NO. 82-264 IN THE SUPFU3ME COURT OF THE STATE OF MONTANA 1982

SUSANALLEN DEVLIN, Claimant and Appellant,
VS

# . GALUSHA, HIGGINS & GALUSHA, Employer, and NORTHWESTERN NATIONAL INSURANCE, Defendant and Respondent.
Appeal from: Workers' Compensation Court Honorable Tim Reardon,Judge presiding. Counsel of Record: For Appellant: John J. Thiebes,Missoula,Montana For Respondent: Garlington,Lohn and Robinson, Missoula, Montana Robert E. Sheridan, Missoula,Montana

Submitted on briefs: October 26, 1912 Decided: December 29, 1982 Filed: 

## DEc

## 29

## 3982Mr. Justice Frank 

### B. Morrison, Jr. delivered the Opinion of the Court. Claimant appeals the June 

### 25, 1982Worker's Compensation Court judgmentdismissing claimant's petition on the grounds that she failed to file for compensationwithin one year from the date of her accident, pursuant to section 39-71-601,MCA. We affirm the judgment of the Worker's Compensation Court. Ms. Susan Devlin was employed as a secretary for Galusha, Higgins and Galusha inMissoula, Montana, on February 12, 1975. On that day,Ms. Devlin caught the heel of her shoe on the carpet as she rose from her work desk. In an attempt to prevent falling, she twisted her knee. The pain from the injurywas so great,Ms. Devlin became ill. 

### A co-employee found her in the restroom,called Ms. Devlin's roommate to
come and take her home and assisted 

### Ms. Devlin to her roommate's automobile. Testimony was presented at the hearing that an employee cannot leave Galusha,Higgins and Galusha without receiving permission from a supervisor. However,Ms. Devlin testified that she did not remember whether she informed her supervisor she was leaving that day. Her supervisor, Jack Lowe, also testified that he did not rememberbeing informed of Ms. Devlin's early departure. Ms. Devlinworked for approximately two weeks before the pain in her knee forced her to seekmedical attention
on February 26, 1975. The pain was obvious to Ms. Devlin's co-workers as shevoiced complaints and limped around the office. Ms. Devlinmissed a day of work on ~pril 25, 1975,when
an arthrogram was performed on her knee. She cleared that absence from work with Mr. Lowe. They also discussed the problems shewas having with her knee. There was no testimony presented, however, indicating thatMr. Lowe was aware"A. He asked me if 

### Iwanted to file a claim, a workmen's compensation claim onmy knee. I beg ignorance. 

### I didn't know what he was talking about, and I said no." Transcript,pp. 21-22,24. After leaving her job,with Galusha,Higgins and Galusha in 1975Ms. Devlinhad twomore operations on her knee. Shewas unable to retain a job for any length of time, so had no work-related insurance. Therefore, those operationswere paid for by Ms. Devlin. While she was employed by Galusha,Higgins and Galusha, its Blue Cross/ Blue Shield insurance covered eighty (80%)percent of her medical expenses. Sometime during the summer of 1981,Ms. Devlinbecame aware that her accidentwould have been covered by worker's compensation. She filed a claimAugust 

### 4, 1981. Galusha, Higgins and Galusha denied liability, stating that Ms. Devlin's claimwas barred by section 39-71-601,MCA. That section requires that a compensation claim be filed within
one year of the accident. On October 23, 1981, claimant filed a petition requesting she be granted a waiver of the
one (1)year statute of limitations and requesting she be awarded permanent partial disability benefits. She also requested that her employer and their compensation carrier, Northwestern National InsuranceCompany, be estopped from asserting section 39-71-601,MCA as a bar to her claim. A hearing was held before the Worker's Compensation Court judge January 13, 1982. On June 25, 1982, the court entered findings of fact,conclusions of law and a judgment denying Ms. Devlin's claim for compensation. In so holding, the court ruled that Galusha, Higgins and Galusha and Northwestern
were not equitably estopped from asserting the oneyear statute of limitations set forth in section 39-71-601,MCA. Claimant now asserts that rulingwas incorrect.that the problems were due to a work-related accident. In fact,Mr. Lowe testified that he was unaware the problems
were work-related until August 1975. In July of 1975, surgerywas performed in Salt Lake City,Utah, to repair a torn meniscus in Ms. Devlin's knee. Prior to the surgery,Ms. Devlin offered to resign from her job as the surgerywould require an extended absence. Her offer was rejected, and shewas granted a leave of absence of approximately fiveweeks. Shortly after returning to work in September 1975,Ms. Devlin learned of her father's impending death. She decided to return to Illinois to be with him and gave two weeks notice to her employer. During that two week period, Ms. Devlin'snew supervisor, Charles Rohde, at the request of Mr. Lowe, asked Ms. Devlin if shewished to file a worker's compensation claim. Regarding that conversation,Ms. Devlin testified as follows: "Q. Did Mr. Rohde at this time

## -- Did he ever ask you to file any other claims or fill out anything else? "A. Yes, sir. One day I had been walking by his office, and he called out tome and asked me 

### -- And, again, we're talking six years ago. "Q. Right. "A. Asked 

### me if 

### Ihad wanted to file a workmen's comp claim. As far as I can remember, I said, 'Good god, no.

## ' "Q. Did he explain to you what the claim was for? "A. No sir. Well, I presumed it was for my knee, and Iwould imaginehe said did I want to file a workmen's comp claim onmy knee.

"Q. Now, back to your conversationwith Mr. Rohde. Was it an extended conversation; was itbrief? Can you sort of tell us how that went?Claimant devotes considerable time to proving her employer was aware of her work-related injury. She then states that since her employer had "actualknowledge" of her injury, itwas unnecessary for her to give him written notice pursuant to section 39-71-603,MCA. Our decision in Hart1 v. Big Sky of Montana, Inc. (1978), 176Mont. 540, 579 P.2d 1239, supportsMs. Devlin's contention. However, notice of the work-related injury to the employer within sixty days of the injury is not the issue in this
case. Presentment of a worker's compensation claim by the injured worker within twelve months from the date of the accident is the issue. Ms. Devlin failed to present such
a claim. Therefore, sheviolated section 39-71-601,MCA. The twelvemonth statute of limitations is primarily for the protection of the employer and the insured. A claim may be filed after the statute of limitations has expired if intervening acts of the employer or the insured create an estoppel. Lindblomv. Employers' Liability Assurance Corp.

(1930), 88Mont. 488, 295 

### P. 1007. The six elements required for equitable estoppel to exist are set forth in Lindblom, supra. Here we find it necessary to consider only the first element. "There must be conduct 

### - acts, language,or silence 

### - amounting to a representation or a concealment of material facts." Lindblom, - 88 Mont. at 494, 295 P. at 1009. The conduct which conceals material factsmust be that of the party against whom estoppel is sought. "Estoppelhas
no application where the omissions of the party claiming estoppelbrought about the problem." First Security Bank of Bozeman v. Goddard (1979), 181Mont. 407, 417, 593 P.2d 1040, 1046. Here it is the party claiming estoppel whose omission brought about the problem. Ms. Devlin's supervisor askedif shewished to file a worker's compensation claim. She responded, "Goodgod, no." She testified to total ignorance regarding worker's compensation. Rather than inquiring about her rights, she chose not to pursue thematter. It
was her own choice. Her employer did nothing to encourage her not to apply for benefits. Ms. Devlin implies that her employer should have made greater efforts to inform her of her rights. We do not agree. In Ricks v. Teslow Consolidated (1973),162Mont. 469, 512 P.2d 1304we stated: "Thus,the duty is upon the claimant to filehis claim,not upon the insurer to solicit claims. The Workmen's CompensationAct has not changed the principle that he who asserts a right has the burden of proof or the burden of proceeding." 162Mont. 483, 512 P.2d at 1312. Ms. Devlin's supervisor,Charles Rohde, asked Ms. Devlin if shewished to file a worker's compensation claim. Thatwas sufficient. He was under no duty to file the claim for Ms. Devlin. The decision of the Worker's Compensation Court is supported by the evidence. It is affirmed.

-- - Justices

Mr. Justice John C. Sheehy deems himself disqualified and did not participate,in this decision.