Notation in Montana Security Guard’s Daily Log Re: Altercation With Unruly Patient Was Insufficient to Constitute Notice of Claim
A notation in a Montana security guard’s daily log that he had been involved in an altercation with an unruly patient at the clinic to which he was assigned and that he had sustained five “hits,” was not sufficient to constitute notice of injury to his employer, held the Supreme Court of Montana in Richardson v. Indemnity Ins. Co. of N. Am., 2019 MT 160, 2019 Mont. LEXIS 260 (July 16, 2019). The court also acknowledged that Mont. Code Ann. § 39-71-601 allowed for a tolling of the statute of limitations for up to three years when there was a lack of knowledge regarding the claimant’s disability. Here, however, the claimant waited for four years before formally filing a claim. His claim was accordingly barred.
Background
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 made notations in their Daily Activity Report. Richardson’s note included the following: “BR [standing for Richardson's initials] = Hits = 5 (mouth upper) ribs, stomach Missed = 3.”
Richardson attested that the day after the altercation he told the site manager that the patient’s elbow had hit him in the nose. Richardson attested that the manager 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.
On June 17, 2008, Richardson saw a doctor for an evaluation of his chronic headaches and nasal obstruction. The doctor attributed Richardson’s symptoms to a nasal fracture from the 2006 incident. Richardson attested that this was the first time he had medical confirmation that a blow to his nose during work in November 2006 was the cause of his symptoms. The doctor 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 Anderson, the Securitas branch manager, told him it was too late to file a claim at that time.
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 insurer denied the claim due to lack of notice and untimely filing. The Workers’ Compensation Court issued two orders, essentially granting the insurer summary judgment on a finding that Richardson had not timely filed his claim under Mont. Code Ann. § 39-71-601.
Daily Activity Report as a “Filing”
Richardson argued that the Daily Activity Report was sufficient to meet the claim filing requirements of § 39-71-601. Alternatively, he argued 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.
The appellate court held the daily activity report prepared for the employer was not sufficient to meet the claim filing requirements, as it did not put the employer on notice that it should investigate the claim and prepare a defense. While § 39-71-601 allowed an extension of the statute of limitations for up to 36 months where there was a lack of knowledge of the disability, Richardson’s claim was still untimely because it was filed more than 36 months after the incident in question.