March 16 2010
DA 09-0507
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 52
TERRY BOYD,
Petitioner and Appellant,
v.
ZURICH AMERICAN INSURANCE COMPANY,
Respondent and Appellee.
APPEAL FROM: Montana Workers’ Compensation Court, WCC No. 2009-2279
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Paul E. Toennis, Graves & Toennis, P.C., Billings, Montana
For Appellee:
James R. Hintz, Crowley Fleck PLLP, Billings, Montana
Submitted on Briefs: February 17, 2010
Decided: March 16, 2010
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Zurich American Insurance Company (Zurich) moved for summary judgment on
the grounds that Terry Boyd (Boyd) failed to petition the Workers’ Compensation Court
(WCC) within two years of Zurich’s denial of workers’ compensation benefits. The
WCC granted Zurich’s motion. Boyd appeals. We affirm.
ISSUE
¶2 The dispositive issue on appeal is whether the WCC erred in granting Zurich’s
motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In November 2004, Terry Boyd began working as a pipefitter for TIC, a Wyoming
industrial contractor. Boyd was injured in a work-related accident on January 18, 2005.
TIC was insured for workers’ compensation claims by Zurich. Boyd formally notified
TIC of his injury on February 1, 2005, and sought initial medical attention on February 2,
at which time he saw a family nurse practitioner in Fort Benton, Montana. An x-ray of
his hand taken at that time revealed no breaks or dislocations.
¶4 On February 9, Boyd saw Dr. Hill, a physician in Basin, Wyoming. Boyd
complained to Hill of left hand, fingers, and forearm pain. On February 23, Boyd was
evaluated by PA-C Kolar of the Occupational Health and Wellness Department at
Deaconess Billings Clinic, again complaining of hand and forearm pain. Upon
re-evaluation by Kolar on March 2, Boyd reported increasing pain radiating up his arm
and into his shoulder. Boyd submitted a First Report of Injury and Occupational Disease
to the Montana Department of Labor and Industry (DOLI) on March 7, 2005. He did not
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reference shoulder pain in the report, stating that the affected parts of his body were his
left hand and fingers.
¶5 Kolar requested an occupational medicine consultation with Dr. Ross, a physician
at Deaconess Billings Clinic. Ross examined Boyd and announced that Boyd had
reached “maximum medical improvement with zero percent (0%) whole person
impairment with regard to his left hand injury.” Boyd then requested referral to a
specialist and retained an attorney. The parties agreed that Dr. Rosen at the Billings
Clinic would see Boyd for further evaluation. In July 2005, Boyd reported to Rosen that
he had injured his shoulder and left arm in the drill accident in January 2005. Among
other things, Rosen’s medical notes indicate that Boyd’s “work-related injury on January
18th, 2005, result[ed] in a left shoulder girdle and forearm extensor muscle strain.”
¶6 In early 2006, Boyd was evaluated by Dr. Bryan, also at the Billings Clinic.
Bryan asked Zurich to authorize and pay for a bone scan of Boyd’s neck and shoulder.
Zurich denied Bryan’s request noting that Boyd’s claim was for a thumb/hand injury and
that it would not “accept any neck/cervical diagnosis.” However, because Boyd
continued seeking medical treatment for his shoulder, in June 2006, Zurich sent Boyd
back to Rosen for re-evaluation. Rosen concluded that Boyd’s shoulder pain was related
to a cervical discectomy Boyd underwent in 1997 rather than his work-related injury.
¶7 In July 2006, Boyd saw Dr. Landon in Casper, Wyoming. He complained of pain
in his shoulder and in both hands. Later that same month, Boyd saw Dr. Whipp in
Lander, Wyoming. Dr. Whipp stated in his notes that based on Boyd’s complaints and
description of his work-related accident his shoulder and hand complaints were “probably
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related to it.” Boyd sent Whipp’s medical report to Zurich. On October 27, 2006, Zurich
acknowledged receipt of Whipp’s records and notified Boyd that it was denying liability
for his shoulder complaints as “those conditions are unrelated to the injury of January 18,
2005.” In November 2006, Whipp once again saw Boyd and noted in his report that there
“probably [was] a connection” between Boyd’s pain and his work-related accident.
Again, Whipp’s report was submitted to Zurich, and on December 28, 2006, the insurer
once again denied liability for Boyd’s shoulder injury.
¶8 In June 2008, Boyd consulted Dr. Schneider who stated in his report that Boyd’s
shoulder pain was “clearly and unequivocally due to his [2005] work-related injury.”
Schneider reiterated this conclusion in a February 2009 letter to Boyd.
¶9 On August 14, 2008, Boyd filed a “Petition for Workers’ Compensation Mediation
Conference” with the DOLI. Mediation ensued, and a Mediator’s report was issued on
October 7, 2008. In March 2009, Zurich again denied liability for pain or injury to
Boyd’s shoulder. Subsequently, Boyd filed a Petition for Hearing on May 8, 2009. In
June 2009, Zurich moved for summary judgment on the ground that Boyd had not filed
his petition within two years of Zurich’s initial denial of his claim as required by
§ 39-71-2905, MCA. Following a telephone conference with the parties on August 5,
2009, the WCC granted Zurich’s motion for summary judgment. Boyd appeals.
¶10 This matter is governed by the Workers’ Compensation Act of 2003. All statutory
references are to the 2003 statutes.
STANDARD OF REVIEW
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¶11 We review the WCC’s ruling on summary judgment de novo. Dildine v. Liberty
Northwest Ins. Corp., 2009 MT 87, ¶ 9, 350 Mont. 1, 204 P.3d 729.
DISCUSSION
¶12 Boyd challenges the WCC’s conclusions that: 1) a “dispute over liability”
vis-à-vis his shoulder injury arose in June 2006, 2) this “dispute” triggered the 2-year
statute of limitations provided in § 39-71-2905(2), MCA, and 3) Boyd’s Petition for
Hearing was not timely filed.
¶13 Boyd argues that his Petition for Hearing was timely filed under two statutes of
limitations—§§ 39-71-2905(2) and 27-2-203, MCA. While these statutes have different
“triggering” events, both allow a plaintiff to commence his or her action within 2 years of
the specified triggering event. Section 39-71-2905, MCA, is triggered by a denial of
workers’ compensation benefits, and requires a claimant to seek a hearing for resolution
of a dispute over benefits within 2 years after benefits are denied. Section 27-2-203,
MCA, invokes the “discovery rule” and is triggered by “discovery” of a mistake giving
rise to a claim.
¶14 Boyd asserts that when he began seeking medical attention for his shoulder pain
and submitting his doctors’ reports to Zurich, he did not then request benefits for his
shoulder injury. He claims that without such a request for benefits, Zurich’s “denial of
benefits” throughout 2006 did not create a “dispute over liability,” was irrelevant, and did
not serve to trigger the statute of limitations in § 39-71-2905, MCA. He argues that
Zurich did not actually deny his claim until after he submitted Schneider’s medical
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opinion in June 2008; therefore, his May 2009 Petition for Hearing was timely filed
under § 39-71-2905, MCA.
¶15 Additionally, Boyd argues that the doctors he saw shortly after his accident
misdiagnosed him and this misdiagnosis constituted a “mistake.” He maintains that as a
result of this mistake, he is entitled to bring his action under the “mistake” statute of
limitations, § 27-2-203, MCA. Given that he did not “discover” the misdiagnosis until
June 2008 when Schneider stated that his shoulder injury was caused by the work
accident, he argues that the filing of his petition in May 2009 was well within the 2-year
statute of limitations set forth in § 27-2-203, MCA. As such, his petition was timely.
¶16 Lastly, Boyd argues that he could not file a claim for workers’ compensation
benefits for his shoulder injury until the injury was “established by objective medical
findings” (§ 39-71-407(2)(a), MCA), and “substantiated by clinical findings.” Section
39-71-116(19), MCA. Boyd asserts that he could not make a claim for his shoulder
injury until he received Schneider’s report unequivocally linking his accident with his
injury.
¶17 Zurich argues that § 39-71-2905(2), MCA, is the applicable statute of limitation
because it is the “more specific” statute. Codified in the chapter addressing workers’
compensation claims, § 39-71-2905, MCA, directly addresses claims brought before the
WCC. Conversely, § 27-2-203, MCA, is a general statute addressing civil claims brought
on the ground of fraud or mistake. Zurich concludes, however, that regardless of which
statute is applied, Boyd’s claim accrued in 2006 when Whipp opined the condition was
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linked to the accident and Zurich in turn unequivocally denied liability for any shoulder
complaints. This being so, his filing in May 2009 was untimely under either statute.
¶18 Zurich further submits that the discovery rule is not available to Boyd because
evidence linking Boyd’s shoulder condition to the accident was neither concealed nor
self-concealing, and Boyd did not act diligently in pursuing his claim. Boyd first
obtained “evidence” that his shoulder injury was related to the accident in 2006 when
Whipp opined that the injury arose out of the accident. Therefore, even if Boyd could
rely on the discovery rule in § 27-2-203, MCA, Boyd “discovered” the link in 2006,
triggering the running of the statute of limitations.
¶19 Boyd put Zurich on early notice that he considered his shoulder injury part of his
work-related accident claim by submitting the medical reports of various treating
physicians to Zurich. Additionally, while “filing of forms . . . by the attending physician
does not constitute a claim for compensation” (§ 39-71-604(1), MCA), one doctor, Dr.
Bryan, actually requested authority from and payment by Zurich to conduct further
diagnostic tests on Boyd’s shoulder. Zurich denied Bryan’s request in February or March
2006, and disclaimed any liability for Boyd’s shoulder injury. This constituted Zurich’s
first denial of coverage for Boyd’s shoulder claim. However, on appeal, Zurich invokes a
denial date of October 27, 2006, when it wrote a letter to Boyd’s attorney after receiving
Whipp’s first medical report, and explicitly denied coverage for Boyd’s shoulder injury
claims.
¶20 The October 27, 2006 letter firmly established a denial of benefits and the
existence of a “dispute over liability,” thus triggering the 2-year statute of limitations
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contained in § 39-71-2905(2), MCA, which provides that “[a] petition for a hearing
before the workers’ compensation judge must be filed within 2 years after benefits are
denied.” Taking into account the tolling of the statute for mediation, the limitations
period began to run on October 27, 2006, was tolled for 79 days for mediation, and
expired on January 14, 2009. Boyd did not file his Petition for Hearing until May 2009.
The WCC did not err in concluding that Boyd’s filing was untimely under the applicable
statute of limitations.
¶21 Next, we address Boyd’s argument as to the applicability of § 27-2-203, MCA.
As we have stated on numerous occasions, “[w]here one statute deals with a subject in
general and comprehensive terms and another deals with a part of the same subject in a
more minute and definite way, the special statute will prevail over the general statute to
the extent of any necessary repugnancy between them.” Bryant v. Hall, 157 Mont. 28,
482 P.2d 147 (1971). In Bryant, we held that the specific statute of limitations governing
wrongful death actions controlled over the general statute of limitations applicable to a
variety of actions seeking damages for real and personal property rights. Bryant, 157
Mont. at 33, 482 P.2d at 149-50. See also State v. Brendal, 2009 MT 236, ¶ 18, 351
Mont. 395, 213 P.3d 448 (When we can, we harmonize general and specific statutes to
give effect to both; when we cannot, the specific statute controls.). In the case before us,
§ 39-71-2905, MCA, is a specific statute that establishes the limitations periods for
disputes over benefits and requires that a petition for hearing be filed within 2 years of
denial of benefits. The WCC did not err by applying § 39-71-2905, MCA.
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¶22 Finally, we are not persuaded by Boyd’s argument that he could not file his claim
without Schneider’s unequivocal opinion on causation. As noted above, earlier medical
opinions rendered in 2006 and submitted to Zurich drew a connection between the
accident and the shoulder injury. See Opinion, ¶¶ 7-8. In any event, we have held on
repeated occasions that claimants are not required to prove causation through medical
expertise or opinion. See Plainbull v. Transamerica Ins. Co., 264 Mont. 120, 870 P.2d
76 (1994) and Prillaman v. Community Med. Center, 264 Mont. 134, 870 P.2d 82 (1994).
CONCLUSION
¶23 For the foregoing reasons, we affirm the WCC’s order of summary judgment in
favor of Zurich.
/S/ PATRICIA O. COTTER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE
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