No. 13044 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

M. J. RASSLEY, 

Claimant and Appellant, 

-vs - 

SECURITY TRANSPORT, employer 

and UNITED PACIFIC RELIANCE 

INSURANCE COMPANY, 

Defendant and Repsondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

 on or able W. FT. Lessley, Judge presiding. 

Counsel of Record : 

For Appellant : 

Morrow, Nash and Sedivy, Bozeman, Montana 

Donald A. Nash argued, Bozeman, Montana 

For Respondent : 

Hughes, Bennett and Cain, Helena, Montana 

George T. Bennett argued, Helena, Montana 

Submitted : November 3, 1975 

!)ec ided : NQV 2 5 ?k?% 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from an order of the district court, 

Gallatin County, sustaining a determination of the Workmen's 

Compensation Division. 

Appellant suffered an industrial accident in the nature 

of a broken ankle of his right leg on June 9, 1959. On July 

13, 1959, appellant filed an employee's claim for compensation 

with the Industrial Accident Board (predecessor to the Division 

of Workmen's Compensation, Department of Labor and Industry). 

Appellant was treated at a Bozeman hospital by his personal 

physician. The physician reported appellant's bone was healing 

satisfactorily on September 11, 1959, and the hospital's physical 

therapist reported the appellant had a "full range of motion" 

on October 2, 1959. Based on those reports the adjuster for the 

then industrial accident insurer applied for a final compensation 

award from the Industrial Accident Board (IAB). A notation of 

final award was made on the IAB's records of payment sheet on 

November 6, 1959, with a "Final Award" on the IAB Form 64A sent 

to appellant on the same day. 

Appellant returned to work in October, 1959, and worked 

at various construction jobs until April, 1963. There is 

evidence in the record that appellant was not continuously 

employed as a heavy equipment operator due to trouble with his 

right ankle and foot. 

From April, 1963, to October, 1972, appellant was employed 

full time with the Gallatin County road office. Appellant operated a road grader during much of his employment with Gallatin 

County. Appellant left his employment with the county due to a 

debilitating condition diagnosed as multiple sclerosis affecting 

his spinal column, a possible tumor of the spinal column, possible 

disc lesions in the spinal column, and extreme spasticity of both 
legs. In a 1974 report to the Workmen's Compensation Division 

(WCD) a Bozeman orthopedic specialist discussed appellant's 

progressive neurological impairment and stated appellant's status 

was not the result of the 1959 injury, nor a later back injury 

while working for the county. 

On January 8, 1973, appellant stated in a letter to the 

WCD : 

"In 1959 I submitted a claim for accident on a 

broken ankle and as I was able to work, I did 

not accept the settlement offered. Now I am 

unable to work and would like to know what 

kind of settlement you are willing to offer." 

In May, 1973, the WCD informed appellant his claim could 

not be reopened due to lapse of time. Appellant requested and 

received a hearing before a WCD hearing examiner resulting in 

a finding that under the Montana Workmen's Compensation Act (Title 

92, R.C.M. 1947), appellant had four years from November 9, 1959, 

to petition the IAB to reopen his claim, after the entry of the 

"Final Award" pursuant to the Act. 

The district court affirmed the WCD determination and 

appellant appeals from that holding. 

The issue presented in this appeal is whether appellant, 

having suffered an industrial accident, is required under the 

Workmen's Compensation Act to file his petition to reopen and 

reconsider his claim within four years following the entry of 

a final award. 

The WCD may amend or rescind an award as provided in 

§92-826, R.C.M. 1947: 

"The board shall have continuing jurisdiction 

over all its orders, decisions, and awards, and 

may, at any time, upon notice, and after opportunity to be heard is given to the parties in 

interest, rescind, alter, or amend any such order, 

decision, or award made by it upon good cause 

appearing therefor. Provided, that the division 

shall not have power to rescind, alter, or amend 

any final settlement or award of compensation 
more than four (4) years after the same has been 

made, and provided further that the board shall 

not have the power to rescind, alter, or amend 

any order approving a full and final compromise 

settlement of compensation. * * *" 

Appellant argues the 1959 "Final Award" of the IAB was 

not final. If appellant did not believe the November 6, 1959 

award was final he had four years from that date to petition for 

a reopening of his claim to determine if further compensation 

was due. Appellant took no such action but waited fourteen 

years, or ten years after the statute of limitations had run, to 

apply for a reopening of his claim. A reasonable man, truly 

believing a compensation award is not final, although clearly 

labeled as such, would not wait over a decade to contest the 

finality of the award. 

Appellant testified before the WCD hearing examiner: 

"Well, if I had not had to retire, I probably 

never would have turned in for, if I could have 

kept on working." 

The record, as a whole, indicates appellant never questioned the 

finality of the 1959 award until his present, unrelated, neurological impairment forced him to retire. 

The record contains substantial evidence to support the 

holding of the district court affirming the WCD determination 

that the 1959 award was final and the four year statute of limitations barred a reopening of the claim. This Court has held 

on numerous occasions the decision of a district court affirming 

a WCD determination will not be reversed unless the evidence 

clearly preponderates against the findings. Aho v. Burkland Studs, 

153 Mont. 1, 452 P.2d 415; Newman v. Kamp, 140 Mont. 487, 374 P.2d 

100; Birnie v. U.S. Gypsum Co., 134 Mont. 39, 328 P.2d 133. These 

cases deal with initial Workmen's Compensation awards, but the 

principal is equally applicable to the present determination. 

Appellant argues the WCD has continuing jurisdiction over 
appellant's claim so long as he has not received all he might 

receive under the Workmen's Compensation Act. This Court said 

a claimant should be fully compensated for his particular 

disability in Meznarich v. Republic Coal Co., 101 Mont. 78, 

53 P.2d 82, and went on to say at page 88: 

"[There is] a clear legislative intent that no 

case in which compensation has been awarded 

shall be finally closed until the maximum period 

of payments for the disability for which such award 

has been made has expired, except that, under the 

amendment of 1929 to section 2952 [predecessor to 

S92-8261, above, this power is withdrawn with 

respect to 'any final settlement' after the expiration of two years [now four years] from the 

date the order awarding compensation is made. 

* * *" (Emphasis added) 

The legislature recognized the need for continuing claim 

jurisdiction in the WCD to prevent injustice should the industrial accident have unforseen complications during the maximum 

payment period of the disability. The legislature also wished to 

prevent attempts to reopen claims after the elapse of many years 

with the consequent clouding of memories, unavailability of 

evidence and the difficulty of determining the relationship between the original injury and a present aggravated disability. 

Thus, the four year statute of limitations for reopening claims 

was enacted. The present case is just the sort that the statute 

of limitations was enacted to prevent. 

Appellant also argues he was misled by an agent of the 

insurer into believing he had no further compensation rights. 

This alleged misleading advice was given in the late 1960's 

(after the running of the statute of limitations) according to 

appellant's testimony before the WCD hearing examiner. Appellant was not certain as to what was said or when it was said 

and on cross-examination could not state as to how he was misled. 

Assuming, arguendo, that he was misled, this Court has stated 

there must be an intent to mislead the claimant to his detriment 
before the WCD is estopped from asserting the statute of limitations. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 

1304. No evidence appears on the record that such intent to 

mislead was present. Even if the WCD may be shown to have 

arrived at an improper determination over a decade ago, short 

of fraud or coercion, appellant has exhausted his remedy and is 

now bound by the law. Moffett v. Industrial Accident Bd., 130 

The order of the di