NO. 91-521 IN THE SUPREME COURT OF THE STATE OF MONTANA

HERBERT SHELLEY, Claimant and Appellant,-vsUNITED STATES FIDELITY AND GUARANTY 

## APR2

# -1992 COMPANY, FIDELITY 

### AND GUARANTY LIFE INSURANCE COMPANY, VALLEY CHIROPRACTIC 

### C$

# Szrd CENTER, DR. JOHN E. FRANCIS, CLERK OF SU?~~ERIZ COUH~ STATLOF NlCiNT4NA Defendants and Respondents

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Herbert Shelley, Pro Se, Bigfork, Montana For Respondents: Robert Sheridan; Garlington, Lohn & Robinson, Missoula, Montana

Filed: Submitted on Briefs: February 20, 1992 Decided: April 2, 1992Justice John Conway Harrison delivered the opinion of the Court. Herbert Shelley (Shelley) appeals from the judgment of the Workers' Compensation Court which dismissed his appeal based on a failure to timely file. The issue iswhether theWorkerstCompensation Court erred when it determined that it lacked jurisdiction over the matter based on failure to timely file an appeal. We reverse. Shelley, after being injured in 1986, was treated by a chiropractor, Dr. John E. Francis (Francis) during 1989 and 1990. OnJune 4, 1990,respondentUnited StatesFidelity & Guaranty (USF&G) denied payment for the services rendered by Francis for reasons not the subject of this appeal. On November, 16, 1990, after a hearing

on the matter, Gordon Bruce (Bruce), a Hearing Examiner for the Department of Labor and Industry, determined that Francis was not entitled to payment for treating Shelley and dismissed the action. In rendering his decision, Bruce informed appellant of the appeal deadline in his Findings of Fact and Conclusions of Law as follows: Notice: This order is signed by the Hearing Examiner of the Department of Labor and Industry under authority delegated by the Commissioner. Any party in interest may appeal this order to theWorkers' Compensation courtwithin Thirty (301 workins days after the date of mailing of this final order as provided in Section 24.29.207(7) and 24.29.215(3) ARM. [Emphasis added.] Shelley wrote the Workers' Compensation Court to initiate the appeal process on December 26, 1990. USF&G insists that Shelley's option to appeal expired December 19, 1990,thirty days from thedate of the mailing of the final order according to 24.29.215, A.R.M., not thirty working days as stated by Bruce in the above quote.Accordingly, USF&G opposed the appeal on the grounds of untimely filing. TheWorkers' Compensation Court grantedUSF&G1s motion for dismissal on August 28, 1991. Shelley appeals to this Court. This appeal centers around one important point: the error of the Department of Labor and Industry. We previously addressed an

error of similar nature in Mellem v. Kalispell Laundry (1989), 237 Mont. 439, 774 P.2d 390. In Mellem, the ~ivisionof Workers' Compensation (now an entity renamed under the Department of Labor and Industry, hereinafterreferredtoastheDepartment),misinformed

a claimant of her appeal rights and procedures. We held that the doctrineofequitableestoppelprohibitedtheDepartmentfromdenying her appeal based on failure to comply with filing requirements. Mellem, 237 Mont. at 442, 774 P.2d at 391. In essence,we extended the doctrine of equitable estoppel to cover situations involving misrepresentations made by the Department. [W]e have held in similar situations under the statute of limitations in the Workers' Compensation Act that where misstatementsby an employer orinsurerpreventa claimant from filing a Workers' Compensation claim in a timely fashion, or mislead the claimant into believing that no claim can or need be filed, the doctrine of equitable estoppel applies to toll the limitation period and allow filing of the claim. Davis

### v. 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 of his own wrong." Section 1-3-208, MCA. Mellem, 237Mont. at 442, 774 P.2d at 391-92. We reversed theWorkers' Compensation Court with instructions to grant the claimant's appeal inMellem. Accordingly,we arrive at the same conclusion in the case at bar under the doctrine of equitable estoppel. Equitable estoppel contains six elements:"1. There must be conduct--acts, language, or silence-- amountingto a representationora concealmentofmaterial facts. 2. These facts must be known to theparty estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputedtohim. 3. The truth concerningthese facts must be unknown to the other party claiming the benefit of the estoppel, at the time when itwas acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. 

# . . 5. The conduct must be relieduponby the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse 

# . . .I1 Davis, 661 P.2d at 861 (cpotingLindbolmv. Em~lo~erS 

## ' ~iability-~ssurance COrP. (1930), 88 Mont. 488, 494, 295 P. 1007, 1009). Mellem, 237 Mont. at 442, 774 P.2d at 392. In the case at bar, Shelley received, by mail, the Hearing Examiner's findings of fact and conclusions of law on November 19, 1990, three days after they were signed and dated November 16, 1990. Shelley appealedto the Workers' Compensation Court on December 26, 1990, within the thirty working day time-frame. USF&G asserts that Shelley's appeal right expired on December 19, 1990. We disagree and concludethat the six elements of equitable estoppel arepresent. The Department is estopped from claiming that Shelley's appeal was untimely since the Department misinformed him regarding the appeal time-frame. It is also apparent from the Administrative Rules of Montana dealing with the Office of Workers' Compensation Judge, that there isauthoritytogrant exceptions fornoncompliance. Section24.5.350 (2)

### ,A.R.M. states that "Service deadlines for filing an appeal are
as follows 

## . 

# . . (c) from all other proceedings within thirty days of service of the final order of thedepartment of laborand industry." 4The section immediately preceding reads: [Tlhe court may, in its discretion and in the interests of justice, waive irregularities and noncompliance with any of the provisions of this subchapter. 24.5.349, A.R.M. We conclude that a failure to timely file an appeal is noncompliancewithinthecontextof 24.5.349,A.R.M., and therefore,

an extension of time for appeal isproperly entertainedby theWorkers1 Compensation Judge. This is particularly true in the case at bar since the Hearing Examiner misinformed the claimant and led him to believe that he had thirty working days to file an appeal. In view ofthecircumstances, the court cannotnow claim that Shelley's appeal isuntimelywhenthe Department itself is the reason forMr. Shelley's untimeliness. WeconcludethattheWorkers' CompensationCourtcould have corrected the error via its discretionary powers. Additionally, we point out that theWorkers' CompensationCourt, indismissingShelleyls appeal,

### statedthatitstrictlyenforcesappeal deadlines and that 'Ino authority exists whatsoever which provides for an appeal to the Workers' Compensation Court to be filed within 30workinqdays fromtheDivisionlsnotice of finalorder.I1 (Emphasis in original.) The court further said that It [tlhere is no good faith exception to the mandatory 30-day appeal period. 

## . 

# . ." However,

a recent opinion fromtheWorkers' Compensation Court indicates that the court does recognize exceptions. McColley v. Laborers1 Local 98 & State Comp. Fund (1990), WCC No. 9001-5699, Vol. XI No. 770. In McCollev, the court said; The [Workers1Compensation] court recognizes the requirement of the filing deadline and its importance and thatexceptions must be carefully considered. McCollev, Vol. 

### XI No. 770, pg 2. InMcCollev, therewas confusion

overwhen 

### the claimant's 

### letterof appeal actuallyreachedtheWorkersg compensation Court. Under those circumstances 

### the court refused to dismiss the appeal as untimely. Absent an abuse 

### of discretion,a discretionary ruling will not be overturned. Steer, Inc.

### v. DepartmentofRevenue (1990),245Mont. 470, 475, 803 P.2d 601, 603-604. Under the facts in the case at bar,



### we hold 

### that 

### the Workersg

### Compensation Court abused 

### its discretion when 

### it dismissed Shelley's appeal for lack of jurisdiction based

on an untimely appeal. Accordingly, we remand to the Workersg Compensation Court 

### with instructions 

### to hear thematter as a proper and 

### timely appeal. Reversed. 

## n

We concur:April 2, 1992 CERTIFICATEOFSERVICE I hereby certify that the followingorderwas sentby United States mail, prepaid, to the following named:

Herbert Shelley 250Williams Lane BigFork, MT 59911 DepartmentofLabor and Industry Legal Services Division P.O. Box 1728 Helena,MT59624 Robert Sheridan Garlington,Lohn &Robinson P.O. Box7909 Missoula, MT 59807 

### ED SMITH CLERKOFTHE SUPREME COURT STATEOFMONTANA