No. 81-389 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

ODEAN L. FROST, 

Claimant and Respondent, 

vs. 

ANACONDA COMPANY, 

Employer, 

and 

THE ANACONDA COMPANY, 

Defendant and Appellant. 

Appeal from: Workers' Compensation Court 

Honorable William Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Utick and Grosfield, Helena, Montana 

Andrew Utick argued, Helena, Montana 

For Respondent: 

Neil J. Lynch argued, Butte, Montana 

Submitted: April 1, 1982 

Decided: May 13, 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

The Workers' Compensation Judge, William E. Hunt, 

issued an order on July 31, 1981, granting benefits to 

claimant, Odean Frost, despite a four and one-half year gap 

between claimant's injury and the filing of his claim for 

benefits. Section 39-71-601, MCA, establishes a one year 

statute of limitations for filing such claims. Frost's 

employer, The Anaconda Company, appeals from that order. 

We affirm. 

On October 21, 1974, claimant slipped and fell off an 

ore shovel at the Berkely Pit. Frost landed on his lower 

back, stood up without assistance and worked the remaining 

six hours of his shift. At the request of the Pit supervisor, 

Bud Brisban, Frost filed an accident report that night. An 

entry was made in the Pit's ledger indicating that the 

accident had occurred. However, no report of the accident 

reached the Claims Office as no immediate medical attention 

was required. It was the policy of the Pit at that time to 

report to the Claims Office only accidents which resulted in 

immediate medical attention. 

Although Frost's back did not significantly bother him 

subsequent to the accident, he began to progressively lose 

control over one of his legs. In August 1975, Frost went to 

a doctor who determined that the leg difficulties were due 

to a disc problem caused by the accident at the Pit. Surgery 

was performed; however, Frost's leg still continues to cause 

him great discomfort. He has been unable to work since 

1975. 

Following surgery, Frost notified The Anaconda Company's 

Claims Office that he would not be returning to work. 
Although the accident was recorded in the Pit ledger the 

night it occurred, there is no evidence indicating that the 

Company was told in 1975 by Frost that his inability to 

return to work was due to a work-related injury. Therefore, 

after having Frost complete some forms, office worker Ed 

Nimi set Frost up in the Company's "METRO" program. 

 he METRO program is offered by The Anaconda Company to 

its salaried employees unable to work due to any disability, 

whether or not work related. The program is designed so 

that both workers' compensation and social security benefits 

are offset against the METRO payments. Under the METRO 

program, Frost received 100% of his salary for the first six 

months he missed work, long-term disability benefits in the 

amount of 70% of his salary for each month missed thereafter, 

100% of his hospital expenses and 80% of his doctor and 

pharmacy expenses. Had Frost received workers' compensation 

benefits, he would have been eligible for 66 2/3% of his 

salary for each week he was unable to work, as well as 

medical and hospital expenses pursuant to section 39-71-704, 

MCA. Therefore, the METRO benefits were substantially 

comparable to, if not greater than, the workers' compensation 

benefits available to Frost. 

On December 23, 1978, Frost received notice that the 

Metropolitan Life Insurance Company was terminating his 

METRO benefits while they redetermined his eligibility. He 

was reinstated six months later, with full reimbursement of 

the previous six months' payments. However, in order to 

avoid future terminations of benefits, Frost filed for 

workers' compensation. Those benefits have statutory protections 

against arbitrary termination. See Title 39, Chapter 71, 

Part 6, Montana Code Annotated. 

The Company's claims' officer, Mr. Bugni, determined 

that no claim for workers' compensation had ever been completed 
by Frost. Bugni sent a claim form to Frost, who completed 

it and returned it to Bugni in late April 1979, four and 

one-half years after his accident. Section 39-71-601, MCA, 

establishes a one year statute of limitations for filing 

such claims. Mr. Frost's claim was therefore three and onehalf years late. On that basis, The Anaconda Company subsequently 

denied any liability to Frost. 

Claimant then filed a petition in the Workers' Compensation Court requesting that he be awarded benefits. A hearing 

was held January 16, 1980, before Roger Tippy, a Workers' 

Compensation Court-appointed hearings examiner. Mr. Tippy 

issued findings of fact and conclusions of law on June 13, 

1980, denying workers' compensation benefits to the claimant 

"on the grounds that he did not file a claim for compensation 

within twelve months of the occurrence of his accident as 

required under [section] 39-71-601, MCA." The Workers' 

Compensation Judge adopted those findings of fact and conclusions 

of law and issued a judgment and order dated June 24, 1980, 

dismissing claimant's petition for benefits. 

A rehearing was requested and held before Judge Hunt on 

July 21, 1981. On July 31, 1981, Judge Hunt issued an 

amended judgment and order containing the following findings 

of fact: (1) the Company enrolled the claimant in the METRO 

program but failed to file a claim for workers' compensation 

benefits or inform Frost of his right to do so; (2) the 

claimant did not realize the METRO benefits lacked the 

statutory protections given workers' compensation; and (3) 

the claimant did not know he had waived protection under the 

Workers' Compensation Act until he applied for benefits in 

1979. 
Judge Hunt applied the above findings to part of the 

test for equitable estoppel found in Lindblom v. Employers' 

Etc. Assur. Corp. (1930), 88 Mont. 488, 494, 295 P. 1007, 

1009: 

(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. 

Judge Hunt then found that the Company should have 

known claimant was eligible for workers' compensation and 

that its silence regarding the above facts amounted to 

concealment of material facts. He therefore held that the 

Company was estopped from asserting the statute of limitations 

as a defense to Frost's claim and that Frost was eligible to 

receive workers' compensation benefits. 

The sole issue before this Court is whether the Workers' 

Compensation Judge correctly forbade The Anaconda Company 

from asserting the one year statute of limitations found in 

section 39-71-601, MCA, as a bar to claimant's recovery of 

workers' compensation benefits. We affirm the Workers' 

Compensation Judge's decision, although for reasons different 

than those relied on by that Judge. 

Judge Hunt relied upon the doctrine of equitable estoppel 

in determining that the statute of limitations defense was 

not available to The Anaconda Company. In so doing, he 

cited only two of the six essential elements of estoppel 

discussed in Lindblom v. Employers' Etc. Assur. Corp., 

supra. Judge Hunt found that material facts known to the 
Company were kept concealed from the claimant. However, he 

failed to find that the claimant's reliance on the Company's 

silence was to his detriment, another essential element of 

estoppel. See also Ricks v. Teslow Consolidated (1973), 162 

Mont. 469, 512 P.2d 1304. 

We find that claimant suffered no detriment. He received 

METRO benefits which were substantially comparable to benefits 

he would have received under the Workers' Compensation Act. 

In fact, for the first six months he was unable to work, he 

received 33 1/3% more benefits than he would have under the 

Act. In addition, although claimant's benefits under the 

METRO program were terminated for six months, he recovered 

the full unpaid amount when he was reinstated in the program. 

Claimant Frost was inconvenienced, but did not suffer any 

detriment. 

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. 

"Compensation," in order to toll the statute of limitations, 

must consist of benefits substantially comparable to or 

greater than the benefits available to the same employee 

under the Workers' Compensation Act. 

In Ricks v. Teslow Consolidated, supra, this Court held 

that medical payments would not toll the statute of limitations 

for filing a workers' compensation claim. This decision 

does not affect Ricks in any way. We do not believe medical 

payments to be sufficient compensation to warrant tolling 

the statute of limitations for the recipient. 

Compensation, to toll the statute, must be sufficient 

to convince the recipient that he is receiving such a large 

percentage of workers' compensation benefits available to 
him that to seek further benefits would be a wasted effort. 

"The purpose of the tolling provision is to prevent an 

employer from lulling a claimant into a false sense of 

security by apparently acknowledging the validity of his 

claim, paying remuneration in lieu of compensation, and 

then invoking the statute after the lapse of one year." 

Cupit v. Dancu Chemical Co. (Okla. 1957), 316 P.2d 593 at 

595. This rationale is also discussed in Riccioni v. American 

Cyanamid Co. (1953), 26 N.J. Super. 1, 96 A.2d 765; Silva 

v. Sandia Corporation (10th Cir. 1957), 246 F.2d 758; Reed 

v. Fishing Engineering Corporation (1964), 74 N.M. 45, 390 

P.2d 283; and United States Steel Corporation v. Iwaskewycz 

(1972), 7 Pa. Comwlth. 211, 298 A.2d 62. 

Arthur Larson, in his treatise on workers' compensation 

law, discusses the effect of voluntary payments of compensation 

on statutory limitations for the filing of workers' compensation 

claims. The relevant section is S78.43, --- The Law of Workers' 

Compensation, by Arthur Larson, pages 15-111 through 15-145. 

Larson states on page 15-115 that "(w)hen payment of . . . 

income . . . has been made by a private employer-employee 

benefit association or insurance plan, this has usually been 

held to toll the statute." 

The Florida court in Watson v. Delta Airlines, Inc. 

(Fla. 1973), 288 So.2d 193, held that voluntarily furnished 

remedial treatment and voluntarily paid disability benefits 

served to toll the statute for the filing of a workers' 

compensation claim. 

The Tennessee court in Norton Co. v. Coffin (Tenn. 

1977), 553 S.W.2d 751, held that the employer's voluntary 

payment of compensation and medical services tolled the 

statute of limitations for filing a workers' compensation 
claim. Similar decisions can be found in Mihesuah v. Workmen's 

Compensation Appeals Board (1973), 29 Cal.A~p.3d 337, 105 

Cal.Reptr. 561, 37 Cal.Comp.Cas. 790; Caterpillar Tractor 

Co. v. Industrial Commission (1965), 33 I11.2d 78, 210 

N.E.2d 215; Dunay v. International Smelting and Refining Co. 

(1960), 60 N.~.Super. 546, 160 A.2d 80; and Drinkwater v. 

Orkin Exterminating Co. (Okla. 1961), 361 P.2d 834. 

A second factor required to toll the statute of limitations 

is knowledge on the part of the employer that he is paying 

compensation as a result of an industrial accident. "To 

constitute the payment of compensation there is a minimal 

necessity that the employer shall have some knowledge of the 

effect of what he is doing. . ." Buxbaum v. Cumberland 

Provision Co. (1961), 14 A.D.2d 425, 221 N.Y.S.2d 339, at 

page 342. 

The Anaconda Company, in the instant case, contends 

that they had no knowledge that claimant's inability to work 

was due to an industrial accident. We disagree. The facts 

show that the foreman had knowledge that Frost's injuries 

were industrial related. The foreman's knowledge should be 

imputed to The Anaconda Company. "Notice of an accident to 

one's supervisor is adequate notice to the employer." 

Hester v. Westchester General Hospital (Fla. 1972), 260 

So.2d 505. 

The decision of the Workers' Compensation Court is 

affirmed for the reasons discuss+,above. . 
We Concur: