NO. 82-264
IN THE SUPFU3ME COURT OF THE STATE OF MONTANA
1982
SUSAN ALLEN DEVLIN,
Claimant and Appellant,
VS .
GALUSHA, HIGGINS & GALUSHA,
Employer,
and
NORTHWESTERN NATIONAL INSURANCE,
Defendant and Respondent.
Appeal from: Workers' Compensation Court
Honorable Tim Reardon, Judge presiding.
Counsel of Record:
For Appellant:
John J. Thiebes, Missoula, Montana
For Respondent:
Garlington, Lohn and Robinson, Missoula, Montana
Robert E. Sheridan, Missoula, Montana
Submitted on briefs: October 26, 1912
Decided: December 29, 1982
Filed: DEc 2 9 3982
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion
of the Court.
Claimant appeals the June 25, 1982 Worker's Compen-
sation Court judgment dismissing claimant's petition on the
grounds that she failed to file for compensation within one
year from the date of her accident, pursuant to section
39-71-601, MCA. We affirm the judgment of the Worker's
Compensation Court.
Ms. Susan Devlin was employed as a secretary for Galusha,
Higgins and Galusha in Missoula, Montana, on February 12,
1975. On that day, Ms. Devlin caught the heel of her shoe on
the carpet as she rose from her work desk. In an attempt to
prevent falling, she twisted her knee. The pain from the
injury was so great, Ms. Devlin became ill. A co-employee
found her in the restroom, called Ms. Devlin's roommate to
come and take her home and assisted Ms. Devlin to her room-
mate's automobile.
Testimony was presented at the hearing that an employee
cannot leave Galusha, Higgins and Galusha without receiving
permission from a supervisor. However, Ms. Devlin testified
that she did not remember whether she informed her supervisor
she was leaving that day. Her supervisor, Jack Lowe, also
testified that he did not remember being informed of Ms.
Devlin's early departure.
Ms. Devlin worked for approximately two weeks before
the pain in her knee forced her to seek medical attention
on February 26, 1975. The pain was obvious to Ms. Devlin's
co-workers as she voiced complaints and limped around the
office.
Ms. Devlin missed a day of work on ~ p r i l25, 1975, when
an arthrogram was performed on her knee. She cleared that
absence from work with Mr. Lowe. They also discussed the
problems she was having with her knee. There was no test-
imony presented, however, indicating that Mr. Lowe was aware
"A. He asked me if I wanted to file
a claim, a workmen's compensation claim
on my knee. I beg ignorance. I didn't
know what he was talking about, and I
said no." Transcript, pp. 21-22,24.
After leaving her job, with Galusha, Higgins and
Galusha in 1975 Ms. Devlin had two more operations on her
knee. She was unable to retain a job for any length of
time, so had no work-related insurance. Therefore, those
operations were paid for by Ms. Devlin. While she was
employed by Galusha, Higgins and Galusha, its Blue Cross/
Blue Shield insurance covered eighty (80%) percent of her
medical expenses.
Sometime during the summer of 1981, Ms. Devlin became
aware that her accident would have been covered by worker's
compensation. She filed a claim August 4, 1981. Galusha,
Higgins and Galusha denied liability, stating that Ms.
Devlin's claim was barred by section 39-71-601, MCA. That
section requires that a compensation claim be filed within
one year of the accident. On October 23, 1981, claimant
filed a petition requesting she be granted a waiver of the
one (1) year statute of limitations and requesting she be
awarded permanent partial disability benefits. She also
requested that her employer and their compensation carrier,
Northwestern National Insurance Company, be estopped from
asserting section 39-71-601, MCA as a bar to her claim.
A hearing was held before the Worker's Compensation
Court judge January 13, 1982. On June 25, 1982, the court
entered findings of fact, conclusions of law and a judgment
denying Ms. Devlin's claim for compensation. In so holding,
the court ruled that Galusha, Higgins and Galusha and Northwestern
were not equitably estopped from asserting the one year
statute of limitations set forth in section 39-71-601, MCA.
Claimant now asserts that ruling was incorrect.
that the problems were due to a work-related accident. In
fact, Mr. Lowe testified that he was unaware the problems
were work-related until August 1975.
In July of 1975, surgery was performed in Salt Lake
City, Utah, to repair a torn meniscus in Ms. Devlin's knee.
Prior to the surgery, Ms. Devlin offered to resign from her
job as the surgery would require an extended absence. Her
offer was rejected, and she was granted a leave of absence
of approximately five weeks.
Shortly after returning to work in September 1975, Ms.
Devlin learned of her father's impending death. She decided
to return to Illinois to be with him and gave two weeks
notice to her employer. During that two week period, Ms.
Devlin's new supervisor, Charles Rohde, at the request of
Mr. Lowe, asked Ms. Devlin if she wished to file a worker's
compensation claim. Regarding that conversation, Ms. Devlin
testified as follows:
"Q. Did Mr. Rohde at this time -- Did he
ever ask you to file any other claims
or fill out anything else?
"A. Yes, sir. One day I had been walking
by his office, and he called out to me
and asked me -- And, again, we're talking
six years ago.
"Q. Right.
"A. Asked me if I had wanted to file a work-
men's comp claim. As far as I can remember,
I said, 'Good god, no. '
"Q. Did he explain to you what the claim
was for?
"A. No sir. Well, I presumed it was for
my knee, and I would imagine he said did I
want to file a workmen's comp claim on my
knee.
"Q. Now, back to your conversation with
Mr. Rohde. Was it an extended conversation;
was it brief? Can you sort of tell us how
that went?
Claimant devotes considerable time to proving her
employer was aware of her work-related injury. She then
states that since her employer had "actual knowledge" of
her injury, it was unnecessary for her to give him written
notice pursuant to section 39-71-603, MCA. Our decision
in Hart1 v. Big Sky of Montana, Inc. (1978), 176 Mont.
540, 579 P.2d 1239, supports Ms. Devlin's contention.
However, notice of the work-related injury to the employ-
er within sixty days of the injury is not the issue in this
case. Presentment of a worker's compensation claim by the
injured worker within twelve months from the date of the
accident is the issue. Ms. Devlin failed to present such
a claim. Therefore, she violated section 39-71-601, MCA.
The twelve month statute of limitations is primarily
for the protection of the employer and the insured. A claim
may be filed after the statute of limitations has expired
if intervening acts of the employer or the insured create an
estoppel. Lindblom v. Employers' Liability Assurance Corp.
(1930), 88 Mont. 488, 295 P. 1007.
The six elements required for equitable estoppel to
exist are set forth in Lindblom, supra. Here we find it
necessary to consider only the first element. "There must
be conduct - acts, language, or silence - amounting to a
representation or a concealment of material facts." -
Lindblom,
88 Mont. at 494, 295 P. at 1009.
The conduct which conceals material facts must be that
of the party against whom estoppel is sought. "Estoppel has
no application where the omissions of the party claiming
estoppel brought about the problem." First Security Bank
of Bozeman v. Goddard (1979), 181 Mont. 407, 417, 593 P.2d
1040, 1046.
Here it is the party claiming estoppel whose omission
brought about the problem. Ms. Devlin's supervisor asked
if she wished to file a worker's compensation claim. She
responded, "Good god, no." She testified to total ignorance
regarding worker's compensation. Rather than inquiring
about her rights, she chose not to pursue the matter. It
was her own choice. Her employer did nothing to encourage
her not to apply for benefits.
Ms. Devlin implies that her employer should have made
greater efforts to inform her of her rights. We do not
agree. In Ricks v. Teslow Consolidated (1973), 162 Mont.
469, 512 P.2d 1304 we stated:
"Thus, the duty is upon the claimant
to file his claim, not upon the insurer
to solicit claims. The Workmen's Compen-
sation Act has not changed the principle
that he who asserts a right has the
burden of proof or the burden of pro-
ceeding." 162 Mont. 483, 512 P.2d
at 1312.
Ms. Devlin's supervisor, Charles Rohde, asked Ms.
Devlin if she wished to file a worker's compensation claim.
That was sufficient. He was under no duty to file the
claim for Ms. Devlin. The decision of the Worker's Compen-
sation Court is supported by the evidence. It is affirmed.
-- -
Justices
Mr. Justice John C . Sheehy deems himself disqualified and
did not participate,in this decision.