NO. 89-66

IN THE SUPREMECOIJRT OF THE STATE OF MONTANA

MARIE MELLEM

## ,Claimant and Appell-ant,-vsKALISPELL TJAUNDRY & DRY CLEANERS, Empl-oyer 

### , and
STATE CONPENSATION INSURANCEFUND,
Insurerand Respondent.

APPEAL FROM: TheWorkers' Compensation Court, TheHonorahle Timothy Reardon, Judgepresiding.

COUNSEL OF RECORD:
ForAppellant:
Allan M. McGarvey; McGarvey, Feberling, Sullivan and McGarvey,Kalispell,Montana
For Respondent:
StevenJ. Shapiro,Chief Legal Counsel and Charles Adams, Legal Counsel,Div. ofWorkers' Compensation, Helena,Montana

L6, : c-3 ., '

..,, Submitted on Briefs: April 27, 1989

?$- 0 ; T; , a Decided: June 1, 1989 a 6-L a Fi3&!:

-1 

## -- d L .- e* d- f.2 .< 

## =! 13. 

## -.- f-2 f 1Mr. Justice 

### R. C. McDonough del.iverecJ the Opinion 0.F+.he Court.
This appeal concerns the requirements forperfecting an appeal to the Montana Workers' Compensation Court under the terms of the Montana Occupational DiseaseAct (MODA)

# . Mari-e Mellem appeals from the court's order dismissing her appeal. for failure to comply with the jurisdictional requirements of MODA. We reverseand remand with instructions. Mellem presents three issues 'or review: 1. Did Mellem fail to perfect an appeal to the Workers' Compensation Court because her request for rehearing was denominated "Statementof Exceptions"? 2. Did the Workers' Compensation Court abuse its discretion by dismissing Mellem's appeal. without granting Leave to seek rehearing and later application for appeal? 3. Has Me1I.em been denied due process of law bv the procedural errors of the Division o-FWorkers' Compensation and theWorkers' CompensationCourt.? Mellem was employed by a Kalispell laundry from 1981. until 1986. She suffers from severe chronic obstructive pulmonary disease along with chronic pneumonia. Mellem alleges that her lung problems are due in part to her exposure to certain fumes and particleswhile employed at the laundry. She filed a claim for occupational diseasebenefits with the State Compensation Insurance Fund, which denied liability. Mellem's claim was then referred to the Division of Workers' Compensation, which in turn referred her to a member of the Occupational Disease Panel for medical examination. Based on the report of the medical examination, the Division issued an order stating its preliminary determination that Mellem would not be entitled to benefits.Mellem then requested a hearing before the Division,which bras held before a Hearing Examiner. After reviewing the record of Mellem's cl-aim,the Hearing Examiner issued his Findings of Fact, Conclusions of Law and Order, finding Mellem not entitled to occupational disease benefits. This document also contained a paragraph entitled "Notice",which reads inpart as follows:
You are hereby notified thatyouhave the right to file exceptions and to present briefs and oral argument to the Administrator of the DivisionofWorkers" Compensation who will decide whether or not to adopt or modify the foregoing ProposedOrder. According to Mellem's brief to this Court, her counsel. contacted the Division to verify that the "exceptions" procedure was the same as the "rehearing" procedure required by § 39-72-61.2,MCA,andwas informed that it was in fact the
same. Mell-em then filed a Statement of Exceptions with the Division. The Administrator of the Pi-visionreviewed the Hearing Examiner's Findings of Fact, Conclusions of Law and Order, 

### as well as the record of Mellem's claim. He then issued a Final Order, which again concluded that Mellem was not entitled to benefits. The Final Order reads i.npart: This Final Order is signed by the Administrator of the DivisionofWorkers' Compensation under the authority of Section 39-72-202, MCA. Any party in interest may appeal this order to the Workers' Compensation Court as provided in Sections 39-71-2401 and 39-72-612, .MCA 

# . Mellem thereafter filed an appeal with the Workers' Compensation Court. The court determined that it lacked jurisdiction to hear Mellem's appeal. According to thecourt, Mellem had not perfected an appeal, because she had failed to requesta rehearingbefore the Divisionas required by $ 39-72-612, MCA. The court thus felt "compelled, 

### - sua sponte, to dismiss" Mellem's appeal, which it did. This appeal followed. TheWorkers' Compensation Courtbegan itsdiscussionby reciting the basis of its jurisdiction under MODA, which is defined by $ 39-72-612, MCA. The court noted the specific requirement in 5 39-72-612 (l), MCA, that in order to perfect an appeal, "the appealing party must request a rehearing before the division." According to the court, a careful review of the record failed to disclose such a requestby Mellem. The Workers' Compensation Court was correct in that its jurisdiction is statutorily defined in 5 39-72-612,MCA, and that the record inMellem's case doesnot conform strictly to that statute. There is no document entitled "Request for Rehearing" to be found in the file. However, the reason for the absence of such a request appears on the face of the two Division orders quoted above. The court noted that the record of this case showed "some confusion over procedures before the Division.

### " The court cited as examples the improper labelling of orders issued by the Division,which contained instructions for procedures not discussed in MODA. The court concluded that these variations were in form only, and did not affect Mellem's entitlement to an appeal. We disagree. This situation has not been addressed by this Court under MODA. Fowever, we have held in similar situations under the statute of limitations in the Workers' Compensation Act that where misstatements hy an employer or insurer prevent a claimant from filing a Workers' Compensation claim in a timely fashion, or mislead the claimant into believing

### that no claim canorneed be filed,thedoctrineof equitable estoppel applies to to]-1 the limitation period and allow filing of the claim. Davisv. Jones (1983),203 Mont. 464, 661 P.2d 859. 

### The doctrine is equally applicable to the facts in this case, as is the maxim "No one can take advantage ofhis ownwrong." Section 1-3-208,MCA. 

### There are essentially six elements to equitable estoppel:
"1. There must be conduct--acts, languaqe, or silence--amounting to a representation or a concealmentofmaterial facts. 2. 

### These factsmust be known to the party estopped at the time of his said conduct,or at least the circumstancesmustbe such that knowledge of them is necessarily imputed to him. 3. The truth concerning these factsmust be unknown to the otherparty claiming the benefit of the estoppel, at the timewhen itwas acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that itwill he acted upon by the other party, or under such circumstances that it is both natural and probable that itwill.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 actupon it in such amanner as to changehisposition for theworse

# ...."
Davis, 661 P.2d 

### at 861 (quoting Lindbolm v. ~mpl-oyers' T,iability Assurance Corp. (19301, 88 

### Mont. 488, 494, 795 

### 1007, 1009). As to the first element, the conduct at issue here is reflected in the language of the Division's orders. The Hearing Examiner's order stated that Mellem could file exceptions with the Division. Mellem's counsel asserts that he contacted the Division to confirm that the "excepti.onsW procedure was the same as the "rehearing"procedure, and was told that itwas in fact the same. While this statement is not disputed in the Division's brief to this Court, assuming it to be 

### untrue does not negate the Division's conduct. Itis apparent from the face of the Division Administrator's Final Order that the Division considered a request for rehearing to have beenmade. The second element of estoppel is also present. Knowledge of the proper procedures under MODA can certainly be imputed to the Division. The third element is evident from the course of conduct of Mellern's attorney and the Division. Mellem's attorney could not have known that the Divisiondid not treat an exceptionsprocedure as a rehearing procedure, especiallv given the Division's continued conduct
as if proper procedures were being followed. The fourth element is evident from the fact that the Division's conduct took the form of orders. There was clearly an expectation that Mellem's counsel would act in accordance with those orders. The fifth and sixth elements are self-evident. This opinion is the resultofMellem's detrimental relianceon the Division's conduct. The Division cannot now be heard to argue that Mellem's counsel was on notice of the statutory requirements for perfecting an appeal to the Workers' Compensation Court,and therefore at fault for the appeal's dismissal. The Division is estopped from doing so by its own actions. Taking that position also violates the maxim quoted above. We therefore reverse the decision of the Workers' Compensation Court dismissing Mellem's appeal, and remand with instructions to return the case to the Division to afford Mellem the opportunity to perfect her appeal in accordance with 5 39-72-612,MCA.

We Concur:

# 4TVA

Chief Justice