Turjan v. Valley View Estates

• Decision Date: 04 August 1995
• Docket Number: No. 94-551,94-551
• Citation: 901 P.2d 76,272 Mont. 386
• Parties: Donna TURJAN, Petitioner and Appellant, v. VALLEY VIEW ESTATES, Employer, and Royal Insurance, Insurer and Respondent.
• Court: Montana Supreme Court

Page 76

901 P.2d 76

272 Mont. 386

Donna TURJAN, Petitioner and Appellant, v. VALLEY VIEW ESTATES, Employer and Royal Insurance, Insurer and Respondent.

No. 94-551.

Supreme Court of Montana.

Submitted on Briefs April 20, 1995.

Decided Aug. 4, 1995.

Thomas C. Bulman, Bulman Law Associates, Missoula, for appellant.

P. Mars Scott, Mulroney, Delaney & Scott, Missoula, for respondent.

HUNT, Justice.

Appellant Donna Turjan appeals from a November 1993 order of the Workers' Compensation Court denying her claim for failure to report an injury within the time prescribed by statute. We affirm.

Appellant raises the following issue on appeal:

Is the one-year time limit for filing a written workers' compensation claim under § 39-71-601, MCA (1985), and the 60-day time limit for giving an employer notice of injury under § 39-71-603, MCA (1985), tolled while claimant is receiving benefits under a prior claim?

Appellant was employed at Valley View Estates, a nursing home, from September 1986 through April 1987. On September 16, 1986, appellant injured her lower back and right shoulder while lifting a patient with a co-worker. She reported the injury to her supervisor, Bonnie Hicks. Appellant filled out a Valley View Accident Investigation Report and Valley View filed a workers' compensation claim on appellant's behalf. Appellant received treatment for this injury from Dr. Fuhrman. At the time of this workers' compensation claim, Valley View's insurer was Industrial Indemnity and its claims were adjusted by Crawford & Company Adjustors. Industrial covered the September 1986 workers' compensation claim. In January 1987, they began payment of medical costs associated with appellant's back injury. Beginning January 1, 1987, Valley View's insurer was Royal Insurance. Royal's claims were adjusted by General Adjustment Bureau.

On April 21, 1987, appellant was again lifting a patient and felt a sharp pain in her lower back. Appellant claims that she told Connie Strong, an employee at Valley View, about the incident and that she filled out a Valley View accident report for Strong to give to Hicks. Appellant initially claimed that Strong was her supervisor, but later testified that Hicks was her supervisor. Strong disputes appellant's testimony and testified that she does not remember appellant either telling her anything about the incident, or giving her a completed Valley View accident report for the April 1987 incident. Strong also testified that she was not appellant's supervisor. Appellant returned to Dr. Fuhrman and he instructed her that she was restricted from any work. He found that she had new symptoms and that she was "worse" in reference to her September 1986 injury. Appellant delivered two doctor's notes to this effect, dated April and June 1987, to Hicks at Valley View. Appellant failed to tell Hicks of the April 1987 incident, and failed to fill out a Valley View accident report when she twice delivered Dr. Fuhrman's notes.

After learning that appellant would not be returning to work, Valley View called Industrial to report appellant's separation from work due to her September 1986 back injury. Since appellant's injury occurred during Industrial's coverage period, they were liable. At Industrial's request, Crawford called appellant on April 30, 1987, to interview her about the circumstances of her September 1986 injury. Crawford called as a result of her April 1987 separation from employment. After discussion of the September 1986 injury, the following dialogue took place:

Crawford: Mmmhmm. Okay. And now it's [injury] apparently started to cause you more problems recently here?

Appellant: Uh, yea. It was, it's been coming off and on ever since I injured it, but boy, when she put me back on afternoon shift, she put me on the worse wing that she could have. And that's when there's only two girls lifting all those heavy people all night long.

Crawford: Mmmhmm.

Appellant: Get em up and then you got [sic] put them on the bed and potty them.

Crawford: Mmmhmm.

Appellant: And that's, that's when it really started aching.

Crawford: Okay.

Appellant: I got a sharp pain and then uh I went to sit down for a couple of hours in the dining room trying to ease the pain and no matter what I did, I couldn't get rid of the pain. So I called the doctor [Fuhrman] the next day.

Crawford: Mmhmm.

Appellant: Oh, this was midnight and I called the doctor the next day and I, uh, I, he, he wasn't in but the nurse was and she ordered me some muscle relaxers to relieve the pain.

Crawford initiated bi-monthly benefits to appellant under the September 1986 workers' compensation claim under Industrial's coverage. Royal, the insurance carrier in April 1987, was not notified of an April 1987 injury until April 1993.

Sometime in 1987, appellant retained an attorney. The representation included appellant's September 1986 workers' compensation claim and continued until December 1992. Appellant received benefits from Industrial through June 1989. After those benefits ended, she entered into litigation with Industrial concerning her September 1986 claim. The first reference to a separate injury occurring in April 1987 was in the July 1992 deposition of appellant by Industrial. She stated that she filed an incident report, or a workers' compensation claim, for the April 1987 incident. Her attorney could not find an incident report and was unsure that a workers' compensation claim was ever filed. Appellant settled with Industrial in December 1992 for the September 1986 injury and for the April 1987 incident and received a lump sum payment. Industrial accepted liability for the September 1986 injury, but disputed liability for the April 1987 incident.

Appellant filed a workers' compensation claim for the April 1987 incident through her second and current attorney in April 1993. A trial in the Workers' Compensation Court took place on January 18, 1994. The court refused to toll the statutory time limits requiring notice of an injury to employer within 60 days and requiring the filing of a workers' compensation claim within one year. Appellant appeals from that judgment.

ISSUE

Is the one-year time limit for filing a written workers' compensation claim under § 39-71-601, MCA (1985), and the 60-day time limit for giving an employer notice of injury under § 39-71-603, MCA (1985), tolled while claimant is receiving benefits under a prior claim?

We have two jointly employed standards of review for Workers' Compensation Court decisions. One is a review of the findings of fact to determine if they are supported by substantial credible evidence, and the other is a review of the conclusions of law to determine whether or not the law is interpreted correctly. Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 111, 885 P.2d 495, 498.

The controlling statutes require workers' compensation claims to be filed in writing within 12 months of the date of injury. They authorize employers, insurers, and the division to receive these written claims. Section 39-71-601(1), MCA (1985). An employee is required to give notice to the employer within 60 days of the injury. Section 39-71-603, MCA (1985).

Appellant argues that she was lulled into not filing a second workers' compensation claim for the April 1987 incident because she began to receive temporary total disability benefits shortly after her conversation with Industrial's claims adjuster, Crawford. She argues that her telephone conversation with the adjuster should have alerted him that she had a second injury in April 1987. Appellant asserts that Valley View should have known from her conversation with Crawford that a separate workers' compensation claim needed to be filed for her April 1987 incident. She argues that it was reasonable for her to assume that the proper claim for her April 1987 injury was her 1986 claim because that was the claim under which she began receiving temporary total disability benefits.

Appellant testified that she notified Valley View on the day of the April 1987 injury through Strong. Appellant claimed that she filled out a Valley View Accident Investigation Report and that she gave it to Strong to give to Hicks, appellant's supervisor. Appellant argues that Valley View had imputed knowledge of a second injury in April 1987 through her conversation with Crawford.

The Workers' Compensation Court found that appellant was familiar with Valley View's procedures for filling out accident reports and for filing workers' compensation claims. She filed a previous workers' compensation claim for her September 1986 injury. Doctor Fuhrman's note indicated new symptoms after April 1987, but did not indicate that a new, specific incident had precipitated the new symptoms. He noted that she was "worse," indicative of a decline in an existing condition. Appellant did not report her April 1987 incident to Strong, or to her supervisor. There was no written accident report filed and Strong had no recollection of appellant telling her of the April 1987 incident. The court further found that appellant, Crawford, and Valley View all operated under the assumption that the April 1987 incident was an aggravation of the September 1986 injury. There was nothing in appellant's conversation with Crawford that would indicate to them that she had a new and separate injury. The following testimony from appellant's July 1992 deposition during litigation with Industrial indicates that the April 1987 incident was an aggravation of the existing condition that began in September 1986.

Q. There aren't any radicular findings in Dr. Fuhrman's records until after April of 1987. Do you agree with that assessment?

A. Well, the first time I was injured I had a burning sensation.

Q. Okay. Now on April 23, 1987, there is a note from Dr. Fuhrman that you had some new symptoms and new pain radiating down your leg. Would you have told him about new symptoms after the event in April 1987 when you were...