the patient assault on me, how many times the patient hit me and where the patient hit me."
¶ 6 Per Securitas's regular business practice, its officers prepared a Daily Activity Report the same day, which summarized what they did during their shifts. At the top of the Daily Activity Report, the officers wrote their names and which radio, pager, and key set they had. Below that, the Daily Activity Report has three columns. In the first, the officers wrote the time of an event in military time. In the second, which was labeled "Activity," the officers wrote a short description of their activities; e.g., "Assisted getting patient into ED from ambulance bay." In the third, the officers wrote their initials.
¶ 7 The following picture is of the entries in the Daily Activity Report regarding the incident in which Richardson and his coworkers detained the patient in the Emergency room on November 29, 2006:
Image materials not available for display.
The first two lines in the Activity column state, "STAT ED #12, Pt out of control when told by Psych Dr. had to stay, tried fighting way out, had to restrain." The third line is the entry regarding Richardson. Cihak wrote out the description of the incident on each line in the Activity column, except that Richardson filled out the details of where he was hit on the third line, which states, "(mouth upper) ribs, stomach."2 Richardson signed his initials in the Initial column to the right of Cihak's.
¶ 8 The day after the altercation, Richardson told Ron Berglund, who was Securitas's on-site manager, that "the patient had hit me in the nose with an upward strike of his elbow while [I was] attempting to restrain the patient." In response, Berglund told Richardson, inter alia, that he "did not have to fill out any more paperwork unless [he] was seeking treatment." Richardson did not complete any additional paperwork at that time.
¶ 9 Between July 2007 and May 2008, Richardson saw several medical providers with complaints of right-ear ringing and plugging, headache, nose bleeds, nasal obstruction, and facial pain and pressure. However, none of the medical providers recorded that Richardson said he was hit in the nose. After a CT scan in the spring of 2008, Scott D. Price, MD, of Billings Clinic Otolaryngology, diagnosed him with a "very prominent left concha bullosa," a "septal deviation with impingement of the septum upon the right middle turbinate," and an "area where the left middle turbinate is pressing upon the septum."
¶ 10 The first medical record to mention Richardson suffering a blow to the nose, was from a June 17, 2008, visit with Cynthia A. Kennedy, MD, of Yellowstone Medical Center Ear, Nose & Throat Associates. On that date, Dr. Kennedy wrote in pertinent part:
Brian is a 32 year old male who is here for evaluation of chronic headaches, nasal obstruction since being hit in the nose about a year and a half ago. . . . He was working security at the Billings Clinic in the emergency roomwhen he had to detain someone. He got hit at the bottom of the nose with an elbow ve[r]y hard. He felt and heard it crack. He did not have much bleeding immediately. In fact, he did not even have anything come out anteriorly, but could taste blood posteriorly.
Dr. Kennedy's assessment of Richardson included the following:
Nasal septal deviation with two distinct contact points. These occurred acutely after trauma and could very well be causing his new onset of facial headaches. . . . I have recommended a septoplasty, as well as very limited anterior ethmoidectomies endoscopically with removal of concha bullosa.
¶ 11 Richardson's appointment with Dr. Kennedy was the first time he had a medical confirmation that he injured his nose at work.
¶ 12 Richardson left his job at Securitas within a week after his appointment with Dr. Kennedy.
¶ 13 Thereafter, on June 25, 2008, Dr. Kennedy performed the recommended surgery. Upon his discharge, Richardson was instructed not to engage in strenuous physical activity for seven days.
¶ 14 When asked whether he had any reason to think that he should fill out paperwork, such as an incident report or workers' compensation claim form, when he was treated in June 2008, Richardson responded:
At that point in time it was a very difficult place and environment to work in. I had thought that I had just had a broken nose and I had insurance and I thought if I was just to get my nose fixed, I would never have to deal with these guys again and I'm moving to a new job. 'Cause what happened is I scheduled my surgery to happen a day or two after my last day with Securitas and then as I was cleared by the doctor I started at Lockwood Water. I was already employed by Lockwood Water before my actual start date.
¶ 15 In August 2008, following his recuperation, Richardson began his new job.
¶ 16 Richardson submitted the bills from his surgery to his health insurer, but it denied liability.
¶ 17 Consequently, in August or September 2008, Richardson went to see Berglund because he wanted to fill out a workers' compensation claim for his nose injury. Berglund told Richardson he would have to see the branch manager. Richardson then went to Securitas's branch manager, Mike Anderson, and told Anderson he needed to fill out a workers' compensation claim for his nose injury, which Richardson stated occurred duringthe incident on November 29, 2006. However, Anderson told Richardson it was too late for him to file a claim.
¶ 18 According to Dr. Kennedy's records, Richardson got along reasonably well following surgery but began having increased headaches and facial pressure in the spring of 2009. In 2010, she documented that Richardson was also struggling with facial pain, vertigo, and imbalance, and struggling with work as a result; she thought he may have sphenopalatine neuralgia or Sluder's syndrome.
¶ 19 Richardson stopped working due to his nose injury in September 2010.
¶ 20 Later that fall, Richardson's attorney wrote to Dr. Kennedy posing a number of questions concerning Richardson's condition. The questions included whether Richardson's condition was the result of being struck at the bottom of his nose while trying to detain someone at work, and whether he had to stop working as the result of the symptoms of his...
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