NO. 82-264 

IN THE SUPFU3ME COURT OF THE STATE OF MONTANA 

1982 

SUSAN ALLEN 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 2 9 3982 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion 

of the Court. 

Claimant appeals the June 25, 1982 Worker's Compensation Court judgment dismissing claimant's petition on the 

grounds that she failed to file for compensation within 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 in Missoula, 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 

injury was 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 remember being informed of Ms. 

Devlin's early departure. 

Ms. Devlin worked for approximately two weeks before 

the pain in her knee forced her to seek medical attention 

on February 26, 1975. The pain was obvious to Ms. Devlin's 

co-workers as she voiced complaints and limped around the 

office. 

Ms. Devlin missed 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 she was having with her knee. There was no testimony presented, however, indicating that Mr. Lowe was aware 
"A. He asked me if I wanted to file 

a claim, a workmen's compensation claim 

on my 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 1975 Ms. Devlin had two more operations on her 

knee. She was unable to retain a job for any length of 

time, so had no work-related insurance. Therefore, those 

operations were 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. Devlin became 

aware that her accident would have been covered by worker's 

compensation. She filed a claim August 4, 1981. Galusha, 

Higgins and Galusha denied liability, stating that Ms. 

Devlin's claim was 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 Insurance Company, 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 one year 

statute of limitations set forth in section 39-71-601, MCA. 

Claimant now asserts that ruling was 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, surgery was 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 surgery would require an extended absence. Her 

offer was rejected, and she was granted a leave of absence 

of approximately five weeks. 

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's new supervisor, Charles Rohde, at the request of 

Mr. Lowe, asked Ms. Devlin if she wished 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 to me 

and asked me -- And, again, we're talking 

six years ago. 

"Q. Right. 

"A. Asked me if I had 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 I would imagine he said did I 

want to file a workmen's comp claim on my 

knee. 

"Q. Now, back to your conversation with 

Mr. Rohde. Was it an extended conversation; 

was it brief? 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 "actual knowledge" of 

her injury, it was 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), 176 Mont. 

540, 579 P.2d 1239, supports Ms. 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, she violated section 39-71-601, MCA. 

The twelve month 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. Lindblom v. Employers' Liability Assurance Corp. 

(1930), 88 Mont. 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 facts must be that 

of the party against whom estoppel is sought. "Estoppel has 

no application where the omissions of the party claiming 

estoppel brought about the problem." First Security Bank 

of Bozeman v. Goddard (1979), 181 Mont. 407, 417, 593 P.2d 

1040, 1046. 

Here it is the party claiming estoppel whose omission 

brought about the problem. Ms. Devlin's supervisor asked 
if she wished to file a worker's compensation claim. She 

responded, "Good god, no." She testified to total ignorance 

regarding worker's compensation. Rather than inquiring 

about her rights, she chose not to pursue the matter. 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), 162 Mont. 

469, 512 P.2d 1304 we stated: 

"Thus, the duty is upon the claimant 

to file his claim, not upon the insurer 

to solicit claims. The Workmen's Compensation Act has not changed the principle 

that he who asserts a right has the 

burden of proof or the burden of proceeding." 162 Mont. 483, 512 P.2d 

at 1312. 

Ms. Devlin's supervisor, Charles Rohde, asked Ms. 

Devlin if she wished to file a worker's compensation claim. 

That was 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.