No. 84-288 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

ARTHUR WASSBERG, 

Claimant and Respondent, 

ANACONDA COPPER COMPANY, a/k/a 

ANACONDA MINERALS CO. , Employer, 

and 

ANACONDA COPPER COMPANY, a/k/a 

ANACONDA MINERALS CO., 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael J. McKeon, Anaconda, Montana 

For Respondent : 

Leonard Haxby, Butte, Montana 

Filed: 

Submitted on Briefs: 1Jov. 29, 1984 

Decided: April 2, 1985 

- - -- 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from an order of the Workers' Compensation Court, holding that the employer-defendant was estopped from asserting the one year statute of limitations 

provided in section 39-71-601, MCA as a bar to claimant's 

request for compensation under the Workers' Compensation Act. 

We reverse. 

The facts leading to this appeal are as follows: The 

claimant, Arthur Wassberg was employed by the Anaconda Company as an underground miner on an intermittent basis from 1956 

to 1981, with one three year period in the Army, and numerous 

other interruptions apparently due to claimant's own choice. 

On June 30, 1973, claimant suffered an injury when he 

"was putting in stulls and [he] fell off the ladder and 

twisted [his] back." He reported this accident to his shift 

supervisor and went to a local chiropractor, Dr. West, for 

treatment. The Anaconda Compa-ny paid all of the bills for 

this treatment. The claimant also filed a "Claim for 

Compensation" under the Workers' Compensation Act. In that 

claim, he reported that he had suffered prior industrial 

injuries to his head, back and hips. 

At trial, claimant testified that he missed three days 

of work after the 1373 accident. His work records admitted 

into evidence included vouchers, signed by the claimant, that 

indicate that he missed work and received compensation for 

more than three weeks. In the July 17, 1973 "Claim for 

Compensation" claimant filed for the June 30, 1973 accid.ent, 

he certified that he was "still off." In any event, the 

record shows that claimant received approximately three weeks 

of temporary total benefits under the Workers' Compensation 

Act; from July 2, 1973, to July 23, 1973. 
Claimant returned to work on July 23, 1973. On July 

22, 1974, he had another accident. A rock fell from a hanging wall and struck claimant on the back, knocking him over. 

He reported the accident to his boss, Cliff Newstrand, who 

filled out a written "Report of Alleged Injury." On the 

report Newstrand stated that he did not advise Wassberg to 

get medical treatment. Claimant's testimony at trial, however, was to the contrary; he stated that Mr. Newstrand "told 

me to go to the doctor a.nd that slip was enough for the 

company to pay the bills." Claimant again went to see Dr. 

West, he was not charged for the treatment, so he assumed 

that the Company paid for it. Claimant testified at trial 

that after the 1974 accident, he had "a burning sensation 

down along side of the legs." At times, he stated, he could 

not even walk. Apparently though, from claimant's "Service 

R-ecord," he did not miss any work because of the 1974 accident. He worked until November 28, 1975, and was then laid 

off. 

In 1976, while still laid off, Mr. Wassberg went in to 

talk to Tom Bugni who was at the time a claims officer in the 

industrial accident office for the Anaconda mines. He went 

in at that time because he was so "crippled that [he] could 

hardly move." He told Mr. Bugni of the 1974 accident and 

requested further medical care. Bugni authorized medical 

care at the Company's expense. At the 1976 examination, 

claimant curiously told the doctor that his injury was from 

an accident where "I was climbing a ladder, and. the Ladder 

pulled loose, and I fell down a raisen--the accident that 

occurred in 1973 not 1974. 

After receiving medical treatment in 1976, claimant 

continued to be laid off until August 10, 1979. He then was 

called back to work and remained employed until again laid 
off on June 21, 1981. This action arose in 1982. Claimant's 

counsel wrote to Anaconda alleging that claimant was continuing to have problems with his back stemming from the 1974 

injury, and requesting further medical care and compensation 

under the Workers' Compensation Act. The claims officer 

denied that the Company had knowledge of any injury except 

the 1973 injury for which Wassberg had already received compensation. As to any other accident, the Company denied 

liability for compensation because no claim had been filed 

within the one-year statute of limitations period provided 

for by section 39-71-601, MCA. 

Claimant's reply contended that although no formal 

claim for compensation had been filed, the Company 

nonetheless knew about the injury because of the accident 

report and by the fact that it had paid the medical bills 

incurred shortly after the accident and for subsequent 

treatment in 1976. These facts, the claimant a.sserted, 

showed either that the Company had accepted liability, or the 

statutory period was waived. The Company did not change its 

position. 

The matter came to trial on September 14, 1983. At 

trial, Mr. Wassberg testified that his understanding about 

the procedures necessary to perfect a Workers' Compen.sation 

claim was that "as long as they filed the industria.1 slip on 

the hill that you were covered for the rest of your life. I' 

He testified that he was surprised that this was not the 

case, stating l1 . . . when the law came out we didn't think 

nothing about that we had to refile or nothing. I' Mr. 

Wassberg further stated that no one had. ever told him that 

his 1974 claim would not he honored, including Mr. Bugni, 

whom he talked to in 1976. Mr. Wassberg did not testify to 
any specific misrepresentations made to him that led him to 

these beliefs. 

On cross-examination, Mr. Wassberg admitted that he had 

filed a previous claim for compensation, separate from any 

medical benefits, on the 1973 injury. As to any claim for 

compensation for the 1974 injury, claimant testified as 

follows: 

"Q. [By Mr. McKeon] Well, the question 

is or the--You did not file a claim for 

compensation after the 1974 injury; did 

you? 

"A. NO, I never did. 

"Q. You haven't filed. a claim to this 

day? 

"A. NO, I haven't." 

The Workers' Compensation Court held for Mr. Wassberg. 

It found that; "[tlhe claimant has satisfied the requirements 

of the Workers' Compensation Act, section 39-71-601, MCA and 

the employer is estopped from denying the claim on that 

basis. " The court cited the six elements of equitable 

estoppel set forth in Lindblom v. Employers Liability Assurance Corp. (1930), 88 Mont. 488, 295 P. 1007 and applied them 

to the findings. In regard to those elements, the court 

stated: 

"Here the conduct of the employer is as 

follows : Newstrand knew of claimant ' s 

injury, but at no time informed claimant 

of the need to file a claim. Likewise, 

when claimant visited with Bugni some two 

years later, Bugni never advised claimant 

of the necessity to file a claim, through 

the evidence clearly shows that the 

employer knew of claimant's seeking 

medical care for his injury. Clearly, 1 

and 2 of the Lindblom test is met." 

The court also found the other four factors of Lindblom were 

met. 
The parties raise the following issue on appeal: 

Did the Workers1 Compensation Court err in holding that 

the doctrine of equitable estoppel prevents the employer from 

asserting the statute of limitations provided in section 

39-71-601, MCA.? 

Initially we must reiterate the standard of review in 

matters such as this. We look at the Workers' Compensation 

Court's order, and its findings and conclusions, in two ways. 

As to questions of fact, we are limited to examining the 

record to determine whether it contains substantial credible 

evidence to support the court's findings. If this quantum of 

evidence is in the record, we will defer to the trier of 

fact's resolution of the factual dispute. Ridenour v. Equity 

Supply Co. (Mont. 1983), 665 P.2d 783, 40 St.Rep. 1012; wise 

v. Perkins (Mont. 1983), 656 P.2d 816, 40 St.Rep. 1. If it 

is a question of law, or how particular findings of fact 

apply to the law, our scope of review is not so limited. In 

such a case, the appropriate standard of review is simply 

whether the lower court's interpretation of the law is 

correct. We are not bound by the lower court's conclusion 

and remain free to reach our own. Sharp v. Hoerner Walforf 

Co. (1978), 178 Mont. 419, 584 P.2d 1298; Anderson v. 

Carlson's Transport (1978), 178 Mont. 290, 583 P.2d 440. he 

issue in this case is one of law. We accept the following 

relevant findings of fact made by the lower court: 

"6. On July 22, 1974 while in the course 

and scope of his employment with the 

defendant, claimant was struck on the 

back by a rock which fell from a. wal-1. 

(Claimant's testimony; Exhibit No. 1) . At the time, claimant was working in the 

Steward mine. Claimant reported the 

incident to his boss, a man by the name 

of C. Newstrand. Other than reporting 

the incident to Newstrand, claimant did 

not discuss the incident with any representative of the employer until he talked 

with Tom Buqni of the Company. 
"7. Bugni suggested claimant see a 

doctor, which claimant did. At no time 

did the claimant ever pay any medical 

bills related to his injury. The employer did. pay for the medical expenses 

related. to the 1974 incident. 

"8. At the time of trial, the claimant 

had not filed a claim for compensation. 

"9. Exhibit No. 1 is titled Report of 

Alleged Injury. It is a record of the 

employer, signed by claimant's boss on 

July 22, 1974. That exhibit discloses 

that claimant informed Newstrand that he 

had been hit on the back by a falling 

rock on July 22, 1974 while working. It 

described the injury as 'bruises.' It 

notes the parts of body injured as the 

upper back. The information in Exhibit 

No. 1 was known to the employer as early 

as 1974. 

"10. Claimant has never requested the 

Division of Workers ' Compensation to 

waive the period for filing a claim for 

compensation pursuant to Section 

39-71-601, MCA." 

We disagree with the lower court's application of these facts 

to the law. 

Section 39-71-601, MCA (and, as cod.ified at the time 

claimant's injury occurred, R.C.M. 1947, 92-601) sets forth 

the statute of limitations for workers' compensation 

proceedings: 

"Statute of limitations on presentment of 

claim-waiver. (1) In ca.se of personal 

injury or death, all claims shall be 

forever barred unless presented in writing to the employer, the insurer, or the 

division, as the case may be, within 12 

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. (2) The division may, 

upon a reasonable showing by the claimant 

of lack of knowledge of disability, waive 

the time requirement up to an additional 

24 months." 

The filing requirement is mandatory, and compliance 

with the time limits is essential to the action. Miller v. 

City of Billings (1976), 171 Mont. 91, 555 P.2d 747. We 

recognize that this provision, like all others in the 
Workers' Compensation Act, is to be construed liberally in 

favor of the claimant. Section 39-71-104, MCA; Bowerman v. 

Employment Security Commission (Mont. 1983), 673 P.2d 476, 40 

St.Rep. 2062; cf. Chmielewska v. Butte & Superior Min. Co. 

(1927), 81 Mont. 36, 261 P. 616, Grosfield, Montana Workers' 

Compensation Man.ua1 (1979) , S5.22. But this liberal 

construction does not allow us to disregard clear statutory 

provisions or to use it to the point of repealing or 

abrogating a statute. Grimshaw v. Larson (Mont. 1984), 691 

P.2d 805, 41 St.Rep. 2123; Klein v. Ind. Wholesale Assoc. 

Grocers (1975), 167 Mont. 341, 538 P.2d 1358; Davis v. 

Industrial Accident Board (1936), 92 Mont. 503, 1.5 P.2d 919. 

The exception provided for in (2) of section 39-71-601, 

MCA, is not at issue here. Claimant-respondent raises it on 

appeal but we do not find in the record factual support for 

this argument, and we will not consider it when it was not 

raised below. 

The exception to 39-71-601(1), MCA is that the one year 

limitation may be waived by the employer by acts or 

representations giving rise to an equitable estoppel. In. 

Lindblom v. Employers Liability Assurance Corp. (1930), 88 

Mont. 488, 295 P. 1007, we set forth the elements necessary 

to find an estoppel: 

"Generally speaking, the following are 

the essential elements which must enter 

into and form a part of an equitable 

estoppel in a.11 of its applications: '1. 

There must be conduct--acts, language, or 

silence--amounting to a representation or 

a concealment of material fact. 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 imputed to him. 3. The 

truth concerning these facts must be 

unknown to the other party claiming the 

benefit of the estoppel, at the time when 

it wa.s 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; in other words, he must so 

act that he would suffer what he has done 

by reason of the first party being 

permitted to repudiate his conduct and to 

assert rights inconsistent with it.'" 88 

Mont. at 494, 295 P. at 1009. 

A common situation where estoppel arises is: 

". . . where the injured worker was paid 

by his employer sums equivalent to 

Workers' Compensation benefits which in 

effect lulled the injured worker into 

failure to timely file for Workers' 

Compensation." 

Bowerman v. Employment Security Commission, 672 P.2d at 478, 

40 St.Rep. at 2064, citing Frost v. Anaconda Co. (~ont. 

1982), 645 P.2d 419, 39 St.Rep. 879 and Jaeger v. Stauffer 

Chemical Co. (Mont. 1982), 645 P.2d 942, 39 St.Rep. 919. 

This exception does not apply here. First, in Frost, we held 

that ". . . [wle do not believe medical payments to be sufficient compensation to warrant tolling the statute of limitations [in this instance] ." 645 P.2d at 422, 39 St.Rep. at 

882. Thus, in this case, the payment of claimant's medical 

bills does not estop the Anaconda Company from raising the 

statute of limitations bar. See also Vetsch v. Helena 

Transport and Storage Co. (1969), 154 Mont. 106, 460 P.2d 

757, (payment of medical bills does not dispense with the 

necessity of a claim for compensation by an injured worker). 

We have also held that certain "payment plans" for injured 

workers separate from the Workers' Compensation Act's 

payments can estop an employer from asserting the one year 

bar. In Jaeger v. Stauffers Chemical Co, supra., the 

claimant was injured on the job and could not perform his 
normal duties. The employer had a policy of asking injured 

workers to stay on the payroll, if necessary, at less 

strenuous tasks, in order to reduce the cost of lost-time 

accidents. Claimant there continued to work at a less 

strenuous task for the same amount of pay he received before 

and did not file an accident claim. We held there that this 

policy was a "plan" and resulted in a sufficiently implied 

recognition of the claimant's disability so as to estop the 

employer from asserting the one year bar. The rationale of 

Jaeqer does not apply here, nor does the result. Here, 

claimant continued to work at full pay, but the record is 

bare of any evidence that he did so at a reduced level of 

work, or that he did not perform any of his assigned duties. 

Specifically addressing the Lindblom el-ements, we find 

that, as a matter of law, the first was not met. The 

Workers' Compensation Court held that "Newstrand [claimant's 

boss] knew of claimant's injury, but at no time informed 

claimant of the need to file a claim." Additionally, the 

court found that "when claimant visited Bugni some two years 

later, Bugni never advised claimant of the necessity to file 

a claim." Claimant argues that this "silence," in the face 

of notice of the injury, is sufficient to meet the first 

element. Me disagree. A review of several recent cases 

addressing the same issue illustrates why. 

Frost v. Anaconda Co. (Mont. 1982), 645 P.2d 419, 39 

St.Rep. 879, is a case almost on all fours with this one. 

There, the claimant, also a miner, slipped and fell off an 

ore shovel at the Anaconda Company's Berkely Pit mine. The 

claimant at that time did not feel he was injured and completed the rest of his shift. At the insistence of his boss, 

he filed a report on the incident. No report of the accident 

was forwarded to the Anaconda claims office since the 
claimant did not require any immediate medical attention. 

More than a year after the accident, claimant began to lose 

the function of his legs due to the injury. He filed a claim 

and it was denied by the Company because the statute had run. 

The Workers' Compensation Court then: 

". . . found that the Company should have 

known claimant was eligible for workers' 

compensation and that its silence 

regarding the . . . facts amounted to a 

concealment of material facts." 645 P.2d 

at 422, 39 St.Rep at 881. 

We affirmed the Workers' Compensation Court in that case - not 

on the grounds that the elements of equitable estoppel were 

met, but rather that the claimant's receipt of payments under 

the Company's METRO plan tolled the statute--in the same 

manner as discussed above. Frost first presented us with the 

question of just what "silence1' in this circumstance is. 

Though we did not answer it there, subsequent cases further 

developed this concept. 

In Devlin v. Galusha, Higgins & Galusha (~ont. 1982) , 

555 P.2d 979, 39 St.Rep. 2378, we rejected a claimant's 

contention that the employer "should have informed" the 

claimant about her right to file a claim. There, the claimant was an office worker who twisted her knee on the job. 

She required subsequent medical treatment, but was able to 

return to work. Shortly after returning to work, she quit 

for other reasons. Before leaving, her supervisor asked her 

whether she wanted to file a claim. She replied: "Good God., 

no." Six years later, she did file a claim for the injury. 

Citing the general rule that " [el stoppel has no application 

where the omission of the party claiming estoppel brought 

about the problem." 655 P.2d at 981, 39 St.Rep. at 2381, 

citing, First Security Bank of Bozeman v. Goddard (1979), 181 

Mont. 407, 417, 593 P.2d 1040, 1046, we held that her 
employer did nothing to encourage her not to apply for 

benefits. Secondly, we rejected claimant's argument that, 

"her employer should have made greater efforts to inform her 

of her rights." In the support of that conclusion we cited 

the rule set forth in Ricks v. Teslow Consolidated (1973), 

162 Mont. 469, 512 P.2d 1304: 

". . . 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. at 483, 512 P.2d at 

1312. 

In Devlin we simply held that the employer's inquiry in 

light of knowledge of the injury was sufficient to discharge 

its duty under the Workers' Compensation Act, and that under 

the circumstances, because Ms. Devlin ''chose not to pursue 

the matter" and that the employer "did nothing to encourage 

her not to apply for benefits" 655 P.2d at 981, 39 St.Rep. at 

2381, there was no estoppel. The question of whether such 

affirmative action or inquiry is necessary, was not presented 

as in the instant case. Devlin is helpful here in two 

regards. First, it stands for the continuin9 viability of 

the Ricks rule quoted above. Parenthetically, as to that 

rule, it must be noted that it wa.s the controlling case - at 

-- the time Mr. Wassberg's accidents occurred. Second, it shows 

that for an estoppel to arise, more than mere mention of 

availability of a claim, or simple inquiry by the employer, 

is necessary--a holding that implies the type of "silence1' 

that is at issue here, is not a firm ground on which to find 

an estoppel. 

In McKaskle v. Industrial Com'n. of Arizona (AZ. 1982), 

659 P.2d 1313, the Arizona Supreme Court discussed the 
doctrine of equitable estoppel in workers' compensation 

situations. The court stated: 

"Questions of estoppel can a-rise in a 

wide variety of situations. Most common 

are those in which the employer or carrier says to the injured employee in effect, 'Don't worry we'll take care of 

you,' thereby 'lulling' the employee into 

inaction until the filing period has 

passed." 659 P.2d at 1315, 1316. 

The issue presented in McKaskle did not involve a 

"claimant's unilateral mistake," 659 P.2d at 1316. This is 

an important distinction, between a claimant's mistake and an 

employer-induced mistake, 659 P.2d at 1316, citing 3A Larson, 

Workmen's Compensation Law 578.47. As an example of an 

employer-induced mistake, the Arizona court cited our case of 

Levo v. ~eneral-Shea-Morrison (1955), 128 Mont. 570, 280 P.2d 

1086. Levo was apt authority for McKaskle because the "inducement was the same--a representation by a claim officer to 

a claimant that he has "no claim" as a matter of law. In 

both cases, this assertion (in both cases, legally 

incorrect), induced the claimant into foregoing further 

action. 

Finally, in our most recent case on this point, we 

further elaborated on the situation where an estoppel arises. 

In Davis v. Jones (Mont. 1983), 661 P.2d 859, 40 St.Rep. 570, 

the claimant's husband, a ranch hand, became unconscious 

while chipping a water hole on an ice covered reservoir. His 

employer sent him home and suggested he see a doctor. He 

instead went to see some friends. That night he died at home 

of a heart attack. The exchange that occurred between the 

employer and the decedent's wife subsequent to his death was 

the following: 

"On February 17, 1980, the claimant went 

to the employer for her husband's last 

paycheck. The employer gave the claimant 

her husband's last check plus a two 
hundred dollar bonus. While they were 

discussing possible insurance coverage, 

the employer told claimant that he had no 

responsibility because the husband had 

died at home." 661 P.2d at 860, 40 

St.Rep. at 571. 

We held that the employer was estopped in that circumstance 

because : 

"The doctrine of equitable estoppel 

applies where an employer or insurer has 

taken some positive action which either 

prevents a claimant from filing a timelv 

claim or leads him reasonably Eo belie& 

he need. not file such a claim. [citing 

cases] Equitable estoppel is a flexible 

principle which should be applied when an 

employer or insurer misleads a claimant 

by foisting onto the claimant a 

misinterpretation of the Workers' Compensation Act." 661 P.2d at 860, 40 St.Rep. 

at 571-572. 

We have already held that mere notice of an injury does 

not put upon an employer a duty to solicit a claim. The duty 

to act first i.s - not on the employer, it is on the employee. 

This case involves a fine balancing of respective 

duties under the Workers' Compensation Act. On the one hand, 

there are the rights of employers to be protected from old 

claims that are difficult, or impossible to investigate. 

Also at stake is the rule that employers should not be saddled with the duty to actively solicit claims--this involves 

more a question of policy than interpretation of law, and we 

do not feel the courts are the appropriate place to make this 

determination. Finally, we must recognize that a finding of 

estoppel brings with it an "attendant implica.tion of bad 

faith." Jaeger v. Stauffer Chemical Co. 645 P.2d at 945, 39 

On the other hand, claimants are at a comparative 

disadvantage to employers or insurers in legal sophistication. This situation gives the employer many opportunities 

to mislead. To protect the rights of often innocent 
employees, we must set down a rule that insures them good 

faith in relations with employees and claimants. 

This case is not an appropriate one to find that the 

silence as referred to in Lindblom, supra, of an employer 

estops it from asserting the statute of limitations. First, 

claimant testified that he had an understanding that he would 

be protected for the "rest of his life1' if he filed the 

accident report. He did not attribute this understanding to 

any a.ssertion by the employer or any of its agents. If we 

were to allow mere understandings to serve as a basis for 

estoppels, we would be opening the door to a multitude of 

claims that employers would be hard-pressed to defend 

against. In this case, the employer was unable to present 

any evidence, other than by cross-examination, to rebut 

claimant's understanding. The fairest rule, to all parties 

would be to require the claimant to be able to attribute the 

understanding to some assertion of the employer or an agent 

before an estoppel may arise. 

Secondly, claimant's conversation with Mr. Bugni occurred two years after his injury and one year after the 

statute had run. Claimant does not show how this is 

relevant. It might be, from an evidentiary stand.point, to 

back up the claim of an attributable assertion prior to the 

running of the statute, but no such claim was made and thus, 

standing on its own, any statement made by Mr. Bugni does not 

meet the claimant's burden. 

Finally, then, we are left with the rule enunciated 

above. Claimant had a duty to act first. The silence in 

Lindblom, supra, does not put upon the employer a duty to 

pursue the employee's claim for him. He knew of the 

availability of the compensation claim proceeding, as evidenced by the filing of a compensation claim in 1973. As to 
the 1974 injury, he did not file a compensation claim. It 

was his mistake. The employer was not put in a situation 

where it should have spoken out and thus should not be held 

liable for any silence that occurred. 

The order of the Workers' Compensation Court is 

reversed. 

We concur: 

n 

Justices 
Justice John C. Sheehy, dissenting: 

I dissent vigorously from this unjust treatment of an 

unwary employee who had full reason to trust his employer to 

protect his compensation rights. 

Arthur Wassberg was an employee of Anaconda, off and on 

since 1956. His employment record indicates that he quit 

several times as a stope miner because "he didn't like the 

place." This was not unusual among stope miners in Butte, 

who frequently relied on their native senses to get out of 

dangerous places. A high numher of graves in the Butte 

cemeteries are filled with the remains.of miners who were not 

so discriminating. Even so, Arthur Wassberg risked injury at 

least two too many times. 

On June 30, 1.973, he was injured in the Steward mine. 

He fell from the ladder while he was installing stulls (the 

lumber framework that held back the ever-pending rock). 

While he was not hospital-ized for his injury, he was examined 

by Dr. West., a Butte chiropractor, and was off work from July 

1, 1973 to July 22, 1973 inclusive. 

FJassberg gave only verbal notice of his June 30, 1973 

injury to his employer. Thereafter - the employer - did 

everything necessary --- for him to obtain his benefits. They 

provided an employer's first report of occupational injury, 

prepared by Tom Bugni. They also prepared his claim for 

compensation to be filed with the Division of Workmans' 

Compensation. On July 20, 1973, by letter to the then 

Industrial Accident Board, Bugni, for the Anaconda Company, 

enclosed to the Industrial Accident Board t.he employer's 

first report of injury, the claim for compensation, and two 

receipts for compensation, showing that Wassberg had been 
paid $156 for the period from Ju1.y 1, 1973 to July 1.4, 1973 

and the further sum of $78 for the period to July 22, 1973. 

It is important to note that with respect to the June 

30, 1.973 injury, all that Wassberg did in order to get full 

compensation benefits was to give verbal notice to the 

company. Its agent, Bugni, took care of the rest. 

On July 22, 1974, at 10 p.m., a rock fell. from the 

hanging wall of the stope and struck Wassberg on the back. 

He sustained bruises from the incident. He gave notice of 

the incident to his shift boss, Newstrand. Newstrand filled 

out a "report of alleged injury" showing that the incident 

had been reported to him at 12:30 a.m. on July 22, 1974. 

(Wassberg was apparently working the nightshif t , and the 

shift boss did not realize that at 12:30 a.m., it was 

actually July 23, 1974.) Wassberg was not advised to get 

medical treatment relating to that incident. 

On April 17, 1968, Wassberg had been examined by Dr. 

Gilboy on behalf of the company. The x-ray reports on his 

examination showed no significant bony abnormality. On March 

23, 1977 he was examined by Dr. Jack Davidson on behalf of 

the A-naconda Company. Dr. Davidson reported that Passberg 

suffered pain on bending down his left leg, that he had a 

sprain in his low back, and had radicular pain down his left 

leg. 

In 1976, Wassberg returned to Bugni. Wassberg felt he 

wa.s crippled so that he could hardly move. Bugni told him to 

go to get medical help in connection with his condition. 

Wassberg went to Dr. Blom and Dr. Davidson, as well as Dr. 

West. It is reported that the Anaconda. Company paid the 

5ills for that medical attention. 
It was not until 1982 that Wassherg discovered that the 

Anaconda Company did not recognize his claim for compensation 

benefits for his physical injuries. Wassberg testified to 

his understanding that as long as he filed the "industrial 

slip" on the hill, that he was covered for the rest of his 

life as to that injury. 

The probable reason that Wassberg made no claim for 

compensation benefits prior to 1982 is that he continued in 

employment by the Anaconda Company at various jobs. He 

continued to work at the Kelly until July 10, 1975 when he 

was relieved because he "loses too much time. " On July 22, 

1975 he was reemployed at the Kelly until November 9, 1975 

when he was transferred to the leach department of the 

company. He worked at the leach department until November 

28, 1975 when he was let go because of "reduction in force." 

Ye was off for approximately four years when he returned to 

work at the leach plant on September 10, 1979. He was 

transferred on October 2, 1979 to the Kelley mine where he 

worked until June 21, 1981 when he was laid off because of a 

reduction in force. 

Unfortunately, the record before us does not indicate 

what he was doing during the lapse of time from November 28, 

1975 until September 10, 1979. 

The sole objection of the Anaconda Company to Wassberg's 

claim, and the reason given by the majority for the decision 

here, is that his claim is barred by $S 39-71-601, MCA, which 

requires a written cl-aim for compensation within one year of 

the accident. 

Under the records of this case, the Worker's 

Compensation Court correctly decided that Anaconda was 

estoppel from raising the bar of S 39-71-601, MCA, by virtue 
of our decision in Lindblom v. Employers Liability Assurance 

Corp. (1930), 88 Mont. 488, 295 P.2d 1007. The finding of 

the Workers' Compensation Court is as follows: 

"Here the conduct of the employer is as follows: 

Nestrand knew of claimant's injury, but at not time 

informed claimant of the need to file a claim. 

Likewise, when claimant visited with Bugni some two 

years later, Bugni never advised claimant of the 

necessity to file a claim, through the evidence 

clearly shows that the employer knew of claimant's 

seeking medical care for his injury. Clearly, 1 

and 2 of the Lindblom test is met. The claimant 

believed he had done all that was necessary to file 

his claim and therefore he clearly did not file a 

claim, as he was unaware of this necessity. This 

satisfied number 3. The employer knew, as 

knowledge is certainly imputed to it through its 

agents, that the failure of claimant to file a 

claim within one year would jeopardize or possible 

preclude his entitlement to benefits. Claimants 

reliance upon the employer's conduct was in the 

nature of not acting as opposed to a positive act. 

Here he did not file a claim though the employer 

knew of its necessity but failed to inform the 

claimant of same. As to the sixth criteria, 

clearly the claimant's failure to file a claim 

worked to his detriment, as evidence by the fact 

that the employer now defends against claimant's 

claim by maintaining he is entitled to no benefits 

because of claimant's failure to file." 

The empl.oyment record of Wassberg shows that for more 

than a full year fol.lowing the July 22, 1974 accident, he 

continued to work for the company at various of its 

properties at Eutte. Of course he could have no claim for 

compensation benefits for that time because he was receiving 

wages from the company. His layoff on November 28, 1975 was 

because of reduction in force. Thus we have the seemingly 

inequitable situation of an employee receiving regular wages 

during the period of time that he could have presented a 

written claim to the Workers' Compensation Division for his 

benefits. A few months after the time for fil.ing his claim 

expired, he was laid off under a reduction in force. 
We apparently have here a situation where the empl.oyer, 

knowing that Wassberg had suffered an industrial accident, 

had him on the payroll on jobs that he could perform through. 

the period of time that he could have claimed benefits. We 

have also the further history of the prior industrial 

accident where the company itself took care of filing all of 

the necessary papers for the Workers' Compensation Division, 

including its own report of injury, and the claimant's cl-aim 

for compensation. These factors speak to me of estoppel. 

The element of fraudulent design need not be present to 

work an estoppel against an employee nor must there be an 

actual and fraudu1.en.t intention to deceive the other party. 

Lindblom, supra. The Workers' Compensation Court found it 

enough to esta.blish estoppel that in this case the employer 

failed to inform the employee of the necessity of filing his 

claim for compensation benefits. I would sustain the 

Workers' Compensation Court in its decision on this case and 

affirm.