No. 88-462
TM THE SUPREME COURT OF THE STATE OF MONTANA
1989
DENNIS SCHAUB,
Claimant and Appel-lant,
-vs-
VITA RICH DAIRY, Employer,
and
STATE COMPENSATION LNSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John B. Whiston; Rosshach & Whiston, Missoula,
Montana
For Respondent :
R. Scott Currey, Aqency Leqal Services Bureau,
Helena, Montana
Submitted on Briefs: Feh. 9 , 1989
Decided: March 9 , 1989
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from an order of the Workers'
Compensation Court, adopting the findings and conclusions of
Hearing Examiner Robert Campbell. We reverse.
The claimant, Dennis Schaub, was employed by Vita-Rich
Dairy in Havre, Montana. On October 15, 1984, claimant
suffered an injury when a bag of flour fell from the stack he
was unloading, pulling his arm and causing a burning
sensation. Claimant immediately reported the accident to his
shift supervisor, who indicated he would complete the
necessary paperwork for filing a compensation claim. Despite
numerous reminders from the claimant and the supervisor's
corresponding assurances, the claim for compensation was not
filed.
The same day of the injury, claimant sought medical
attention from Dr. J. E. Elliot. In turn, Dr. Elliot
referred him to Mr. R. Don Tigny for physical therapy. Mr.
Tigny noted claimant's related "onset of pain in the neck and
lower back area when lifting sacks of Fl-our." Claimant
testified that as a result of the physical therapy, he
experienced only minor pain and soreness for the next four
months. However, claimant's condition deteriorated after a
few months, and he began to experience problems with his
shoulder, neck and severe headaches.
In May, 1985, less than eight months after the injury,
Mrs. Schaub contacted Ardele Kulbeck, the owner of Vita-Rich
Dairy, to inquire whether the medical bills and prescriptions
would be paid by workers' compensation. Mrs. Kulbeck replied
that the injury was not compensable. In November, 1985, Mrs.
Kulbeck received a letter from the Division of Workers'
Compensation, advising her that the Division had received
notice of a possible injury to claimant dated October 15,
1984, and requesting she file an Employer's First Report of
Injury. The letter resulted from the filing of a medical
bill by a health care provider. In response, Mrs. Kulbeck
stated that the injury was not job related.
On April 21, 1986, claimant filed a claim for
compensation. The Division rejected a requested waiver of
the twelve month statute of limitations and denied
compensation. At trial, Hearing Examiner Robert Campbell
found the claimant barred from benefits by his failure to
file a claim for compensation within twelve months of his
injury. In addition, claimant did not meet the requirements
of equitable estoppel necessary to waive the twelve month
filing requirement. On August 2, 1988, the Workers'
Compensation Court adopted the Hearing Examiner's findings
and conclusions and entered judgment.
The sole issue on appeal is whether the doctrine of
equitable estoppel should be applied to estop the defendant
from asserting a statute of limitations defense. We believe
the doctrine is applicable in the instant case.
Initially, we note the standard of review applied in
workers' compensation matters. As to questions of fact, we
limit our examination to the record to determine if
substantial credible evidence exists to support the court's
findings. Wassberg v. Anaconda Copper Co. (1985), 215 Mont.
309, 697 P . 2 d 909; Weigand v. Anderson-Meyer Drilling Co.
(Mont. 1988), 758 P.2d 260, 45 St.Rep. 1138. However, if the
issue is one of law, we are not so restricted in our review.
"In such a case, the appropriate standard of review is simply
whether the lower court's interpretation of the law is
correct. We are not bound by the lower court's conclusion
and remain free to reach our own. " Wassberq, 697 P . 2 d at
912. The instant case deals with an issue of law. We accept
the following relevant findings of fact made by the I-ower
court:
11. Claimant, with the aid of his
employers, had previously filed four
workers' compensation claims between 1977
and 1984. (Depo. of claimant at 20-26.1
12. The procedure at Vita Rich Dairy
directed the claimant to report any
injury to his foreman (Dan Schaub) , and
then to the plant supervisor (Rich
Semans) . Mr. Semans would go to the
office and have the paperwork (Form 37
Employer's First Report--Form 54 Claim
for Compensation) prepared and brought to
the claimant for his signature. (Depn.
of claimant at 24.)
13. The morning of the October 15, 1984
injury, the claimant testified that he
notified his foreman (Dan Schaub) of the
injury and was told to report it to plant
superintendent (Rich Semans) also.
(Depo. of claimant at 27.)
14. Claimant reported the injury to Mr.
Semans in the lunchroom that morning and
was told, "OK, I'll take care of it."
-
(1a. Fellow employee (Kevin
Christiansen) was in the lunchroom at the
time and testified at the trial that he
did hear the claimant tell Mr. Semans
about the injury he had received that
shift. (Trans. at 33, 36.) Mr.
Christiansen denied telling Rich Semans
earlier that he had no recollection of
claimant's statement to Mr. Semans.
(Trans. at 36, 74.)
15. Within three weeks, the claimant
asked Mr. Semans three times if "it has
been taken care of" and his responses
went from "1'11 take care of it," to a
sarcastic, "No, but I'll do it. I ' 1I
..
-
take care of it." (Id. at 28.)
16. Rich Semans testified by deposition
and at trial that he had no recollection
of a lunchroom conversation or reminders
from the claimant to complete a claim for
his injury in October, 1984. (Depo. of
R.L. Semans at 22; Trans. at 77-78.)
We disagree with the lower court's application of the facts
to the law. From our review, these facts speak of estoppel.
Section 39-71-601, MCA (1985), provides in pertinent
part :
Statute of limitations on presentment of
claim-waiver. (1) In case of personal
injury or death, all claims shall be
forever barred unless presented in
writing to the employer, the insurer, or
the division, as the case may be, within
12 months from the date of the happening
of the accident, either by the claimant
or someone legally authorized to act for
him in his behalf ..
.
While the provision is mandatory, it is not without
exception. Through the years, this Court developed and
continues to recognize an estoppel exception. See, 1,indblom
v. Employers' Liability Assurance Corp. (1930), 88 Mont. 488,
295 P. 1007; Levo v. ~eneral-~hea-Morrison (1955), 128 Mont.
570, 280 P.2d 1086; Frost v. Anaconda Co. (1982), 198 Mont.
216, 645 P.2d 419. While certainly not a novel theory, Dean
Larson explained its application in his oft-quoted treatise:
A familiar defense to assertion of
the bar of late claim is the plea that
the lateness was the result of the
employer's assurances, misrepresenta-
tions, negligence or even deliberate
deceptions. ..
The commonest type of case is that
in which a claimant . .
. contends that
he was lulled into a sense of security by
statements of employer or carrier
representatives that "he will be taken
care of" or that his claim has been filed
for him or that a claim will not be
necessary because he would be paid
compensation benefits in any event.
3A Larson, Workmen's Compensation Law, S 78.45. This Court
has seen fit to apply the doctrine only when the employer has
taken some positive, affirmative action which either prevents
the claimant from making a claim or leads him to reasonably
believe he need not file such a claim. Ricks v. Teslow
Consolidated (1973), 162 Mont. 469, 481, 512 P.2d 1304, 1311.
In Lindblom, we set forth the elements necessary to
find an estoppel:
1. There must be conduct-acts,
language, or silence -amounting to a
representation or a concealment of
material facts. 2. These facts must be
known to the party estopped at the time
of his said conduct, or at least the
circumstances must be such that knowledge
of them is necessarily imputed to him.
3. The truth concerning these facts must
be unknown to the other party claiming
the benefit of the estoppel, at the time
when it was acted upon by him. 4. The
conduct must be done with the intention,
or at least with the expectation, that it
will be acted upon by the other party, or
under such circumstances that it is both
natural and probable that it will be so
acted upon ... 5. The conduct must be
relied upon by the other party, and, thus
relying, he must be led to act upon it.
6. He must in fact act upon it in such a
manner as to change his position for the
worse; in other words, he must so act
that he would suffer a loss if he were
compelled to surrender or forego or alter
what he has done by reason of the first
party being permitted to repudiate his
conduct and to assert rights inconsistent
with it.
Lindblom, 295 P. at 1009.
Relying on the employer's own policy, claimant gave
proper notice to the supervisor. With the supervisor's
repeated assurances, claimant reasonably thought his claim
would be promptly filed. This belief is aptly supported by
the fact that on each of the four prior industrial accidents,
the employer filed all the necessary papers to the Workers'
Compensation Division, including the Employer's First Report
of I n j u r y and claimant's Claim for Compensation. This fact
remained undisputed throughout the testimony. Clearly,
elements one, two and three of the Lindblom test were
satisfied. Because the procedure was well established among
both employees and management, it appears more than probable
that the claimant would rely to his detriment upon his
supervisor's repeated assurances. Indeed, the claimant did
not file a claim and was thereafter denied compensation. The
final three criteria are met.
The order of the Workers' Compensation Court adopting
the findings and conclusions of Hearing Examiner Robert
Campbell is hereby reversed and remanded for further
proceedings consistent with this opinion.
We concur: _ICj
/
C 'ef Justice