No. 13536 

IN THE SUPRElIE COURT OF THE STATE OF MONTANA 

1977 

TERRY N. WILLIAMS, 

Claimant and Appellant, 

-vsWELLMAN-POWER GAS, INC., Employer, 

and 

HARTFORD ACCIDENT & INDEMNITY COMPANY, 

Defendant and Respondent. 

Appeal from: hlorkers' Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Greg J. Skakles argued, Anaconda, Montana 

For Respondent: 

Poore, McKenzie, Roth, Robischon and Robinson, 

Butte, Montana 

David J. Wing argued, Butte, Montana 

Submitted: October 7, 1977 

Decided: B()v I 4 1gn 

Filed: "UY .t t374f 

, .+- Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court : 

Claimant Terry N. Williams appeals from the finding, 

conclusions and order of the Workers' Compensation Court dismissing his claim for benefits on the ground the claim was not 

timely filed. 

Claimant, an employee of defendant Wellman-Power Gas, Inc., 

was injured in the course and scope of his employment February 

15, 1973, when he fell and struck his elbow. He reported the 

accident to his employer and was taken to see Dr. John P. Lacey, 

who took X-rays of the elbow. The X-rays were negative, but 

the doctor could feel broken cartilage in the injured area. He 

informed claimant the cartilage was not likely to give him 

trouble but there was a possibility of severe swelling, in 

which case surgery would be necessary. No treatment was recommended or administered and claimant returned to work without 

any loss of wages. 

The employer was enrolled under Plan 11 of the workers' 

Compensation Act with insurance coverage provided by defendant 

Hartford Accident & Indemnity Company. A report of occupational injury and disease was filed with the Workers' Compensation 

Division February 20, 1973. The insurer paid the medical expenses for the initial examination. 

On April 10, 1973, the division notified the insurer to 

forward Form 54, Claim for Compensation, to claimant. The 

Workers' Compensation Court found this form was duly mailed to 

claimant, along with a cover letter advising him to fill out 

the form and return it for the insurer's files. Claimant disputes this finding and denies receiving the form. 
Claimant did not file a claim and apparently had no more 

trouble with the elbow until the summer of 1975, when he began 

to experience pain while working for a different employer in 

Alaska. He returned to Dr. Lacey in Gctober 1975, and surgery 

was performed by a specialist. Claimant filed a claim for compensation with the division December 17, 1975.The division and 

the Workers' Compensation Court denied the claim. 

Claimant presents three issue for review: 1) Did the 

twelve month statute of limitation under section 92-601,R.C.M. 

1947, prior to amendment in 1973, commence to run only after 

the discovery of a latent injury? 2) Does the amendment to 

section 92-601, effective July 1, 1973, apply to this action? 

3) Should the employer and insurer be found to have waived and 

be estopped from asserting the statute of limitation? 

Because of our disposition of Issue 2), it is unnecessary 

to discuss Issues 1) and 3). 

On February 20, 1973, the date of the accident, section 

92-601, provided: 

"Claims must be presented within what time. In case 

of personal injury or death, all claims shall be forever barred unless presented in writing under oath to 

the employer, the insurer, or the board, as the case 

may be, within twelve months from the date of the happening of the accident, either by the claimant or someone 

legally authorized to act for him in his behalf." 

On July 1, 1973, an amendment to section 92-601 became 

effective. The amendment did not change the twelve month limitation period but added this paragraph: 

"The division may, upon a reasonable showing by the 

claimant of lack of knowledge of disability, waive the 

time requirement, up to an additional twenty-four (24) 

months .I1 

Claimant petitioned for an extension under this paragraph, 

but the court concluded the amendment could not be applied retroactively to give the division discretion to allow the claim. 
At the outset, we note that the Workers' Compensation 

Act has always been liberally construed in favor of the 

injured claimant. Section 92-838, R.C.M. 1947; Rumsey v. 

Cardinal Petroleum, 166 Mont. 17, 530 P. 2d 433 (1975) ; 

State ex rel. Romero v. District Court, 162 Mont. 358, 513 P.2d 

265 (1973); Ness v. Diamond Asphalt Co., 143 Mont. 560, 393 

P.2d 43 (1964). We also note the 1973 amendment to section 

92-601 was passed to alleviate a condition that was directly 

contrary to the stated purposes and policies of the Workers' 

Compensation Act. Prior to July 1, 1973, a claim was required 

to be filed within twelve months of the date of the accident, 

regardless of the circumstances. If an injury did not manifest 

itself until more than twelve months after the date of the 

accident, the injured party had no recourse and simply was 

required to bear the expenses of the injury. Criticism of 

this'situation is well expressed in 3 Larson, Workmen's 

Compensation Law, 578.42(b), p. 15-104: 

"It is odd indeed to find, in a supposedly 

beneficent piece of legislation, the survival 

of this fragment of irrational cruelty surpassing 

the most technical forfeitures of legal statutes 

of limitation. Statutes of limitation generally 

proceed on the theory that a man forfeits his rights 

only when he inexcusably delays assertion of them, 

and any number of excuses will toll the running of 

the period. But here no amount of vigilance is of 

any help. The limitations period runs against a 

claim that has not yet matured; and when it matures, 

it is already barred. * * *" 

The 1973 amendment offered a solution to this problem by 

granting the division the authority to extend the time period 

on a reasonable showing of lack of knowledge of the disability. 

In view of these circumstances, it is not unreasonable to 

construe the amendment liberally to give it broad application. 
.iowever, Jeienciallc .~SS~L is that to so construe the 

.smeridnlent to apply to the instant claim would be a retroactive 

application of the statute, contrary to section 12-201, R.C.M. 

1347, which states: 

"No law contained in any of the codes or other 

statutes of Montana is retroactive unless expressly 

50 declared." 

This statute should be read in light of the long-standing 

def iriition of "retroactive", expressed in Butte & Superior 

Mining Co. v. McIntyre, 71 Mont. 254, 263, 229 P. 730 (1924): 

"* >y >? This is but a rule of construction. A 

statute which takes away or impairs vested rights, 

acquired under existing laws, or creates a new 

2bligation, imposes a new duty or attaches a 

riew disability, in respect to transactions already 

past, is deemed retroactive." 

See a1sd:City of Harlem v. State Highway Commission, 149 Mont. 

To apply the amendment to claims not already barred at 

+he tirne the amendment took effect would not require retroac~ive application within the meaning of this amendment. No 

vested rights are taken away or impaired. No new duties or 

Jisabilities are imposed. The amendment simply grants the 

Jivision the discretion to extend the time period in limited 

circumstances. The California Supreme Court in Mudd v. McColgan, 

30 Cal.2d 463, 183 P.2d 10, 13 (1947), considered an amendment 

which extended a statute of limitations. The court's reasoning 

"It is the settled law of this state that an 

anlesldment which enlarges a period of limitation 

spplies to pending matters where not otherwise 

expressly excepted. Such legislation affects the 

cemedy and is applicable to matters not already 

'mrred, without retroactive effect. Because the 

speration is prospective rather than retrospective, 

there is no impairment of vested rights. Moreover a 
party has no vested right in the running of a 

statute of limitation prior to its expiration. 

He is deemed to suffer no injury if, at the time 

of an amendment extending the period of limitation for recovery, he is under obligation to pay. * * * Thus true retroactive operation of a limitation statute is such as would revive matters that 

had already been barred by the lapse of time." 

This case is therefore distinguishable from Penrod v. 

Hoskinson, M.D., Mont . , 552 P.2d 325, 33 St.Rep. 

705 (1976), relied upon by defendants. This Court in Penrod 

rejected an attempt to retroactively apply a new statute of 

limitation relating to medical malpractice which would have 

limited plaintiff's right to sue under the "discovery doctrine". 

There was no question in Penrod that defendant was asking for 

retroactive application of the new statute, and we found no 

manifestation of legislative intent that it be so applied. 

The instant case does not involve the retroactive application 

of the amendment but rather the exercise by the division of 

discretion which it had the power to exercise while claimant 

was still entitled to file his claim. 

We hold the amendment applies to a11 claims existing 

July 1, 1973, without retroactive effect. Claimant's action 

had not been barred by July 1, 1973, and therefore the division 

had the power to consider his petition for'an extension of time. 

The workers' Compensation Court erred in holding otherwise. 

While defendants argue the matter is still discretionary 

with the division and the division may refuse to exercise its 

discretion, this argument has no merit here. The division was 

obviously under the false impression it had no jurisdiction to 

consider the matter, and refused to exercise its discretion 

for that reason. 
The judgment is reversed and the cause is remanded to 

the Workers' Compensation Court for further proceedings 

consistent with this opinion. 

We Concur: 

> -- -7 

''1 GI, (/, //&- - - 

chief Justice I 

Justices. 

........................... 

Mr. Justice Frank I. Haswell, specially concurring: 

I concur in the result in the foregoing Opinion. 

Just ice