No. 94-551

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

DONNA TURJAN,

Petitioner and Appellant,

v.

VALLEY VIEW ESTATES,

Employer,

and

ROYAL INSURANCE,

Insurer and Respondent.

APPEAL FROM: Workers' Compensation Court

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Thomas C. Bulman, Bulman Law Associates,

Missoula, Montana

For Respondent:

P. Mars Scott, Mulroney, Delaney & Scott,

Missoula, Montana

Filed:

Submitted on Briefs: April 20, 1995

Decided: August 4, 1995
Justice William E. Hunt, Sr. delivered the opinion of the Court.

Appellant Donna Turjan appeals from a November 1993 order of

the Workers' Compensation Court denying her claim for failure to

report an injury within the time prescribed by statute. We affirm.

Appellant raises the following issue on appeal:

Is the one-year time limit for filing a written workers'

compensation claim under § 39-71-601, MCA (1985), and the 60-day

time limit for giving an employer notice of injury under

§ 39-71-603, MCA (1985), tolled while claimant is receiving

benefits under a prior claim?

Appellant was employed at Valley View Estates, a nursing home,

from September 1986 through April 1987. On September 16, 1986,

appellant injured her lower back and right shoulder while lifting

a patient with a co-worker. She reported the injury to her

supervisor, Bonnie Hicks. Appellant filled out a Valley View

Accident Investigation Report and Valley View filed a workers'

compensation claim on appellant's behalf. Appellant received

treatment for this injury from Dr. Fuhrman. At the time of this

workers' compensation claim, Valley View's insurer was Industrial

Indemnity and its claims were adjusted by Crawford & Company

Adjustors. Industrial covered the September 1986 workers'

compensation claim. In January 1987, they began payment of medical

costs associated with appellant's back injury. Beginning January

1, 1987, Valley View's insurer was Royal Insurance. Royal's claims

were adjusted by General Adjustment Bureau.

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On April 21, 1987, appellant was again lifting a patient and

felt a sharp pain in her lower back. Appellant claims that she

told Connie Strong, an employee at Valley View, about the incident

and that she filled out a Valley View accident report for Strong to

give to Hicks. Appellant initially claimed that Strong was her

supervisor, but later testified that Hicks was her supervisor.

Strong disputes appellant's testimony and testified that she does

not remember appellant either telling her anything about the

incident, or giving her a completed Valley View accident report for

the April 1987 incident. Strong also testified that she was not

appellant's supervisor. Appellant returned to Dr. Fuhrman and he

instructed her that she was restricted from any work. He found

that she had new symptoms and that she was "worse" in reference to

her September 1986 injury. Appellant delivered two doctor's notes

to this effect, dated April and June 1987, to Hicks at Valley View.

Appellant failed to tell Hicks of the April 1987 incident, and

failed to fill out a Valley View accident report when she twice

delivered Dr. Fuhrman's notes.

After learning that appellant would not be returning to work,

Valley View called Industrial to report appellant's separation from

work due to her September 1986 back injury. Since appellant's

injury occurred during Industrial's coverage period, they were

liable. At Industrial's request, Crawford called appellant on

April 30, 1987, to interview her about the circumstances of her

September 1986 injury. Crawford called as a result of her

3
April 1987 separation from employment. After discussion of the

September 1986 injury, the following dialogue took place:

Crawford: Mmmhmm. Okay. And now it's [injury]

.azFz;ently started to cause you more problems recently

Appellant: Uh, yea. It was, it's been coming off and on

ever since I injured it, but boy, when she put me back on

afternoon shift, she put me on the worse wing that she

could have. And that's when there's only two girls

lifting all those heavy people all night long.

Crawford: Mmmhmm.

Appellant: Get em up and then you got [sic1 put them on

the bed and potty them.

Crawford: Mmmhmm

Appellant: And that's, that's when it really started

aching.

Crawford: Okay.

Appellant: I got a sharp pain and then uh I went to sit

down for a couple of hours in the dining room trying to

ease the pain and no matter what I did, I couldn't get

rid of the pain. So I called the doctor [Fuhrmanl the

next day.

Crawford: Mmhmm.

Appellant: Oh, this was midnight and I called the doctor

the next day and I, uh, I, he, he wasn't in but the nurse

was and she ordered me some muscle relaxers to relieve

the pain.

Crawford initiated bi-monthly benefits to appellant under the

September 1986 workers' compensation claim under Industrial's

coverage. Royal, the insurance carrier in April 1987, was not

notified of an April 1987 injury until April 1993.

Sometime in 1987, appellant retained an attorney. The

representation included appellant's September 1986 workers'

4
compensation claim and continued until December 1992. Appellant

received benefits from Industrial through June 1989. After those

benefits ended, she entered into litigation with Industrial

concerning her September 1986 claim. The first reference to a

separate injury occurring in April 1987 was in the July 1992

deposition of appellant by Industrial. She stated that she filed

an incident report, or a workers' compensation claim, for the April

1987 incident. Her attorney could not find an incident report and

was unsure that a workers' compensation claim was ever filed.

Appellant settled with Industrial in December 1992 for the

September 1986 injury and for the April 1987 incident and received

a lump sum payment. Industrial accepted liability for the

September 1986 injury, but disputed liability for the April 1987

incident.

Appellant filed a workers' compensation claim for the

April 1987 incident through her second and current attorney in

April 1993. A trial in the Workers' Compensation Court took place

on January 18, 1994. The court refused to toll the statutory time

limits requiring notice of an injury to employer within 60 days and

requiring the filing of a workers' compensation claim within one

year. Appellant appeals from that judgment.

ISSUE

Is the one-year time limit for filing a written workers'

compensation claim under 5 39-71-601, MCA (1985), and the 60-day

time limit for giving an employer notice of injury under

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§ 39-71-603, MCA (1985), tolled while claimant is receiving

benefits under a prior claim?

We have two jointly employed standards of review for Workers'

Compensation Court decisions. One is a review of the findings of

fact to determine if they are supported by substantial credible

evidence, and the other is a review of the conclusions of law to

determine whether or not the law is interpreted correctly.

Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont.

105, 111, 885 P.2d 495, 498.

The controlling statutes require workers' compensation claims

to be filed in writing within 12 months of the date of injury.

They authorize employers, insurers, and the division to receive

these written claims. Section 39-71-601(l), MCA (1985). An

employee is required to give notice to the employer within 60 days

of the injury. Section 39-71-603, MCA (1985).

Appellant argues that she was lulled into not filing a second

workers' compensation claim for the April 1987 incident because she

began to receive temporary total disability benefits shortly after

her conversation with Industrial's claims adjuster, Crawford. She

argues that her telephone conversation with the adjuster should

have alerted him that she had a second injury in April 1987.

Appellant asserts that Valley View should have known from her

conversation with Crawford that a separate workers' compensation

claim needed to be filed for her April 1987 incident. She argues

that it was reasonable for her to assume that the proper claim for

6
her April 1987 injury was her 1986 claim because that was the claim

under which she began receiving temporary total disability

benefits.

Appellant testified that she notified Valley View on the day

of the April 1987 injury through Strong. Appellant claimed that

she filled out a Valley View Accident Investigation Report and that

she gave it to Strong to give to Hicks, appellant's supervisor.

Appellant argues that Valley View had imputed knowledge of a second

injury in April 1987 through her conversation with Crawford.

The Workers' Compensation Court found that appellant was

familiar with Valley View's procedures for filling out accident

reports and for filing workers' compensation claims. She filed a

previous workers' compensation claim for her September 1986 injury.

Doctor Fuhrman's note indicated new symptoms after April 1987, but

did not indicate that a new, specific incident had precipitated the

new symptoms. He noted that she was "worse," indicative of a

decline in an existing condition. Appellant did not report her

April 1987 incident to Strong, or to her supervisor. There was no

written accident report filed and Strong had no recollection of

appellant telling her of the April 1987 incident. The court

further found that appellant, Crawford, and Valley View all

operated under the assumption that the April 1987 incident was an

aggravation of the September 1986 injury. There was nothing in

appellant's conversation with Crawford that would indicate to them

that she had a new and separate injury. The following testimony

7
from appellant's July 1992 deposition during litigation with

Industrial indicates that the April 1987 incident was an

aggravation of the existing condition that began in September 1986.

Q. There aren't any radicular findings in Dr. Fuhrman's

records until after April of 1987. Do you agree with

that assessment?

A. Well, the first time I was injured I had a burning

sensation.

Q. Okay. NOW on April 23, 1987, there is a note from

Dr. Fuhrman that you had some new symptoms and new pain

radiating down your leg. Would you have told him about

new symptoms after the event in April 1987 when you were

lifting the other lady?

A. I told him all the symptoms I had, even before.

Q. Okay. You wouldn't dispute his records that you had

some new symptoms in April of 1987 though, would you?

A. I had all the pain from before [April 19871 and I

told him.

Q. Uh-huh. Now, you wouldn't dispute his records,

though, would you?

A. With the pains I would.

Q. Okay. Now, the event in April 1987, that involved a

change in your condition, didn't it? It worsened your

condition?

A. Yes

The July 1992 deposition was the first time appellant raised the

issue of a new and separate injury. The court further found that

medical evidence and appellant's own testimony failed to establish

the April 1987 incident as a separate injury. The first notice

Valley View received about the April 1987 incident being a separate
injury was in April 1993, when appellant filed a workers'

compensation claim.

Appellant relies on two cases to support her contention that

the statute should be tolled for the filing of her workers'

compensation claim for the April 1987 incident. First, she points

us to Frost v. Anaconda Company (1982), 198 Mont. 216, 645 P.2d

419. In Frost, the employee was injured on the job and disabled as

a result. The employer offered its own compensation program to

disabled salaried employees. This program offset workers'

compensation and social security benefits against payment under the

company program. The employee went on this program. After a few

years of receiving benefits under this program, the insurance

company temporarily terminated his benefits. He filed a workers'

compensation claim to avoid having his benefits terminated in the

future. The employee filed his claim three and one-half years

after the statute tolled. This Court held that the one-year

statute of limitations did not toll because the company paid

compensation to the employee that was substantially similar to or

greater than the benefits he would have received under a workers'

compensation claim. ,Frost 645 P.2d at 422. The reasoning behind

tolling the statute

is to prevent an employer from lulling a claimant into a

false sense of security by apparently acknowledging the

validity of the claim, paying remuneration in lieu of

compensation, and then invoking the statute after the

lapse of one year.

9
Frost, 645 P.2d at 422 (citing Cupit v. Dancu Chemical CO. (Okla

1957), 316 P.2d 593 at 595).

Appellant next relies on Jaeger v. Stauffer Chemical Company

(1982), 197 Mont. 263, 645 P.2d 942. In Jaeqer, the employee

injured his back at work. The company had a policy of keeping

injured workers on light duty at full salary and the injured

employee continued to work in that capacity. The employee was

retired involuntarily in 1978 (for reasons unrelated to his injury)

and filed for workers' compensation benefits after his six-month

severance pay ended, more than two years after his injury. We held

that the statute tolled because the payment of the employee's full

salary amounted to compensation in light of his frequent and

lengthy absences from work and his inability to perform his normal

job duties. Jaeqer, 645 P.2d at 946. We also held that an

employer can avoid tolling the statute by notification to the

employee of the necessity for filing a workers' compensation claim.

Jaeqer, 645 P.2d at 946.

Here, appellant argues that the statute should be tolled

because she was receiving actual workers' compensation benefits

under a prior claim, not just benefits that were substantially

similar to workers' compensation benefits, as in Frost and Jaeqer.

Appellant states that she was lulled into a false sense of security

when she began receiving benefits after the April 1987 conversation

with Crawford. However, appellant's situation differs from Frost

and Jaeqer. Appellant was receiving workers' compensation

10
benefits, while Frost and Jaeoer were receiving compensation from

their employers in lieu of workers' compensation benefits.

Additionally, appellant filed a workers' compensation claim for her

September 1986 injury and began to receive workers' compensation

benefits, while Frost and Jaeqer never filed a workers'

compensation claim until their employer-paid benefits were

terminated. Appellant's employer did not offer her compensation in

lieu of workers' compensation benefits. When appellant injured her

back in September 1986, Valley View filed a workers' compensation

claim and she received medical and temporary total disability

benefits through workers' compensation. Valley View did nothing to

lull appellant into a false sense of security. When appellant

reported her September 1986 injury, Valley View followed the

correct procedure in filing a workers' compensation claim for

appellant and did not offer her an alternative compensation plan.

The time limits of §§ 39-71-601 and -603, MCA (1985), are

mandatory. The purpose behind the notice requirement to employers

is so the employer is able to investigate claims promptly and is

protected from later claims. Larson v. Barry Smith Logging (1994),

267 Mont. 444, 448, 884 P.2d 786, 788-89 (citing Bender v. Roundup

Mining Co. (1960), 138 Mont. 306, 312-13, 356 P.2d 469, 472). The

burden of reporting injuries for workers' compensation claims rests

on the employee. Grenz v. Fire and Casualty (1993), 260 Mont. 60,

64, 857 P.2d 730, 732. Appellant does not fit the exception of

being lulled into failing to file a claim under Frost and Jaeqer.

1 1
Appellant failed to meet the statutory notice and filing

requirements.

Appellant argues that Crawford was an ostensible agent of

Valley View when it contacted her in April 1987 regarding her

September 1986 injury.

The Workers' Compensation Court found that Crawford was not an

agent of Valley View for purposes of workers' compensation claims.

The court also found that Crawford was not an agent of Royal,

Valley View's insurer as of January 1987. Further, Crawford was

never employed by Valley View, and Valley View never engaged in any

conduct from which appellant could infer that Crawford was its

agent.

"An agency is ostensible when the principal intentionally or

by want of ordinary care causes a third person to believe another

to be his agent." Section 28-10-103, MCA. This belief must be

reasonable. Larson, 884 P.2d at 788 (citing Bogle v. State

Compensation Insurance Fund (1994), 264 Mont. 515, 519, 872 P.2d

800, 802).

In the instant case, appellant could not reasonably believe

that Crawford was Valley View's agent for the purpose of giving

notice of her alleged 1987 workers' compensation claim. Crawford's

agent identified himself and began the discussion by specifically

asking appellant about her 1986 injury. There was no reason for

her to believe that her discussion with him about her 1986 injury,

and her 1987 aggravation of the same injury, constituted the

12
required notice for the filing of a second workers' compensation

claim. Appellant had been through Valley View's process before in

September 1986 and understood that a Valley View accident report

was the first step to filing a workers' compensation claim. Valley

View did nothing that would have caused appellant to reasonably

believe that Crawford was its agent for notification purposes of

workers' compensation claims.

Appellant contends that Valley View should be equitably

estopped from raising the statute of limitations defense because it

created circumstances that caused appellant's failure to file a

written workers' compensation claim within the statutory time

limits.

Equitable estoppel applies when the employer or the insurer

"has taken some positive action which either prevents claimant from

making a claim or leads him to reasonably believe he need not file

. . a claim." Ricks v. Teslow Consolidated (1973), 162 Mont.

469, 481, 512 P.2d 1304, 1313. "[Tlhe party . . . to be estopped

[must] have knowledge that he is misleading the claimant and an

intention to mislead the claimant to his detriment." Ricks, 512

P.2d at 1313.

The Workers' Compensation Court found that Valley View did not

meet the requirements of equitable estoppel and was entitled to

raise the statute of limitations defense. Valley View did nothing

to mislead appellant about the proper procedure required to make a

workers' compensation claim. Appellant knew Valley View's

13
procedure. Appellant had been through the procedure before when

she filed her September 1986 claim.

We hold that there is substantial credible evidence to support

the Workers' Compensation Court's findings and that it interpreted

the law correctly.

Affirmed.

Justice

We concur:

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tidied order was sent by United States mail, prepaid, to the

ED SM

CLERK

t

iTH

: OF THE SUPREME COURT

STATE OF MONTANA

August 4, 1995

CERTIFICATB OF SERVICE

I hereby certify that the following cefl

following named:

THOMAS C. BULMAN

P.O. BOX 8202

MISSOULA, MT 59807-8202

P. MARS SCOTT

MULRONEY, DELANEY & SCOTT

100 RYMAN

MISSOULA, MT 59802