NO. 91-521 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

HERBERT SHELLEY, 

Claimant and Appellant, 

-vsUNITED STATES FIDELITY AND GUARANTY APR 2 - 1992 

COMPANY, FIDELITY AND GUARANTY LIFE 

INSURANCE COMPANY, VALLEY CHIROPRACTIC C$ Szrd 

CENTER, DR. JOHN E. FRANCIS, CLERK OF SU?~~ERIZ COUH~ 

S TATL OF 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, 1992 
Justice 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 is whether the Workerst Compensation 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. 

On June 4, 1990, respondent United States Fidelity & 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 the Workers' Compensation court within 

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 the date 

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. The Workers' Compensation Court granted USF&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 ~ivision of Workers' 

Compensation (now an entity renamed under the Department of Labor 

and Industry, hereinafter referredtoasthe Department), misinformed 

a claimant of her appeal rights and procedures. We held that the 

doctrineofequitableestoppelprohibitedthe Departmentfromdenying 

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 

misstatements by 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, 237 Mont. at 442, 774 P.2d at 391-92. We reversed the Workers' 

Compensation Court with instructions to grant the claimant's appeal 

in Mellem. 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 representation or a concealment of material 

facts. 2. These facts must be known to the party estopped 

at the time of his said conduct, or at least the 

circumstances must be such that knowledge of them is 

necessarily imputedto him. 3. The truth concerningthese 

facts must be unknown to the other party claiming the 

benefit of the estoppel, at the time when it was 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 relied upon by 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 (cpoting Lindbolm v. 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 conclude that the six elements of equitable estoppel are present. 

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 

is authoritytogrant exceptions fornoncompliance. Section 24.5.350 

(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 the department of labor and industry." 

4 
The 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 

noncompliancewithinthe context of 24.5.349, A.R.M., and therefore, 

an extension of time for appeal is properly entertained by the Workers1 

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 

ofthe circumstances, the court cannot now claim that Shelley's appeal 

is untimelywhenthe Department itself is the reason forMr. Shelley's 

untimeliness. Weconclude that the Workers' Compensation Court could 

have corrected the error via its discretionary powers. 

Additionally, we point out that the Workers' Compensation Court, 

indismissingShelleyls appeal, statedthatitstrictlyenforces appeal 

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 fromthe Workers' 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 [Workers1 Compensation] court recognizes the requirement 

of the filing deadline and its importance and that 
exceptions must be carefully considered. 

McCollev, Vol. XI No. 770, pg 2. In McCollev, there was confusion 

over when the claimant's letter of appeal actually reachedtheWorkersg 

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. Department of Revenue (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 the matter as a proper 

and timely appeal. Reversed. 

n 

We concur: 
April 2, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Herbert Shelley 

250 Williams Lane 

Big Fork, MT 5991 1 

Department of Labor and Industry 

Legal Services Division 

P.O. Box 1728 

Helena, MT 59624 

Robert Sheridan 

Garlington, Lohn & Robinson 

P.O. Box 7909 

Missoula, MT 59807 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA