No. 81-400
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
MICHAEL N . JAEGER,
Claimant and Appellant,
VS.
STAUFFER CHEMICAL COMPANY,
Employer,
and
TRAVELERS INSURANCE COMPANY,
Defendants and Respondents.
Appeal from: Workers' Compensation Court
Honorable IVilliam Hunt, Judge presiding.
Counsel of Record:
For Appellant:
R. Lewis Brown, Jr. argued, Butte, Montana
For Respondents:
Poore, Roth, Robischon & Robinson, Butte, Montana
James P. Harrington argued, Butte, Montana
Submitted: April 1, 1952
,
;
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Decided: May 20, 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Claimant appeals from the June 30, 1981, order of the
Workers' Compensation Court, adopting the findings and
conclusions of the hearing examiner that claimant's injury
is not compensable because his claim was not timely filed.
No basis was found for equitably estopping respondent from
asserting late filing as a defense; and the Workers' Compensa-
tion Division held that the hearing examiner had correctly
rejected claimant's request for a filing deadline extension.
We reverse the Workers' Compensation Court.
Claimant presents the following issues for review:
(1) Whether the Workers' Compensation Court erred in
upholding the hearing examiner's rejection of plaintiff's
request for an extension of time to file his claim.
(2) Whether the Workers' Compensation Court erred in
adopting the hearing examiner's conclusion that equitable
estoppel did not apply.
(3) Whether claimant is entitled to fees, costs, and
penalty.
Claimant injured his back wrenching open a box car
door at work on February 9, 1977. Testimony conflicts
as to whether he informed his supervisor, but respondent did
not challenge the trial court's finding that Stauffer
Chemical had actual notice of claimant's injury. Claimant
worked in pain, taking off many days, (and at one time
taking off three months) for bed rest, heat therapy, traction,
and a myelogram. His doctor diagnosed his back problem as
a possible ruptured disc. Claimant continued to receive
full salary until he was involuntary retired in September of
1978, for reasons unrelated to his back problem.
Claimant first filed for workers' compensation benefits
in late April of 1979, when his six-months' severance pay
(full salary) ended, more than two years after his injury.
Respondent denied him benefits for failure to file his claim
within 12 months, as required by section 39-71-601(1), MCA.
On June 30, 1981, following trial and remand to the Workers'
Compensation Division for a determination whether a waiver
of the statutory limitation period was justified, the hearing
examiner entered his findings of fact and conclusions of
law. That same day the Workers1 Compensation Court adopted
the hearing examiner's findings and conclusions, and entered
its judgment that (1) claimant's claim was untimely; (2)
the Division's refusal to extend the time for filing was
correct; (3) Stauffer engaged in no conduct which would
estop it from preventing claimant from asserting his claim;
and (4) claimant was entitled to no attorney's fees, costs,
or penalties. Claimant's request for rehearing was denied,
and he appeals to this Court.
Claimant concedes that he told a doctor his back problem
was not caused by an accident, but maintains that he believed
an accident had to be something violent "like a fall." He
also argues that he lacked knowledge of a disability because
the statutes link disability to loss of wages and he was
receiving full salary. See section 39-71-116(12), (13) and
(19), MCA [formerly R.C.M. 1947 SS92-439, 92-440, and 92-
4411.
The transcript indicates that claimant was aware of his
injury. He knew what action had precipitated it. He emphasized
that working caused him such pain that his supervisors must
have been aware of it. He repeatedly sought medical help,
and knew within a few weeks of his accident that he had a
possible ruptured disc in his back. And claimant admitted
that if a co-worker had reported sustaining a back injury as
a result of pulling or lifting extra hard, he, as a supervisor,
would have filled out an accident form. We are not persuaded
that claimant was unaware he had injured his back as the
result of an accident.
Nor does claimant persuade us that he was unaware of
his disability simply because he was receiving the same
salary from Stauffer as he received prior to his injury.
The statutes dealing with permanent disability refer not
only to "loss of earnings," but to "loss of earning capability."
Besides, this Court has recognized for many years that the
difference between actual post-injury earnings and post-
injury earning capability may be the difference between
eligibility and ineligibility for benefits. It is not
enough that a person is earning post-injury wages equal to
those he earned before his accident. If his injury has left
him less capable or incapable of competing in the open labor
market, there is loss of earning capability, and there is
eligibility for benefits. See Hafer v. Anaconda Aluminum
Co. (1982), Mont. -1 - P.2d , 39 St.Rep. 796,
799-780; Fermo v. Superline Products (1978), 175 Mont. 345,
348, 574 P.2d 251, 253; Shaffer v. Midland Empire Packing
Co. (1953), 127 Mont. 211, 213, 259 P.2d 340, 342.
Here, claimant was working fairly regularly, and was
receiving full salary. But he was taking a good deal of
time off for back treatments, two weeks (afternoons) in
February of 1977, another week in fall of 1977, and three
months between October 1977 and January, 1978. He admitted
he was not doing all that he had before his accident; he
"was not to do any sitting, twisting, or any excessive
lifting of any type" and he was not able to help co-workers
as he had before. He was working in obvious pain. Clearly
claimant could not have competed in the open labor market as
he could have prior to his back injury. ~hus,although
claimant may have believed he was not disabled with respect
to loss of earnings, he could hardly have believed he was
not disabled with respect to earning capability. We find
that the Workers1 Compensation Court correctly refused to
extend the period for claimant to file, holding that claimant
had made no satisfactory showing of his lack of knowledge of
disability under section 39-71-601(2).
11.
Claimant presented evidence that Stauffer had a policy
of discouraging injured employees from filing claims for
workers' compensation benefits by paying their full salaries
whether or not they were able to fulfill their duties as
before. According to claimant, the purpose of the policy is
to keep Stauffer's record clear of lost-time accidents, but
its effect is to dissuade workers with compensable injuries
from timely filing for workers1 compensation benefits.
Claimant argues that such conduct by Stauffer should estop
it from relying upon the filing limitations statute to deny
the claim of those injured employees.
Stauffer, through its plant manager, Ray Tilman, resolutely
denied ever having had a policy of denying or discouraging
legitimate industrial accident claims. But on cross-examination
Tilman admitted that Stauffer encouraged injured employees
to come in and do light duty; and that if an injured employee
would not come in, "You end up with a lost time accident, at
which time the employee would go ahead and file for compensation
from workers' compensation." Tilman also stated:
'I. .
. if the doctor says that the man can
come to work and he does come to work and
as a part of his rehabilitation he cannot
spend all the time at work, he has to go to
the doctor, he has to do different things,
we pay his full wages."
"What we try to do is we try to convince the
guy that we can give him meaningful employment
and provide that, because of his accident he's
not going to lose wages. And try to convince
him that it's to his best interest if he comes
to work as long as the doctor says he can.
"Q. So that if I understand correctly, if a
man is hurt and receives treatment and the
doctor says he can come to work the follow-
ing day and he does, then that's not treated
as a lost time injury, is it?
"A. it's not.
"Q. Even though he's injured and it doesn't
enter into your safety reporting statistics?
"A. That's correct.
"Q. This was your same policy in 1977 as far
as you know?
"A. That's correct."
The gist of Tilman's testimony is that if an injured
worker returns to work, as he is encouraged to do, and does
light work, he will be paid full salary, and neither a lost
time accident report nor an industrial accident claim will
be necessary. Furthermore, the company encourages workers
to go along with the policy in their own best interest, and
allows them time off at full salary for therapy, visits to
the doctor, etc. Testimony of both claimant and witness
Cotton indicates that full salary was paid, despite their
being unable to work for a month or more.
This Court does not wish to disparage or curtail what
may well be a benevolent policy of Stauffer's, a means of
providing both work and financial support to its injured
employees. We are unwilling to apply the doctrine of equitable
estoppel, with its attendant implications of bad faith.
We refer to the recent case of Frost v. Anaconda Company,
No. 81-389, decided by this Court on May 13, 1982. There,
a workman suffered a progressively debilitating injury in a
fall in October of 1974. He reported the injury and was
able to work until 1975. For three years after he became
disabled, he received benefits under Anaconda's METRO program
for its disabled workers. After the benefits were temporarily
terminated, and then reinstated, Frost filed for workers'
compensation. Anaconda denied liability on the grounds that
the claim was not timely filed. The Workers' Compensation
Court forbade Anaconda from asserting the statute of limitations,
relying upon the doctrine of equitable estoppel. This Court
found equitable estoppel inappropriate because claimant had
suffered no detriment, and stated:
"We choose instead to affirm the lower court's
decision on the basis that 'compensation' paid
by the Company to Mr. Frost tolled the statute
of limitations for filing his claim. 'Compen-
sation,' in order to toll the statute of limi-
tations, must consist of benefits substantially
comparable to or greater than the benefits avail-
able to the same employee under the Workers'
Compensation Act." Frost v. Anaconda Co., supra,
at page 6.
Frost discusses at length the effect of voluntary
payments of compensation upon statutory limitations for
filing workers' compensation claims. See also A. Larson,
- - -of Workers' Compensation S78.43.
The Law It is not necessary
to repeat that discussion here.
We find that Staufferts payment to claimant of full
salary, during a period of more than a year and a half,
despite claimant's frequent lengthy absences from work, and
his inability to perform his full duty as before, amounted
to payment of compensation and tolled the statute of limitations
for claimant's filing of his claim.
Since the rationale for the tolling of the statute
is that workers should be protected against the possibility
that payment equivalent to workers' compensation may lull
an injured worker into failure to timely file for workers'
compensation, we do note that under certain circumstances,
the facts may require a different conclusion. As an example,
it may be that an employer can eliminate the tolling of the
statute of limitations, where he is providing compensation
to an injured employee, by a procedure which clearly notifies
the employee of the necessity of filing a claim for workers'
compensation benefits within the statutory period.
Claimant Jaeger is entitled to attorney's fees and
costs under section 39-71-611, MCA. We do not find, however,
that he is entitled to a penalty under section 39-71-2907,
MCA, as he requests. That statute allows for a 20% increase
- --
in compensation by the workers' compensation judge, if the
insuror has unreasonably refused compensation to a claimant.
Also, because the very recent case of Frost v. Anaconda Co.,
supra, which is controlling here, introduces a new element
into Montana workers' compensation law, we do not find that
respondents unreasonably rejected Jaeger's claim.
Reversed.
e-
de
Justi e
We Concur: